Things to Expect During Trial

The Trial Process

The American public is more familiar with trials than any other step in the justice process. In a trail, the judge or jury will consider the evidence before it and then reach a decision. In the American legal system, the plaintiff bears the burden of proof i.e the plaintiff must prove his or her claim beyond reasonable doubt. In accident and personal injury cases, the plaintiff must prove his or her claim by a preponderance of evidence. The defendant can place his side of the story on record. He or she can challenge the evidence the plaintiff produces in support of the plaintiff’s case. The defendant can also produce evidence is support of his or her defense. Both sides can produce witnesses in support of their case and can cross examine each other’s witnesses. Once the parties have completed their arguments, the judge or the jury will decide on the case – whether or not to hold the defendant liable for the injuries which the plaintiff claims to have suffered and if yes, how much compensation must the defendant be ordered to pay to the plaintiff. The actual process of a trial will vary, depending on the jurisdiction in which it takes place, but the general steps are as follows:

  1. The defendant must choose between a judge or a jury trial.
  2. If a jury trial is selected, the jury must be picked.
  3. The prosecutor gives the State’s opening statement.
  4. The defense counsel gives an opening statement.
  5. The prosecutor presents the State’s case.
  6. The defense counsel presents the defense’s case.
  7. Both sides are allowed to present rebuttal evidence.
  8. The prosecutor makes a closing statement.
  9. The defense counsel makes a closing statement.
  10. The prosecution makes a final closing statement in response to the defense counsel’s closing statement.
  11. If a jury was selected, the judge must give it instructions.
  12. Deliberations are conducted by either the judge or jury.
  13. The verdict is announced.

Keep in mind that while most personal injury and accidents are settled prior to trial through negotiations.
The main phases of the trial process include:

  • Jury Selection
  • Opening Statements
  • Examination and Cross Examination of Witnesses
  • Closing Arguments
  • Instructions to Jury
  • Jury Deliberation and Verdict

Jury Selection

The jury’s role is to determine the guilt or innocence of the defendant. In reaching its decision, the jury is supposed to be guided by two primary considerations: (1) the facts of the case as developed in testimony and evidence and (2) the law of the case as explained by the judge. In making their decision, jurors have a lot of leeway in deciding the subjective facts. They are also given considerable freedom in interpreting the legal instructions given to them by the judge. This freedom is enhanced because when they reach a verdict neither the jury as a whole nor individual jurors have to explain their actions.

Because the jury is free to interpret the subjective facts and substantive law, both sides will try to select jurors who may be disposed to accepting their version of the facts and law. While attorneys for each side try to select a jury that will be favorable to the result they seek, the trial court works to seat a “fair” jury. The voir dire is a method of trying to determine if prospective jurors have biases or prejudices that would limit their ability to objectively consider the evidence. Voir dire is usually translated as “to speak the truth.” During the voir dire, prospective jurors are subjected to a series of questions. Usually the questions are presented by the attorneys in state courts and the judge in the federal courts. Any prospective juror who shows an inability to examine the evidence with impartiality may be challenged by either of the attorneys with cause. If the judge agrees that there is cause to believe that the prospective juror will not be able to objectively examine the evidence, the individual will be dismissed. It is not uncommon for potential jurors to be removed for specific bias, such as knowing someone involved in the trial, or nonspecific bias, such as a general bias like racism that limits their ability to remain open-minded. There is no limit to how many individuals may be challenged and excused for cause. At the end of the voir dire process, each attorney is also given a number of peremptory challenges. The number of these challenges varies from case to case, depending on the seriousness of the charges. In exercising a peremptory challenge, attorneys do not need a reason to dismiss a prospective juror. Peremptory challenges allow both attorneys to exercise any hunches they have about individuals within the panel whom they believe may be showing leanings toward the other side.

Opening Statements

The first step at trial is the opening statements. There are several purposes for the opening statement. One is to inform the jury about the case. A second is to persuade the jury about the merits of the case. A third is to try to gain sympathy from the jury. If the opening statements are clear, they will provide the jurors with a road map for the rest of the trial, making it easier for them to follow the evidence. By law, the plaintiff is always the first to give an opening statement. The plaintiff’s counsel is followed by the defense counsel, but the defense counsel does not have to give an opening statement, or may postpone it until after the plaintiff counsel has rested his or her case. Although most judges give wide latitude to attorneys in the presentation of opening statements, there are some basic rules concerning what can be included. All facts that an attorney can prove at trial can be included in opening statements. An attorney will want to include the major facts of the case in order to provide an overview of what the jury should pay attention to throughout the trial. Although it will be the duty of the judge to explain the applicable law to the jury before it begins its deliberations, the attorneys may make short references to the law to help the jury understand their case.

In any opening statement:

  • The plaintiff attorney explains facts of the case and how the defendant played a role in causing the injuries suffered by the plaintiff.
  • The defense attorney will explain the defendant’s side of the story and attempt to rebutt the planitiff’s claim.

If there are more than two parties, i.e when there are multiple plaintiffs or defendants, each party can make their own individual opening statements.

Examination and Cross Examination of Witnesses

The plaintiff is the first to present his or her case. This is done primarily through the presentation of witnesses subjected to direct examination. Attendance of witnesses may be either voluntary or by command of the court. If attorneys believe that a witness may not voluntarily make an appearance at the trial, they may subpoena the individual, compelling the witness to appear. Once the subpoena is served, the witness must testify or risk being found in contempt of the court and punished for that contempt.

The attorney calls a witness and after he or she swears to tell the truth. The attorney attempts through questioning to draw out the relevant facts to allow the fact finder to reach the desired verdict. Examination has two primary goals—to make testimony clear to the fact finder and to make it memorable. When considering what to include in direct testimony, attorneys planning their strategy for trial must strike a delicate balance, presenting a full factual picture that advances a strong argument to achieve the desired result, but not dizzying the jury with so many facts that they become bored and quit paying attention.

The steps in a witness testimony include:

  • Being Sworn: Once the witness enters the witness box, he or she is sworn in. The witness has to take an oath to tell the truth.
  • Direct examination: The party calling the witness first questions the witness
  • Cross examination: The other side then cross examines or questions the witness
  • Re-direct examination: After cross examination, the side calling the witness gets another opportunity to examine the witness. This is known as re-direct examination.

Once the plaintiff’s witness has completed his or her testimony, the defense can call its own witness. Once the witnesses called by the plaintiff and the defendant have testified, then both sides rest i.e. both side do not have any more evidence to present to the court and the case moves to the next stage in the trial process.

Closing Arguments

After the attorneys on both sides have had a chance to submit proposed jury instructions to the judge, the judge will determine the instructions of law that will be given to the jury. Prior to closing arguments, the judge informs the attorneys about the content of the instructions. In writing their closing arguments, attorneys must adhere to the instructions that the judge will give to the jury. This is because the elements of the law that must be proven in order for a guilty verdict to be returned will be found in the instructions. If an attorney disregards the instructions and presents an alternative description of the law, the judge will tell the jurors to disregard that interpretation. Such a situation would harm the attorney’s credibility at a pivotal point in the trial, so attorneys closely read the judge’s instruction prior to giving their closing arguments. Closing arguments give attorneys for both sides a final chance to summarize their view of how the case should be resolved and why.

Instructions to Jury

At the conclusion of the trial, the judge gives the jury specific instructions about its duties. This is done in open court and the instructions are entered into the record. The development of jury instructions by a judge is made difficult due to two goals. The first goal is to provide technically correct instructions that will withstand judicial appeal. If a judge rejects the jury instruction submitted by the defense counsel, the defense can object, providing grounds for an appeal. In order to protect the case from being remanded because of faulty instructions, judges are careful to be technically correct in all the finer points of the law in developing their instructions.

Jury Deliberation and Verdict

Throughout the trial, the jurors are silent observers who are not asked to contribute to the process until the time of deliberation. At that time, the jurors are asked to reach a verdict in the case. The primary function of the jury is to determine what it considers to be the subjective facts of a case. In this role, the jury has considerable discretion.Jury deliberation takes place in the privacy of a jury room. No record is made of the jury deliberations. The jury room is guarded by a bailiff who ensures that the jury will remain undisturbed in its deliberations. The first order of business for most juries is the selection of a foreperson. There are no formal rules in most jurisdictions for how a jury proceeds. Each jury may set its own informal rules for how to deliberate. During deliberation the jury can, through the bailiff, request that physical evidence be brought before it. The jury can also request that the court reporter read part of the testimony out of the record. Juries can also ask the judge to provide clarification of legal points during deliberation. If the jurors can agree on a verdict, it will be signed by the foreperson and read aloud in court. In most states, there must be an unanimous finding in favor of the plaintiff or the defendant. In some states, the jurys can give a verdict based on a 9-3 majority. In case of a hung jury, i.e. where the jury fails to reach a verdict or there is insufficient majority or the jury is not unanimous, the judge can order a retrial.

Would you like to discuss your legal matter?


image description
Jack Morgan CALL US! 866-205-4971

We will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.


The Law Offices of Hogan Injury will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.