TRIAL PREPARATION:
Once a lawsuit has been filed against another party, open discovery is conducted. Usually all parties submit and answer Interrogatories (written questions) and Requests for the Production of Documents which allow the parties to learn about their adversary’s case. In this process the parties are asked to put in writing their theory or defense and to list all the facts and witnesses that support their position. Trial by ambush or surprise is not permitted in Pennsylvania. Another method of discovery is to take the oral deposition (statement under oath) of witnesses who can either provide relevant testimony or provide testimony concerning the events that could lead to the admission of relevant evidence. A party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. The fact that the information obtained may not be admissible at trial does not limit discovery if the information sought appears reasonably calculated to lead to other admissible evidence. Oftentimes subpoenas are issued to persons or entities other than the parties in order to compel records or testimony which can help prove that party’s case. The parties may also serve Requests for Admissions upon the opposing party or parties. Pennsylvania law requires that these requests be answered within thirty days or otherwise they are admitted. The purpose of filing Requests for Admissions is to have the opponent agree to certain facts so as to avoid the necessity of calling witnesses to testify about things that are not really in dispute. It serves to expedite the trial.
VOIR DIRE:
Our Constitution guarantees the right to a fair trial. A fair and impartial jury is essential to the enjoyment of that right. Voir Dire is a procedure utilized to attempt to find a fair and impartial jury from a larger panel of potential jurors. The purpose of Voir Dire is to select a jury. More to the point would be in Pennsylvania, it has as its purpose the de-selection of persons to sit on a jury from a larger panel of potential jurors. ( See Exhibit A.) Juries usually consist of between six and twelve members with one or two alternates depending on the complexity of the case. However, before the jury is chosen, the court may bring in thirty to forty prospective jurors (depending on the length of trial). They will be examined by the attorneys and/or the Judge to determine that if they are chosen to sit, they can be fair and unbiased. The process usually begins with general questioning of the potential jurors en masse. The general questions may disclose the need to follow up with more specific questions depending on their answers. If the question is of a personal nature, the questioning of a particular prospective juror is done privately. At the end of the examination, all counsel are generally permitted to strike any prospective juror that he or she does not want for any reason. In most cases each party is permitted four preemptory challenges or strikes. Jurors are stricken by a litigant if he or she believes that the juror will be biased, prejudiced or have an interest or fixed opinion and therefore cannot be fair and partial to his client. Each attorney is trying to weed out potential jurors who they feel will not be sympathetic to their case. There are also challenges for cause. These are unlimited in number. A challenge for cause would be granted to strike a prospective juror who, by his or her answer during the examination, demonstrates a bias, prejudice, interest, predisposition or fixed opinion that impairs his or her ability to be fair and impartial. The first remaining six to twelve jurors in order are then seated – basically chosen because they are the ones left standing so to speak.
OPENING STATEMENTS:
The attorneys for each party have a right to make an opening statement. However, the court has great discretion in determining the length of the opening address. Normally opening statements follow preliminary instructions which are provided by the Judge. These instructions are general and provide a jury with an overview of what is to be presented during the course of the trial and to instruct them on their duties during the proceeding. The purpose of an opening statement is to provide instruction to the jury as to the nature of the case and a statement of the facts that counsel intends to prove. Opening statements are not however facts. Openings are not facts. They are assertions by counsel only as to what they intend to prove through the introduction of witnesses and exhibits. The fundamental objective of an opening statement is to communicate the theory of the case to the jury in a concise and interesting manner. The plaintiff, who has the burden of proving his or her case, always goes first in an opening address. The defendant may or may not wish to provide an opening address before he or she presents their case. It is their discretion.
INTRODUCTION OF EVIDENCE:
Trials are based on the evidence presented through witnesses, documents and sometimes video films and re-enactments. It is up to each party to present the evidence of its witnesses under oath to help prove the assertions that are being alleged by the party. The witnesses have to convince the jurors that their recitation of the facts or version of the events are believable. Witnesses can testify about observations they have made or, in some cases, things that they have heard. They are not usually allowed to give opinions as to what the facts mean. That is up to the jury to decide. Witnesses are generally only allowed to testify about what observations they saw directly and, at times, heard. Normally witnesses are not allowed to testify about what other people say or said outside of the courtroom. That is called hearsay testimony and is inadmissible. There are numerous exceptions to hearsay such as excited utterances, state of mind of another person and admissions of a party, to name a few. In a civil case, the plaintiff has the burden of proving all the contentions that entitle him or her to relief. When a party has the burden of proof of a particular issue, the party’s contention on that issue must be established by what we call a fair preponderance of the evidence. A jury must be persuaded that the evidence presented is more probably accurate and true than not. Expert testimony is admissible only where, by reason of the expert’s peculiar skill and experience, inferences which an ordinary untrained mind cannot deduce can be drawn from facts, or where such testimony relates to a subject which is not within the average experience and common understanding of the jury. Conversely, expert testimony is not necessary for a subject which is one of common knowledge and understanding on which lay people can form a reasonable opinion for themselves. Documents can also be used to help prove a case but they must either be stipulated to by the parties or testimony as to their accuracy, authenticity and relevance, must be presented before being permitted into evidence. Direct evidence constitutes testimony of a witness who actually or directly observed an incident or, in some cases, heard it. Direct testimony can even be testimony concerning other senses such as smell and touch. There is also circumstantial evidence. Circumstantial evidence consists of the proof of facts, from circumstances, for which it is reasonable to infer the evidence of another fact. Circumstantial evidence is to be treated no differently than direct evidence. For example, direct evidence is testimony by a witness who testifies that he saw it snowing at a particular time because he looked outside and saw snow fall. If, however, he did not actually see the snow coming down but when he got up in the morning and looked outside, he saw snow on the ground, it is proper for a jury to infer from those facts that it had in fact snowed the night before.
CLOSING ARGUMENT:
Just as in an opening statement, the plaintiff presents closing arguments or his summation to the jury first. The defendant then provides her summation and after that a short rebuttal summation is permitted by the plaintiff. The closing argument is obviously the last chance for counsel to summarize the evidence that has been introduced during the course of the trial and argue its authenticity and persuasiveness to prove the party’s case. In the closing argument the advocate is expected to structure the evidence in such a manner as to persuade the jury to find in his or her client’s favor. The most effective tool in this setting, is to present to the jury the theory of the case which was presented to the jury in the opening address. The advantage of the closing argument or summation is that the attorney can now weave the facts presented during testimony with the law which governs the case. The lawyer, within the court’s of discretion, can recite portions of the law which are applicable to the case and then compare it to the evidence introduced. During closing summations, use of exhibits and other demonstrative evidence can be used to persuade the jury. The time permitted for closing arguments is also up to the discretion of the court.
JURY INSTRUCTIONS:
At the conclusion of all the evidence, the Judge will read to the jury the principles of law which are to guide the jury in its deliberations. The court will instruct the jury as to what they are bound by under the law. He will instruct them on the elements of the case which must be proved. Jurors are the triers of the facts. However, the Judge is the interpreter of the law. The court during its instructional phase, will provide the jurors with the legal principles under which they are bound. However, it is the jurors who decide which version of the facts are to be believed-not the judge. The jury instructions are read by the judge in a closed court room. Nono one is permitted to enter or leave during the Judge’s instructions.
JURY DELIBERATIONS:
The first order of business for a jury is to pick a foreperson who has no more or less power than any other juror but is chosen only to manage the deliberations; to report to the judge if questions are raised during the course of deliberations and to stand and read the verdict in open court once deliberations are completed and the verdict is reached. (See Exhibit B.) Once the case is closed and the court has finished its instructions, all the jurors (other than the alternates) retire to the jury room to deliberate in private. In a civil case, a 5/6 majority is necessary in order for that party to prevail. In civil cases, the jury normally completes a verdict sheet determining whether or not the defendant is liable and if so, for what amount of monetary damages. Peter J. Hart
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