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Ask Our Lawyer - December 2000

Q: In last month's column, we discussed how a lawsuit gets filed and what the steps are leading up to a trial. This month, we will continue our discussion - we will talk about what happens in the pre-trial phase of the case and up through the trial.

A: Once the discovery is completed and mediation has taken place, if attempted and unsuccessful, the case will proceed into its trial phase. Generally, that means a couple of different things - the attorneys for both sides will continue to develop their case; which may include taking additional depositions (treating physicians, parties to the lawsuit, additional witnesses). Quite often, these type of depositions are not scheduled until just before the trial. This is true for treating physicians especially because they require getting paid for their appearance/services in rendering those depositions. Their fees could range anywhere from $1,000 to $3,000. In most cases, the lawyers will wait until a few weeks leading up to the trial date before scheduling and taking those depositions.

If mediation has been unsuccessful, attorneys for either of the parties may decide to file motions (papers) with the court that would serve to limit the scope of issues that must be tried. Generally, these motions are in the form of Motions for Summary Judgment, wherein an attorney asks the Court to decide, based on documentary evidence presented by the parties, that there is no question, as a matter of law, that can be decided by a jury and that judgment for one party or the other should be entered. Sometimes, summary judgments go to the ultimate issue of a case (most often in contract cases) and, sometimes, they are used to establish particular elements of a case, so that those elements do not have to be tried in the trial court. Typically, the Court receives Briefs from both parties, together with copies of documentary evidence, and, the Court will generally hear arguments from the attorneys during a hearing and, then will render a decision on the Motions at some point after the hearing.

At some point, one of the parties will ask the Court for a trial date and, if the Court has not yet done so, the Court will set a date for the trial. At that time, the Court will often inform the parties whether that date is a first, second or third choice setting. The Court will often schedule several trials to begin on the same day, knowing that most cases are settled without going to trial. Therefore, even though you may receive a fourth choice trial setting, the other 3 cases may possibly resolve themselves before trial. Your fourth choice trial setting may become a first choice trial setting (this could all happen within just a matter of days). It is important with you to keep in touch with your attorney as your trial date approaches to determine whether your trial will in fact go on the date that the Court has set.

Once the trial date arrives, the trial begins with a procedure called "voir dire" or jury selection. If the case is to be tried in front of jury, the Court will empanel a number of jurors and give the attorneys an opportunity to questions the jurors about their knowledge of the case, the parties involved, their life experiences (experiences that may be similar to those of the parties involved in the case) and in general, attempt to select from the juror panel, the jurors who will try the case. Once both sides have finished questioning the jury and selecting those jurors they wish to remain on the panel, the Judge will empanel the six (6) members of the jury and one (1) alternate, who will then hear the case. Once the jury has been selected, the Judge will ask that the attorneys present their "Opening Arguments." These statements are used by the attorneys to familiarize the jury with what the claims are in the case, what the attorneys expect the evidence to show and to prepare them for any particular issues that will arise during the trial. Both sides have an opportunity to present their Opening Arguments. Once those Arguments are complete, the Plaintiff will begin to present their evidence. Evidence is brought before the jury through the testimony of witnesses. These witnesses will typically be people who were involved in the accident or incident in question or, who have knowledge of it, such as, doctors who treated the Plaintiff or people who have employment records or lost wage records that are part of the Plaintiff's claim. In addition, the Plaintiff may call experts who have reviewed evidence or accident sites to determine, for example, how fast a car was traveling at the time of the accident or, whether there were other factors in the accident that contributed to the Plaintiff's injuries.

For each witness, Plaintiff would begin by asking them questions in order to elicit the testimony that Plaintiff needs from that witness. The Defendant also gets a chance to ask questions of the Plaintiff's witnesses in a process called "Cross-Examination." During Cross-Examination, opposing counsel has the opportunity to ask the witness questions about his testimony and attempt to draw testimony from the witness that would demonstrate why the witnesses' testimony should not be relied on by the jury. Once the Plaintiff has presented all their evidence through their witnesses and documents that support their case, the Defendant's attorney gets to present their case. They will call witnesses from their side and both attorneys will go through the same process of direction examination and cross-examination. Once all the witnesses have been examined, the Court will then allow the attorneys to make "Final (Closing) Arguments." This is where the attorneys get to address the jury directly and argue to the jury why the verdict should be rendered in the favor of their particular client. This is often the phase of the case where the Plaintiff's counsel will tell the jury what all the elements of damages are that have been displayed through the case; why the jury should award damages for pain and suffering (if it is a personal injury case); how much that award should be; why that award would be reasonable given the facts of the case. In contrast, the Defendant's attorney would generally attempt to show why those awards would not be reasonable; why the testimony of the witnesses doesn't lead to the conclusions that Plaintiff's counsel has drawn from them; and why the jury should award a defense verdict.

Following the Final Arguments, the Judge will "charge" the jury. This is where the Judge reads the jury a set of instructions dealing with how they will deliberate the case, what the law is and what law should be applied by the jury to the facts in the case. At the beginning of the trial, the Judge will have read some Preliminary Instructions to the jury dealing with the conduct of the trial and the duties of jurors. The instructions at the end of the trial, the Final Instructions, are given by the Judge to explain to the jury what the law is and how the law should be applied to the facts. The jury is then sent to deliberate the case. These deliberations could take anywhere from less then an hour to several days, depending on the complexity and length of the case. The jury is the ultimate decision maker of the facts in the case - they will decide which witnesses were believable, which testimony was more persuasive and which exhibits were more convincing in reaching their verdict. Once the jury has reached its verdict, they will be returned to the courtroom and the verdict will be read to the parties by the "Jury Foreman." At that this point, the trial is completed and the case is generally over.

Next month, we'll discuss the appeals process. Stay tuned!

If you have any questions you would like to ask the lawyer, please submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana 46206-2850, or email to brianshadiow@abatelegal.com. Although there is no guarantee your questions will be answered, any topic you would like to discuss will be gratefully accepted and considered.