What Happens at a Personal Injury Trial

When a personal injury case goes to trial, the trial proceedings go through a series of stages, from the resolution of pretrial motions through an eventual verdict.

Although the conduct of a trial is far more complex than this summary reflects, the basic framework of the trial typically follows the described pattern.


Preliminary Issues

Prior to the start of a trial, the attorneys may address certain preliminary issues, such as whether there will be a sequestration order requiring that witnesses (other than the parties) stay outside of the courtroom until after they have testified, motions in limine requesting advance rulings on the admissibility of certain evidence, and issues pertaining to the manner in which the trial will proceed.

The parties may also have exhibits marked and recorded by the court reporter, so as to facilitate their introduction into evidence.

Sometimes on the day of trial the presiding judge will press the parties to enter into a settlement of their case without proceeding to trial. Settlements achieved shortly before trial or on the date of trial are sometimes described as having been reached "on the courthouse steps".

Jury Selection

The process of jury selection, also known as voir dire, involves the questioning of a jury for information which may help the trial judge and lawyers determine if a juror may be biased in favor of one of the parties, or is otherwise unsuited to serve as a juror. Depending upon the jurisdiction and court, the questioning may be by the judge, the lawyers, or some combination of questioning by the judge and lawyers.

Jurors fill out a very basic questionnaire in association with their service, which is made available to the lawyers in advance of the trial. Sometimes, particularly in a high profile case, one or both lawyers will petition the court to permit a more detailed questionnaire to be submitted to the jury panel, so that they can learn additional information about potential jurors in advance of the jury selection process.

In most cases, the entire panel (or "venire") of people called in for jury service will sit in the courtroom, as various members are selected at random to potentially serve as jurors. Those who have been selected are then questioned about their background, association with the parties, lawyers, and judge, and anything that might prejudice them in relation to the case.

The attorneys may petition the court to excuse a juror for cause, meaning that there is something about the juror which makes the juror unfit to serve in the eyes of the court. Sometimes a juror will be excused by the judge on the basis of a particular hardship which would result from service. If a juror is not otherwise excused by the court, each party has a limited number of peremptory challenges that may be exercised to remove a juror for any reason that the party deems appropriate.

A jury typically includes one or two "alternate jurors", such that if for any reason a juror is unable to complete jury service, the trial can nonetheless be resolved by a jury of the legally required size. (Depending upon the rules of the jurisdiction and possibly upon the legal issue to be decided, a civil case will be resolved by a jury of between six and twelve persons.)

Once the jury is selected, or empanelled, the jurors are sworn in by the court, and are given instructions that describe their role and duties during the trial.

Opening Statements

Each party has the opportunity to present an opening statement at the commencement of trial. An opening statement can set the tone for a case, and can help the jury anticipate and understand the evidence that is presented.

Sometimes, the trial court will permit the parties to waive opening statements, or permit the defense to reserve opening statement until the close of the plaintiff's proofs. For a bench trial, the trial court may ask that opening statements be submitted in writing. For jury trials, the parties will typically want to present an opening statement which lays out their theory of the case and what they expect the evidence to show.

The opening statement is not supposed to be an argument - that is, the attorneys are supposed to present their impressions of what the evidence will show, but are not supposed to argue how that evidence is inconsistent with the other side's legal theory. There is a great deal of implied argument within opening statements - that is, good lawyers structure their opening statements such that a jury will infer the legal arguments that they intend to make, but without incurring an objection for presenting an improper opening.

Often a plaintiff will be required by court rule to lay out the elements of the legal claims which will be made through the course of the trial, and to explain how the anticipated evidence will satisfy those elements. Where required, a plaintiff's failure to properly set forth the elements of a claim can result in the dismissal of that claim.

Plaintiff's Case

The plaintiff, bearing the burden of proof, presents the first set of witnesses, and seeks to present sufficient testimony and evidence to establish that the defendant is legally responsible for the plaintiff's injury, and the extent of the damages that should be awarded.

During the course of the plaintiff's case, the defendant can be expected to object to various questions, issues, or items of evidence presented by the plaintiff. The trial court will issue rulings on those objections, usually immediately but sometimes following a hearing. Sometimes the jury is removed from the courtroom while the attorneys discuss an objection, or during a hearing upon an objection.

If the trial court sustains an objection, sometimes the trial court will issue a "limiting instruction" to the jury explaining that certain evidence or argument is inadmissible and should not be considered during deliberations, or that certain evidence may be considered for only a limited purpose.

For example, where evidence is introduced that a witness has been previously convicted of theft, the judge might instruct the jury that the past conviction may be considered in relation to the credibility of the witness, but is not to be considered as evidence that the alleged tort did or did not occur.

Defendant's Case

Following the close of the plaintiff's case, the defendant presents its own witnesses, testimony and evidence. The defendant will typically try to establish that the facts are not as the plaintiff has alleged, or that the plaintiff was uninjured or is deserving of lesser compensation.

The plaintiff is likely to make objections, in the same manner as was described above.

Rebuttal

Following the close of the defendant's proofs, the plaintiff will have the opportunity to present rebuttal witnesses. Rebuttal is supposed to be limited to new issues and facts raised during the defendant's case, which should not reasonably have been addressed during the plaintiff's case. That is to say, the plaintiff is not supposed to reserve witnesses or evidence that could have been included in the plaintiff's own case, such that they can be introduced on rebuttal - a technique known as "sandbagging".

In some cases, the defendant may bring its own rebuttal witnesses, to address new facts or issues raised during the plaintiff's rebuttal.

The point at which the plaintiff's and defendant's cases have been presented, and any rebuttal has been completed, is referred to as the "close of proofs".

Closing Arguments

In closing argument, the parties are free to argue their case in the manner of their choosing. They may suggest to the jury which witnesses should be deemed most credible, which legal theories are the most plausible, and which evidence and testimony should be given the greatest weight. They may also suggest what they believe would be an appropriate amount for the jury's verdict.

The plaintiff presents the first closing argument, followed by the defendant. The plaintiff may then present a rebuttal to any new allegations raised in the defendant's closing, subject to the same type of restrictions described for rebuttal witnesses.

Trial Motions

During the trial, and at its close, the parties may bring motions. Motions will often be on evidentiary issues, but may also include requests for a mistrial, or requests that the trial court grant summary disposition on one or more of the legal claims presented by the parties. In summary disposition, a court issues a ruling as a matter of law, and takes that issue out of the hands of the jury.

Often the jury will be removed from the courtroom before motions are heard by the judge.

Jury Instruction

At the start of the trial, the jury will receive some initial instruction from the trial judge on its proper role, its duties, proper juror conduct, the burden of proof, and procedural matters. Some courts provide additional instruction on the laws implicated by the case, while other courts do not instruct on the law until the end of the trial.

Depending upon the jurisdiction, jury instruction may be presented after the close of proofs but in advance of the closing arguments, or after the closing arguments have been completed. As part of the jury instructions, the trial court will instruct the jury on the law governing the case, including the elements of each cause of action the plaintiff asserts, and of each defense the defendant is required to establish.

Sometimes there is a delay before the jury is instructed, due to motions and arguments by the parties relating to which instructions should be presented to the jury, the appropriateness of any instructions requested by the parties, and over the manner in which various instructions should be worded.

Verdict

After the jury has been instructed, the jury deliberates until it reaches a verdict. In civil cases, the verdict does not ordinarily have to be unanimous. Typically, where a six person jury is used, four of six jurors must agree on the verdict. Typically for a twelve person jury, nine of twelve jurors must agree. The jury may be asked to answer a series of questions about the case, or may simply be asked to find for or against the plaintiff and to indicate the amount of any damages award it deems appropriate.

Once the jury has reached a verdict, the jury will be brought back into the courtroom, where its verdict will be read. The parties may ask to "poll the jury", meaning that each individual juror is asked if he or she agrees with the verdict as read. That step permits the parties to verify that the legally required number of jurors has agreed with the verdict - and sometimes it is necessary to send a jury back for additional deliberations based upon the results of a poll.

Post-Trial Motions

After the conclusion of the trial, the parties may bring post-trial motions seeking to increase, reduce or set aside the verdict, or to obtain a new trial.

Copyright © 2005 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.