By Gregory Haubrich
Attorney At Law
Foshee & Yaffe
A jury trial is a formal proceeding in a courtroom. There is a judge, a jury, a court reporter, a bailiff, lawyers, litigants, witnesses, exhibits, and sometimes spectators. Witnesses usually do not also get to be spectators, because of the Rule of Sequestration. Potential witnesses are “sequestered”; they are not allowed to watch the proceedings or be told what happened in the courtroom so that their testimony won’t be influenced by something they saw or heard during the trial. Don’t confuse this with “jury sequestration”, which is when jurors are held incommunicado from the outside world in cases which have a lot of news coverage or other outside influences.
What I’m about to describe is the order and form of a civil jury trial in one of our state District Courts, which we have in each county in Oklahoma. There are a few difference in federal court: 1) the jury is 8 instead of 12, and must reach a unanimous verdict; 2) in federal court the judges conduct most or all of the voir dire, and lawyers do not get to ask questions; and 3) attorneys in federal cases deliver closing argument before rather than after the jurors get the jury instructions from the judge.
Voir dire (“vore dire” is how we say it in Oklahoma; “vwah deer” is the original French pronunciation) means “to speak the truth”. In this first stage of trial we pick a jury. Thirty or so pre-qualified jurors file into the courtroom. The Bailiff draws eighteen of their names out of a box, and they are seated. The judge asks certain preliminary questions, and then the lawyers for each side get to ask questions of the group.
During voir dire I try to quickly get to know the jurors, get them talking to me, and try to figure out which ones may be unfairly biased against my client. If a juror says or suggests that he or she cannot be fair or follow the law, I will move to strike the juror “for cause”, asking the judge to rule that the person is too biased to be able to be fair in this case.
Each side gets to strike three jurors of its choice, for virtually any reason whatever, bringing the jury from 18 people down to 12. There is no requirement that the jury exactly mirror the demographics of the particular community the jury is drawn from. Although you cannot strike jurors just because of race, a lawyer who rejects three black jurors in a case in which the plaintiff is also black, need only be able to state a “non-discriminatory reason” for striking as many black jurors as possible in order to legitimize that decision.
2. Opening Statement
Once the jury is sworn in and seated, the lawyers give opening statements. These are short statements of things each side intends to prove. During opening statement attorneys are prohibited from arguing their cases. They can say what facts they think will be revealed, but they cannot comment on why those facts support their respective sides. They can only show exhibits during opening statements if the exhibits have been “pre-admitted”, that is, admitted to evidence by order of the court prior to the beginning of trial.
Since the “plaintiff” (the party bringing the case) has the burden of proof, they go first. The plaintiff calls witnesses. Witnesses give testimony, and identify and discuss exhibits. They answer questions from the lawyer for the party who calls them (“direct examination”) and then the lawyer on the other side (“cross-examination”). If there objections by the lawyers, the witness is supposed to wait until the judge rules before answering the question.
Witnesses may be “Lay witnesses” or “expert witnesses”. Lay witnesses are fact witnesses. They are generally limited to telling facts they observed (who, what, when, how, and where). Expert witnesses are hired and paid by one side or the other, or occasionally by the Court. “Experts” are witnesses who are specially qualified by training or experience to have knowledge which ordinary people don’t have and which may help to explain the meaning of the facts of the case to a jury.
4. The Defense’s Case in Chief
When the plaintiff has put in all of its exhibits and has no more witnesses, the plaintiff’s attorney announces: “The Plaintiff rests, your honor.” The Defendant then puts in its exhibits and puts on its witnesses. Since the plaintiff has the burden of proof, the defendant does not need to put on any witnesses at all. He, she, or it may argue, through its attorneys, that the plaintiff’s evidence does not prove its case, and simply rest without putting in any evidence.
5. Jury Instructions
Once all the evidence is in, the judge reads the instructions to the jurors. Jury instructions are the law that the jurors are to apply to the facts in order to decide the case. Each side is required to submit its requested instructions, from which the judge must choose the correct ones. In Oklahoma we have uniform instructions, called the Oklahoma Uniform Jury Instructions. Magically, we call them Oujis. Most of the time the Oujis will adequately cover the subject of the case. Judges are very careful about the instructions they give, because the most common way a civil case gets reversed on appeal is an error in the instructions. If that happens, you have to do the whole thing all over again about two years later.
6. Closing Argument
Once the jury has heard the law, the lawyers give closing argument. We discuss with the jurors how we think about the case and why a certain piece of evidence leads to a certain conclusion. The plaintiff goes first, but is permitted to reserve some of her time for rebuttal, so really the plaintiff’s lawyer gets both the first and the last word. I can think of a few husbands who would like to have those rules, can’t you?
Once all of that is done, which may be a day, or several weeks or months, the jury is taken to the jury-deliberation room by the Bailiff. They are given a copy of the instructions, and all the exhibits which have been introduced or “received into evidence”. They are instructed to elect a foreman to preside over their deliberations. In civil cases, they do not have to be unanimous: nine of the twelve must agree on whether the defendant is liable and, if so, how much is owed to the defendant. If they have a question, they write a note, ring for the bailiff, and send it out. Most often they have a question about something they wish they had been told, but cannot be told for various technical reasons. Typically the judge will answer them with the simple written statement: “you have all the law and all the evidence you need in order to decide the case.” I’m pretty sure when they get that note back they usually say, “Thanks a lot, your honor!” Grumble grumble.
8. The Verdict
When the jurors have reached agreement, they ring the buzzer that summons the Bailiff, and hand him the instructions and the verdict form. The Bailiff delivers the verdict form to the judge. All rise, and the verdict is read in the courtroom. Usually at that point somebody on one side, and sometimes both, is not happy. I had a case in which the defendant was so hacked he broke his knuckles, and the courtroom door, punching it in anger on the way out. Then he was held in contempt of court. Since he was a particularly deserving defendant with a particularly nasty temper, I have to admit it did my heart good.
Like the song says, “Some gotta win, some gotta lose; Good Time Charlie’s got the blues.”
9. Why You Want a Trial Lawyer for Your Injury Case
If your lawyer isn’t really good at presenting cases to juries, you have no leverage and no power over an insurance company. You have to just take whatever the insurer decides it wants to pay you. You usually would not have your primary care physician perform heart surgery on you. You would want a specialist: a cardiac surgeon. It’s the same with lawyers. Please don’t ask me to do a title search for you, because I don’t know how to do it properly even though I had to take property law in law school. By the same token, the lawyer who prepares your will or helps you with a child custody matter probably isn’t a specialist in personal injury cases and most likely has not tried a whole bunch of jury cases of any kind. Experience is the great teacher. Some gotta win; some gotta lose.