The Anatomy of a Jury Trial
Most people’s concept of a jury
trial is based on portrayals on television and in movies. They realize that
there is much more to it, but they have no idea what that “more” is. This is an
effort to afford a glimpse into some of the “more” that is involved.
John McKindles
June 2011
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I recently completed a jury trial in which I represented Sterling Pureheart (not
his real name), who, after buying a commercial building, sued the seller, whom
we shall call “Curly.” Also named in Sterling’s suit were “Larry” and “Moe,” the
commercial real estate agents who had represented Sterling and Curly,
respectively.
Sterling’s claim arose when, soon after close of escrow, he learned that the
City would not let him conduct business at his new location until he made costly
modifications to the building. There was strong evidence that Curly and his real
estate agent, Moe, were aware of the City’s requirements before the sale but did
not share that information with Sterling. Evidence also existed that Sterling’s
agent, Larry, had agreed (but failed) to ask the City about any restrictions
or requirements regarding Sterling’s intended use of the property.
In an effort to resolve Sterling’s claim prior to filing a lawsuit, I wrote to
Larry, Moe and Curly, outlining the issues and requesting a meeting of all
parties. The only response I received was from Moe’s attorney, who prudently
agreed to the meeting. Unfortunately, little could be achieved at the meeting
with two major players missing, so litigation ensued (pun intended).
Types of Trials
In this type of civil litigation, the plaintiff may seek a jury trial or a
‘bench” trial. (In a bench trial, the judge – not a jury – determines who wins
and loses and what the prevailing party is entitled to receive.) Jury trials are
generally more expensive, and the major consideration for a party choosing a
jury trial over a bench trial is whether an increased probability of a favorable
jury verdict justifies the additional cost.
In this case, we believed that a jury could readily identify with Sterling’s
losses as the victim of people who withheld vital information from him, and that
jurors’ sympathy for Sterling would hold greater potential than the mere
technical and legal aspects of his claim. On the technical side, we simply
needed enough of a legal basis for our claims that we would survive the
inevitable motions for summary judgment, motions in limine and other similar
ambushes in order to get to the jury.
With a bench trial, the judge sits in a position to determine both issues of
fact and issues of law and could more readily grant dispositive motions. With a
jury trial, the judge is reluctant to decide the factual issues on dispositive
motions and generally will only determine whether there is enough evidence to
support a reasonable person’s conclusion in favor of a party’s claim. That
semantic distinction is huge, for a least two reasons.
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First, once the dispositive motions are denied, the defendants re-evaluate
their risks and become more motivated to negotiate a more realistic settlement.
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Second, the jury (as the trier of fact) remains blissfully unaware of just how
precarious the plaintiff’s technical basis for the claims may be, allowing the
plaintiff (in this case, Sterling) an opportunity to “humanize” the claims and
hammer on equity and common sense.
Pre-Trial
Preparing for a jury trial
entails much more time and work than a bench trial. Apart from the inevitable
last-minute filings of dispositive motions and restrictive motions strategically
timed to distract and overwhelm, last-minute preparations include collation of
proposed exhibits, compliance with the Court’s detailed minute entry
requirements, agreed and proposed preliminary and final jury instructions, and
the list goes on.
Before Sterling’s case went to trial, his real estate agent (Larry) was
dismissed as a defendant after a witness changed his testimony, recanting a
prior affidavit he had signed. That happens. What also sometimes happens
is that a neighbor, friend, associate or other witness who pledges undying
support and can’t wait to testify for you disappears or develops amnesia. Given
this seemingly universal characteristic, it generally pays to have witnesses'
anticipated testimony reduced to writing and signed by them early in the claim
processing cycle. This also normally improves early settlement potential.
After Curly and Moe’s flurry of dispositive and constrictive motions failed to
avert the pending jury trial, Moe settled with us the day before trial started.
This left Curly as the sole remaining defendant at trial after we rejected his
miniscule settlement offer.
Trial
On the first day of the scheduled trial, it is common to spend the first half of
the day picking a jury from the 40 or so individuals from the jury pool. This is
a fairly critical opportunity to evaluate the potential determiners of fact and
to have some input into the jury’s make-up. Beyond excluding any jurors for
cause (e.g., conflicts of interest, impossibility of attending, etc.), each
party has three peremptory challenges for which no reasons need to be given.
What remains is your jury, which, in a typical civil trial, consists of eight
jurors and one or more alternates.
Once the jury has been chosen, the parties present their opening statements,
with the plaintiff going first. The defendant(s) can either immediately follow
with their opening statements or reserve them for just before they present their
case. Generally, it is considered strategically wise for a defendant to give an
opening statement at the start of trial, thereby predisposing the jury to look
for particular weaknesses in the plaintiff’s presentation of evidence.
As the plaintiff presents evidence, it is important for the plaintiff to paint a
clear, simple and cohesive picture of his claims to the jury, thereby more
readily convincing the jury that he has met his burden of proof. Conversely, the
defendant typically will muddy those waters in an effort to support a closing
statement that plaintiff has not met his burden by a preponderance of the
evidence.
These strategies were in full play in the trial between Sterling and Curly. We
had a good, attentive jury whose members seemed to get along agreeably with one
another, and we had an excellent, seasoned trial judge who, among other things,
worked both parties hard to determine exhibit admissibility prior to trial. Such
pre-trial scrutiny can work to the plaintiff’s favor, since a plaintiff’s
presentation is severely impaired if the jury becomes bored with plodding,
time-consuming and distracting exhibit admissibility issues.
After I rested Sterling’s case, having completed the presentation of Sterling’s
evidence, Curly’s attorney moved to dismiss our suit. The judge denied Curly’s
motion. Curly’s attorney then presented his evidence, after which I addressed
the jury with the plaintiff’s closing statement. Curly’s attorney gave his
closing, and I had final comments to the jury. The jury, after being given final
instructions from the judge, retired to select a foreperson and deliberate
toward a verdict.
Verdict
Several hours of deliberation
later, the jury returned with a unanimous plaintiff’s verdict, awarding $100,000
to Sterling in compensatory damages. The plaintiff’s additional claim for
attorney’s fees was being considered by the judge at the time this article was
written.
While many more factors that are not discussed here were considered by both
sides in this case, I hope that this overview offers a helpful explanation of
some of the “more” that is involved in a jury trial. ● |
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