JURY TRIAL — PROVING THE CASE
The burden of proof is on the plaintiff in a personal injury case. That means at trial, you must build your case from the ground up. The jury will know nothing about your case. You must educate the jury by introducing admissible evidence. You cannot take anything for granted. I think the best approach here is to “begin with the end in mind,” and so I go through the following process:
Figure 1 above illustrates the process. As you can see, the complexity of this task increases exponentially as your analysis goes from claim to element to fact, and finally to proof. It is hard work, but if you bear the burden of proof, then it must be done.
First, I ask: “What are the legal claims I am bringing to the jury?” In most personal injury cases there is a negligence claim, but there may be others. I list them all.
Second, as to each claim, I ask: “What are the legal elements of the claim?” I list them all. For example, the elements of a negligence claim are: 1) Duty; 2) Breach; 3) Causation; and, 4) Damages.
Third, as to each element, I ask: “What facts support this element?” I list them all.
Fourth as to each supporting fact, I ask: “What proof can I present of the existence of this fact?” I list all of it.
FORM OF PROOF
There are several ways to prove facts at trial, but the most important forms, which I will discuss here, are witness testimony and documentary evidence.
Most proof is introduced at trial through the sworn testimony of witnesses. The parties have an opportunity to call witnesses at trial who are generally permitted to answer questions as to facts that are relevant and as to which the witness has personal knowledge. Or in the case of expert witnesses, they are permitted to offer their expert opinions as evidence for the consideration of the jury, as explained in greater detail here.
Witnesses are only permitted to speak in court when they are answering a question posed by the examining lawyer. In other words, witnesses are not permitted to just take the stand and give a speech. There are two types of examination (i.e., questioning) that may occur in trial, direct examination, and cross-examination.
In a trial, each side calls its own witnesses to testify. A direct examination is the type of examination that occurs when a lawyer is questioning his or her own witness. In direct examination, the lawyer should ask the witness questions that will allow the witness to educate the jury with his or her responses. Lawyers are generally not allowed to ask “leading questions” during direct examination. A question is leading if it suggests the answer. For example, “You were paying attention, right?” is a leading question. Conversely, “Were you paying attention?” is not a leading question.
Cross-examination is the type of examination that occurs when the lawyer is examining an opposing party’s witness. It is a very useful tool for testing the truthfulness and reliability of witnesses. During cross-examination, leading questions are permitted. Cross-examination is usually the most exciting part of a trial. It is inherently dramatic because it is essentially a showdown between the lawyer and the witness. It can get especially exciting if the lawyer thinks the witness lied on direct examination and the lawyer tries to expose the lie to the jury during his or her cross-examination.
Documentary evidence in personal injury cases often consists of things like medical records, medical bills, and photographs of injuries or lost loved ones. So how do you get these documents admitted into evidence? The lawyer cannot just hand these documents to the jury and then talk about them. The way you get these documents into evidence is through the testimony of a witness who can lay the proper foundation for these documents to be admitted into evidence. Getting documents admitted into evidence is like a dance. Here are the steps to the dance:
- Show the exhibit to the witness;
- Ask the witness to identify the exhibit;
- Ask the witness questions to establish the document’s:
- Relevance; and,
- Exception to the hearsay rule.
- Move the exhibit into evidence; and,
- Publish the exhibit to the jury.
Authenticity, relevance and the hearsay rule are legal concepts beyond the scope of this article.
ORDER OF PROOF
Rule 40(c)(3) or the Arizona Rules of Civil Procedure governs the order or proof in a civil jury trial. It states:
Unless the court orders otherwise, the parties should introduce evidence in the following order:
(C) other parties, if any, in the order the court directs;
(D) plaintiff’s rebuttal evidence;
(E) defendant’s rebuttal evidence in support of the defendant’s counterclaim(s), if any; and
(F) rebuttal evidence from other parties or with respect to crossclaims or third-party claims, as the court permits and in the order it directs.
Evidence is introduced by the parties at trial almost exclusively by calling witnesses. The party who calls a witness to testify will conduct its direct examination, and then the other parties will have the opportunity to immediately cross-examine the witness. In other words, the other parties do not have to wait until it is their turn to “introduce evidence” to cross-examine witnesses called to the stand by other parties.
The period of time during which the plaintiff may introduce evidence is called the plaintiff’s “case-in-chief.” It is critically important that the plaintiff introduce evidence during its case-in-chief that is sufficient to support every element of the plaintiff’s legal claims because the plaintiff’s case would otherwise be subject to dismissal at the conclusion of his or her case-in-chief as a matter of law.
For example, suppose that the plaintiff is suing her doctor for medical malpractice. To prevail, the plaintiff must prove that her doctor “breached the standard of care”. This can only be accomplished through expert testimony. Therefore, at the conclusion of the plaintiff’s case-in-chief, if she has not yet called an expert witness to testify that the defendant doctor breached the standard of care, then her medical malpractice claim would be subject to dismissal upon by motion by the defendant doctor.
For this reason, when a plaintiff rests his or her case-in-chief, you will sometimes see defendants move the judge to enter “judgment as a matter of law” on the grounds that the plaintiff has failed to introduce evidence sufficient to support the legal elements of some or all of his or her claims.
In a personal injury case, the plaintiff has the burden of proof. Therefore, the defendant does not even necessarily need to put on any evidence during his or her case in chief. The defendant could simply attempt to poke holes in the plaintiff’s case through cross-examination during the plaintiff’s case-in-chief. But usually, defendants do affirmatively introduce evidence during their case in chief to attack the plaintiff’s case.
Affirmative defenses (which are briefly described here) are an exception to the above-stated rule. If the defendant has asserted an affirmative defense, then the defendant must introduce evidence during his or her case-in-chief to support each legal element of the affirmative defense. Otherwise, the affirmative defense would be subject to “judgment as a matter of law” upon motion by the plaintiff.
After the parties have put on their cases-in-chief, they may be permitted to introduce rebuttal evidence to counter new facts or allegations made during their opponent’s case. Sometimes the line between original evidence and rebuttal evidence can be blurry, and the trial judge may be called upon to make a ruling. Trial judges have discretion in making these rulings, but testimony should not be precluded from being made part of rebuttal just because it might have been made part of the case-in-chief. Jansen v. Lichwa, 13 Ariz. App. 168, 474 P.2d 1020 (Div. 2 1970).
The philosophies, strategies, and tactics I’ve outlined above are the principles that guide our actions at Cluff Injury Lawyers. I’ve outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff