Personal Injury

We Are Going to Trial

Talk to a Local Personal Injury Basics Attorney

Your personal injury case is a trial even if you don't make it to the courthouse. The process is long, and it's draining on all fronts. Your financial, physical and emotional resources are taxed. While many cases do end with a settlement, others do go to trial. Know what to expect if your case reaches this stage.

A trial can be viewed as a battle, an engagement, and there are formal rules to follow. There are rules governing trial procedures, and rules and laws that apply to the substance of your case. These laws and rules vary by state, or even at the local court level; a general overview of the trial process will help you to make it through until the court issues its judgment.

Selecting the Jury

Jury selection is the first major step before your trial starts in earnest. Jury selection procedures vary by state. Generally, lawyers or judges ask questions of potential jurors in a process called voir dire. The jury pool may be whittled down by asking groups of potential jurors questions. They're either asked to stay for further questioning, or they may be excused, depending on their answers.

Court rules govern the subject and scope of questioning potential jurors. Here, each party is looking for jurors who can be fair and impartial. In a personal injury or professional malpractice case, for example, common questions might include whether the juror has any connection to the subject of the case or either party. If you're suing for medical malpractice, you might be asked if you or close family members are health care workers or work for a hospital. Based on voir dire, a juror is selected, or excused.

When all jury members are selected, the jury is seated and the judge usually gives them general directions about their duties while serving.

Getting Started with Opening Statements

Next, each party's lawyer makes opening statements. Here, the lawyer presents their client's view of case. Court rules in your area dictate which side goes first, the plaintiff or the defendant. Expect a preview of the case, and the evidence to be presented at trial.

Presenting Witnesses

Presenting witnesses is usually a key part of the trial. Each party's lawyer will examine or question their witnesses, and the opposing party gets a turn to cross-examine them. There can be several rounds of questioning, and rebuttal witnesses.

Part of your lawyer's trial strategy is deciding who to call as witnesses and the order in which to call them to the stand. Expenses, such as expert witness fees, and convenience to your witnesses can be factors in placement of witnesses. You don't want an expert witness with high fees waiting around to testify while the meter is running. Such unneeded expenses can impact the amount you actually receive from any award in your case.

The list of possible witnesses in your case, besides you, may include:

  • People close to you who can testify about your condition and the impact of your injury or losses
  • The defendant, depending on the law in your state
  • Accident witnesses
  • Police or rescue workers who were at an accident site
  • Expert witnesses, including doctors or accident reconstruction engineers
  • Doctors who treated or evaluated you after an accident; this category can include independent medical examiners (IME)
  • Records custodians for medical providers
  • Any other witness who may offer useful testimony for your case

Other Evidence

Besides witness testimony, your lawyer will likely offer evidence such as medical or police reports, bills, photographs and other documents to prove your damages or elements of your case. Tangible items can also be offered as evidence. While presenting evidence can take time, and your lawyer puts great effort into the smallest detail, it's all important in proving your case to the jury.

Final Arguments and Jury Instructions

The evidence closes, and each side addresses the jury in final arguments. Here, your lawyer argues your side of the case before the jury. As with opening statements, the order for final arguments follows the law and rules in your state. Typically, the plaintiff's lawyer goes first, then the defendant's lawyer and the plaintiff's lawyer has a chance to rebut.

Before final arguments, there's typically a hearing over the content and form of the jury instructions. Practices for jury instructions vary by state; some states allow the parties to submit written questions to the jury. Your state may have pattern jury instructions, which offer a standard starting point for jury instructions, removing conflict from the process.

The Jury Takes the Case

The jury has its instructions, and they start deliberations. The jury votes on a foreman, who leads the jury through their work. Jury instructions and questions are reviewed, and discussion of the case begins. It's a success when they arrive at a verdict. If the jury can't agree, your case could end with a mistrial, and you could have another day in court.

Forms may be provided for the jury's verdict and answers, which are also signed by the jury. The foreman notifies the judge when jury reaches a verdict. Everyone returns to the courtroom, and the judge or the jury foreman reads the verdict aloud. Exact procedure depends on your state's laws and rules.

The Trial Ends

Your trial is over, even though post-trial motions or an appeal may follow. You have a verdict, and hopefully it was in your favor.

Questions for Your Attorney

  • How long do you expect the trial to last in my case?
  • How common are settlements right before a trial is scheduled to start?
  • Are witnesses required to come to my trial and testify regardless of where they live, and who pays the costs for witness travel?
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This article was verified by:
Michael Barasch | April 13, 2015
11 Park Place, Suite 1801
New York,NY
This article was verified by:
Adam S. McPherson | April 28, 2015
16 Sterling Drive, Suite 205
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