Overview of Personal Injury and Wrongful Death Trials
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Overview of Personal Injury and Wrongful Death Trials

Wednesday, April 04, 2001By Richard Alexander

The right to a trial by jury is guaranteed by the U.S. and California constitutions. It protects everyone whether they are a citizen or not, as long as they are lawfully within the U.S.

Jurors determine the facts of  criminal cases by unanimous vote and in civil cases for personal injuries and wrongful deaths by a vote of 9 out of 12.   Jurors sit as "judges" of the facts of a case. Their task is to listen to all the evidence. After all the facts are presented by both sides in both criminal and civil cases, their task is to decide which facts are true, apply the law provided by the judge, decide what damage has been caused, if any,  and report their verdict.

Political contributions play an overwhelming role in electing officials to the executive and legislative branches of government and in influencing decision-making. But companies cannot engage in such direct influence purchasing of judges.

Major corporations and organizations with conservative political and economic agendas make every effort to influence judges through so-called "educational" programs, actually mini-vacations held at exclusive resorts both inside and outside the U.S. The total number of judges invited by these organizations is not known, but because of federal reporting requirements, the number of federal judges attending such conferences is public knowledge. The information can be found on www.TripsForJudges.org.

20/20 has reported judges being sponsored for educational trips by State Farm Insurance, Association for California Tort Reform, Association of Ski Defense Attorneys, Defense Research Institute, Association of General Counsel, Association of Defense Counsel, Corporate Counsel Institution, Dial Corporation Law Dept., Price Waterhouse, National Food Processors Expo, Furniture Manufacturers Credit Association, International Association of Businesswomen, California League of Savings, Competitive Enterprise Institute, and the Georgia Chamber of Commerce. These junkets were all to prime locations in the U.S, Switzerland, Peru, and Taiwan. For example, Ninth Circuit Justice O'Scannlain has attended at least 33 of them and his colleague Justice John Noonan 58. However, the Ninth Circuit's Justice Alex Kosinski has 134 conferences on his record.

Such "educational" programs, aside from legitimate bar association and university functions, are closely scrutinized and many judges refuse those invitations which give the appearance of impropriety.

Nonetheless, the judiciary is largely independent of political and economic influences, which is its strength, but one of the keys to the success of the American democracy is that the facts of every case are heard and decided by juries after hearing all the evidence in a case presented by lawyers for both sides.

Each side in a lawsuit is entitled to one lawyer to represent their interests in court and while the IBMs and GMs of the world may have hundreds of lawyers sitting at the table, they are only allowed one attorney at a time in trial. It is this aspect of the American jury system that must be preserved. Yet, corporate political efforts routinely attack decisions made by juries and the advocacy provided the public by trial lawyers. These attacks are made to influence voters and jurors to give up the public's right to control legal decision-making by juries because only in the courts of the U.S. can corporate wrongdoers be held responsible.

To set aside many distortions about the jury system and to provide unbiased information for prospective jurors is the purpose of this article.

If you are called for jury duty, in both criminal and civil cases, many involving personal injuries and wrongful death, you will have many questions - from where you should report to what will happen during a trial if you are chosen to serve. Most of these steps are set by state law, a few by county rules. What you read here should cover most of your questions, although each county may be slightly different.

Who is called serve as a juror?

Anyone 18 years old, a United States citizen, and a resident of the county or district where summoned. Jurors must understand English, and be physically and mentally capable of serving. In addition, in California a person must not have served as any kind of juror during the past 12 months and never have been convicted of a felony.

How are people selected for jury duty?

Jurors' names are selected at random from lists of registered voters. In addition, California law provides that the courts may use the names of all persons who have drivers' licenses or identification cards issued by the Department of Motor Vehicles. The courts may use other sources such as customer mailing lists, telephone directories, and utility company lists. So you may be called even if you allow your name to be dropped from the list of registered voters.

How long will my name be on a prospective juror's list?

Your name will remain on the county jury list for a least one year, and you may be called for jury duty once during that year. If you are not called one year, your name may be placed on next year's list.

When I am summoned as a juror, what should I do?

Carefully read the summons. The address, the date, and the time when you are called to serve will be written on the summons. In some cities, trials may be held in different locations.

May I postpone my jury service to a more convenient time?

You may request to reschedule your jury service to a more convenient time. Usually it must be rescheduled during the same year. Mail your request to the jury commissioner's office to see if a postponement is possible.

Do I get paid for jury duty?

Yes. Generally, if you are summoned to the courthouse, you are paid for at least that day. And if you're actually on a jury, you're paid for each day or part of a day the trial lasts. The minimum amount paid is set by the State Legislature. Counties may pay more but never less. Your county may also pay for some travel costs.

Who pays for jury duty?

In criminal cases, the cost of juries is paid by state and county government. In civil cases, the party demanding a jury trial pays the daily fees and travel allowance of jurors. At the end of a civil trial, the prevailing party files a statement of costs, including jury fees paid, which are added to the judgment entered by the court.

Who pays for meals?

You do. Lunches are not provided during a trial and occasionally during deliberations.

How can I be a juror if my boss won't let me off?

Your employer must let you off for jury duty. Employers cannot discharge an employee called for jury service if the employee gives reasonable notice of the summons. Some employers pay the difference between your jury allowance and salary. If your salary for the day is $120.00, for instance, and the jury fee is $5.00, your pay would be $117.00 by your employer. This is not required by law but many union contracts require the pay differential and many employers honor jury service in the same fashion.

What should I wear to court?

Dress as you would to go to a business meeting, social or religious function. Use common sense. It is O.K. to dress casually in neat and clean clothing, but do not wear shorts, tank tops or see-through clothing. Check with the jury commissioner if you have any questions.

Is there any special way I must act in court?

Be alert and courteous. Bring something to read while you're waiting for the court to begin, or during recesses. All judges and lawyers are extremely mindful of your time, but legal matters, often times to expedite the presentation of evidence, will occur outside the presence of the jury and having something to read is a good idea.

How much of my day will jury service take?

You should plan to attend court as a juror all day from approximately 8:00 a.m. to 5:00 p.m., depending on the court's schedule. An average limited jurisdiction or municipal court jury trial lasts two to three days. An average unlimited court of Superior Court jury trial lasts four to five days. Many judges must still hear motions and hold hearings in other cases in order to keep the work of the court moving and the hours of these courts are often from 10 a.m. to noon and 1:30 to 4:00 p.m. for jury trials, with other cases being heard in the early morning and late afternoon.

Why are there such long breaks and lunch hours during a trial?

Experience teaches that judges and jurors can only absorb so much during a day. In the same way that schools and universities limit many classes to an hour, having breaks during testimony during the day allows everyone the chance to listen with attention throughout the day.

Judges also have to attend to all other pending cases, hear motions, set the next day's calendar and hear settlement conference in other cases. Attorneys also need time to prepare witnesses and other aspects of the case. In addition, motions made by either side in a case many times cannot be resolved until after foundational evidence is received in evidence at trial. Judges are obligated to provide a fair trial to everyone and are routinely asked to exclude certain evidence deemed to be irrelevant, unduly time consuming, confusing or otherwise unfair. These hearings are held outside the presence of the jury and are intended, when possible, to shorten actual jury time.

What happens if I'm late?

Contact the jury commissioner's office as soon as you know that you are going to be late. If you are already assigned to a courtroom, contact the jury commissioner's office or the clerk of the court and explain your situation. Remember the trial cannot proceed until everyone is present. If you don't have a good excuse, the judge may fine you for being late. The same rule applies to everyone, including lawyers, because everyone needs to be present to proceed.

May I take notes?

Yes, but your notes must stay inside the courtroom.

May jurors ask questions during the trial?

If you have a question, write it down on a piece of paper. Motion for the bailiff or marshal and ask that it be handed to the judge. Normally, the judge will show it to the attorneys first and then respond, by writing a note back, by answering directly from the bend, or may indicate that it is not proper to answer the question at that time.

Is it true that I must not discuss the case with anyone while it's in progress?

Yes. Please do not talk to anyone about the case until you are discharged from the jury, not even the lawyers or the judge, except through the bailiff. Discussions with others can cause a mistrial because any conversation a juror has amounts to receiving evidence outside the presence of the judge, all parties and most importantly, all jurors. All lawyers honor this rule and will not talk to you during recesses or in the hallways. If any person persists in talking to you about the trial or attempts to influence you as a juror, tell the bailiff. During deliberations at the end of the trial, of course, you will discuss the case with other jurors in order to reach a verdict. That is the time to share your views with the other jurors and to ask them their views as well. Otherwise, do not discuss the facts or a case, or make an opinion, until you are in the jury room.

May I investigate some parts the case that aren't brought out by the attorneys - on my own time?

No. To be sure that all evidence is fairly received and subject to review by the judge and all parties, our courts do not allow jurors to conduct their own investigations or to search the internet for relevant information.

Never investigate the case on your own, either alone or with other jurors. Do not visit the scene. You may not talk to witnesses, or do independent experiments.

To preserve the integrity of our jury system, your verdict as a juror must be based only on evidence produced in court that was equally available to all other jurors. This prevents a trial based on secret evidence. If you violate this rule, you could cause a mistrial and without this rule jury trials would be meaningless.

Why do attorneys talk with the judge out of the jurors' hearing?

It happens all the time and for good reason.  It is to maintain a fair playing field under the law, so one side cannot skirt a rule to gain an advantage.

Evidence is held back from juries in many trials to avoid confusion, some of it relevant.  Some of it prejudicial and not capable of fair use.

The role of the judge is to fairly balance the evidence to be presented.

Conferences are held to discuss legal issues, to agree upon points of evidence, and to make sure that the trial is conducted fairly. Many times motions are made to exclude evidence and testimony that is unduly time consuming and determined to be not directly on point. In fact, many conferences focus on shortening a witness's testimony and proposing agreements or stipulations to move the trial forward. If this happens, do not feel slighted or guess what is being said. These conferences often help speed up the trial or avoid the possibility of a mistrial, which requires the parties to start over again with a new jury.

What if I have suggestions about my jury service?

Please write the presiding judge or jury commissioner of the court in which you served.

Why don't they settle?

Ninety-nine percent do. The law encourages people to settle their disputes before trial and approximately one percent all cases filed in California courts never are presented to a judge or jury for final decision. As all experienced judges and trial lawyers know, having a jury ready to hear a case makes cases settle. The trial may even be delayed while the lawyers try to work out a settlement with the judge in chambers. The lawyers may continue to negotiate out of the jury's hearing, while the trial is going on. Many times, parties will not agree to a settlement until a judge rules on the admissibility of particular evidence that is crucial to one party's case. You, as a juror, won't be told what's happening regarding settlement discussions unless the two sides come to terms, in which case the trial will be ended and you'll be dismissed. Even though you are not informed of settlement discussions, these routinely continue through and after trial in many cases.

How is the jury chosen?

You and the others called for jury duty will be taken into a court room. Twelve to eighteen names will be drawn by lot, unless the parties agree to a smaller jury. These people will take seats in a jury box. The rest of you will remain seated in the courtroom.

The judge will state the names of the parties in the case and the names of the lawyers who will represent them. The judge will also tell you what the lawsuit is about, for example, a drunk driving case, a burglary case, or a civil suit such as an automobile accident.

Next the judge and/or the attorneys will question each of you seated in the jury box to find out if you can be a fair and impartial juror in this particular case.

One of the attorneys may "challenge you for cause." This means the attorney will ask the judge to excuse you from the jury for a specific legal reason. For example, if you know one of the attorneys, you might tend to favor his or her side. Each lawyer has an unlimited number of challenges for cause.

Each party also has the right to a certain number of peremptory challenges. That is, the attorney may ask that you be excused without giving any reason at all. If this happens, don't take it personally. The lawyer is merely exercising a right given by law. In civil cases, each side has 6 peremptory challenges. Plaintiffs will excuse jurors perceived to be pro-defendant and defendants will dismiss those believed to be pro-plaintiff. This is one method to provide greater confidence to everyone that the jury system is neutral, fair and unbiased.

After the required number of jurors has been chosen, the jury panel is sworn to try the case.

What happens after the jury is selected?

First the attorney for the party who is suing will tell the jury what he or she intends to prove. This is called an opening statement. In a civil case, this is the plaintiff's attorney; in a criminal case, this is the prosecuting attorney. The attorney for the defense may speak then or may wait until after the other side presents its evidence. These statements are not evidence, but merely an overview of the case, and the witnesses who will testify, since scheduling of witnesses often results in testimony being presented out of order. The opening statement gives the jury a limited idea of what it can be expected to hear.

How do the attorneys know what the evidence will be ahead of time?

Few civil cases go to trial because the parties devote many hours to taking the testimony of witnesses before court reporters in special hearings called "depositions." The parties also demand written documents from each other. As a result, the lawyers for each side know generally what the witness has testified to in the past. In criminal cases, the statements taken by police and investigators is available to both sides as well.

Who presents evidence first?

After the opening statement, the side bringing the suit - the plaintiff (civil) or the State (criminal) - will present its evidence. This will usually be by calling witnesses, and asking them questions. The other attorney will also ask questions. Each attorney may present all forms of evidence to prove the facts of the case.

Before the opposing side puts on its defense, the jury proceedings may be interrupted for motions. Sometimes the defense in a civil case will not present evidence, claiming that the plaintiff has not proved their case. In criminal cases, the defendant is presumed innocent, and is not required to supply a defense. After the prosecutor's case is presented you may hear defense attorney's opening statement and again listen to witnesses and see exhibits raised in defense of the charges.

What is evidence?

You will hear a lot of talk about evidence during the trial. Evidence is really just information, but not all information is considered evidence and allowed in court.

* Testimony - Answers to questions asked by the lawyers or judge.

* Exhibits admitted by the judge - Documents, contracts, court records, and material objects, such as a gun, item of clothing, photograph, diagram, or computer printout.

* Witnesses' depositions - Answers to questions which were asked by the lawyers in the case before the trial began. The questions are answered under oath and presented to the court later in written form.

* Stipulations - These are agreements between both sides as to certain facts in the case such as a date or time.

Some things are not evidence. Judges and lawyers must follow the Evidence Code, which has been created over many years to insure a fair trial. During a trial, information may come up that cannot be considered as evidence, and you must not consider it when you are deciding on your verdict. This may include:

* Testimony the judge will not admit - Sometimes the judge will rule that something which was said by a witness is not admissible and must be stricken from the record. The judge will then turn to the jury and tell you not to consider the matter.

* Statements by lawyers - Lawyers often talk about the evidence and attempt to interpret it for the jury. However, their comments are not evidence and can only be used to help the jury analyze the evidence.

* Anything that you learn or hear about the case from outside of court - by means of gossip, newspaper articles, or personal information - is not evidence. This is why the judge will often warn you not to read about a case or read the newspapers while a jury trial is going on.

* Comments about the case made by others in your hearing. Most of the time these comments are made innocently, however, it is possible that the person is trying to "plant" a comment hoping to influence you.

What is the best way to take in the evidence?

The judge decides what evidence is proper or admissible. He or she may let the jury hear certain things or see certain exhibits - or keep them from you. This is done for a reason, even though it may frustrate you at times. The judge must apply the rules of evidence according to the law. Although the judge decides what evidence you may consider, you decide if that evidence is believable, and how important it is to the case.

As you listen to the testimony, there are a few questions you might keep in mind: Does this witness have an interest in how the case comes out? Does he or she "forget" when it is convenient to do so, and only remember what is favorable? Are the statements of the witness reasonable - or improbable? Could the witness simply be mistaken about what he or she saw, heard, smelled, or felt?

Remember that witnesses often remember different details, especially when an event happened quickly, and involved emotions.

Cross-examination of witnesses will also help you in considering evidence. Cross-examination often points up weaknesses, uncertainties, and improbabilities in testimony that might have sounded convincing at first. You should keep an open mind to the end of the trial, when you have heard all the evidence.

What should I do about objections to certain evidence?

During a trial, the lawyers may object to questions asked by their opponent. This is common and is part of the lawyer's job. A trial must be conducted according to rules and a lawyer may object to questions or evidence he or she believes to be improper.

When an objection is made, the judge will either overrule or sustain it. If the judge considers the question to be improper or the evidence inadmissible, he or she will sustain the objection. If the just considers the question to be proper or the evidence admissible, he or she will overrule the objection. The ruling does not indicate that the judge favors one side or one lawyer over the other.

What else should I know?

At the end of the trial, both attorneys will sum up the case from their perspectives. Taking turns, each will tell you what he or she believes the evidence shows and why it favors his or her side. The judge will instruct you on your duties as jurors. The judge will also tell you what law applies to the facts you will consider. After that, the bailiff will take you to the jury room where you and the other jurors will deliberate. First, you will select one of the jurors as foreperson. He or she leads the discussion and tries to encourage everyone to join in. Don't be afraid to speak out during deliberations. The whole idea of a jury is to come to a decision after full and frank discussion, based on calm, unbiased reasoning. In civil cases, it takes nine jurors to reach a verdict. Once any nine jurors agree on the answer to any question submitted to the jury that constitutes a verdict. The same nine need not agree on each and every question submitted. In criminal cases, all jurors must agree, that is, the verdict must be unanimous.

The verdict.

When you have reached your verdict - which may come after a few hours or several days, the foreperson will record your verdict on an official form. The bailiff will tell the judge you are ready and you will return to the jury box. The judge will ask if you reached a verdict. The foreperson will answer, handing the written verdict to the bailiff. The clerk will read it aloud and mark the record accordingly. Sometimes one of the parties will ask that the jury be polled. This means that the judge or clerk will ask each juror individually if this is his or her own verdict. The jury's service will then be complete.

The California Judges Association brochure on jury trials, which is made available by some counties to prospective jurors, was the foundation for this edited version to which I have made many additions and changes based on my thirty years of experience as a trial attorney in the courts of California and throughout the United States. For all that is correct "thank you" to CJA for this public service. All errors are mine.

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