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At the close of discovery, parties are encouraged to review the sum total of evidence and attempt to settle the case. In many state jurisdictions, there is compulsory (but non-binding) “mediation” of the case, in which an independent panel reviews the pleadings and evidence and makes a settlement recommendation. If no viable settlement results, the case will move on to the trial stage. Prior to trial, attorneys for the parties will provide written requests for jury instructions they wish to include in the charge to the jury (FRCP 51). Attorneys will also have the opportunity to examine and rule out prospective jurors (“voir dire”) for such disqualifying factors as bias, personal familiarity with the parties or witnesses, felony conviction, legal relationship with any party or witness (such as landlord, employer, partner), etc. (FRCP 47). These are referred to as “challenges for cause.” Most jurisdictions also permit a certain number of “peremptory challenges,” wherein trial attorneys may rule out prospective jurors without stating their reason for doing so. After a final jury is agreed upon and all last-minute motions have been heard, trial begins.

In general, the order of proceedings at trial are: opening statements (first plaintiff, then defendant); introduction of evidence (first plaintiff, then defendant, then rebuttal evidence); closing arguments (first plaintiff, then defendant); instructions to the jury (“jury charge”) by the court; return of verdict and poll of jury; and entry of a judgment.

The normal order for the presentation of proofs (evidence) is: the plaintiff introduces all the evidence for his or her “case in chief”; the defendant then introduces his or her evidence in chief; the plaintiff then offers rebuttal evidence; and finally, the defendant may be permitted to present evidence in rebuttal of any new matter brought out in the plaintiff’s rebuttal evidence (called surrebuttal). Objections to any proffered evidence must be timely made or they are waived; proper and/or permissible objections are covered in the Federal Rules of Evidence (FRE) rather than the FRCP.

Closing arguments are then made (plaintiff first, followed by defendant, then followed with plaintiff’s final rebuttal), and the jury is charged and sequestered for deliberations. The jury normally renders it verdict through its foreman, and the entire jury must be present when the verdict is delivered in court. Barring any defects in form or challenges to the verdict, a judgment is declared for the prevailing party.

Prior to the delivery of a verdict, either party may motion the court for a judgment on the evidence (e.g., a motion for summary judgment) or for mistrial (based upon an objection made during trial). Following delivery of a verdict, a party may motion for a new trial or partial retrial (FRCP 59).

Inside Trial