Expert Witnesses
In certain disputes, a claim or defense requires support from expert witnesses to explain technical information or validate an argument. An expert may be qualified by education, training and/or relevant experience. One or more experts might be needed to explain the connection between the defendant’s conduct and the loss suffered by the plaintiff, or the existence and amount of the plaintiff’s damages. Expert witnesses work closely with a party’s representatives and attorneys to prepare the case.
Motions
A motion is a formal request made to the Court, asking the Court to rule on one or more issues in the case. Although some motions may be made orally, they are most often made in writing. Before trial, the parties may use motions to ask the Court to rule or act. Motions usually pertain to law or facts in the case but, sometimes, they seek clarification or resolution of procedural disputes between the parties. For example, if one party has refused to provide information in discovery, the aggrieved party may make a motion to compel the other party to respond. Other motions, such as a motion for summary judgment, ask the court to dismiss part or all of a plaintiff’s case or a defendant’s defense, avoiding the need to have a trial on those issues. Other motions might ask the court to order a party to exclude evidence from trial.
Trial
The trial is the point in time when the parties come before the court and present evidence in support of their claims or defenses. In some instances, the case is tried to a jury but, in others, there is no jury and the case will be heard only by the judge (known as a “bench trial”). In many instances, right before the trial, each party will provide the judge a document, called a “brief,” that outlines the arguments and evidence to be used at trial. In a jury trial, there is an additional step where the attorneys will question potential jurors during a selection process known as “voir dire.” Once the trial begins, each party presents its outline of the case in an opening statement. After opening statements are made, the parties will present their evidence. Each party may call witnesses or introduce documents and exhibits in support of its arguments. After each witness is called and questioned, the opposing party will be given an opportunity to cross-examine the witness. The plaintiff presents its evidence first, then the defendant presents its evidence. Sometimes, the plaintiff is allowed to present additional evidence, called rebuttal evidence, after the defendant has finished presenting its case. Once all the evidence has been presented, the parties will give their closing arguments (although closing arguments are not always permitted in a bench trial). After closing arguments, the court will instruct the jury on the law to be applied to the evidence. The jury will then deliberate until it has reached a decision or verdict.
Post-Verdict
Although the parties may believe that the case is over after the jury has reached a verdict, that is not always the case. A party may seek to challenge a jury’s verdict. Frequent challenges may allege that the trial court made errors of law or that the jury disregarded the law or evidence. Another remedy may be to seek motion for judgment notwithstanding the verdict (“JNOV”) A JNOV asks the court to disregard the jury’s verdict and enter a different decision. A motion for a new trial asks the court to set aside the jury’s verdict and order a new trial of the case.
Costs and Fees
The party who prevails at trial will usually file a motion asking the court to order the losing party to pay the prevailing party’s costs to prosecute or defend the case. Recoverable costs are defined by rule, statute, or private agreement and generally do not include attorneys’ fees. Recoverable costs rarely cover all out-of-pocket costs a party incurs during the course of a lawsuit. Some statutes and contracts also allow the prevailing party to seek reimbursement of its attorneys’ fees from the losing party, however, that is the exception, rather than the rule The general rule is that parties to a lawsuit should be prepared to pay their own costs and fees.
Appeal
If a party is dissatisfied with the result reached at trial, the party may file an appeal. An appeal asks a higher court to review the trial court proceeding to determine if there were errors that require reversal. Once an appeal is filed, the parties present their arguments in briefs, which are submitted to the appellate court along with the record of evidence from the trial court. The appellate court usually reviews a case for legal error only, however, in certain unusual circumstances, the appellate court may be called upon review factual evidence or override a jury’s findings of fact. The appellate court announces its decision in a document called an opinion. The appellate court will affirm the verdict if it finds that there was no error in the trial court proceeding. If there was an error, however, the appellate court can reverse the verdict or order a new trial. An appeal can extend the litigation process by a year or more.
