We Are Going to Trial

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Joe Mohr

Injury cases can be traumatic enough without having a trial. Unfortunately, insurance companies are bolder today than they were in the 70s or 80s. Now they often want to go to trial on cases they never would have risked before. Insurance company propaganda has poisoned the well of potential jurors. Many jurors come to court with the expectation of finding some scam artist claiming to be horribly injured as a result of some relatively minor event. They have been told over and over again in the news media about "Jackpot Justice" where people come to court and ask for millions of dollars for spilling coffee in their lap, or falling down in a puddle of water in the grocery store or having a minor fender bender.

Trial is war. It is war by a certain set of formal rules. The lawyers know and understand the rules. The participants and jurors may or may not. This article is intended to give you a rough road map of what will happen. Different states have different rules of civil procedure. The things I describe here may happen differently in your trial depending upon their rules.

Jury Selection

First, a jury will be selected. This is called Voir Dire. Jury selection may be done by the lawyers or by the judge, depending upon the rules for your state. In my state, Texas, the lawyers ask the jurors questions and then select who will NOT be on the jury. They make certain strikes off the jury list after the questioning and then the jurors who are left make up the jury. In Texas, they question jurors in an open forum with all jurors present at one time. Other states ask jurors questions individually or in small groups. In Texas it is not unusual to have 100 potential jurors in the room at one time answering questions. It can be intimidating for the injured person to be in front of such a large group. Once the jury is selected the judge will probably read the jurors some rules to live by during the trial and then seat them.

Although you might like your lawyer to ask certain questions, there are a myriad of legal rules about what may be asked of the jurors.

Opening Statements

Second, there are usually opening statements made by each of the lawyers involved. They will typically tell each side of the story from their client's point of view. In my state the Plaintiff's lawyer (your lawyer) goes first and then the defense gets to open. These opening statements are often a preview of what the evidence will be during the trial. Sometimes they will be almost an argument that your side is the right one.


Third, there will be witnesses presented and there will be cross examination. Your lawyer will probably go first and call witnesses. Immediately after each witness testifies the other lawyer will get to cross examine. The first lawyer may then get to ask more questions and the other lawyer may get to continue cross examining. Then the other side may get to call witnesses.

During your presentation, your lawyer will probably call you as a witness. You may not be the first or the last witness. Witness placement is often an issue of trial strategy. Normally you want strong witnesses first and last. They are the anchors of your case. You may or may not be the strongest witness for your case. Jurors do not like to hear plaintiffs whine. Sometimes it is better to have someone else close to you describe your condition for the jury in more detail than you.

Other considerations for witness placement are the costs and convenience to witnesses. Doctors and experts can be expensive if left waiting in the wings. Costly hours can be burnt up if they do not testify as soon as they are available. These added costs might reduce the value of any verdict or settlement you might obtain later.

Typically when the plaintiff's witnesses finish, the defense may make some motions. Often the defense will ask for the judge to find in their favor or find that you failed to present a case. Often these motions are made in every trial as a matter of form by the defense. They are rarely granted as to the entire case. They may be granted as to individual claims or issues that were pled but not proven by the witnesses presented.

One major consideration for you during your trial is the admission of all of your medical bills, lost wages and other documentation of damages. Often your lawyer may seem to be focusing on some minuscule legal issues, which do not seem important to you at the time. Often these issues have to do with the admissibility of your bills. Bills and documentation are often important to jurors. During a trial they have your word to accept or not about your injuries. Bills and records are tangible. They can hold the bills and records and read them over at their leisure during deliberations. They are often critical in the context of getting fair compensation for your injuries. Be patient with your lawyer if he or she seems to be spending a lot of time on these issues. These issues can have a huge impact on the amount of your verdict.

Other documentation and evidence may be admitted during the trial. Sometimes photographs, physical evidence, copies of the police report (in some states), copies of medical bills, medical records and other things will be admitted into evidence.

Witnesses that will likely be called in your case by your lawyer will be:

  • You
  • Your spouse, relatives, friends or close associates to discuss your condition before and after the accident
  • The defendant (if allowed in your state)
  • The police officer who came to the accident scene
  • Witnesses to the accident
  • Experts on various scientific matters
  • Your treating doctors or chiropractors
  • Doctors who evaluated you after the accident (including Independent Medical Examiners)
  • Custodians of records for hospitals or doctors who do not testify in person
  • Anyone else who might be helpful to your cause

Witnesses who may be called by the defense include:

  • The defendant
  • Any witnesses to the accident
  • The police officer if not called by your lawyer
  • Treating or evaluating doctors if not called by your lawyer
  • Their experts
  • Anyone else helpful to their cause

Fourth, once the witnesses are presented, each side may be allowed to bring rebuttal witnesses. Finally the evidence will close.

Final Arguments

After all of these things have happened there will be final arguments. Each side gets to argue the case to the jury. In Texas, the plaintiff (or the party with the burden of proof) gets to argue first and last. The defendant argues in the middle. This gives your lawyer the ability to make an argument, hear the defense argument and then rebut some of their claims.

Just prior to final argument there may be a short legal hearing at which the lawyers and the judge will argue over what written questions and instructions will be submitted to the jury. Different states handle this differently. Not all states submit written questions to the jury. In Texas we do. In Texas we use "Pattern Jury Charges" which are written by lawyers for the State Bar. These Pattern questions and instructions take a lot of the argument out of this area of the trial. Pattern questions exist for most of the major areas of litigation including most personal injury matters.

Jury Deliberation

Then comes the big moment. The case goes to the jury. They all file into another room and vote on who is the foreman. Then typically they will read over the entire jury charge and questions one more time before discussing the case. Then they argue and discuss the evidence. Eventually they will come to a verdict...hopefully. If they cannot you may get a mistrial and may have to do it all over again on some later day.

In Texas, the jurors put their answers on the form submitted to them and then sign the verdict. When they come back into court the judge will read the verdict form out loud.

Once the verdict is in, the trial is over. There may be appeals and other motions but those things are more properly discussed in another article. Good luck!

Joseph A. Mohr is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Mohr practices in Richmond, Texas and has been licensed since 1992. Mr. Mohr practices in Fort Bend County, Harris County, Galveston County, Montgomery County, Austin County, Colorado County, Wharton County and most other counties in the Greater Houston area. Mr. Mohr can be reached at his Web site at www.mohrlaw.com.

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