STEPS IN THE TRIAL PROCESS

1. STEPS IN THE TRIAL PROCESS

2. Outline of all steps • Voir dire prospective jurors • Impanel the jury • Plaintiff’s opening statement • Defendant’s opening • Plaintiff’s case in chief • Plaintiff rests • Defendant’s motion

3. Outline, cont’d • Defendant’s case • Defendant Rest • Plaintiff’s rebuttal • Defendant’s surrebuttal • Renewal of motion for directed verdict • Closing Arguments • Judge’s charge to the jury • Jury deliberations, jury verdict, and polling

4. Voir Dire / Impanel the jury • Each juror must swear or affirm that he/she will be fair and impartial in rendering a verdict

5. Plaintiff’s Opening Statement • Purpose • Components • Introduction (your honor, members of the jury) • The evidence will show that _________, the defendant, is liable to __________ the plaintiff. • Theme (This is a case of…) • Background facts (humanize your client) • Story: The evidence will show that… • Outline the key facts from your clients perspective; plant the seeds • Conclusion: At the conclusion of this trial, I will return and ask you based on the evidence to find a verdict in favor of the plaintiff, ______, because the evidence will show that the Defendant had a duty to …; Defendant breached that duty by… and as a result, the plaintiff, ___________ was injured.

6. Defendant’s Opening Statement • Similar to the Plaintiff’s opening statement • Present the facts and evidence • In light most favorable to the defense.

7. Plaintiff’s Case in Chief • Direct Examination • Have each witness sworn in • Form of questions (not leading) • Foundation to show personal knowledge • Objections: Must be timely and specific • Documentary Evidence • Court Rulings • Exclude Facts- Sustain objection • Admit into evidence- Overrule objections • Motion to Strike • Demonstrative or Real Evidence

8. Plaintiff’s Case in Chief, cont’d • Cross-examination of every witness • Scope- limited to Direct • Purpose • Use of leading questions on cross-examination • Impeachment • Re-direct (purpose and scope-not mentioned earlier that was brought up in the defendants cross-examination) • Re-cross (purpose and scope) limited to Cross

9. Plaintiff Rests • Before resting, make sure that you have established a prima facie case. (if not, you may still take a voluntary dismissal in N.C. at any time before you rest pursuant to Rule 41(a) of the North Carolina Rules of Civ. Pro. (Too late in Fed. Court, without permission) • Confirm that all documents and real evidence have been received into evidence. If relevant, ask that certain matters be judicially notice (ART.II)

10. Defendant’s Motions • Directed verdict • Judgment as a matter of law (not in the presence of the jury) • Basis: • insufficiency of the evidence/ insufficient probata • Burden of proof (production) • Court should consider the evidence in the light most favorable to the non-moving party; court should not weigh credibility of witnesses; and all inferences must be drawn in favor of the non-moving party.

11. Direct Examination • Direct Examination • Have each witness sworn in • Form of questions (not leading) • Foundation to show personal knowledge • Objections: Must be timely and specific • Documentary Evidence • Court Rulings • Exclude Facts- Sustain objection • Admit into evidence- Overrule objections • Motion to Strike • Demonstrative or Real Evidence

12. Remaining Steps • Defendant Rest • Plaintiff’s Rebuttal ( if necessary ) • Defendant’s Surrebuttal ( if necessary ) • Renewal of motion for directed verdict • Closing Arguments • Judge’s Charge to the Jury • Jury deliberations, Jury Verdict, and Polling the Jury

13. Rules of Evidence • Objection • Competency • Personal Knowledge • Form of Questions • Relevancy • Prejudicial • Impeachment • Hearsay • exceptions

14. Objections • Offer of Proof • Timely • Specific • Objection • Sustain • Overrule

15. Competency Requirments • Ability to understand the obligation to tell the truth • Ability to communicate • Perception of relevant fact • Seen, heard, smelled, touched, or tasted a relevant fact • Ability to remember and recall Form of objection: “Your honor, I object to the testimony of this witness because he/she is incompetent to testify.”

16. Personal Knowledge • Knowledge of the facts about which he/she testifies Form of Objection: “your honor, I object because the witness does not have personal knowledge of the facts.”

17. Form of Questions • Use of Leading questions forbidden during direct examination • Leading questions may be used during cross-examination. Form of Objection: “Your honor I object because counsel is using a leading question during direct examination.”

18. Relevancy • Some tendancy to prove a fact in issue at the trial. Form of Objection: “Your honor, I object because the offer of proof is irrelevant.”

19. Prejudicial • Probative value not outweighed by prejudicial effect Form of Objection: “Your honor, I object because the offer of proof is highly prejudicial.”

20. Impeachment • The credibility of a witness may be impeached by showing: • That the witness is biased toward or prejudiced against a party • That the witness is an untruthful person • That the witness has a prior criminal record; or • That the witness made a prior statement that is inconsistent with his/her present court testimony. Form of objection: “Your honor, I object to impeachment.

21. Hearsay • A witness may not testify concerning verbal or written statements of a person made outside of the court-room if the out-of-court statements are offered at trial for the truth of the matter asserted, unless the statement falls within an exception to the hearsay rule Form of objection: “Your honor, I object because of the hearsay rule.”

22. Hearsay Exceptions • Admissions offered against the adverse party. • Excited utterances • Business records exception • Former testimony • Dying declarations