All the pleadings have been filed, the discovery phase is done, and the court has heard all evidentiary and dispositive motions. You’re not quite ready for trial yet.
The Pre-Trial Conference
The judge will typically call for a conference prior to trial. Don’t be surprised if there’s arm-twisting to try to get you to settle. The judge would love to take the case off the docket. In addition, the court wants to make certain that everyone is ready for trial, so that the process can be as efficient as possible.
Voir Dire — Selecting a Jury
Before opening statements can be made, you have to seat a jury. This process is known as “voir dire,” and varies to some degree from jurisdiction to jurisdiction. However, it typically goes as follows:
- A pool of potential jurors is identified and those individuals are notified that they must be at the courthouse.
- Prospective jurors are individually called to the witness stand, where they can be asked questions by both parties and by the judge. The objective of the questioning is to determine whether the juror can render a fair and impartial decision, based on the evidence submitted. Accordingly, attorneys (and the judge) are looking for any evidence of bias or impartiality.
- The judge can typically dismiss a potential juror for reasonable cause. Attorneys for both sides also have two different ways to challenge a potential juror. Each side typically gets a limited number of “peremptory” challenges, which allow them to dismiss a juror for any reason. The parties also have an unlimited number of challenges for cause, but it’s ultimately up to the judge to determine if sufficient cause has been demonstrated.
In a trial, the jurors are the arbiters (deciders) of fact and the judge typically rules on the law. However, the jury must ultimately render the verdict, so jurors are provided with instructions, telling them what legal conclusions they must make based on how they decide the facts. Ultimately, the judge will rule on what instructions are given to the jury, but the judge typically solicits proposed jury instructions and has hearings to entertain any proposed objections to those instructions. Some courts will resolve all issues related to jury instructions before trial, whereas others will wait to see if the case goes to jury deliberation.
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