Fast becoming an important part of the preparation for trial or settlement.

Includes:

A motion a party can make to try to dispose of all or part of a lawsuit prior to trial.

Two major pretrial motions:

• motion for judgment on the pleading
• motion for summary judgment 

MOTION TO DISMISS

Also known as

DEMURRER 

A defendant can file this against the plaintiff's complaint for failure to state a claim for which relief can be granted. 

This motion alleges that even if the facts as presented in the plaintiff's case are true, there is no reason to continue the lawsuit because the plaintiff's facts do not support his complaint.  

This motion can be filed with the court prior to the defendant having filed an answer to the case.   

Either party can make this motion after pleadings are complete. 

Judge can't consider any facts outside the pleadings.   

This motion asserts that:

1) there are no factual disputes to be decided by the jury;

2) that the judge should apply the relevant law to the undisputed facts to decide the case.

• Motion can be made by either party

• Is supported by evidence olutside the pleadings

Pre-trial hearing

Major purpose - to facilitate settlement of the case

Held in judges chamber

If no settlement is reached, hearing is used to identify the major trial issues and other relevant factors

More than 90% of cases are settled before they go to trial. 

A party to an action at law is guaranteed this right pursuant the the 7th amendment.

Most state constitutions contain a similar guarantee. 

The jury in a jury trial

The judge when there is no jury 

BENCH TRIAL

Also called

WAVIER TRIALS 

Documents submitted to the judge by each party.

Legal support for their side of the case.  

Oral testimony given by either party or witness prior to trial

Under oath

Transcribed 

D-D-B-M-F-T 

Pool of potential jurors, usually selected from voter or automobile registration lists

Usually 6-12 jurors to hear a case

Court can fine or jail for willful refusal to serve as a juror

To speak the truth

Process where by prospective jurors are asked questions by the judge and attorneys to determine if they would be biased in their decision 

To separate from outside world to protect jurors in high profile cases

the jury is sometimes sequestered in a hotel without access to news media, the general public or their families except under supervision, in order to prevent the jury from being "tainted" by information or opinions about the trial outside of the evidence in the courtroom. A witness may be sequestered from hearing the testimony of other witnesses, commonly called being "excluded," until after he/she has testified, supposedly to prevent that witness from being influenced by other evidence or tailoring his/her testimony to fit the stories of others.

A summary by the attorney of the main factual and legal issues of the case and why they believe their clients position is valid.

Attorney's opportunity to tell the trier of the fact what he intends to tell the jury through witnesses and evidence. 

Plaintiff's attempt to persuade the trier of fact of the merits of their case.

Also called:  Plaintiff's case 

The first questioning of a witness during a trial or deposition.

Can only ask narrative questions. 

After the plaintiff's attorney redirect examination, the defendants attorney can question the witness again.

Process by which the defendant calls witnesses and introduces evidence to:

1) rebut the plaintiff's evidence

2) prove affirmative defenses

3) prove allegations made in a cross-complaint 

Evidence introduced to counter, disprove or contradict the opposition's evidence or a presumption, or responsive legal argument.

the final argument by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff (in a criminal case) makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument.

Unlike the "opening statement," which is limited to what is going to be proved, the "closing argument" may include opinions on the law, comment on the opposing party's evidence, and usually requests a judgment or verdict (jury's decision) favorable to the client.

The jury goes into the jury room to determine it's findings.

Can take a few minutes or weeks.

In civil cases - jury also assesses damages.  

(In criminal cases-judge assesses penalties) 

The official decision of the court

Sometimes referred to as decree 

JUDGMENT NOTWITHSTANDING THE VERDICT

JUDGMENT N.O.V.

J.N.O.V. 

The reversal of a jury's verdict by the trial judge when the judge believes there was no factual basis for the verdict or it was contrary to law.

Latin:  Non Obstante Veredicto.

A judge's order reducing a judgment awarded by a jury when the award exceeds the amount asked for by the plaintiff or if he feels the jury to have been biased, emotional or inflamed.   

The appellant is often required to post this on appeal. 

(e.g. 1 1/2 times the judgment)