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Posted by attorney John McKindles

McKindles Law Firm Most people's concept of a jury trial is based on portrayals on television and in movies. They realize that there is much more to it, but they have no idea what that "more" is. This is an effort to afford a glimpse into some of the "more" that is involved. I recently completed a jury trial in which I represented Sterling Pureheart (not his real name), who, after buying a commercial building, sued the seller, whom we shall call "Curly." Also named in Sterling's suit were "Larry" and "Moe," the commercial real estate agents who had represented Sterling and Curly, respectively. Sterling's claim arose when, soon after close of escrow, he learned that the City would not let him conduct business at his new location until he made costly modifications to the building. There was strong evidence that Curly and his real estate agent, Moe, were aware of the City's requirements before the sale but did not share that information with Sterling. Evidence also existed that Sterling's agent, Larry, had agreed (but failed) to ask the City about any restrictions or requirements regarding Sterling's intended use of the property. In an effort to resolve Sterling's claim prior to filing a lawsuit, I wrote to Larry, Moe and Curly, outlining the issues and requesting a meeting of all parties. The only response I received was from Moe's attorney, who prudently agreed to the meeting. Unfortunately, little could be achieved at the meeting with two major players missing, so litigation ensued (pun intended). Types of Trials. In this type of civil litigation, the plaintiff may seek a jury trial or a 'bench" trial. (In a bench trial, the judge - not a jury - determines who wins and loses and what the prevailing party is entitled to receive.) Jury trials are generally more expensive, and the major consideration for a party choosing a jury trial over a bench trial is whether an increased probability of a favorable jury verdict justifies the additional cost. In this case, we believed that a jury could readily identify with Sterling's losses as the victim of people who withheld vital information from him, and that jurors' sympathy for Sterling would hold greater potential than the mere technical and legal aspects of his claim. On the technical side, we simply needed enough of a legal basis for our claims that we would survive the inevitable motions for summary judgment, motions in limine and other similar ambushes in order to get to the jury. With a bench trial, the judge sits in a position to determine both issues of fact and issues of law and could more readily grant dispositive motions. With a jury trial, the judge is reluctant to decide the factual issues on dispositive motions and generally will only determine whether there is enough evidence to support a reasonable person's conclusion in favor of a party's claim. That semantic distinction is huge, for a least two reasons. First, once the dispositive motions are denied, the defendants re-evaluate their risks and become more motivated to negotiate a more realistic settlement. Second, the jury (as the trier of fact) remains blissfully unaware of just how precarious the plaintiff's technical basis for the claims may be, allowing the plaintiff (in this case, Sterling) an opportunity to "humanize" the claims and hammer on equity and common sense. Pre-Trial. Preparing for a jury trial entails much more time and work than a bench trial. Apart from the inevitable last-minute filings of dispositive motions and restrictive motions strategically timed to distract and overwhelm, last-minute preparations include collation of proposed exhibits, compliance with the Court's detailed minute entry requirements, agreed and proposed preliminary and final jury instructions, and the list goes on. Before Sterling's case went to trial, his real estate agent (Larry) was dismissed as a defendant after a witness changed his testimony, recanting a prior affidavit he had signed. That happens. What also sometimes happens is that a neighbor, friend, associate or other witness who pledges undying support and can't wait to testify for you disappears or develops amnesia. Given this seemingly universal characteristic, it generally pays to have witnesses' anticipated testimony reduced to writing and signed by them early in the claim processing cycle. This also normally improves early settlement potential. After Curly and Moe's flurry of dispositive and constrictive motions failed to avert the pending jury trial, Moe settled with us the day before trial started. This left Curly as the sole remaining defendant at trial after we rejected his miniscule settlement offer. Trial. On the first day of the scheduled trial, it is common to spend the first half of the day picking a jury from the 40 or so individuals from the jury pool. This is a fairly critical opportunity to evaluate the potential determiners of fact and to have some input into the jury's make-up. Beyond excluding any jurors for cause (e.g., conflicts of interest, impossibility of attending, etc.), each party has three peremptory challenges for which no reasons need to be given. What remains is your jury, which, in a typical civil trial, consists of eight jurors and one or more alternates. Once the jury has been chosen, the parties present their opening statements, with the plaintiff going first. The defendant(s) can either immediately follow with their opening statements or reserve them for just before they present their case. Generally, it is considered strategically wise for a defendant to give an opening statement at the start of trial, thereby predisposing the jury to look for particular weaknesses in the plaintiff's presentation of evidence. As the plaintiff presents evidence, it is important for the plaintiff to paint a clear, simple and cohesive picture of his claims to the jury, thereby more readily convincing the jury that he has met his burden of proof. Conversely, the defendant typically will muddy those waters in an effort to support a closing statement that plaintiff has not met his burden by a preponderance of the evidence. These strategies were in full play in the trial between Sterling and Curly. We had a good, attentive jury whose members seemed to get along agreeably with one another, and we had an excellent, seasoned trial judge who, among other things, worked both parties hard to determine exhibit admissibility prior to trial. Such pre-trial scrutiny can work to the plaintiff's favor, since a plaintiff's presentation is severely impaired if the jury becomes bored with plodding, time-consuming and distracting exhibit admissibility issues. After I rested Sterling's case, having completed the presentation of Sterling's evidence, Curly's attorney moved to dismiss our suit. The judge denied Curly's motion. Curly's attorney then presented his evidence, after which I addressed the jury with the plaintiff's closing statement. Curly's attorney gave his closing, and I had final comments to the jury. The jury, after being given final instructions from the judge, retired to select a foreperson and deliberate toward a verdict. Verdict. Several hours of deliberation later, the jury returned with a unanimous plaintiff's verdict, awarding $100,000 to Sterling in compensatory damages. The plaintiff's additional claim for attorney's fees was being considered by the judge at the time this article was written. While many more factors that are not discussed here were considered by both sides in this case, I hope that this overview offers a helpful explanation of some of the "more" that is involved in a jury trial. ? John McKindles o Testimonials o Contact Us o Home (C) 2000-2011. McKindles Law Firm, P.L.L.C. 1108 E. Greenway St., Suite 1 o Mesa, Arizona 85203 o 480-964-9302 The act of visiting or communicating with the McKindles Law Firm, P.L.L.C., via this website or by email does not constitute an attorney-client relationship that has not otherwise been created. Communications from non-clients via this website are not subject to client confidentiality or attorney-client privilege. Further, the articles and other discussion contained in this website are offered as general guidance only and are not to be relied on as specific legal advice. For legal advice on a specific matter, please consult with an attorney who is knowledgeable and experienced in that area.

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