Written by attorney Justin Sterling




To resolve a dispute, the Court must: (1) Determine the facts of the dispute (decide what actually happened), and (2) Apply the appropriate law to the facts.

A Trial is the formal judicial examination of the parties’ evidence and the determination of legal claims in the adversarial proceeding. The Trial is a public hearing in which each side presents evidence backing its version of the facts.

The length of the Trial varies depending on how many witnesses will be called to testify and the amount of evidence that will be introduced. The Trial can be either a Bench Trial or a Jury Trial. The Jury (or the Judge if there is no Jury) decides the questions of fact. The Judge decides the questions of law, such as which laws apply to the facts. Each party must provide legal arguments to the Judge about which laws apply to the case.


A Bench Trial involves the facts at issue in the case being decided by the Judge, not a Jury. Bench Trials may be preferred if the case is very complicated and may confuse a Jury. However, Bench Trials tend to have outcomes more favorable to Defendants. In order to have a Jury Trial in a civil case, the Demand for a Jury Trial must be timely.

The Judge can decide in the following ways: Judgment for Plaintiff; Judgment for Defendant; Judgment for the Cross-Complainant against the Cross-Defendant; Net-Judgment (i.e. upon deciding a Cross-Complaint, the Judge finds that each party is liable for a certain amount and that there is a balance remaining for which the net amount will be awarded to the prevailing party); or an Off-Set Judgment (i.e. each party is awarded nothing and each party bears their own costs). The Attorney for the prevailing party must serve the Notice of Entry of Judgment on all parties with a Proof of Service.


A Jury is a group of persons selected and granted the power to decide questions of fact and return a verdict in the case. The Trial Jury is chosen from a list called a venire or Jury pool that has been compiled by the Court. The Jury consists of “peers in the community.” If a case is tried before a Jury, the Judge will rule on questions of law and instruct the Jury on how to apply the law. The Jury will be provided Jury Instructions which are submitted to the Court by the Attorneys before the start of Trial.

The Judge is also the gatekeeper as to what evidence may be presented and will rule on objections asserted to the introduction of evidence. The Jury determines the facts based on the evidence presented.

Pursuant California Code of Civil Procedure section 631, Trial by Jury is waived unless a Jury Demand is timely made “at the time the case is first set for Trial, if it is set upon notice or stipulation,” or “within five days after notice of setting if it is set without notice or stipulation.” If either party requests a Jury in a California Superior Court case, that party must deposit Jury Fees at least twenty-five (25) days prior to the scheduled Trial Date.

Pursuant to the California Constitution, in civil cases “the Jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.” The parties may stipulate “in open court” to a Jury of less than twelve (12) members.

After Closing Arguments, the Jury will retire for deliberation. The Jury can review the Jury Instructions, the Exhibits admitted into evidence, and the Verdict Slips. Three-fourths of the Jury must agree upon a verdict before returning to the Court.


The Court Clerk will call twelve (12) people from the Jury list to take a place in the Jury box. The Voir Dire process will then commence, in which the potential Juror must “speak the truth.” The Judge will explain the case and inquire whether there is any reason the potential Juror cannot serve. The Judge or the Attorneys will then question whether the potential Juror has any knowledge of the case or any experiences that will make them biased or unfair.

If the Attorneys believe that a Juror is prejudiced, a request can be made to the Judge to dismiss that Juror for cause. The dismissal of the Juror is discretionary to the Judge. Examples of prejudice include: the fact that a Juror is related to a party or an Attorney, or the fact that a Juror is employed by the company that is involved in the lawsuit. An unlimited number of Jurors can be requested to be dismissed for cause.

In addition to challenges for cause, both parties are allowed six (6) peremptory challenges in California Superior Court. Peremptory challenges allow the Attorney to excuse the Juror without stating a cause. However, peremptory challenges cannot discriminate on the basis of race or sex.

When both parties have agreed upon a Jury, the Jurors are sworn in to try the case by the Court Clerk.

Once impaneled, the Jurors’ role is to weigh the evidence and determine the facts of the case. The Jurors may not discuss the case with anyone, including each other until after the evidence has been presented during deliberations on a verdict. Jurors cannot ask questions of witnesses. However, the Judge may allow the Jurors to submit written questions to the Judge and Attorneys. These questions may be objected to accordingly, just as any other question posed by an Attorney during the Trial.


Each side has the opportunity to tell the Jurors about the case that is being heard. Arguments cannot be made during opening statements. Rather, the opening statement must be confined to only facts that will be proved by the evidence. Since the Plaintiff has the burden of proof in a civil case, the Plaintiff presents the first opening statement.


In a Civil Trial, the Plaintiff bears the burden of proof, which means that the Plaintiff must prove the facts in the case by a preponderance of the evidence (i.e., the greater weight of the evidence, that it is more likely than not that the fact is true). The Defendant does not have to prove that he or she is not liable, rather the burden is on the Plaintiff. The degree of proof required in a civil case is far less strict than in a criminal case, which is “beyond a reasonable doubt” (i.e. the Judge or Jury must be absolutely convinced of the Defendant’s criminal liability). In order for the Plaintiff to succeed at Trial in a civil case, the Plaintiff’s case must be more believable than the Defendant’s case. The amount of evidence is not controlling, rather the side with the more believable evidence satisfies the civil standard of proof “by a preponderance of the evidence.”


Each party presents the case by introducing direct and circumstantial evidence.

Direct evidence supports the truth of an assertion directly. It is proof which directly supports a factual conclusion and requires no other supporting evidence. For example, direct evidence includes party admissions and witness testimony of what he or she personally experienced firsthand through the senses – sight, hearing, smell, touch, or pain. Direct evidence is probative in and of itself.

Circumstantial evidence requires reasonable inferences in order to have any probative effect. Circumstantial evidence merely suggests a fact by implication and is usually introduced when direct evidence is not available. By its very nature, circumstantial evidence allows for more than one explanation. Additional circumstantial evidence may need to be introduced in order to corroborate the conclusions drawn from other circumstantial evidence. When considered together as a whole, the circumstantial evidence more strongly supports one particular inference. In addition, any alternative inferences will need to be ruled out and disproved.


The Plaintiff begins the presentation of evidence in support of their case-in-chief by calling witnesses to testify and conducting direct examination. The witness may identify photographs and documentary evidence. Generally, a witness may not give an opinion unless they are qualified as an expert in the particular field of questioning. The Attorney conducting direct examination may not ask leading questions – those that suggest the answer. The Opposing Counsel may assert objections based on the rules of evidence. Common objections are based on questions that are leading, that call for an opinion or conclusion by a lay witness, or that are subject to the hearsay rule. Evidence is considered hearsay if it is an out of Court statement being introduced for the truth of the matter asserted. Hearsay is excluded unless an accepted exception applies. Hearsay evidence is unreliable because it cannot be subjected to cross-examination.

The Judge must sustain or overrule an asserted objection. If the objection is sustained, the Attorney must ask a different question. If the objection is overruled and the witness answers, the Judge’s ruling may be appealed after Trial.

After Direct Examination, the Opposing Counsel may cross-examine the witness. Cross-Examination is generally limited to the line of questioning raised on direct. Leading questions may be asked during cross-examination in order to test the credibility of the witness testimony. Leading questions may also be asked if the witness becomes adverse or hostile to the party who called the witness to the stand.

The strategy on Cross-Examination is to discredit the witness’s ability to identify documentary evidence or recollect the facts. The witness testimony and evidence can be impeached and shown to not be trustworthy. This can be accomplished by showing prejudice or bias in the witness, such as a personal relationship with a party or an interest in the outcome of the case. Evidence of Felony convictions or crimes involving moral turpitude may be introduced because it is relevant to credibility.

The Attorneys will have an opportunity to question the witness again on re-direct and re-cross examination. Re-direct is generally allowed, whereas re-cross generally must request the permission of the Court. The Judge has discretion on what questions to allow on re-direct and re-cross. Generally, re-direct and re-cross is limited to the witness’s testimony that was not already addressed. Re-direct gives the witness an opportunity to explain any damaging testimony that was elicited on cross examination.

Pursuant to California Evidence Code section 777, on the motion of any party or sua sponte (on the Court’s own order, without the motion of a party), the Court may order witnesses excluded from the courtroom so that they cannot hear the testimony of other witnesses “to prevent tailored testimony and aid in the detection of less than candid testimony.”


The Plaintiff rests after presenting its evidence to support the case in chief during Trial. At this point the Jury will leave the courtroom, and the Defendant may motion for a directed verdict on the grounds that the Defendant’s liability has not been proven by a preponderance of the evidence.

If the Court agrees that the Plaintiff has failed to prove the case, the Court will dismiss the case in favor of Defendant. The standard for granting a Motion for Directed Verdict is that no reasonable Jury could reach a decision to the contrary. The Judge may order a directed verdict as to the entire case or only to certain issues in the case.

It is more common that the motion will be denied, and the Defendant must then proceed to present its supporting evidence.

After both parties have presented their case and all the evidence has been presented, the Jury will again exit the courtroom. At this time, either party may move for a directed verdict. If the motion is denied, the case will be submitted to the Jury.


At the conclusion of presenting evidence in support of the Defendant’s case during the Trial, the Plaintiff can then present rebuttal witnesses or evidence to refute any evidence presented by the Defendant. Rebuttal evidence can only include evidence not already presented in the case, such as a new witness who offers contradicting testimony to the Defendant’s witnesses.


The closing argument is the opportunity for each Attorney to summarize the evidence presented and to discuss the inferences that may be drawn supporting their theory of the case. Only issues that were actually addressed and evidence that was actually presented during the case may be discussed in the closing arguments. Before giving the closing arguments, the Judge will approve the Jury Instructions. The Attorneys may comment on the selected Jury Instructions and discuss the related evidence in the closing argument. Plaintiff’s Counsel will give the first closing argument, and then Defense Counsel has the opportunity to respond in its closing argument by indicating the defects in Plaintiff’s case. Because the Plaintiff has the burden of proof, the Plaintiff’s Counsel may then make a concluding rebuttal argument responding to the Defense Counsel’s argument.


The Judge will instruct the Jury about which laws should be considered in deliberations. The Judge will conduct its “charge” to the Jury by reading the selected Jury Instructions, indicate the issues in the case, detail the role of the Jury as determining the facts and witness credibility, and discuss the civil standard of proof “by a preponderance of the evidence.” The Judge will inform the Jury that the opening and closing arguments of the Attorneys are not to be considered as evidence. The Jury must determine the facts and reach a verdict within the guidelines of the law as determined by the Judge. In a Jury Trial, the Jury is the trier of facts and weighs the evidence. The Judge serves as the gatekeeper of what and how the evidence can be considered.


A Mistrial results when the Trial is not successfully completed and is therefore considered void. A Mistrial is a form of extraordinary relief granted by the Court when, during the course of the Trial, a party’s rights have been seriously prejudiced to the point that a Fair Trial cannot be conducted and justice cannot be served. A Mistrial terminates the Trial mid-proceedings due to the error. Mistrials can occur for many reasons, including:

(1) Death of a Juror or Attorney;

(2) Impropriety in selecting the Jury which is discovered during the Trial;

(3) Fundamental prejudicial error which is seriously unfair to a party and cannot be cured by appropriate instructions to the Jury (such as highly improper remarks by counsel in Closing Argument);

(4) Juror misconduct (such as having contacts with one of the parties, considering evidence not presented during Trial, conducting an independent investigation of the matter); or

(5) The Jury’s inability to reach a verdict because it is deadlocked (i.e. Hung Jury).

Certain events during Trial will likely result in an Objection, Motion to Strike, Request for Curative Instruction, or even a Motion for Mistrial. These include:

(1) Referring to Defendant’s liability insurance or insurer in testimony elicited by Plaintiff’s Counsel, or in Plaintiff’s Counsel’s Closing Argument;

(2) Referring to race or racial discrimination when the lawsuit does not involve a claim for discrimination;

(3) Referring to excluded matter;

(4) When an Attorney gives his or her own opinion on the issues in their Closing Argument;

(5) When an Attorney makes a derogatory remark about the opposing party;

(6) When an Attorney asks the Jury to “put themselves in the shoes of the Plaintiff” (this is known as the “Golden Rule” and traditionally has resulted in reversals);

(7) When an Attorney presents an argument based on facts not contained in the record;

(8) When an Attorney comments on the failure of a witness to testify if that same witness could have been called to the stand by the commenting Attorney;

(9) When an Attorney vouches personally for a witness; and

(10) When a Juror engages in misconduct, or inappropriate contact with the parties or their Attorneys.


After the Jury Instructions and Closing Arguments, the Jury will retire and begin deliberating to deliver the verdict. In civil cases in California Superior Court, a Jury can render a verdict if three-fourths (¾) of the Jurors agree. In Federal Court, the Jury must reach a unanimous verdict. If the Jurors cannot agree on a verdict, the result is known as a Hung Jury, which leads to a Mistrial allowing the case to be tried again at a later date before a new Jury.

If the Jury cannot reach a decision within the first day of deliberating, the Jurors may be sequestered. That is, the Jurors will be housed in a hotel and secluded from all contact with other people, newspapers and news reports. However, in most cases, the Jury will be allowed to go home and the Judge will instruct them not to read or watch news reports of the case, and not discuss the case outside of the Jury room.

If a verdict is reached, the Jury will either find in favor of the Plaintiff or the Defendant. The Jury will also decide on any counterclaims in the case. In addition, the Jury will set the amount of damages the Defendant should pay the Plaintiff. Oftentimes, the amount of damages is determined by a separate hearing.

Generally, the losing party may request to poll the Jury, which means that each Juror will be asked if he or she agrees with the decision as announced.


The Jury verdict is not effective until the Judge enters the Judgment on the decision. The Judge must issue an order that the verdict be filed as public record.

However, once the damages amount has been announced, either party may file a Motion for Additur or Remittitur.

In California Superior Court, the Judge has the authority to increase or decrease the amount of damages awarded by the Jury before entering the Judgment.

The Court will review the damages award to determine if it is reasonable. If not, as a matter of law, the Court may reduce or increase the award. Increase is known as Additur and decrease is known as Remittitur. In making this decision, the Court will evaluate whether the damages award is supported by substantial evidence, whether it is grossly disproportionate, or whether it shocks the conscience.

Federal Courts do not allow Additur to increase damages amounts because it is considered in violation of the Seventh Amendment Right to a Jury. However, all State Courts and all Federal Courts permit Remittitur to reduce damage awards.

If the party adversely affected by the addition or reduction disagrees, the Court must order a New Trial only on the issue of damages.

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