Trial
Adversary System
Our system of justice assumes that the best way to bring out the truth is for both sides to “go at” the
various witnesses, enabling a neutral factfinder (judge or jury) to detect the truth. Each side presents its
witnesses and then the opponent has a chance to cross-examine. The judge runs the trial.
Right to Jury Trial
Both the plaintiff and the defendant have a right to a jury trial when the lawsuit is one for money
damages. The parties may waive this right, in which case a judge will decide the suit.
Voir Dire
The process of selecting a jury for the trial is called voir dire. During voir dire, the court’s goal is to select
an impartial panel, the theory being that an unbiased jury will result in the fairest possible trial. In
contrast, the lawyers are in court to win, and each will attempt to create a jury that is most favorable to
her client.
During voir dire, each lawyer may attempt to eliminate certain prospective jurors. Each lawyer is entitled
to an unlimited number of challenges for cause (bias), and a limited number of peremptory challenges
(virtually any reason). A judge will allow a challenge for cause only when the lawyer can demonstrate that
the juror will not be fair and impartial. A peremptory challenge, however, requires no showing of bias.
When impaneling a jury, a lawyer cannot take race, gender, ethnicity, and religion into account.
Case: Pereda v. Parajon1
Facts: Maria Parajon sued Diana Pereda for injuring her in a car accident. During voir dire, Parajon’s
lawyer asked potential jurors: “Is there anybody sitting on this panel now that has ever been under the
care of a physician for personal injuries, whether you had a lawsuit or not? In other words, you may not
have had any sort of lawsuit, but you slipped and fell- you had any accidents?”
Several prospective jurors raised their hands; however, Lisa Berg, a lawyer, did not. Berg and others
were seated as jurors and awarded Parajon $450,000 for medical damages and pain and suffering.
After the trial, during questioning by the judge, Berg admitted that she had been injured in a car
accident, sued, and settled out of court for $4,000.
Parajon moved for a new trial but was denied. Parajon appealed.
Issue: Is Parajon entitled to a new trial based on Berg’s failure to disclose her own personal injury
lawsuit?
Decision: Yes, Parajon is entitled to a new trial. Reversed and remanded for a new trial.
Reasoning: When a juror does not accurately answer questions during voir dire, a new trial is called for if
the following three criteria are met:
Berg’s own car accident was relevant and material because it might have influenced her opinion in the
1 957 So.2d 1194, Florida Court of Appeals, 2007.
1
Question: If Parajon won the trial and was awarded $450,000 why would she move for a new trial?
Answer: In this case, the jury did not find Pereda’s employer liable, nor the driver making the U-turn; it
found Pereda solely liable for Parajon’s injuries. A possible reason Parajon moved for a new trial was to
Question: Does that mean because one juror did not answer a question truthfully, both parties have to pay
to try the case again?
Question: Is there anything the parties can do to the juror? Can they sue her for lying during voir dire?
Answer: The parties cannot sue Berg for lying during voir dire. But, potential jurors are under oath when
Conduct of Trial
Each attorney makes an opening statement to the jury summarizing the about the facts that she expects
to prove.
The plaintiff has the burden of proof in a civil suit, and must prove her case by a preponderance of the
evidence.
The plaintiff and her witnesses then testify on direct examination by the plaintiff’s attorney. Each is
subject to cross-examination by the defense.
After cross-examination and redirect examination of all of the plaintiff’s witnesses, the plaintiff rests her
case. At this time, the defendant may move for a directed verdict — a ruling made by the judge during
the trial that the plaintiff has failed to prove some aspect of her case. A directed verdict is permissible only
if the evidence so clearly favors the defendant that reasonable minds could not disagree on it.
If the judge denies the motion for a directed verdict, the defendant then has the opportunity to present his
case, including evidence and witnesses. After cross-examination and redirect examination of all of the
defendant’s witnesses, the defendant rests his case.
The attorneys then make closing statements to the jury.
Jury Instructions/Verdict
The jury receives jury instructions from the judge and then deliberates to reach a verdict. The judge
then applies the law to these findings and renders a judgment.
Motions after the Verdict
A motion for judgment notwithstanding the verdict (JNOV) may be made, asking the judge to
overturn the jury’s verdict on the grounds that the jury’s decision went against all of the evidence.
Appeals
The purpose of an appeal is to determine whether the trial court committed prejudicial error. The appellate
court reviews only errors of law, and does not rehear evidence or re-determine facts. It decides on the
records, abstracts, and briefs.
The appellate court can affirm, modify, reverse and remand, or reverse the decision of the trial court.
Additional Case: Hernandez v Montville Township Board of
Education2
Facts: Victor Hernandez had worked for more than 20 years as a custodian at a public power plant and
had received training in health and safety rules from the Occupational Safety and Health Administration
(OSHA). He took a second job as night custodian at an elementary school. Shortly after he started work,
the school board fired him for alleged poor job performance. Hernandez sued, claiming that the board
fired him in retaliation for reporting health and safety code violations. The jury awarded Hernandez
damages for lost wages and emotional distress but the trial judge granted judgment notwithstanding the
verdict (JNOV). The trial judge stated:
“Talk about trivial. By the time the jury went out, I should have concluded that the plaintiff simply
had not made out a case, under the CEPA law, because he never disclosed or threatened to disclose to
his supervisor an activity, policy, practice of an employer that the employee reasonably believed was
in violation of law or a rule. There simply was none. In addition to that, there isn’t any other evidence
adduced by anyone in the case that these things that he’s complaining about ever occurred. I didn’t
believe anything [plaintiff] said. [This is] trivialization beyond belief.”
Hernandez appealed.
Issue: Did the trial court err by rejecting punitive damages, or by granting the JNOV?
Holding: JNOV reversed and jury’s verdict on compensatory damages reinstated. Plaintiff knew there
were regulations and policies against exposing schoolchildren to urine and feces and against unlit exit
signs, particularly in an elementary school setting. Contrary to the court’s finding in granting JNOV, it is
irrelevant to plaintiff’s CEPA claim whether there was independent corroboration of the overflowing
toilets. Under the JNOV standard the court must accept as true plaintiff’s testimony, which the jury clearly
found credible.
There was ample evidence in the record for the jury to conclude defendant’s proffered reason for
termination was a pretext and that the whistleblowing itself was a substantial factor in the termination. It
was error for the court to substitute its judgment for that of the jury and reverse the jury verdict.
There was sufficient evidence to submit the punitive damage claim to the jury. Based upon the
compensatory damage verdict, it appears that the jury agreed.
Question: Why did the trial judge conclude that Hernandez was not entitled to the almost $200,000 in
damages awarded by the jury?
Answer: The trial judge thought there was no substance to Hernandez’s claim because he introduced
Question: Why does a trial judge have the power to ignore a jury’s decision?
Answer: The rules of civil procedure give a trial judge the power to enter a JNOV, or a judgment
Question: Did the jury’s verdict in this case fail to rest on the evidence?
Answer: Not according to the appellate court. It stated that the trial judge ignored the standard for
Question: What is that standard?
Answer: In considering the judgment NOV, the trial judge should have accepted Hernandez’s
Question: Isn’t this appeals court substituting its own judgment for that of the trial judge?
Answer: No. The appellate court is insisting that the jury’s verdict be reinstated. A trial court should
2 354 N.J.Super.467, 808 A.2d 128, Superior Court of New Jersey, Appellate Division, 2002.
Alternative Dispute Resolution
Negotiation
The parties discuss the issues directly or through lawyers; the parties remain in control of the outcome.
Additional Case: Snyder County Prison Board and County Of Snyder,
Appellants v. Pennsylvania Labor Relations Board and Teamsters Local
7643
Facts: Since 2002, Teamsters Local No. 764 (Union) has been the exclusive representative of Snyder
County Prison employees. The collective bargaining agreement (CBA) in effect from January 1, 2002,
through January 31, 2005, recognized the Union as the sole and exclusive bargaining agent for “[a]ll
full-time and regular part-time prison guards including.. . correctional officers/cooks.. ..”
The present controversy began in 2004, when Union representatives learned that the Prison Board was
considering contracting with Aramark Corporation to provide food service operations at the prison. Upon
learning of this plan, the Union President sent a letter to the Prison Warden requesting negotiations over
this potential contract.
The Union informed the Prison Board that if the contract was executed, Aramark would be obligated to
hire the members of the bargaining unit who are already performing the work, or refrain from hiring
non-unit employees to do so. The Union expected Aramark to establish contractual relations with the
Union similar to those already in place with the Prison Board.
The Prison Board entered into a contract with Aramark effective October 1, 2004. Aramark hired four of
the eight bargaining unit employees that had been working in the food service area. One employee retired,
two were hired by the Prison Board as part-time correctional officers, and one employee declined that
position. The Union filed a charge of unfair labor practices with the PLRB.
At the administrative hearing, the Prison Board acknowledged that it was required to bargain to impasse
before contracting out bargaining unit work but asserted that it had met this obligation.
The Hearing Examiner concluded that, under Act 195, both the Prison Board and the Union had to
exhaust the impasse resolution procedures contained in Article VIII before taking unilateral action; those
procedures require mediation and arbitration. Because the parties had not engaged in either alternative
dispute resolution method, the Hearing Examiner concluded that the Prison Board had not satisfied its
statutory duty to bargain to impasse. The Hearing Examiner recommended that the Prison Board be
charged with unfair labor and ordered, inter alia, to rescind the Aramark contract, restore the food service
work to the bargaining unit, reinstate the displaced employees, and compensate those employees for lost
wages and benefits.
The Prison Board appealed, but the trial court affirmed the PLRB’s decision after reviewing whether it
was “arbitrary and capricious.”
Issue: Did the Prison follow the proper procedure to negotiate the food services contract with the Union?
Holding: No. After a second appeal, the Court of Appeals holds that the Prison Board’s duty to bargain in
good faith over the issue of contracting with Aramark required the Prison Board to follow the impasse
resolution procedures. The Prison Board’s failure to do so was an unfair labor practice. The PLRB
committed no error.
Question: What kind of review did the Court of Appeals engage in? What does that mean?
Answer: The Court of Appeals reviewed the appeal to determine whether the decision was
“arbitrary and capricious.” This is a standard used when a court reviews administrative hearing
3 912 A.2d 356, Commonwealth Court of Pennsylvania.
Question: Why are such mandatory alternative dispute methods in place? What purpose does it
serve to have such a procedure in place?
Answer: Such procedures ensure that mediation and arbitration take place before the case goes to
Mediation
A neutral third party guides the disputing parties toward a voluntary settlement. The use of mediation may
be court-ordered or voluntary.
Additional Case: Smith v. Smith4
Facts: Nataan (Father-Claimant) and Tracy Smith (Mother-Respondent) were divorced in Kansas on
August 19, 1992. The court awarded joint legal and physical custody of the party’s two year old child,
Jessica. The primary physical custody was placed with the father. The mother was given specific
weekend, weekday, and holiday visitation.
In 1998, the father sent the mother a certified letter informing her that his employer, Southwestern Bell,
had transferred him to Dallas, Texas, and that their daughter, Jessica, would be going with him.
The mother filed a motion to prohibit him from taking Jessica to Texas until a hearing could be held. The
court permitted the father to take the child to Texas on a temporary basis. The father and Jessica moved to
Dallas, Texas, where he was now employed.
At the time of trial in 2000, Jessica was ten years old, had lived with the father for nine years, and had
lived with the father in Texas for over a year. After evidence was presented, the trial court changed
custody, without delay, by placing sole physical and legal custody with the mother and granting the father
specific visitation privileges.
The court’s reasons for changing custody were that the father failed to cooperate with the guardian ad
litem, and that he had failed to comply with the court’s order regarding the payment of fees. The court
added that the father refused to attend court-ordered mediation.
The guardian ad litem testified that she sent several letters to the father’s attorney, but not the father, about
the mandatory mediation but could not get a response. The mother testified that she was unwilling to
attend mediation if the other party is not willing to attend. The father testified that he never received
notice of the mediation. Father-Claimant appeals the trial court’s judgment.
Issue: Should failure to attend court-ordered mediation be a sufficient reason for the court to transfer
custody from father to mother?
Holding: Although the father did not attend mediation, this is not a basis for a change of custody. There
was no intentional or purposeful refusal to attend court-ordered mediation upon which to base a change of
custody decision. It is significant that Mr. Smith was a model father in every respect except as noted by
the guardian ad litem. On the other hand, the mother presented very little testimony as to the life Jessica
would live in Missouri except that she would live with her half-siblings and the mother’s boyfriend.
The judgment of the trial court is reversed and the case is remanded for further evidence on the relocation
issue.
Question: What are some reasons that a court would rule mediation to be mandatory in child
custody cases?
Answer: Mandatory mediation is useful in resolving non-legal issues that may affect the
4 75 S.W.3d 815, Missouri Court of Appeals, Western District.
Mediation can cover and resolve more issues than a court can. It can also save everyone’s time
and money in the process.
Arbitration
A neutral third party guides the disputing parties to discuss their cases, then renders a decision that is
binding on both parties. The use of arbitration may be court-ordered or voluntary.
Additional Case: Dick v. Dick5
Facts: Plaintiff-Husband and defendant-Wife had been married approximately 2 ½ years before plaintiff
initiated divorce proceedings. They had one son. They agreed to submit all issues, including the division
of property and child custody and support, to binding arbitration. On March 30, 1990, the court entered an
order that provided for binding arbitration, named an arbitrator, and set forth the parties’ agreed-upon
conditions. Notable among them were the following:
B. The Arbitrator shall be considered, in all respects, to be a substitute for the Circuit Judge in
this case and shall be accorded all of the powers, duties, rights and obligations of the Circuit
Judge, including, but not necessarily limited to, the determination of all issues present in this
divorce action.. . and matters involving the parties and their minor child.
IT IS FURTHER ORDERED that any appeal.. . shall be based solely on the substantive decision
of the Arbitrator.
More than two years later, the Arbitrator issued his opinion. The length of the arbitration is directly
related to the bitter and hostile approach of the parties, especially plaintiff. This matter could have been
resolved quickly if not for the nasty litigation tactics used by the parties. The parties’ divorce proceedings
lasted almost twice as long as their marriage.
On appeal of the Arbitrator’s opinion, plaintiff attacked the validity of the arbitration agreement. He
argues that the arbitration agreement is void because Michigan does not recognize binding arbitration in
divorce agreements. He stresses that arbitration is not an acceptable procedure for resolving issues of
child custody and support.
Issue: May parties use arbitration agreements in divorce proceedings, child support and child custody
cases?
Holding: Authority to permit the use of binding arbitration may be found in Michigan Law. The
Michigan court has approved the use of binding mediation to resolve property distribution issues in
divorce cases. Further, the Child Custody Act grants circuit courts the power to enter a support order to
which the parties have agreed.
Additionally, the Child Custody Act permitted the court to conclude that parties to a lawsuit may agree to
arbitrate child support disputes.
Finally, the language of the arbitration statute is broad and all inclusive. It permits all persons to submit
any controversy to arbitration upon their agreement. It does not exempt any civil action from binding
arbitration. The Michigan court could not find a clear prohibition of arbitration of child custody. The use
of alternative methods to determine the best interests of the child is not specifically prohibited. If the
parties agree to binding arbitration, they effectively agree to move the dispute to a different forum. The
rule does not appear to prohibit such action.
Question: Why did the court approve the use of arbitration in this divorce and child custody and
support hearing?
Answer: The court found that no Michigan law banned alternative dispute methods, even in this
5 210 Mich.App. 576, Court of Appeals of Michigan.
Mandatory Arbitration
A company is considering mandatory ADR for all employment disputes, such as sexual harassment and
discrimination in promotion. What are the benefits for each side?
From the Company’s Perspective:
Quicker decisions. Managers will spend less time in discovery and trial preparation. Employees
may have less ability to sustain vexatious litigation (though they may be able to file such claims
even more easily).
Reduced attorney fees.
Reduced discovery. Unhappy employees will be allowed to see very few company documents
concerning internal investigations of supervisors; other related claims of harassment or
discrimination; employment statistics concerning gender, race, age, etc., and intra-company
memoranda.
No class actions. The stakes may rise dramatically in a class action because the defendant faces
with much greater exposure. This in turn may give the plaintiff class greater bargaining leverage.
From the Employees’ Perspective:
Reduced cost of bringing claims. In a lawsuit, the plaintiff must first convince an attorney to
accept the case on a contingent-fee basis, or else pay a large hourly rate. With ADR, the employee
can either perform the work herself, or hire a lawyer whose hours will be greatly reduced.
Quicker decisions. A lawsuit may drag on for several years, including discovery, trial, and appeal.
Before the decision is final, the employee may abandon the case and the job. With ADR,
management will have less opportunity to “club” an employee into settlement by dragging out a
lawsuit.
Amicable settlement. ADR may increase the chance of an informal, amicable decision. The
parties may stop thinking in terms of “win-lose,” and strive for a rational compromise.
Less bargaining power. The inability to bring class actions, engage in pre-trial discovery, or
obtain orders enforceable by a court decreases the ability of employees to change the employment
relationship.
Suggested Additional Assignments
Research: Class Actions
Students should find a current article on a pending class action suit against a large pharmaceutical,
tobacco, automobile, or other company. Students should answer these questions:
1. What is a class action?
2. How long has this class action been going?
3. How does a class action change the stakes for the parties?
4. What are the plaintiffs’ claims?
5. Have developments in the class action favored the plaintiffs or defendants?
6. What are the long-term business, legal, and social consequences of class actions such as this one? Do
those consequences support class actions as a valid form of litigation?
Voir Dire
Divide students into three groups, and then each group into two sides. Each group is assigned a high
profile case: the O.J. Simpson murder case, the Martha Stewart obstruction of justice case, and the
Michael Jackson child abuse case (the professor may need to educate the students about these cases). One
side in each group is the prosecution and the other side is the defense. Ask each side to explain to the class
what type of juror it thinks would be most beneficial to its side, and why.
Martha Stewart was found guilty in March 2004 of conspiracy, obstruction of an agency proceeding, and
making false statements to federal investigators and sentenced in July 2004 to serve a five month term in
a federal correctional facility and a two year period of supervised release (to include five months of home
confinement). Prosecutors showed that Peter Bacanovic, Stewart’s broker at Merrill Lynch, ordered his
assistant to tell Stewart that the CEO of ImClone, Samuel Waksal, was selling all his shares in advance of
an adverse Food and Drug Administration (FDA) ruling. The FDA action was expected to cause ImClone
shares to decline. 6
Michael Jackson was charged with four counts of lewd conduct with a child younger than 14; one count
of attempted lewd conduct; four counts of administering alcohol to facilitate child molestation; and one
count of conspiracy to commit child abduction, false imprisonment or extortion. On June 13, 2005, the
jury found Jackson not guilty on all charges.7
6 “Stewart Convicted on All Charges,” CNN.com, March 5, 2004.
7 “Jackson Not Guilty,” CNN.com, June 14, 2005.