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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. A full demonstration
of examination and cross-examination in the classroom may take up too much class time. The
following exercise permits an interesting glimpse at one vital part of the process.
Role Play: Who Is Telling the Truth?
Have a dozen students (the jury) leave the room. Then ask two students to read this dialogue:
Jack: So, Kate, I understand you’re thinking of hiring a computer consultant for your travel business?
Kate: Yeah, we probably need somebody. It’s beyond us. We want someone to come in, give some
advice on systems, software, all that stuff.
Jack: I did a project two months ago for another travel agency. Just about your size. They love it.
Kate: Really?
Jack: Here’s what I can do. I’ll come in, interview everybody, figure out what you need, recommend
the hardware, set it up, install all software, and teach you how to use it. Flat fee: $20,000.
Kate: Sounds good, but it’s too high for us. We couldn’t go higher than $15,000.
Jack: I’ll tell you what: $17,500.
Kate: I like it. I think we might do it. I’ll call you for sure tomorrow.
Jack has now sued Kate, claiming that they had a deal for $17,500. Kate claims she never agreed to
hire him. Prepare six students to “testify” to the jury (without any lawyers). They will simply make
ad-libbed statements, but some will be lies. Jack will start by explaining the conversation; he will
accurately describe the beginning but will conclude with a lie, saying that they made a firm deal for
$17,500. Kate will accurately relate the conversation, and mention that the following day she decided
not to hire Jack. Then four other students will briefly speak, two on behalf of Jack, and two on behalf
of Kate. The two who speak for Jack will be supporting his claim that the parties had a firm deal. The
two speaking for Kate will tell the truth, accurately describing what Kate and Jack said. Permit
everyone a few minutes to prepare his or her statements. Then ask the “jury” to return, and hear the
“evidence.” See if they can tell who is speaking the truth.
Voir Dire
If students completed the Voir Dire research assignment, now would be a good time to discuss their
conclusions as to whom they would want on a jury and why.
Question: When impaneling a jury, lawyer cannot take race, gender, ethnicity, and religion into
account. What are some characteristics, other than race, gender, ethnicity, and religion, which
might be important when impaneling a jury for the examples given?
Answer: Some possible answers: O.J. Simpson: whether potential jurors are football fans;
whether any are graduates of U.S.C.; whether any potential jurors are themselves, or know
During voir dire, the court’s goal is to select an impartial panel; each lawyer, by contrast, is striving to
obtain the most favorable jury possible.
Question: Is it good to allow lawyers to challenge jurors?
Answer: The theory behind voir dire is that it will result in an unbiased jury and the fairest
Question: What is the important difference between challenges for cause and peremptory
challenges?
Answer: A challenge for cause is based on bias. A judge will allow a challenge for cause only
Question: The British developed the jury, and voir dire, but over the past several decades they
have nearly eliminated both. In Britain, there are no juries in any civil case except one of libel or
police misconduct. In over 90 percent of criminal trials, there are also no juries. In the few cases
that do include a jury, voir dire is extremely brief. A judge will typically ask potential jurors if they
know or are related to either party, or perhaps if they own stock in a company that is involved.
There are no other questions from the bench and none at all from the lawyers. In most cases, this
results in the first 12 people being seated as jurors. Is this better or worse than the American
system?
Answer: It is certainly faster. In complex American trials, it may take several days to impanel a
jury; in Britain, it usually takes minutes. Those who favor the British approach also regard it as
fairer. They say that the American system unfairly benefits those with enough money to research
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?
Holding: Yes. According to the court, a juror’s nondisclosure warrants a new trial if (1) the
information is relevant and material to jury service in the case; (2) the juror concealed the information
during questioning; and (3) the failure to disclose the information was not attributable to the
complaining party’s lack of diligence.
Both party’s lawyers may have been influenced to challenge Berg as a juror had they known about
her personal injury history. Her involvement in the matter may have influenced her point of view as a
juror in this case. Her failure to disclose her personal injury history precluded both counsels from
examining her further on this point.
Berg is a lawyer. It is clear that she concealed this information despite Parajon’s lawyer’s diligent
inquiry.
Question: If Parajon won the trial and was awarded $450,000 why would she move for a new trial?
Answer: In this case, Parajon was sitting on a bench at a bus stop when Pereda, who was driving a
1 957 So.2d 1194, Florida Court of Appeals, 2007.
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
Appeals
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: Judgment NOV 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: What did the jury think about Hernandez’s claim?
Question: Then why did the trial judge conclude that Hernandez was entitled to nothing?
Answer: The trial judge thought there was no substance to Hernandez’s claim because he
Question: Why does a trial judge have the power to ignore a jury’s decision?
2 354 N.J.Super.467, 808 A.2d 128, Superior Court of New Jersey, Appellate Division, 2002
Answer: The rules of civil procedure give a trial judge to enter a judgment NOV, or a judgment
Question: Did the jury’s verdict in this case fail to rest on the evidence?
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
Alternative Dispute Resolution
Types of ADR
Negotiation – the parties discuss the issues directly or through lawyers; the parties remain in control
of the outcome.
Mediation – a neutral third party guides the disputing parties toward a voluntary settlement. The use
of mediation may be court-ordered or voluntary.
Arbitration – a neutral third party guides the disputing parties to discuss their cases, then renders a
decision which is binding on both parties. The use of arbitration may be court-ordered or voluntary.
Example: Mandatory Arbitration
This exercise examines the risks and benefits of mandatory alternative dispute resolution (ADR) in an
employment contract for a hypothetical company, FacTree. Students should consider these facts and
discuss the benefits and risks for the company and for employees.
FacTree manufactures artificial trees and flowers. There are about 100 workers who do the routine
as-sembly work for pay ranging from $8 per hour to $15 per hour. They work in two shifts. There are
about a dozen supervisors who oversee their work. In the past few years there have been five
employment lawsuits: three concerned sexual harassment and two concerned discrimination in
promotion. All five settled before trial. For three of the suits the company’s attorney fees were over
$50,000 per suit. For one of the claims, the company paid $250,000 in damages to the employee. The
company is considering mandatory ADR for all employment disputes. 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.
Multiple Choice Questions
1. The burden of proof in a civil trial is to prove a case ___. The burden of proof rests with the ___.
(a) beyond a reasonable doubt; plaintiff
(b) by a preponderance of the evidence; plaintiff
(c) beyond a reasonable doubt; defendant
(d) by a preponderance of the evidence; defendant
2. Alice is suing Betty. After the discovery process, Alice believes that no relevant facts are in
dispute, and that there is no need for a trial. She should move for a ___.
(a) judgment on the pleadings
(b) directed verdict
(c) summary judgment
(d) JNOV
3. Glen lives in Illinois. He applies for a job with an Missouri company, and he is told, amazingly, that
the job is only open to a white applicant. He will now sue the Missouri company under the Civil
Rights Act, a federal statute. Can Glen sue in federal court?
(a) Yes, absolutely
(b) Yes, but only if he seeks damages of at least $75,000. Otherwise, he must sue in a state court.
(c) Yes, but only if the Missouri company agrees. Otherwise, he must sue in a state court.
(d) No, absolutely not. He must sue in a state court.
4. A default judgment can be entered if which of the following is true?
(a) A plaintiff presents her evidence at trial and clearly fails to meet her burden of proof
(b) A defendant loses a lawsuit and does not pay a judgment within 180 days.
(c) A defendant fails to file an answer to a plaintiff’s complaint on time
(d) A citizen fails to obey an order to appear for jury duty
5. Barry and Carl are next door neighbors. Barry’s dog digs under Carl’s fence and does $500 damage
to Carl’s garden. Barry refuses to pay for the damage, claiming that Carl’s cats “have been digging
up my yard for years.”
The two argue repeatedly, and the relationship turns frosty. Of the following choices, which has no
outside decision maker and is most likely to allow the neighbors to peacefully coexist after
working out the dispute?
(a) Trial
(b) Arbitration
(c) Mediation
Case Questions
1. You plan to open a store in Chicago, specializing in rugs imported from Turkey. You will work
with a native Turk who will purchase and ship the rugs to your store. You are wise enough to insist
on a contract establishing the rights and obligations of both parties and would prefer an ADR
clause. But you do not want a clause that will alienate your overseas partner. What kind of ADR
clause should you include, and why?
Answer: Yes. Try blending ADR mechanisms. Have the ADR clause state that in the event of a
dispute, the parties will negotiate it in good faith, and take no further steps for 30 days. If
negotiation fails, an additional 30-day cooling-off period follows. The next step could be a
2. Which court(s) have jurisdiction as to each of these lawsuits—state or federal? Explain your
reasoning with each.
(a) Pat wants to sue his next-door neighbor, Dorothy, claiming that Dorothy promised to sell him
the house next door.
(b) Paula, who lives in New York City, wants to sue Dizzy Movie Theatres, whose principal place
of business is Dallas. She claims that while she was in Texas on holiday, she was injured by
their negligent maintenance of a stairway. She claims damages of $30,000.
(c) Phil lives in Tennessee. He wants to sue Dick, who lives in Ohio. Phil claims that Dick agreed
to sell him 3,000 acres of farmland in Ohio, worth more than $2 million.
(d) Pete, incarcerated in a federal prison in Kansas, wants to sue the United States government.
He claims that his treatment by prison authorities violates three federal statutes.
Answer:
(b) The general trial court of Texas, only. There is no federal court diversity jurisdiction
(c) Ohio’s general trial court has jurisdiction. United States District Court has concurrent
(d) United States District Court has federal question jurisdiction, based on the federal statutes
3. British discovery practice differs from that in the United States. Most discovery in Britain
concerns documents. The lawyers for the two sides, called solicitors, must deliver to the opposing
side a list of all relevant documents in their possession. Each side may then request to look at and
copy those it wishes. Depositions are rare. What advantages and disadvantages are there to the
British practice?
Answer: Discovery is more efficient in Britain, since the solicitors are honor-bound to notify of
4. Trial practice also is dramatically different in Britain. The parties’ solicitors do not go into court.
Courtroom work is done by different lawyers, called barristers. The barristers have very limited
rights to interview witnesses before trial. They know the substance of what each witness intends
to say but do not rehearse questions and answers, as in the United States. Which approach do you
consider more effective? More ethical? What is the purpose of a trial? Of pre-trial preparation?
Answer: The purpose of a trial is to learn the facts, and apply the law to them. Because the
Anglo-American trial system is adversarial, both sides certainly need some opportunity to prepare.
However, at some point, trial preparation may turn into the scripting and rehearsal of a “show,”
designed to manipulate the factfinder. In the American system, the greatest danger is that the trial
5. Claus Scherer worked for Rockwell International and was paid more than $300,000 per year.
Rockwell fired Scherer for alleged sexual harassment of several workers, including his secretary,
Terry Pendy. Scherer sued in United States District Court, alleging that Rockwell’s real motive in
firing him was his high salary.
Rockwell moved for summary judgment, offering deposition transcripts of various employees.
Pendy’s deposition detailed instances of harassment, including comments about her body, instances
of unwelcome touching, and discussions of extramarital affairs. Another deposition, from a
Rockwell employee who investigated the allegations, included complaints by other employees as to
Scherer’s harassment. In his own deposition, which he offered to oppose summary judgment,
Scherer testified that he could not recall the incidents alleged by Pendy and others. He denied
generally that he had sexually harassed anyone. The district court granted summary judgment for
Rockwell. Was its ruling correct?
Answer: Yes. The court of appeals affirmed. Scherer v. Rockwell International Corp., 975 F.2d
356, 1992 U.S. App. LEXIS 22080 (7th Cir. 1992). “When questioned about the specific instances
of sexual harassment, he did not deny that the incidents occurred, but instead stated that he could
Discussion Questions
1. In the Tony Caruso case described throughout this chapter, the defendant offers to settle the case as
several stages. Knowing what you do now about litigation, would you have accepted any of the
offers? If so, which ones? If not, why not?
2. The burden of proof in civil cases is fairly low. A plaintiff wins a lawsuit if he is 51% convincing,
and then he collects 100% of his damages. Is this result reasonable? Should a plaintiff in a civil
case be required to prove his case beyond a reasonable doubt? Or, if a plaintiff is only 51%
convincing, should he get only 51% of his damages?
3. Large numbers of employees have signed mandatory arbitration agreements in employment
contracts. Courts usually uphold these clauses. Imagine that you signed a contract with an
arbitration agreement, that the company later mistreated you, and that you could not sue in court.
Would you be upset? Or would you be relieved to go through the faster and cheaper process of
arbitration?
4. Imagine a state law that allows for residents to sue “spammers”—those who send uninvited
commercial messages through email—for $30. One particularly prolific spammer sends messages
to hundreds of thousands of people.
John Smith, a lawyer, signs up 100,000 people to participate in a class action lawsuit. According to
the agreements with his many clients, Smith will keep 1/3 of any winnings. In the end, Smith wins
a $3,000,000 verdict and pockets $1,000,000. Each individual plaintiff receives a check for $20.
Is this a lawsuit reasonable use of the court’s resources? Why or why not?
5. Higher courts are reluctant to review a lower court’s factual findings. Should this be so? Would
appeals be more fair if appellate courts reviewed everything?
