Answers to the Most Frequently Asked Questions Regarding Trial

1. Will my case go to trial?

Probably not; 90% - 95% of cases settle before trial.

2. What cases do go to trial?

Any case potentially has to be tried. That is why it is important for a plaintiff to always hire a skilled trial attorney. The cases that end up going to trial are the ones in which the plaintiff and the defendant view the case so differently that they simply cannot resolve their differences in a settlement. The advantage to the plaintiff retaining a skilled trial lawyer is that plaintiff will not be forced to lower his or her settlement expectations because the plaintiff's attorney is unable to effectively try the case. When this situation occurs, the plaintiff is stuck accepting the highest amount of money offered by the defendant or insurance company, even if it is less than the plaintiff expects or the value of the case.

3. When will my case go to trial?

The answer to this question is generally determined by the complexity of the case and the crowdedness of the court calendar. Most cases in California go to trial somewhere between ten months and 18 months from the date when the case was originally filed. Some cases do take longer to get to trial, and some get to trial sooner, particularly if the plaintiff is dying or elderly.

4. What are the advantages and disadvantages of going to trial?

From a plaintiff's point of view, the advantages or disadvantages of going to trial must be weighed in light of the proximity of the defendant or insurance company's settlement offer to the value of the case. The lower a defendant's offer relative to the plaintiff's evaluation of the case, the easier it is to refuse the offer and go to trial. If, on the other hand, a defendant's offer is close to, even or higher than the plaintiff's attorney's prediction of what a jury will do if the case tries, then it becomes a much more risky proposition to go to trial.

The benefit of settling a case short of trial is that all risk is avoided. As anyone who has followed trials knows, what a jury will do in a given case is totally unpredictable and, therefore, going to trial is always a risk.

5. Is there any way to project what will happen at trial?

To some extent, yes. There are two main tools available to help predict what will happen at a trial. First, good trial lawyers review, on a weekly basis, jury verdicts in other cases around the State of California. A study of verdicts in similar cases in similar jurisdictions will provide some guidance as to how a jury will react in your case. In addition, plaintiff's attorney can conduct a mock trial and focus group with or without the help of a jury consultant. The idea of a focus group is that residents of the county in which the case is tried are recruited and presented with a mini trial of the case. They are then asked to deliberate and answer questions regarding the value of the case. The results of the focus group can provide some guidance in predicting what an actual jury will do in the case.

6. How long will my trial last?

The length of a trial will vary depending upon the complexity of the case, the number of witnesses and the court's scheduling. Jury trials generally take at least three days to complete, and can go as long as many months or even years. The average length of a trial is probably between one to two weeks.

7. What can I expect to happen at a trial?

The format of a trial will not vary much from case to case. The trial begins with pretrial legal motions made by the attorneys in front of the judge. Then, a jury is selected, usually by a combination of questions and challenges by the attorneys and the judge. Each attorney then gives an opening statement, which is a summary of their case. The plaintiff then puts on his or her case through the questioning of witnesses and introducing documents into evidence. When the plaintiff rests, the defendant presents his or her case in a similar manner. After the defense rests the plaintiff is given the opportunity to present any rebuttal witnesses or testimony. The plaintiff makes a closing argument, followed by the defendant's, and the plaintiff is then allowed a rebuttal argument. The jury is instructed on the law by the judge and goes to the jury room to deliberate. After reaching a verdict, the jury is called back into the courtroom and the verdict is read aloud by the court clerk.

8. Who will decide my case?

Most cases involve jury trials. When a jury is involved in a trial, the judge decides all of the issues of law. Some of the law is then given to the jury by the judge to help them reach their decision. The jury then reaches a verdict.

In a "court trial" there is no jury, and the judge decides all issues of fact and law. In an arbitration, a retired judge or an attorney appointed by the court or agreed to by the attorneys decides all issues of fact and law.

9. How does a jury decide the case?

After hearing all of the evidence and the law that applies to the particular case, a judge further instructs the jury on how they should weigh the evidence and deliberate in order to reach their decision. The jurors are instructed to take their time and allow each member of the jury to state their point of view. Generally speaking, the jurors do take their job very seriously and attempt to reach a fair decision.

10. How long does a jury deliberate?

Jury deliberations can take anywhere from 15 minutes in very clear cases in which the defense wins to weeks in complex cases in which the jurors either have to decide many different issues in order to reach a verdict, or relatively simple cases in which for one reason or another they become deadlocked. Once the jurors and judge are convinced that the jurors are hopelessly deadlocked, a mistrial will be declared and the case will have to be retried at a future date. This phenomena is known as a "hung jury." Jury deliberation in most civil cases lasts between one half day to two days.

1. Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this web site, research other legal articles and texts on the subject matter or consult with an attorney.