If you or a loved one’s personal injury case makes it to trial, you need to know what to expect. Here is a basic overview of the six main phases of the personal injury trial process.
A plaintiff (victim) generally has a right to choose between a jury trial or a bench trial. A bench trial is when a judge determines the outcome of a personal injury case rather than a jury. After assessing the admissibility of evidence, the credibility of that evidence, and any witness testimony, the judge will deliver a verdict. In a jury trial, the parties will typically select eight jurors to decide the case.
Choosing between a bench trial or jury trial is a strategic decision that will have to be discussed with your personal injury attorney. A bench trial is typically favored in highly complex cases, which could overload a jury. In jury trials, jurors are more inclined to be swayed by the emotional aspects of the case, often resulting in higher awards.
The first step is choosing the jury. During jury selection, the judge and the attorneys for each side will question a pool of prospective jurors. They will ask questions relevant to your particular case to make sure the jurors have no opinions or past experiences that might prevent them from making an impartial decision. The attorneys and the judge will then begin to dismiss a number of jurors who cannot impartially apply the law or set their own feelings aside.
Once a jury is chosen, both parties’ attorneys will make their opening statements. The plaintiff’s (victim’s) attorney will typically go first since they have the burden of proof and will need to present the facts of the case and demonstrate how the defendant (at-fault party) is liable. The defense attorney will then give their interpretation of the facts and set the stage for their rebuttal.
The bulk of a personal injury trial will be presenting key evidence, witnesses, and cross-examination. There are two types of evidence—direct and circumstantial. Direct evidence often speaks for itself, for example, an eyewitness account or confession. In comparison, circumstantial evidence suggests a fact by implication or inference. For instance, photos of the accident scene or medical records that connect the scene to the injury. Both types of evidence are offered at most trials.
The plaintiff will first present their evidence to prove the defendant’s liability, which might include witness testimony, physical evidence, photographs, video, and audio recordings. Then, the defense has a chance to present its evidence in a similar manner to the plaintiff. Each side can cross-examine the other side’s witnesses. Cross-examination is typically limited to questions on the topics discussed during direct examination. Once the defendant “rests,” the plaintiff has a chance to refute the evidence presented by the defendant or present rebuttal witnesses. After the plaintiff “rests” their case, no more evidence will be shown to the jury. Either side can move for a directed verdict, and if granted, the trial is over. If not, it will move on to closing arguments.
Each side’s lawyers will summarize the evidence they presented and how it comes together to either prove or rebut the case. The attorneys cannot talk about evidence that was not shown in court or issues outside the case. The defense will go second, but the plaintiff’s lawyer has a chance to make a rebuttal. This is the final step before the jury is sent to deliberate and decide the case.
The judge will instruct the jurors about the relevant laws to guide their deliberations. The jury will then be sent to a separate location to begin discussing the facts of the case and reviewing the evidence. Typically, one of the jurors will be elected as the foreperson and will preside over the discussion and votes of the jurors. Sometimes the jury will have a question, which is given to the bailiff, who takes it to the judge. The judge may respond in a note or will call the jury back into the courtroom along with the parties to the lawsuit to give further instructions.
A minimum of three-fourths of jurors must agree on a verdict in Nevada civil cases, so the vote does not have to be unanimous. However, if the jurors cannot agree, it will result in a hung jury and a mistrial. This stage of the trial can last anywhere from a couple of hours to several days or even weeks.
Once the jury has reached a decision, the jury foreperson will inform the judge. The jury and both parties will return to the courtroom, where the judge will announce the verdict. The jury will either find for the plaintiff or the defendant. If the jury finds for the plaintiff, it will also usually set out the amount of compensation the defendant should owe the plaintiff for damages. Damages are often decided after a separate hearing. The jury’s decision will not take effect until the judge enters a judgment. In personal injury cases, the judge may have the authority to increase or decrease the amount of damages awarded.
Either side can appeal the jury’s decision, as long as they have a legal basis for doing so. In other words, the defendant cannot appeal the verdict solely because they lost. Appeals in personal injury cases are usually based on arguments that there were errors in trial procedure or the judge’s interpretation of the law. Either way, an appeal can delay your compensation. The case ends if the appeals court dismisses the appeal or affirms the lower court’s decision. If the verdict is overturned, the trial court may have to reconsider the facts, a new trial may be held, or the judgment may be modified.
Most personal injury cases resolve in a settlement. If your case goes to trial, the parties can still choose to settle at any point, even if the jury is deliberating or a verdict is rendered. A settlement typically will not state whether anyone was right or wrong, which can benefit the defendant if they have or believe they will lose since trial records are public records.