NATIONWIDE COMMERCIAL LITIGATION ATTORNEY

Motion for Summary Judgment

Summary judgment is a mechanism for deciding a case without the expense, effort, and time of going through a trial. But it is only appropriate when the material facts of the case are not disputed by the parties and the outcome is more-or-less obvious. 

For example, a plaintiff might move for summary judgment when it claims the defendant failed to perform a contractual obligation owed to the plaintiff. Additionally, the parties do not dispute that there was a valid and enforceable contract, the defendant did not perform the duties, the plaintiff held up its end of the bargain and otherwise fulfilled all conditions precedent, and the plaintiff was harmed in some meaningful way. All that is left is for the judge to determine what legal obligation was owed. 

In terms of breach of fiduciary duty or contract interpretation, this is the role of judges, not jurors. Therefore, summary judgment would likely be appropriate, and there is no need for trial.

Limine

A motion in limine is a motion brought by either party to exclude, limit, or include evidence before it is offered at trial. These motions ensure a judge may rule on certain issues before they come up in a trial to avoid unnecessary delays during the trial. A motion in limine is also used when a party anticipates that the evidence may be objected to for several reasons during the trial and want to ensure that the evidence will be allowed. Besides addressing evidentiary concerns, motions in limine are also used to set limits on damages or remedies sought by the parties. 

Daubert/FRE 702

Daubert motions are common pretrial motions used to limit or exclude expert witness testimony that fails to meet certain evidentiary requirements, is not reliable, or is not relevant. When these motions are used it is most often challenging the expert’s expertise (including qualifications), methodology, and conclusions. In jury trials, a judge typically decides on these issues prior to trial in an effort to narrow the issues addressed at trial.

Voir Dire

Voir Dire is the process of questioning prospective jurors about a variety of topics in order to ascertain if the juror is biased for or against a party or otherwise unable to decide the case in an impartial manner. In federal court, the magistrate or judge conducts voir dire with the use of questionnaires produced by the parties. The questionnaires’ purpose is to help counsel determine potential disqualifying bias, but also to determine whether or not the potential juror is likely to favor their party.

In state courts attorneys typically perform voir dire in person, while the potential jurors are seated in the courtroom. Besides the information received from the juror’s answers, the attorneys in federal cases will often use online resources at trial to discover information about the jurors, such as social media postings. Counsel members sometimes ensure that any online research – particularly into social media – does not alert the potential juror.

The following details some of the key steps in the federal jury trial.

Preliminary Jury Instructions

Before trial, the parties should exchange proposed jury instructions and verdict forms. These instructions and forms pertain to the substantive issues of the case such as what elements must be proven to find a party liable and how damages are measure damages. These instructions are usually based on model or pattern versions created by a committee for the jurisdiction. 

Many judges issue standard preliminary jury instructions. Often those instructions address fundamental matters like juror’s general conduct, note-taking in the courtroom, use of social media during the trial, banning independent investigation or research into the case via news or conversations with non-jurors, avoiding prejudice, how to communicate with the judge, and the meaning of common terms like “direct” or “circumstantial,” as well as how to view objections from counsel.

Jury Charges or Final Instructions

The parties will stipulate, or the court will order, the final instructions or “jury charges.” These charges often include the necessary elements of liability and remedy, how to view evidence, evidence the jury cannot consider, and legal definitions. The jury must apply the law as described in the charges to the jurors’ factual findings. 

Opening Statements

In a bench trial, most judges will dispense with opening statements and proceed directly to the presentation of evidence as they are already familiar with the case. However, in a jury trial, the opening statement is crucial. The opening statement is the first opportunity for the jurors to hear the basis for the parties’ claims. The opening statement is a “roadmap” to guide the jury in evaluating the evidence that will be presented, describing the evidence and testimony that will be presented. Visuals can be extremely useful for guiding the jury in an opening statement but should be approved by the court ahead of time in order to avoid objections. Any visuals must be accurate.

Witnesses

The primary source of evidence in most jury trials is witness testimony. Accordingly, the parties should prepare lists of witnesses they intend to call ahead of trial. A witness list should include the witness's name, a description of the topics the witness will discuss, an approximate length of the testimony in hours, and the order in which the witnesses will be called.

Stipulations

Any facts that both parties agree on may be presented to the jury in the form of a stipulation. Stipulations save time and can help the jury understand the basic facts of the case.

Deposition Recordings

Sometimes witnesses cannot be available for trial. In lieu of in-person testimony, previously-recorded deposition testimony can be read or played before the jury. The parties must exchange designations of excerpts of transcripts or audio/video to be presented ahead of time so that parties have a chance to object. This gives the court time to rule on any objections outside the presence of the jury, which could lead to prejudice.

Exhibits

Exhibits should be accounted for ahead of the trial so that the parties can raise any objections. Again, this gives the court time to rule on such objections outside the presence of the jury. Often, courts will not permit exhibits not previously marked for admission. Impeachment exhibits not previously marked are permitted as they are used on cross-examination to contradict or call into question witness testimony.

Jury trials tend to move at a slower pace with regular bathroom breaks, lunch breaks, and breaks for the parties to argue legal or evidentiary issues outside the presence of the jury. These trials are fairly regimented and limited to a set time. Bench trials can be more flexible. Additionally, a bench trial permits the parties to argue evidentiary issues in the middle of questioning witnesses without fear of prejudicing jurors. 

Closing Argument

The closing argument should attempt to persuade the jury to piece together the relevant facts and reach a decision. A closing argument revives concrete facts and testimony offered during the trial. It also appeals to the jury’s sense of right and wrong.

Judgment as a Matter of Law

Judgment as a Matter of Law (JMOL) is a motion, from either party, challenging the sufficiency of the evidence presented to the jury. If the court decides there is insufficient evidence to reasonably support the party’s case, then the case is over under what is sometimes called a directed verdict. A party can move for JMOL before or after the jury reaches a verdict.

Motions for a New Trial

Although rare, a party can also move for a new trial if certain conditions are present. Courts have ordered new trials when there was improper striking of jurors, improper compromise verdicts, outside influence, inconsistent verdicts, or a verdict that is contrary to the weight of the evidence.

Motions for Costs and Attorney Fees

After the trial, the prevailing party can request the court order costs and fees. Costs are generally available to the prevailing party, but fees are only permitted by statute or if the parties previously agreed to the trial lawyer’s fees arrangement.

Review of Jury Findings

It is extremely rare for an appeals court to disturb a jury’s findings.