Defense in Trials–The Real Deal

After numerous request and demands the defendant’s part of a trial will be discussed.   We already did the first half of a trial a few months ago.  The exercise is not for the lawyers surfing the internet with idle time on their hands but for Joe the Plumber so he will have some idea how the system actually work compared to the complete mish mash you see on TV or the movies.   It is not as exciting in real life as portrayed.  At least that is what the good lawyer hopes occurs.  A good lawyer wants the trial to follow the “script” he has outlined for the trial.  He will have thought through every item of evidence he wants to introduce, which witnesses will be used for that purpose and what testimony to elicit from each witness.  A surprise in the courtroom is the last thing any trial lawyer wants and the truth is they rarely happen.  

The modern procedures require that each party exchange their basic theories of the case and list of documents and witnesses well before trial.  In addition to that each side is allowed to take depositions under oath of all potential witnesses well before trial.  With all that data in hand it is not likely that something radically new will pop during the trial itself.  All that pre trial discovery and work is like a troupe doing dress rehearsals and out of town shows before hitting the big stage on Broadway.  The actual trial will have been “rehearsed” before the trial date.   We have covered the Plaintiff’s part of the trial so we pick this up when the Plaintiff as “rested”.

When the Plaintiff announces they have rested that means they have presented what is called their case in chief.  The plaintiff at that point in the trial is supposed to have presented all the evidence they have to support the allegations in their pleadings.  They don’t get another bite at the apple.  They do have the right of rebuttal but that is not the same as introducing evidence to prove their pleadings.   The first thing that the Defendant normally does at this point is move for judgment.  That is an assertion by the defendant that the plaintiff did not offer sufficient evidence to support their claim and thus as a matter of law the plaintiff loses for a failure to prove their case.  These motions are rarely granted by the courts but routinely made.    Such motions are granted on occasion and when they are you can be assured that the lawyer for the plaintiff really messed up or brought a case that should never have been filed in the first place.  Next the defendant will  make his opening statement to the jury.  Sometimes the court will have the defendant do this at the beginning of the trial after the plaintiff’s opening statement.  But in most courts it will be at this point.  The opening statement is not the argument presented by the defendant.  That comes later at the end of the trial. The opening statement is to advise the jury of the defendant’s theory of the case, to outline the evidence that will be offered and the testimony of the witnesses.  It is an outline if you will. 

Now the defendant will begin the presentation of his case.  In the typical case much of the evidence that the defendant wants to have introduced  will have already been offered and accepted during the cross -examination of the plaintiff’s witnesses.  Also, the courts strongly encourage the parties to stipulate to the documents that will be introduced during the trial and frown on frivilous objections.  If there is no serious objection to a document the lawyers will agree to their being admitted into evidence or they run the risk of the court’s displeasure.  There will be some with those serious objections and the court will not hesitate to hold each party to the rules of evidence during the trial.   The defendant calls his first witness and you are off and running.  Each witness will be called and the respective documents proved up by the testimony of that witness until you are done.  Now all the admissable documents are in evidence either by stipulation or testimony of the witnesses.  Because of the cross-examination of plaintiff’s witnesses it is typical that the defendant’s portion of the trial will be shorter, quite a bit shorter in many cases.  The evidence offered by the defendant is to counter the factual allegations of the plaintiff, to challenge the veracity of the plaintiff’s witnesses or rebut the contentions of the plaintiff.  Remember the trial is only to determine the facts.  When the facts are not in dispute but there is a disagreement as to the law then case would have been disposed of by summary judgment motion all legal arguments by the lawyers.   The defendant will then rest.  After that the respective sides will give their final arguments.  In most every court the judge will read his charge to the jury at this point in time right before the arguments.

The court will allocate time for each side for final argument.  It can vary a great deal depending upon the complexity and length of the trial–from 30 minutes to a side to maybe half a day per side.  Regardless of the time period the plaintiff will always go first.  The party with the burden of proof always get to open and close in any courtroom proceeding.   The plaintiff will typically take only a third or so of his time for opening then have most of his time after the defendant argues so he can rebut and refute the comments of the defendant’s lawyer.  The jury will then retire and render a verdict.  The verdict will be answers to a series of questions that have been formulated before the trial began.  The judge has the final say but the lawyers can object to his charge.  There has been many a case reversed because the court did not correctly charge the jury and formulate the correct interrogatories to the jury.  The jury is determining if the plaintiff had the credible preponderate evidence to support his allegations and legal theories.  That is what the questions are supposed to be to the jury.   The judge  renders a judgment based upon the findings of the jury.  After hearing the verdict reviewed, or in most cases sitting down with the judge and reading them, one side goes home happy and another sad.

There are wheels within wheels when it comes to the complextiy of Mother Nature and our oceans.  The spin of the earth.  Even when you are sitting there you are moving at about 24,000 miles and hour. Next the gravitational effects of our Moon which produce the tides.  The movement of the tectonic plates plays a role in the movement of the seas.  The saline content influences the motion of the current.  The jet stream has an effect on the currents and so does the ambient temperature.  Those are only some of the various factors that make our oceans move.  There is lots more going on than the actions of Man.


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