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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

ANATOMY OF A PERSONAL INJURY CASE, PART THREE: A brief guide for someone who is injured by another party

Posted: 5.30.2019  |  Author: 

People are injured every day in accidents, frequently through no fault of their own. What should those persons expect if they decide to pursue a personal injury claim? This article is the third and final discussion of what one should expect to occur and addresses the jury trial process.


Statistically, approximately 95% of personal injury cases filed are resolved short of a jury trial. Considering many personal injury claims are settled even before a case is filed, one can see that jury trials are much more the exception than the norm for resolving a case. Yet, a jury verdict is generally viewed as the only way of really knowing what your case is actually worth. This article will address some of the basic principals and processes of a jury trial and will conclude with some thoughts on why so few cases are ultimately tried.


The right to a jury trial to resolve civil disputes is embedded in our federal and state constitutions. From relatively small rear-end collisions, to large and complex class action lawsuits, juries made up of six or twelve ordinary citizens are asked to make decisions that can have a profound impact, not only on the individual directly involved in the litigation, on our society as a whole. Juries can be the great equalizer between those who have little financial means and powerful, well-funded corporations or individuals. The jury is asked not only to determine who may be at fault in an accident, but is also asked to put a value on personal pain and suffering and in some cases, the value of a life itself. This is no easy task, particularly in light of the fact that there is no true way to measure pain and suffering or the value of a person’s life. Yet, our civil system of justice is founded, in part, on the concept that one should be fairly compensated in a monetary way for harm due to the fault of another.


A jury trial is the culmination of months, if not years of preparation. As discussed previously, a case will involve a process of investigation and discovery that is meant to ensure as many facts are known as possible, and can be presented to the jury in some coherent and logical manner. Unlike popular TV programs involving courtroom dramas, a jury trial does not happen by the time of the second commercial; and there seldom is the occasion that a brief opening or closing argument will sway the jury or a witness will be totally discredited with a one minute examination.


A jury trial has five basic components. Each component plays a part in ensuring, to the best of the parties’ abilities, that the verdict will be fair to all concerned. The first part is the jury selection process. Depending on the length of the trial, potential familiarity with the case or parties within the community, and number of litigants, a jury pool of anywhere from 28 to as many as 100 potential jurors can be summoned to appear at the first day of the trial. The court and attorneys will then ask questions of the potential jurors to determine if they can fairly decide the issues in the trial, setting aside their personal biases. The process of questioning the jurors is called “voir dire”, which is a Latin term and originally referred to the oath taken by jurors to weigh what is true. Presumably, jurors will answer questions that are asked by the attorneys and the court in an honest way, but more frequently than not, it is difficult to elicit responses that might reflect a person’s biases. Potential jurors can be struck for cause, knowing a party or witness, or being related to someone involved in the case. Other times, a juror will express they are unable to set aside their personal biases and not able to decide the case based on the facts of the case and the law as stated by the court. Once the voir dire is complete, the jury panel is further reduced by the attorneys exercising what are called preemptory challenges, normally four each. In this process, the attorneys take turns striking jurors who they are not comfortable with deciding the case. After the preemptory challenges are complete, the remaining jurors are the ones who will decide the case.


After the judge gives some preliminary instructions to the jury, the case proceeds to opening statements. Each side will tell its story of what the evidence will show. While the jury will have a general idea about the nature of the case from jury selection process, the opening statements of counsel are an important point for jurors to be informed of the critical facts of the case, the theory of liability, the nature of the damages, and possible defenses. While opening statements are not arguments, they are certainly intended to be persuasive.


The third stage of the trial is the presentation of the plaintiff’s case. The plaintiff goes first because he or she has the burden of proof. The order of witnesses is important, as plaintiff’s counsel not only needs to present all the necessary facts to support the claim, but also needs to keep the juror’s attention, and at the same time, juggle witness schedules with the ebb and flow of the trial. As each witness testifies, they will be subject to cross-examination by opposing counsel.


The fourth stage of the trial is the presentation of the defendant’s case. However, by the time the plaintiff has rested, the defense may already have presented many facts it will be relying upon through cross-examination of the plaintiff’s witnesses. In some cases, the defense may not even have to call a witness to the stand.


During both the plaintiff’s presentation of the case and the defense presentation, there can be other means of presenting evidence besides live testimony from witnesses. Frequently, testimony of doctors may be through the playing of videotaped depositions, as it is simply too expensive to have doctors come to court to testify. Physical evidence such as photographs and medical records will be identified and entered into evidence for review by the jury members.


The fifth stage of the trial is closing arguments. Cases are seldom won or lost by closing arguments.  Instead, if plaintiff’s counsel has done their homework, it should be a reaffirmation of the plaintiff’s theory of the case that has been reiterated through the jury selection process, opening statements, the presentation of testimony and the cross-examination of defense witnesses. A closing argument is important; but mere emotion and fancy oratory will not make up for lack of preparation or a poor presentation of facts. Defense counsel gives their closing argument, and the plaintiff will have one last chance to address the jury in a rebuttal statement.


During closing arguments, plaintiff’s counsel will frequently tell the jurors how they feel the jury should answer specific questions that will be on the special verdict form. In addition, the attorneys will either give a range of what damages should be awarded, or at the minimum, ask the jury to award what they feel will fairly and completely compensate the plaintiff for their injury.


The judge will also read to the jury, the jury instructions and verdict form. At the close of the testimony, counsel will have met with the judge, outside the jury’s presence, to review the final set of instructions and verdict form. This final conference can be contentious with both sides attempting to have one additional opportunity for the court to convey specific directions to the jury on what the law is on certain issues; and to have the verdict read in a fashion that is both understandable and orderly so that there is less chance for error or confusion on the part of the jury.


The last stage of the jury trial is the jury deliberations itself. Jury deliberations are secret and as such it is often difficult to truly know what motivates certain jury decisions. Jurors will usually select a foreperson first, and that person may have additional influence on the outcome. The jury selection process often comes into play as who was perceived by the attorneys as a potential foreperson. There is also no time constraint on the jury in making its decision. If for some reason they are not able to make a decision, the court will send them an instruction to keep trying to reach a decision. Once a decision is made, the verdict will be read in open court, thereby ending months and years of anticipation.


After forty years of trying cases to juries, there is only one thing I have learned with certainty. You can never fully predict what a jury will decide. Overall, our judicial system grounded by jury verdicts is the best way to protect our rights and allows our fellow citizens to determine what is a fair result for the parties. That said, another lesson is that the expense of having a jury decide a case, coupled with the uncertainty of any result is often a great motivator for parties to resolve their disputes short of a jury trial. Having an experienced trial attorney assist you through the lengthy and complicated process of making a personal injury claim, and giving you guidance, is probably the best decision you can make.


Robert S. Duxstad's practice includes representation for criminal and traffic law, personal injury, civil litigation OWI, in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@duxstadlaw.com .







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