Chapter 9
Covering Civil Courts
By Maurice Possley

			In this chapter
			• Introduction    From Personal Injuries      To Patents    From Frivolous To      Historic    Making A Federal Case • The Beginning    Tort Filings Up, Per      Capita Filings Down    Class Actions • Pre-Trial    News In Discovery    Summary Judgment    Arbitration and Mediation    The Trial    A Different Burden of Proof    Settlements    Public or Secret?    The Appeal    Arguments and Opinions • Other Civil Courts

The Trial
Trials in civil cases unfold very much like criminal cases in the sense that the plaintiff presents evidence first, followed by the defense evidence and then the case is submitted for a verdict.

But there are several differences. There is no broad right to a jury trial. In the federal court, there is a constitutional right to a jury in civil cases but not to all forms of civil trial. There is a similar guarantee—with limits—in the state court system. Frequently, the question of whether there will be a jury will be decided based upon a motion filed prior to trial that requests that a jury be empanelled. If there is no jury, the matter will be decided by the judge in what is called a bench trial. It may seem confusing as to why there is a federal constitutional right in criminal cases, but not in civil cases. The easiest explanation is the most direct and technically true—that the U.S. Supreme Court has not ruled that the 7th Amendment right to a jury trial in civil cases is incorporated – or binding – on state courts under the 14th Amendment, as they have done on the 6th Amendment right to a jury trial in criminal cases. It is worth noting that 49 state constitutions, however, do provide their citizens with the right to fair jury trials in civil cases.

In many cases, the issues of liability and damages are heard separately in what is referred to as a bifurcated trial. The liability question is heard first and if the defendant is found liable (There is not a finding of guilty or not guilt, but rather a finding of liable or not liable.), the case proceeds to a presentation of evidence regarding damages, followed by a separate decision by judge or jury.

Although the multi-million dollar verdicts typically command media attention, median awards in civil torts decreased from $65,000 in 1992 to $37,000 in 2001, according to the U.S. Justice Department's Bureau of Justice Statistics.

The number of jury trials in civil cases is dropping as well, according to the National Center for State Courts. A study of civil cases in 21 states and the District of Columbia from 1976 through 2002 showed the number of civil jury trials dropped from 26,000 to 17,600.

Reasons for the decline likely include better case management and increased settlement opportunities; a shift by judges from merely presiding over trials to resolving disputes; greater use of summary judgment; and the growth of alternative dispute resolution.

Unlike criminal trials, civil cases do not require that juries contain 12 members in some jurisdictions. Many civil cases are heard by six-member juries. And unlike criminal cases, verdicts in civil cases in a majority of states do not have to be unanimous. Some critics say that six-member jurors are inadequate because they often lack community diversity and are too prone to become runaway juries.

A Different Burden of Proof
The burden of proof is different in civil cases as well.

The burden of proof in criminal cases is beyond a reasonable doubt. In addition, the burden of proof in criminal cases always rests with the prosecution—the defendant is not required to testify and has no burden of proof.

In civil litigation, the burden of proof at the outset of a case is on the plaintiff. There are some situations where the burden, during a trial, will shift to a defendant. When a plaintiff makes what is called a prima facie case, the burden shifts to the defendant to refute or rebut the plaintiff’s evidence. A prima facie case is established when evidence is present that is sufficient to raise a presumption of fact or to establish the fact in question. For example, a plaintiff who alleges they were not hired because of their race may establish a prime facie case of discrimination under the civil rights laws by showing that he/she is a minority, that he/she applied for the job, that he/she was qualified for the job, that he/she was rejected, that the position remained open after the rejection and that the defendant employer continued to take applications from others—non-minorities—with similar qualifications as the plaintiff. After establishing a prima facie case in such a case, the burden would shift to the defendant employer to present evidence of a non-discriminatory reason for the rejection of the plaintiff. If that burden is met, the plaintiff would have an opportunity to present evidence that the defendant’s reasons were pretextual or untrue.

In civil litigation, the plaintiff wins if the preponderance of the evidence favors the plaintiff. Essentially this means that if the jury or judge believes that there is more than a 50 percent probably that the defendant was negligent in causing the plaintiff’s injury, the plaintiff wins. The evidence can be as close as 51 percent to 49 percent and the plaintiff can still win. In some instances, the burden of proof is a higher level of clear and convincing evidence. This standard is higher than the preponderance of the evidence, but less stringent than beyond a reasonable doubt. The clear and convincing standard requires the result shall not be reached by a mere balancing of doubts or probabilities, but by clear evidence which causes one to be convinced that the allegations are true.

After a jury is selected, attorneys present opening statements—their views of what the evidence will show. The plaintiff then presents evidence. Unlike a criminal trial where a defendant cannot be required to testify, the plaintiff is allowed to call the defendant as a witness—an adverse witness. The defendant may well testify again during the defense presentation of the evidence.

At the conclusion of the plaintiff’s evidence, the defense may make a motion to dismiss the case for failure to present sufficient evidence. That motion is rarely granted and is followed by the defense presentation of evidence. The plaintiff is allowed to present rebuttal evidence at the close of the defense case. Rebuttal evidence is limited to addressing evidence presented by the defendant. All witnesses may be cross-examined by the opposing side.

Civil cases are also more likely to involve expert witnesses who are called upon to analyze a wide variety of issues and give opinions that may help the judge or jury in reaching a decision. The U.S. Supreme Court has said that trial judges are the gatekeepers of expert testimony, and experts must be recognized as such within the scientific community. The U.S. Supreme Court has ruled that trial judges are the gatekeepers of expert testimony, and experts must be recognized within the scientific community.

The plaintiff and defendant present closing arguments at the end of the evidence presentation, the jury—if there is one—is instructed, and deliberations begin, followed by a verdict and judgment.

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