Going to Trial — Litigation Part 9

Keith B. DunnaganToday, we continue our look at the litigation process and examine the trial phase. The vast majority of civil cases in California settle before trial. But if you do go to trial it is important to understand that process.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at kbdunnagan@bpelaw.com.

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Going to Trial — Litigation Part 9

By: Robert J. Enos, Esq.

ROBERT J. ENOSIn our previous article on litigation we examined the use of experts in trial. Today, in part 9 of the litigation series, we examine the trial phase. The trial is the culmination of all of the efforts in litigation and where the parties get to present their case for a decision.

In California, it is rare that a civil case ever gets to trial. It is estimated that nearly 98% of all civil cases settle before trial and even if trial is started many more settle during the trial.

In civil cases trials can either be with a jury or before a judge sitting alone as the trier of fact. If with a jury the trial actually begins with the selection process called voir dire. The primary purpose of voir dire is to select a fair and impartial jury. Both the trial judge and counsel participate in the voir dire process.

Depending on the case, the parties may bring one or more pretrial motions called “motion in limine”. A motion in limine is a tool to prevent the introduction of prejudicial evidence. They also serve to enhance efficiency of the trial process by resolving issues that might otherwise waste court time. Before the trial starts and the examination of witnesses begins one side or the other will ask the court to exclude all witnesses from the court room so that they cannot hear the testimony of other witnesses. The purpose is to prevent less than candid testimony.

The opening statement is that stage when each side tells the trier of fact what it intends to prove. Its purpose is to prepare the trier of fact for the evidence they intend to produce and how that evidence relates to their side of the case. Each party is entitled to make an opening statement with plaintiff going first followed by the defendant. Neither party is required to make an opening statement and may waive the right to do so. The Defendant may either waive the opening statement or reserve it until the Plaintiff has completed their case.

The next phase is the presentation of evidence starting with direct examination. Direct is the method by which a party first elicits testimony from witnesses in support of their own claims or defenses. There is no required form of questioning on direct, but the court does have discretion over the mode of interrogation of a witness. In the exercise of such discretion, various forms of questions may be found objectionable on direct such as leading questions, compound questions, inadmissible opinions or conclusions, and those calling for a narrative.

Cross-examination is questioning by a party other than the one who called the witness to testify, on matters within the scope of the witness’ testimony on direct examination. Cross-examination normally follows the direct examination of each witness. Most courts interpret “scope of the direct” liberally and permit questioning on any subject touched upon during direct examination.

As the trial progresses, it may be advantageous to make one or more motions, including a motion for directed verdict. A motion for directed verdict challenges the legal sufficiency of the opposing party’s evidence.

The final part of the trial is the closing argument. Neither party is required to make a closing argument. Plaintiff may elect to waive either or both opening and rebuttal argument; and defendant may also elect to waive argument. In general, the order of closing is: Plaintiff’s (opening) argument; Defendant’s argument; and plaintiff’s rebuttal. Often in complex bench trial the closing argument will be presented in the form of written briefs.

Once completed the case is then either (a) given to the jury for the jury to deliberate and render a verdict; or (b) taken under submission by the court for the court to issue a decision. Once the decision is entered, then we look at the post-trial maneuvers.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at kbdunnagan@bpelaw.com. Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.