A LAWYER'S PRIMER FOR WRITERS: The Steps of a Trial - Part I

For the next few posts, I'll be sharing sections of the chapter "The Steps of a Trial, From Jury Selection to Verdict" from A Lawyer's Primer for Writers: From Crimes to Courtrooms, a nonfiction book written by my husband, Shaun Kaufman, and myself. Since we co-owned a private investigations firm for over a decade, Shaun has returned to the practice of law, specializing in criminal defense, family law, and personal injury. I currently work as an investigator for Shaun Kaufman Law and several other law firms, as well as write fiction and nonfiction.

In this chapter we discuss a bit of trial history, common trial terms, and the following steps of a trial:

  • Selecting a jury
  • Opening arguments
  • Witnesses and evidence
  • Closing arguments
  • The verdict. 

For today, we'll touch on some history, then list common trial terms.

Chapter 15: The Steps of a Trial - Common Trial Terms

All Rights Reserved. Copyright Colleen Collins

Fig. 28. “Trial of a Sow and Pigs at Lavegny” from “The Book of Days,” 1863 (image is in the public domain)

Fig. 28. “Trial of a Sow and Pigs at Lavegny” from “The Book of Days,” 1863 (image is in the public domain)

Yes, figure 28 shows a pig, the defendant, in a trial. Throughout Europe, from the Middle Ages into the nineteenth century, animals could be tried in court for crimes, exactly the same as humans. The trials were conducted formally: Juries were selected, witnesses testified, evidence was admitted and so on. Lawyers were appointed, at tax-payers’ expense, to represent the animals. 

So kicks off our discussion on the formal steps of a trial, which like a story has a beginning, middle and end. 

Let’s begin with an alphabetical listing of common trial terms.

Common Trial Terms

Accessory: A person who knowingly and intentionally contributes to a criminal act (before or after the crime, but not necessarily during the commission of the crime). An accessory after the fact is someone who knows that a crime has occurred and helped to conceal it. 

Accomplice: A person who assists in, advises or encourages the commission of a crime

Acquittal: A finding by a judge or jury that a criminal defendant is not guilty of the charges brought by the government. An acquittal is not a declaration of the accused's innocence but rather it is a verdict based on the prosecution’s inability to prove the accused's guilt beyond a reasonable doubt. A person may be acquitted of a crime but found civilly liable in a civil case regarding that same crime because civil cases have a lower burden of proof than criminal cases.

Admissible: A term that describes evidence that may be heard or seen by a jury and/or considered by a judge or a jury in civil and criminal cases.

Answer: The formal written statement by a defendant in response to a civil complaint. The answer establishes the grounds for defense.

Bench Trial: A trial without a jury, in which the judge alone weighs the facts to reach a decision.

Bench Warrant: An order issued by a judge for the arrest of a person.

Beyond a Reasonable Doubt: The standard required to convict a criminal defendant of a crime. The prosecution must prove the guilt so that there is no reasonable doubt to the jury that the defendant is guilty.

Burden of Proof: The level or quality of proof that a party needs to prove his or her case. In civil cases, the plaintiff has the burden of proof by a preponderance of the evidence, which means the plaintiff’s proof must outweigh the defendant’s at least slightly for the plaintiff to win — if the two sides are equal, the defendant wins. In criminal cases, the prosecution has the burden of proof, and must prove the defendant's guilt beyond a reasonable doubt for a guilty verdict.

Capital Offense: A crime punishable by death. 

Challenge: An objection, such as when an attorney objects at a hearing to the seating of a particular person on a civil or criminal jury.

Circumstantial Evidence: All evidence except for eyewitness testimony. One example is physical evidence, such as fingerprints, from which an inference can be drawn.

Closing Arguments (see also Opening Arguments): Also called closing statements, summation and summing up, which are the concluding statements by both parties at the end of a trial. A closing argument may not contain any new information and must refer to evidence already presented throughout the trial. Usually the plaintiff gives the first closing argument, and the defense is second. In some cases, a judge's presentation of the jury instruction is also known as summing up.

The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.

The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.
— Gerry Spence, renowned defense lawyer, on closing arguments


Contempt of Court: Willful disobedience of a judge's command or of an official court order. A person who is in contempt of court can be fined or jailed. 

Conviction: The result of a criminal trial which ends in a judgment or sentence wherein the prisoner is guilty as charged. 

Corroborating Evidence: Supplementary evidence that strengthens or confirms the initial evidence.

Counsel (also called counselor): A term that refers to the lawyers in a case. Counsel is often used as a plural; counselor as singular.

Pitkin County Courthouse, Aspen, CO, photo by Carol Highsmith (image is in the public domain)

Pitkin County Courthouse, Aspen, CO, photo by Carol Highsmith (image is in the public domain)

Court: A state or federal entity authorized to resolve legal disputes. Also, judges often refer to themselves in the third person as the “court.”

Cross-Examination: The questioning of a witness by the other side. 

Direct Evidence: Proof of facts by witnesses who saw acts done or heard words spoken.

Direct Examination: The first questioning of witnesses by the party on whose behalf they are called.

Exhibit: A document, photograph or object introduced as evidence during a trial.

Expert Witness (also referred to as professional witness or judicial expert; see also Non-Testifying Expert). Someone who has the knowledge, training, skills or educational background to present their opinion about evidence or a fact in a legal case.

Hearsay: Statements by a witness who did not see or hear the incident in question but heard about it from someone else. Hearsay is usually not admissible as evidence in court.

Hostile Witness: A witness whose testimony is not favorable to the party who calls him or her as a witness. 

Hung Jury: A jury whose members cannot agree on a verdict.

Impeachment of a Witness: An attack, via evidence, on the believability of a witness.

Inadmissible: That which, under the rules of evidence, cannot be admitted or received as evidence. Inadmissible evidence cannot be considered by a judge or jury in considering their verdict. 

Judgment: The final disposition of a lawsuit. 

- Consent Judgment occurs when the provisions and terms of the judgment are agreed on by the parties and submitted to the court for its sanction and approval.

- Default Judgment is a judgment rendered because of the defendant's failure to answer or appear.

Jury Instructions: Rules that the judge reads aloud to the jury before their deliberations begin. These instructions explain the law that applies to the case the jurors have just heard, and their role in deciding the facts of the case.

First woman jury, 1911, Los Angeles (image is in the public domain)

First woman jury, 1911, Los Angeles (image is in the public domain)

Leading Question: A question suggesting the answer that the questioner — the defense lawyer or prosector — desires of the witness. A party generally may not ask one's own witness leading questions. However, leading questions may be asked of hostile witnesses on cross-examination.

Mistrial: When a judge throws out a verdict. When a mistrial is declared, the trial must start all over again, beginning with jury selection.

Motion: A formal request, either verbal or in writing, made to the court. If a motion is in writing and filed with the court, a hearing is typically scheduled to review the motion. In general, motions may be filed at any time before, during or after trial, although in a civil case motions are only allowed at certain phases in the case. Below are several types of motions:

- Motion in limine: A request to the judge to prevent certain pieces of evidence from being brought up during the trial. These requests are typically made when the jury isn’t present, often before the jury pool is even brought into the courtroom, so that jurors are not influenced by evidence that is improper or irrelevant. The phrase in limine is Latin for at the threshold, so a motion in limine symbolizes the stopping of certain evidence at the door of the courtroom before it gets inside and infects the case.

- Motion to compel: A request that the court order a party to a court case or a third person to do something, such as produce documentation or other evidence, or it might be a request to sanction the other side for failing to do something. Motions to compel are frequently used to settle disputes that arise during discovery, such as when one side refuses to turn over documents. Motions to compel must include a promise that the person or attorney previously made a good-faith attempt to resolve the problem before asking the court to intervene.

- Motion to dismiss: A legal document that requests the court to throw out a case, typically filed by the defendantafter the plaintiff has filed a complaint.

Non-Testifying Expert (see also Expert Witness): Either side in a case can hire an expert whose role is to help the attorney evaluate something in the case. For example, a plaintiff in a civil case might hire an electrician to test if the electrical wiring in a vehicle was faulty. This type of expert is protected from discovery (unlike an expert witness whose identity and documents are discoverable).

Opening Arguments (see also Closing Arguments): Also called opening statements, which are the introductory statements made at the beginning of a trial by each side. It offers a summary of the case to the jury, including case facts and legal theories, as well as the anticipated proof that will be presented throughout the course of the trial.  Some studies claim that 80 percent of jurors' verdicts are based on the opinions they form after hearing opening arguments. 

Overrule: A judge's decision not to allow an objection. Also, a decision by a higher court in finding that a lower court decision was in error.

Parole: Serving the remainder of one’s sentence outside of prison under the supervision of a government agency. 

Preponderance of the Evidence: Greater weight of the evidence, the common standard of proof in civil cases.

Probable Cause: Guaranteed by the Fourth Amendment, probable cause is the standard used by a police officer to make an arrest, obtain a warrant or conduct a search.

Probation Officer: The court-appointed officer who supervises criminals on probation.

Relevance: Testimony and evidence presented at trial must be relevant to the case.

Restitution: A monetary payment ordered as part of a judgment in negligence and/or contract cases to restore a loss. In criminal cases, it may be one of the penalties imposed and may require return of stolen goods to the victim or payment to the victim for harm caused. Restitution is often a condition of probation or a reduced sentence.

Sentence (see also Suspended Sentence): All fines, community service, restitution or other punishment, or terms of probation, given to a person convicted of a crime. The sentence, based on the jury’s verdict (or the judge's verdict if there was no jury), is ordered by the judge. Often, the term is used more loosely to mean jail or prison time, as in “He’s serving a ten-year sentence in federal prison.”

Summing up: See Closing Arguments.

Suspended Sentence (see also Sentence): After a judge issues a sentence at the conclusion of a case, he/she may then make it a suspended sentence, which means the punishment is delayed as long as the defendant fulfills certain conditions, such as community service or attending a substance abuse program. Judges often enter suspended sentences if they believe a defendant has a high potential to be a productive citizen. However, if a defendant violates the terms of a suspended sentence, the judge can impose that the original sentence, such as incarceration, be fulfilled.

Verdict: The jury’s formal decision after a trial. Although most verdicts are upheld by the judge presiding at the trial, the judge also has the discretion to set aside a verdict under certain circumstances. Also, the number of jury votes required to render a verdict differ for criminal and civil cases.

Verdict Form: Question-and-answer forms, often in paper format, designed to aid jurors in reaching a verdict after a civil or criminal trial. These forms are not the same as jury instructions, but instead are guidelines to help the jury determine if legal standards have been met by the facts in the case. 

Each side in a case creates its own verdict form, tailored to its precise case details, and then submits these forms to the judge before trial. Because lawyers write verdict forms with maximum benefits to their side of the case, the judge will meet privately with both sides to combine their forms into the final verdict form that the jurors will actually use. Therefore, the final verdict form a jury receives is typically the result of compromise from both sides.

Voir Dire (which means to speak the truth). The jury selection process.

Witness List: A list of witnesses a party expects to call to testify at trial. Each party must submit a witness list to the other side. Witnesses might be someone who observed a crime, who worked for a business that is part of the trial, a friend or family member of the defendant or plaintiff, or a police officer.

Next post will be about selecting a jury and opening arguments.

All rights reserved by Colleen Collins. Any use of the content, including images owned by Colleen Collins, requires specific, written authority. Please do not copy or distribute any images noted as licensed; any images noted as being in the public domain are yours to use.

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Book Excerpt HOW TO WRITE A DICK: A Guide to Writing Fictional Sleuths from a Couple of Real-Life Sleuths

Today I'm posting an excerpt from a nonfiction ebook I co-authored with my former PI partner (now an attorney).  This sample describes the work, background and mind-set of a PI who specializes in intellectual property investigations, including two real-life case examples from our private detective agency.

Intellectual Property Investigations

Intellectual property seems to be the buzz word of the day.  It sounds ethereal, brainy, yet concrete -- like the stuff Albert Einstein might have kept in his garage.  But what is it, really?  The following facts comprise a legal definition of Intellectual property in the United States:

  • It describes a wide variety of property created by musicians, authors, artists, scientists, business people and inventors.
  • The federal law of intellectual property encompasses the areas of copyright, patent and trademark laws.
  • Its principles are designed to encourage the development of art, science and information by granting property rights to creative and inventive people.  These rights allow artists and inventors to protect themselves from infringement (which is the unauthorized use and misuse of their creations).
  • Protection of intellectual property is not a recent thing. The U.S. Constitution authorizes congress to grant patents and copyrights, while the Commerce Clause authorizes congress to regulate trademarks and acts of unfair competition.  The states also retain concurrent power to regulate intellectual property unless preempted by federal law.

The International Chamber of Commerce (ICC) defines intellectual property in the following statement:

Intellectual property is a product of the intellect which is owned by an individual or an organization who can then choose to share it freely or to control its use in certain ways. Intellectual property is found almost everywhere - in creative works like books, films, records, music, art and software and in everyday objects like cars, computers, drugs and varieties of plants, all of which have been developed thanks to advances in science and technology. The distinctive features which help us choose the products we buy, like brand names and designs, can fall within the scope of intellectual property. Even the place of origin of a product can have rights attached to it, as is the case with Champagne and Gorgonzola. Much of what we see and use on the Internet, be it a web page or a domain name, also includes or represents some form of intellectual property.

Some statistics claim counterfeit products account for approximately 8 percent of world trade, an incredible $200 billion dollars a year (some even bump up that figure to $600 billion). Sophisticated counterfeiting syndicates often include individuals who are connected with the brand owner.

An investigator specializing in this field might:

detective with flashlight.jpg
  • Conduct undercover field activity to identify product counterfeiting operations and other unauthorized activities at the manufacturing, distribution and retail levels.
  • Ascertain the ID, background and associations of violators as well as their sources/methods of operation.
  • Assist intellectual property attorneys to guide their clients in transactions involving intellectual property acquisition, development, protection and enforcement.
  • Consult on brand protection strategies.
  • Gather intelligence in intellectual property litigation.
  • Conduct due diligence on suppliers, distributors and third-party manufacturers.
  • Perform market surveys and market monitoring.
  • Analyze/quantify loss.

Intellectual Property Case 1: Trapping an eBay Counterfeiter

At our investigative agency, we participated in a nationwide sting on an eBay counterfeiter who was boldly re-selling a major pharmaceutical company’s products.  We say boldly because this individual was actively and openly advertising the products on a website as well as on eBay.  In a coordinated sting operation, different PIs in selected locales around the U.S. made undercover purchases of the counterfeited products over a short period.  Afterward, each of us forwarded documentation of the purchases and any written documentation, including notarized affidavits of the same, to the law firm representing the pharmaceutical company.  Although we haven’t followed the outcome of the legal hearings, we don’t see this individual hawking these counterfeit products anymore!

PI conducting interview.jpg

Intellectual Property Case 2: Documenting Franchise Infringement

A national law firm contacted our agency and asked us to document a local health club that had ceased paying the national franchise office for the use of its business concepts, symbols, designs and software and yet was continuing to use all of those items for their exclusive profit. After entering the health club, Colleen used surreptitious means (tiny cameras built into a clothes item to record items in the club) while Shaun undertook a trial workout.

While the club owner trained Shaun on the equipment, Colleen strolled around the public area of the club, recording possible infringements of the franchise-business logos, procedures, use of the same equipment and she was even able to record the manager’s computer that proudly displayed “protected corporate software” from the franchisor still in use by the rogue franchisee.  Because we were on commercial property, upon which we were invited guests, all of our surreptitious documentation was legally obtained.

The result: the breakaway business renegotiated their arrangement with the franchisor, returned to the fold, and Shaun did not have a heart attack.

If you’re writing a story with a crime involving intellectual property, check out the following sites and publications:

Writer’s Slant: If Your PI Specializes in Intellectual Property Investigations, Think About

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  • What kinds of strategies they would develop for entering businesses and documenting their activities. Posing as a pharmaceutical customer or a potential health club member creates interesting possibilities for someone who has little familiarity with such things in their “real life.”
  • How your PI gains knowledge of complex formulas and “acts” like they know something about matters as diverse as counterfeit DVDs, toys, drug compounds or tour t-shirts for rock bands.
  • How your fictional PI documents intellectual property infringement (for example, does he wear an “undercover buttonhole spy camera” or carry a backpack with a tiny camera and video recorder built into the satchel?).
  • How your fictional PI will handle the danger and legal issues surrounding the fact that many counterfeiters also deal in “other” products such as narcotics or weapons while they produce and sell “benign” counterfeit items.  In November 2007, federal agents in Los Angeles arrested twelve persons involved in clothes counterfeiting and also recovered thirty kilograms of cocaine, miscellaneous firearms and $123,000.00 in cash (the money had been stuffed into a teddy bear).  This case involved a number of Arab co-defendants producing bell-bottom jeans, then investing the profits in exchange for cocaine and illegal firearms from the Mexican Mafia.  The feds called this “Operation Bell-Bottom.”  Talk about fodder for your story!