A LAWYER'S PRIMER FOR WRITERS: The Steps Of A Trial - Part II

“One of the best resource books I’ve found for writers.”

— Lynn Chandler Willis, Winner 2013 Minotaur Books-Private Eye Writers of America Best First PI Novel

Last week, I started 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 I co-wrote with Shaun Kaufman, my husband and criminal defense lawyer. This chapter provides a high-level overview of the steps of a trial.

In Part I, we discussed some history of trials and provided a glossary of common trial terms. This week we continue with jury selection and opening arguments. Other chapters in A Lawyer's Primer for Writers go into more depth about topics such as jury experts, the players in the courtroom, trial preparation, criminal charges, the courtroom setting, and more.

Chapter 15: The Steps Of A Trial - Selecting a Jury and Opening Arguments

All Rights Reserved. Copyright Colleen Collins

1. Selecting a jury

Jury box, Howard M. Metzenbaum U.S. Courthouse, Cleveland, Ohio by Carol Highsmith (image is in the public domain)

The voir dire, or jury selection process, requires input from attorneys for both sides, as well as the judge.

The judge and attorneys, after being given limited information about each potential juror, ask the potential jurors questions, the goal being to eliminate those who might be biased toward one side or the other during the trial.

After questioning is over, the attorneys and judge meet privately to pick the jury for the trial. Some of the jurors are removed for cause, which means a juror has something in his/her past experience that may not allow them to be fair and impartial to both parties. Example of cause include if a juror personally knows one of the lawyers, or has been a victim of a crime similar to one being tried, or has a personal interest in the outcome of the case. Each side has an unlimited number of removals for cause.

Other potential jurors may be removed by peremptory strike, meaning each side can remove a certain number of jurors from the pool without giving a reason, although they cannot be eliminated based on race or gender. The number of preemptory strikes depends on the jurisdiction and type of crime. 

As an example, the following defines the number of strikes in federal trials:

• Federal civil trial: Each side is allowed 3 peremptory strikes.
• Federal criminal trial: The government’s prosecuting attorney gets 6 strikes and the defense attorney gets 10 strikes. In capital cases where the death penalty is considered, both sides get 20 strikes.
• Federal misdemeanor trial (a minor crime punishable by a fine or less than a year in prison): Each side gets 3 strikes.

After all potential jurors have been removed via cause and preemptory strikes, the jury is selected, which is often referred to as the jury being empaneled. After the courtroom deputy clerk swears in the jurors, and the judge gives them initial instructions, the trial can begin.

There might also be one or more alternate jurors, who are selected in the same manner as regular jurors, and hear the evidence in a case along with the regular jurors, but they do not participate with the regular jurors when they decide the case unless called upon to replace a regular juror.

Note: Jury research has become more common, especially in high-profile trials, as attorneys retain professional jury experts to aid assessment of appropriate jurors. Chapter 14, Jury Experts, provides more information on this subject.

2. The lawyers present opening arguments

"The Jury" by John Morgan, 1861 (image is in the public domain)

During opening arguments, each side tells the jurors about the case they will be hearing. Opening statements must be confined to facts that will be proven by evidence and cannot be argumentative.

Whichever party brought the case to court — the government in a criminal prosecution or the plaintiff in a civil case — is the first to give its opening statement. Either lawyer may choose not to present an opening statement, or may reserve to give it during the defense’s presentation of evidence.

In a criminal trial, the burden of proof rests with the government, which must prove beyond a reasonable doubt — meaning, the jurors must be solidly convinced, or have a moral certainty — that the defendant is guilty. 

In a civil trial, the plaintiff has the burden of proof, and in general must prove liability and damages by a preponderance, or a greater weight, of the evidence — meaning, there is evidence that is convincing in its probable truth or accuracy. The degree of proof required in a civil case is far less stringent than in a criminal case. 

Tip for Writers: An opening statement is supposed to only contain a preview of what the lawyers think the evidence will be. However, a clever lawyer might push the envelope to make his or her opening statement as dramatic and compelling as a closing argument. The most powerful opening statements are those that employ common human themes and fables — think tropes in storytelling — which provide a framework within which the evidence will be arranged. 

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This ends Part II. The next post covers witnesses and evidence, closing arguments, the verdict, and additional online resources.

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.

Click on book cover to go to Amazon page

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)

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)

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)

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.

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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.

Click on book cover to go to Amazon page

Litigation Stress: How It Can Affect Characters in Your Story

Maximillian Schell, defense attorney in "Judgment at Nuremberg"

Writing a story revolving around a lawsuit, or you have a scene or two set in a courtroom? People in litigation, especially those under the stress of being the defendant or even the plaintiff, are often portrayed as "stressed" in such scenes, but their reactions and symptoms are more complex than that.

In fact, there's a term, litigation stress syndrome, for the symptoms people might suffer from intense, especially prolonged litigation. But before that term was another, malpractice stress syndrome, that we'll look at first.

Medical Profession: Malpractice Stress Syndrome

Malpractice stress syndrome refers to the symptoms physicians, nurses and other health professionals have suffered after being sued for malpractice.

According to Karen Kohatsu, MD, she had been confident that she would prevail in a malpractice suit brought against her, but during the litigation process she experienced isolation, inability to sleep and other stress-related symptoms until the lawsuit was eventually dismissed. "Self-doubting occurs when you read the summons and depositions from the other side," Kohatsu said. "The other side makes it sound like you are a terrible person for missing a diagnosis. You feel really alone and have to turn everything inward because you don't have anyone to talk about it."

Litigation Stress = Stages of Grief, PTSD

Many of us have seen movies, TV shows or read books that depict people going through the upheaval of a lawsuit -- some psychologists compare those reactions and symptoms to the 5 stages of grief, others compare them to PTSD, or post-traumatic stress syndrome. "The feelings rank in intensity with the death of a loved one, going through a divorce or the onset of a life-threatening illness," said one physician.

Five Stages of Grief

These stages of grieving, as outlined by psychiatrist Elisabeth Kübler-Ross, are:

1. Denial

2. Anger

3. Bargaining

4. Grief

5. Uncertainty

Outcome of Lawsuit

If the outcome of the lawsuit is favorable: renewal, rebuilding, and personal growth.

If the outcome of the lawsuit is unfavorable, denial, bargaining, depression, and other complications can result.

Legal Abuse Syndrome

Karen Huffer, a therapist, has coined another term, Legal Abuse Syndrome, that occurs when people suffer through long, protracted litigation where their Constitutional rights were violated. For example, in a recent case in our state a judge failed to read instructions to the jury. When defense noted that the judge had forgotten to read the instructions, the judge countered that the defense was wrong. Later, in a review of the court transcripts, it was seen that the judge had never read the instructions. Can you imagine how the defendant felt, watching his Constitutional rights being trampled on by a judge?

Huffer describes the symptoms of legal abuse syndrome as including:

• Feeling deeply disillusioned or oppressed by the legal system
• Frustrated with efforts to effect justice
• Experiencing nightmares, exhaustion, vulnerability

Family's Responses

Not Guilty" by Abraham Solomon, 1859, Getty's Open Content Program

It's not only the litigant who suffers from litigation stress, but also that person's family. Spouses and children can experience a deep sense of loss, devastation, and social awkwardness. Part of this is due to the restriction that no one can "speak about the lawsuit" to anyone else.

How Long Do the Symptoms Last?

In "The Psychological Impact of Litigation," a 2006 article in the DePaul Law Review, authors Edward J. Hickling, Edward B. Blanchard and Matthew T. Hickling, wrote the following statistics on lingering symptoms of litigation stress, which they too equate to PTSD:

In our research, we found that about forty-eight percent will show an improvement in symptoms by six months so they no longer meet diagnosis for PTSD, and by one year about sixty-five percent will show improvement. After that, our data shows that without intervention, there are very few people who will improve any further. Other studies have shown that for as long as six years, even with treatment, over forty percent of the victims will remain symptomatic.

Symptom-Free Litigants

Then there are those litigants who are symptom free. Sandra Tunajek, in her 2007 article "Dealing with Litigation Stress Syndrome," states that while such non-symptoms "may be a form of denial, further research is needed...to determine the factors (i.e., available peer support, shared disclosure by peers, previous claims, successful defense, etc.) that may offer protection against litigation stress syndrome."

Whether you're writing about a defendant accused of a crime, a plaintiff seeking financial compensation, or how a litigant's family is coping (or not), hopefully this article provides some background, stats and ideas!

Happy writing, Colleen

“Put together with the user in mind, this intelligently organized handbook for practicing writers will make you sound like a practicing lawyer.”

— Warwick Downing, former DA and author "The Widow of Dartmoor"

Colleen Collins's current nonfiction book, co-authored with Shaun Kaufman, is A Lawyer's Primer for Writers: From Crimes to Courtrooms.