Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

In the course of litigation, it is not uncommon for one party to raise an objection based upon privilege. There are several different privileges that exist within the law. The husband/wife privilege precludes either spouse from testifying against the other based upon what they learned from the other spouse during the course of the marriage. If a husband tells his wife that he has just murdered the next door neighbor, then the wife may be precluded from repeating that statement in a court of law.

One of the privileges that is at the foundation of our legal system is the attorney/client privilege. When a client retains an attorney, anything that client says to the attorney is deemed to be privileged and cannot be repeated by the attorney without the consent of the client, unless the communication involves proposed criminal activity. For instance, if a client tells his attorney that he is about to blow up a building, the attorney—under the law of most states—must advise him of the possible legal consequences, urge him not to commit the crime, and advise him that the attorney must reveal his intention to the authorities unless he abandons the proposed criminal activity. If the client confesses to his attorney that he blew up a building, the attorney is bound by the attorney/client privilege not to disclose that information.

In the case of the attorney/client privilege, the privilege belongs to the client, not to the attorney. If the client wishes to divulge those communications, then he or she may do so. The attorney, however, may not divulge those communications without the consent of the client, unless the client has already divulged them on his or her own. Some states also recognize other types of privileges, wherein communications made by one person to another may not be divulged without the consent of the person to whom the privilege belongs. (Such privilege exists in regard to the physician/patient relationship and the priest/penitent relationship.)

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The competency of a witness to testify may frequently become an issue. Generally, any witness within the age of reason is considered to be competent, provided that witness has not been declared incompetent by a court. The age of reason varies depending upon the maturity and intelligence of the witness, with age 7 generally being a cutoff point. Between ages 7 and 14, it is a matter for the trial judge to determine whether the child is of sufficient sophistication to testify. A person is declared incompetent by a court if there has been a judicial determination that he or she is deficient in mental capacities to the point where he or she cannot conduct his or her own affairs and needs to have someone else appointed as a guardian. If a person has been declared incompetent, then he or she may not be able to testify.

Other issues of competency may arise in terms of taking of an oath. Some people maintain that they cannot take an oath because of their religious beliefs. Normally, that is resolved by having the person affirm that they will tell the truth rather than having them state that they will tell the truth so help me God.

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Once a witness has been put on the witness stand, he or she may be impeached. To impeach a witness means to contradict him or her in some manner or form, or to otherwise undermine his or her credibility. A witness may be impeached by presenting contrary statements that he or she has made on prior occasions about the issue in controversy; by showing that he or she has some particular bias or prejudice against the other party; or, by attacking the witness’ character by showing that he or she has been previously convicted of a criminal offense constituting a felony or a crime of moral turpitude. (A felony is a crime for which a person may be imprisoned for more than a year. A crime of moral turpitude is a crime that involves lying, cheating, or stealing.)

Normally, in a civil case, general character evidence is not admissible. The court in a civil action does not want to hear evidence about how good a person the plaintiff or the defendant may be. However, that type of testimony may be allowed in a criminal action to show the character and reputation of the defendant who has been accused of the crime.

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The purpose of cross-examination, on the other hand, is to allow the adverse party (the party who has not called the witness) to try to pin that witness down. The witness is not typically allowed to explain his or her answers on cross-examination.

A skillful cross examiner will ask only questions in the form of Isn’t it true that…. That type of questioning is intended to elicit a simple yes or no answer and to not allow the witness to explain answers in any detail. This form of questioning is called leading. If the witness wishes to explain the answer or if the attorney who initially called the witness wishes to have the witness explain the answer, then that attorney will have the opportunity on redirect examination (the examination that takes place after the cross-examination).

The general format by which questioning of witnesses is conducted is:

* first, by direct examination, in which nonleading questions are asked by the attorney calling the witness;

* second, by cross-examination by opposing counsel, frequently through the use of leading questions; and,

* third, by redirect examination, in which the party that originally called the witness may ask more nonleading questions, allowing the witness to explain any answers that may have been given on cross-examination.

Cross-examination is generally limited by the scope of the direct examination. If, on direct examination, the witness was only asked a limited number of questions about limited issues, then the cross-examination must be limited to those issues. The cross-examination may not go beyond the general scope of the direct examination.

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The party that calls a witness to testify is required to ask that witness nonleading questions. That form of examination, called direct examination, is intended to allow the witness to testify rather than to have the attorney testify. If the attorney were allowed to ask leading questions (questions that suggest the answer within the content of the question) then in essence the attorney is testifying and not the witness. An example of a leading question would be “Isn’t it true that you beat your wife?” That question, by its very content, suggests that the answer is yes—that the witness does beat his wife. That type of questioning is not allowed on direct examination. A nonleading form of that same question would be “What do you know about your wife having been beaten?”

The general purpose of direct examination of witnesses is to allow the witness to explain what he or she knows. If that witness provides testimony that needs further explanation, then the attorney can ask the witness to simply explain the answer.

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If you have ever been in a courtroom in which multiple witnesses are potentially going to testify, you may recall the judge asking whether there is a request for a rule on witnesses. The rule on witnesses means that witnesses who have not testified should not be in the courtroom. That rule does not apply to the parties to the litigation. This means the plaintiff and the defendant in a civil case both have a right to be present, even though they may testify as witnesses. However, witnesses who have not yet testified may be excluded from the courtroom until they testify. In addition, this rule on witnesses may be extended to prohibit anyone from talking to witnesses about what is going on in the courtroom until that witness gives his or her testimony. A violation of that rule on witnesses may result in a witness being excluded from testifying. The purpose of this rule is to prevent one witness’ testimony from being influenced by what another witness has said in the courtroom.

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As previously defined, evidence is the presentation of testimony from witnesses and the presentation of documents or physical things for the jury to review. The rules of evidence govern how those things may be admitted into evidence. For something to be admitted into evidence technically means that the jury is allowed to hear it or see it. If it is not admitted into evidence, then the jury should not see or hear it. If, by chance, they have heard or seen evidence that was not properly admitted, they will be instructed to disregard that evidence. The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom. These rules can become very complex.

The rules of evidence are designed to provide some degree of reliability to the evidence that is presented in the courtroom.

The principal form in which evidence is presented is by putting a witness on the witness stand and having him or her respond to questions from the attorney who has called that witness. The testimony rendered by that witness is considered to be evidence. The jury may rely upon that evidence to decide the case. The testimony presented by one witness may be sufficient to convince a jury to rule in favor of the party that called that witness, even though the other party may have called ten witnesses who presented contrary testimony.

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Most courts have adopted rules of procedure and rules of evidence. Those rules of procedure may be contained, to some extent, in the state code (in which case the procedural rules in essence become statutory law), or they may be in a formal set of rules referred to as the rules of procedure. In the federal court system, there is a set of rules referred to as the Federal Rules of Civil Procedure. Many state courts have adopted similar sets of rules of civil procedure.

In addition, there may be a set of rules referred to as the rules of evidence. In the federal court system, there is a formal set of rules referred to as the Federal Rules of Evidence that have been written by the Judicial Conference. Those Federal Rules of Evidence apply in federal court. At the state court level, many states have adopted their own state rules of evidence. Those rules are designed to govern the admissibility of evidence in that state court system.
 

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If either party feels as though he or she has not been dealt with fairly by the trial court, either has a right to appeal that decision to the next highest court within that state’s court system. Although each party has a right to appeal, the court may be a court of discretionary appeal, and may decide not to hear the case. (The particular structure of the different appellate courts has been previously discussed. See Chapter 4.)

An appeal is a very laborious process. In order to properly present an appeal, the transcript of the trial proceeding may have to be prepared. That transcript is prepared by a court reporter. The court reporter expects to be paid for the preparation of a transcript. The preparation of a transcript frequently costs several thousands of dollars. In addition, the party bringing the appeal has to present a legal argument (in the form of a brief or memorandum) to the appellate court stating why the trial court’s decision is in error.

The parties are not allowed to present new evidence on appeal. Instead, they are bound by the record created at the trial court level. Anything that was not properly presented or properly objected to at the trial court level is not going to be considered on appeal. An appeal is not an opportunity to re-try the case. It is simply an opportunity to request a higher court to review and correct an error made by the trial court. If a reversible error is found, the case is sent back to the trial court for a new trial or, in some instances, the appellate court reverses the trial court’s decision and enters a new judgment.
 

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Once a jury verdict is entered, either party has a right to make posttrial motions. Those posttrial motions will typically come in the form of a motion for a new trial, a motion to decrease the size of a jury verdict, or, in some instances a motion to increase the size of the jury verdict.

Judges are reluctant to disturb a jury verdict. The traditional thinking has been that once a jury has spoken, that statement is final. If, however, the jury obviously disregarded the instructions of the court or returned a verdict that is clearly excessive or inadequate, the court has the authority to set aside that verdict (and, in some states, to actually alter that verdict).

Motions for a new trial must be based on some procedural error committed by the trial judge. For instance, if the trial judge were to admit evidence that should not have been admitted, allowed an attorney to say something to the jury that is inappropriate, or improperly instructed the jury on an issue of law, then any of those may be a basis for a motion for new trial.

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Any decision rendered by a jury is normally expected to be unanimous in a civil case. The jury reviewing the evidence is required to apply the principle that the plaintiff has the burden of proof. The plaintiff, being the one who is bringing the claim, has the burden of proving his or her case by what is referred to as the preponderance of the evidence (the greater weight of the evidence). If you think of a scale that is evenly balanced, and if a feather were placed on one side of that scale, then that feather’s weight would constitute a preponderance of the evidence. If the plaintiff tips the scales in his or her favor by so much as a featherweight, then the plaintiff has met his or her burden of proving the case by a preponderance of the evidence.

Sometimes people ask: What does it mean to prove something? Something is proven by presenting evidence in support of it. Any evidence may be sufficient to prove something. One witness testifying that he or she saw you run a red light may be sufficient to establish your fault in an auto accident case, even though you presented ten witnesses who said that the light was green.

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It is important to keep in mind that the function of a jury is to hear evidence when there is a factual dispute, to evaluate that evidence, and then to render a decision based on it. If there is no true factual dispute, then there is nothing for a jury to decide and the court (judge) will make the decision.

At the conclusion of all of those motions—if they are denied—the jury will be instructed by the court what the law is in the case. Those instructions may be oral or they may be given to the jury in writing. The jury will then be instructed to consider all the evidence, the jury instructions, and then render a verdict.

Before they begin their deliberations, however, the jury will hear from the attorneys one more time in the form of closing arguments. The purpose of closing arguments is to give the attorneys one last opportunity to argue their respective positions on the case in order to persuade the jurors to vote in their favor.

The size of a jury may differ from jurisdiction to jurisdiction. The size of a jury in a civil case is usually anywhere from five to twelve people, but the parties can agree to have fewer jurors.
 

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Once the opening statements have been completed, the plaintiff will present his or her evidence first. That evidence comes in two forms—the presentation of testimony from witnesses and the presentation of documents or other tangible things for the jury to review. At the conclusion of all the plaintiff’s evidence, the defendant has the right to make a motion to dismiss or to strike the plaintiff’s case based upon any number of legal theories. This type of motion is a statement by the defendant saying that even if the plaintiff’s evidence is to be believed, it is not sufficient to justify a judgment being entered against the defendant. The court normally will rule on such a motion at that time. Typically, that type of motion is denied. If the motion is denied, the defendant then has the right to present his or her evidence.

At the conclusion of the presentation of all of the defendant’s evidence, the defendant may renew his or her motion to strike or motion for a directed verdict. In addition, the plaintiff may make a motion to strike any defenses and to request the court enter judgment against the defendant as a matter of law. That type of motion is a statement by the plaintiff that even if what the defendant says is true, he or she still has no bona fide defense to the claim, and therefore, there is nothing for the jury to decide.

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Once a jury has been chosen, the court will allow both parties to have opening statements. The purpose of opening statements is to allow the attorneys to give the jury a road map of where the case is going to go. Opening statements are not intended to be argumentative, but are intended to simply be a recitation of the facts that will be presented during the course of the trial.

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If the case is to be tried before a jury, then the first stage in the trial is voir dire. Voir dire literally means “to speak truthfully.” It is an opportunity for certain questions to be asked of the potential jurors to determine whether they know anything about the case, whether they know any of the parties, whether they have any interest in the outcome of the case, or whether they may have any particular bias or prejudice for or against either party. Voir dire is typically conducted by the attorneys, although in some courts, it may be conducted by the judge. Once the voir dire is completed, the parties have the opportunity to strike (dismiss) all or some of those jurors they feel would not be receptive to their case.

In addition, some jurors may be stricken for cause. For example, if a juror indicates that, based upon what she has heard about the case, she has already made up her mind, typically she is going to be stricken for cause because she comes to the case with a predisposition.

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After the conclusion of the discovery process, there may be a pretrial conference with a judge. The purpose of that pretrial conference is to identify the remaining issues that need to be decided and to attempt to resolve any outstanding legal issues prior to the trial. In addition, some courts conduct what are referred to as settlement conferences. These conferences may be conducted by neutral mediators and are designed simply to allow the parties to come together in an informal setting to discuss settlement. Those settlement discussions are generally confidential and if the case does not settle, anything said during those settlement conferences cannot be used against the other party.

If the case is not settled it will be scheduled for trial. It may be tried either before a judge or a jury. Juries are picked from the general population of that city, county, or jurisdiction where the court sits. Every state has different rules as to exactly how juries are chosen, but typically they are chosen from the voter registration rolls and property ownership rolls of that jurisdiction. In some jrisdictions, they may also be drawn from the Department of Motor Vehicle rolls identifying persons who have drivers’ licenses.

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Once the answer to the complaint has been filed, most civil claims allow for what is called discovery. Discovery is designed to allow each party to ask the other party what they know about the claim that has been asserted, who any relevant witnesses may be, and to identify any relevant documents. Discovery may come in several different forms.

It may come in the form of written interrogatories, consisting of written questions that either party may send to the other. These have to be answered in writing and under oath. The discovery may also consist of requests for documents and inspection, meaning that the party issuing the request wishes to see documents in the possession of the other party, or may wish to inspect certain things in the custody or control of the other party.

In addition, there may be requests for admissions, which are written statements the other party is required to either admit or deny. The purpose of requests for admissions is essentially to narrow the issues of contention in the case so that each party knows exactly what they are fighting over.

There may also be depositions allowed. A deposition is an oral examination that is conducted in the presence of a court reporter. The purpose of a deposition is to have an opportunity to orally examine the other party or witnesses so that there are no surprises at trial. The overall purpose of this discovery process is to make sure that each side has ample opportunity to discover the claims or defenses of the other party so that at the time of trial, each party is fully aware of what the other party intends to present.

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Once the lawsuit has been filed and the complaint has been properly served, the defendant has a designated period in which to respond. That period of time normally ranges anywhere from twenty to thirty days. The defendant may respond by filing a motion or by filing an answer. The different types of motions that may be filed by the defendant in response to the complaint would be motions raising issues of lack of jurisdiction, failure to properly state a claim, or certain other affirmative defenses.

A motion based upon a lack of jurisdiction is a statement that the court in which the suit was filed does not have jurisdiction—the authority—to hear the claim. Another type of motion that may be filed is a motion to dismiss for failure to state a claim, which means that the defendant is saying that even if everything stated in the complaint is true, it still does not constitute a basis for a lawsuit against the defendant.

Other types of affirmative defenses that may be raised through a motion would be such defenses as the statute of limitations, res judicata, release, accord and satisfaction, and several other such defenses. If a statute of limitations defense is raised, the defendant is claiming that your suit was filed too late and is therefore barred by the statute of limitations. If a motion is filed based upon res judicata, the defendant is claiming that this claim has already been adjudicated once and it cannot be litigated again. If the defendant raises the defense of release or accord and satisfaction, there has been some sort of settlement reached in regard to the claim and therefore the reassertion of the claim is barred.

If no motions are filed within the time allowed after service of a complaint, the defendant is to file an answer. That answer is supposed to respond to each of the numbered paragraphs of the complaint so that the plaintiff knows exactly what issues are going to be contested. In addition, the defendant may be called upon to raise any affirmative defenses in that answer. An affirmative defense may be any of the defenses mentioned above that could be raised in the form of a motion or other such defenses that would constitute an automatic bar to the claim asserted.

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