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

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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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.

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.

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.
 

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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 jurisdictions, 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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Once a lawsuit has been properly filed, that complaint has to be served upon the defendant. It is served either by the local sheriff, a special process server, or any other person authorized by law.  The form of service is typically personal service, meaning that the complaint and any other accompanying court process (documents) issued by the clerk of the court has to be served on the defendant in person. Some states authorize what is referred to as substituted service, meaning that in some instances, the complaint may be delivered to a member of that defendant’s household or may even be posted on the front door of the residence where the defendant is believed to live.

If the defendant cannot be found through one of those means, then there may be other forms of substituted service allowed by state law. These consist of service upon the Commissioner of the Department of Motor Vehicles in regards to an automobile accident, and in some instances, service upon the Secretary of State when the defendant is believed no longer to be living in that state. These other forms of service are governed by state law, and thus vary from state to state.
 

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Any person can walk into a courthouse and file a lawsuit. The party bringing that lawsuit is referred to as the plaintiff. The party being sued is referred to as the defendant. The initial document filed with the court to initiate a lawsuit may have different names, depending upon the jurisdiction where you are filing. Typically, the initial document filed with the court to initiate a civil claim is referred to as a complaint. In any complaint, you can ask for either legal relief or equitable relief. If the claim being pursued is a legal claim, then the damages being requested would consist of compensatory damages and perhaps punitive damages.

Compensatory damages are designed to make a person whole from the loss he or she has suffered.

Compensatory damages are damages that are designed to compensate the plaintiff for his or her injuries. To put that another way, compensatory damages are designed to make that person whole for the loss he or she has suffered as a result of the conduct of the defendant. Punitive damages, on the other hand, are designed to punish the defendant for egregious conduct. Punitive damages are rarely awarded, and normally when they are awarded they are carefully reviewed by the court to determine the appropriateness of the award.
 

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Within the civil justice system there may be several divisions or offices of the court dealing with different types of issues. There may be a landlord/tenant division, a small claims division, a domestic relations division, a probate division, and a tax division. Each of those divisions deals with the types of claims associated with their name. For instance, the landlord/tenant division will deal with landlord/tenant disputes, including evictions by landlords or complaints by tenants involving failure to comply with building code requirements.

The small claims division may deal with any type of claim within a jurisdictional monetary limit. The small claims division is a type of people’s court, wherein lawyers are typically not allowed and the strict rules of evidence may not apply. The domestic relations division deals with domestic matters, including divorce, custody, alimony, child support, and adoption. The probate division deals with estate matters and guardianship matters. Finally, within a civil court there may be a general civil division that would hear all claims other than the ones mentioned above.
 

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Within the civil justice system there are two types of claims that can be presented and resolved by the court—law claims and equity claims. A law claim is a claim for money damages. Money damages means that the party bringing the suit (the plaintiff) is requesting that a monetary judgment be awarded against the party who is being sued (the defendant). Another type of claim that can be litigated in the civil justice system is an equity claim. In some states an equity claim is referred to as an equitable claim or a chancery claim. Equity claims are claims wherein the party bringing the suit is not necessarily asking for judgment for a monetary amount, but is asking the court to direct the other party to either do something or not to do something.

Example: A law claim might arise from an automobile accident where one party is injured and claims the injury is due to the fault of the other driver. The lawsuit may be filed requesting the court to award a monetary amount against the other party that is accused of being at fault.

An equity claim might arise when one neighbor is seeking to enjoin (or prevent) another neighbor from building an extension of their home onto the first neighbor’s property. To prevent that type of encroachment, a lawsuit would be filed requesting an injunction. If the court granted that request, then an injunction would be issued preventing that activity.
 

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There are two types of cases—criminal and civil. A federal judge may one day conduct a complex civil trial and the next day preside over a routine federal criminal case. There is no distinct demarcation between civil court and criminal court within the federal court system. However, there may be a clear demarcation between the two in some states. There may be a specific court that is known as the criminal court, wherein only criminal cases are heard. The important thing to keep in mind is that the civil system is entirely separate and distinct from the criminal system. Indeed, the rules that apply to one in many instances have no application whatsoever to the other. This chapter explains civil justice in both the state court and the federal court systems.

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This concludes the section dealing with the sources of the law. To fully understand what the law is, you must know whether the law referred to is constitutional law, statutory law, case law, or administrative law. In some respects, there is a certain pecking order or hierarchy that might be applied to those different sources of the law. If a particular activity is either allowed or disallowed under the Constitution, then no statutory law, case law, or administrative law can overturn that. That is not to say, however, that all constitutional rights are necessarily absolutes.

Your constitutional rights can be restricted to some extent by state or local laws.

For instance, people have a constitutional right to peaceably assemble, but for purposes of maintaining public order, the government may require that you obtain a permit to conduct that peaceable assembly on public property. Simply because you want to peaceably assemble by calling a demonstration on Fifth Avenue in Manhattan does not mean that you have an absolute right to do that during the middle of rush hour. In that sense, your constitutional rights can be restricted to some extent by state or local laws.

In looking at a legal issue or question, the general checklist of things that you would want to ask yourself are the following.

o Is there some constitutional provision that may be involved?

o Is there any statutory law that may be controlling?

o Is there any case law dealing with this issue, and if so, what court am I going to look at in terms of determining the source of that case law? (If the issue is one that involves provisions of the U.S. Constitution, then the U.S. Supreme Court is the ultimate decisionmaker in those questions. Look at case law from that court, as well as case law from any of the lower federal courts. If the issue is simply one involving state statutory law, look at case law from the highest court of that state.)

o Are there any administrative rules or regulations that may be applicable?
 

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The legal profession itself is governed by rules and regulations published by their profession. Within every state there is an agency or entity that is responsible for publishing rules that govern the conduct of attorneys. Those rules of conduct are generally referred to as disciplinary rules. If an attorney violates a disciplinary rule, he or she may be disciplined by the state bar and subjected to certain sanctions. For example, if you were represented by an attorney and found that the attorney had done something that you considered to be highly improper, you may want to look at the disciplinary rules to see if there is something set forth there that might govern the particular behavior in question.

There are also rules of procedure designed to provide some uniformity to how lawsuits proceed. Rules of civil procedure:

* define what should be contained within a set of suit papers initiating a lawsuit (also called a complaint);
* define how a complaint is to be served;
* set forth what affirmative defenses may be raised by a defendant;
* set forth a variety of rules governing the discovery process; and,
* set forth the procedures by which a judgment of a court may be reviewed by the trial court.

Rules of criminal procedure govern how a defendant is to be dealt with in terms of the initial charging, his or her right to be informed of the charge, what rights he or she may have in terms of discovery, and how the eventual trial will proceed.

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These rules and regulations can be very important. Suppose you wanted to assert a claim against a motel owner because of carbon monoxide poisoning that occurred while you were in the motel. The type of claim that would be asserted would be a civil claim (law claim) for money damages based upon the negligence of that motel owner. There may, however, be regulations published by the state agency that controls the motel/hotel industry that set forth certain standards as to how motels are to maintain gas producing appliances, as to prevent carbon monoxide poisoning. The regulations published by that state agency could be extremely helpful in pursuing a civil claim against that motel owner.
 

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At the federal level, all regulations are published within the Federal Register. They are also contained within a document known as the Code of Federal Regulations (C.F.R.). The C.F.R. can be found in a law library and is generally organized in numerical fashion to correspond (to the extent possible) with the statutory code sections that they are designed to interpret and expand upon.
 

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The rule making process consists of the following four steps.

1. The agency publishes proposed rules.

2. Members of the public are given the opportunity to comment on those rules.

3. The rules may be revised based upon the public’s comments.

4. The final rules are enacted.

The document where these rules are published is known as the Federal Register. The Federal Register is a publication put out by the Government Printing Office that contains all of the proposed and adopted rules and regulations of the federal agencies.

As discussed earlier, there may be administrative agencies within the legislative and judicial branches of government. For instance, the General Accounting Office is an independent administrative agency created by Congress and charged with investigating all matters related to the receipt, disbursement, and use of public money. At the state level within the judicial branch of government, there may be an administrative agency, known as the state bar, charged with the responsibility of administering and supervising the legal profession. As an administrative agency within the judicial branch of government, a state bar is subject to the control of the highest court of that state.

The regulations that are adopted by administrative agencies have the effect of law. They are designed to expand on laws created by legislative bodies. The legislative bodies that enact the statutory law try to be as precise as possible in terms of writing the statutes. However, the statutes are often somewhat general because the legislative body simply does not have the expertise or, in some cases, the time to enact statutes that deal with all of the nitty-gritty issues that may arise within that subject area. The administrative agencies generally have the expertise and the time to publish regulations that are much more precise and that deal with the nitty-gritty issues that the agency confronts.

The regulations that are adopted by administrative agencies have the effect of law.

The regulations published by the administrative agencies are designed to be an explanation and an elaboration of the statutes that the agency is charged with enforcing. Theoretically, there should never be a situation in which there is a conflict between what the statute says and what the regulations set forth by the agency say. If there were such a direct conflict, then the statute would be controlling. The regulations are designed to flesh out the statutory scheme. You may think of the statutes as being the skeleton and the regulations as being the meat on the bones.

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