© 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION TRIAL PROCEDURES

2 KEY TO A SUCCESSFUL TRIAL preparation!

3 TRIAL ASSIGNMENT State court direct calendar systems and Federal court: case is initially assigned to trial judge

4 TRIAL ASSIGNMENT State court master calendar systems: case is assigned to trial by presiding judge on the day set for trial

5 CHALLENGING THE TRIAL JUDGE State Court Any trial judge can be challenged for cause (actual bias) Parties have one peremptory challenge to a judge during the case (unspecified reasons)

6 CHALLENGE FOR CAUSE State Court  Rarely done  Requires showing of actual bias  Delays trial until determined

7 PEREMPTORY CHALLENGE State Court  Often done  Requires declaration of fear of unfairness  Effective if timely

8 TIMING OF PEREMPTORY CHALLENGE Master calendar system: before counsel leaves for trial department Direct calendar system: within 15 days of first appearance

9 RECUSAL— any judge may recuse himself from handling a case for actual bias or appearance of impropriety.

10 PRETRIAL CONFERENCE Agenda:  Trial briefs  Proposed voir dire  Motions in limine  Exhibit and witness lists  Proposed statement of the case  Proposed jury instructions

11 MASTER CALENDAR PRETRIAL CONFERENCE trial date is first day judge has seen the case, trial documents exchanged

12 DIRECT CALENDAR/FEDERAL PRETRIAL CONFERENCE trial judge already familiar with case, trial documents exchanged before trial date

13 TRIAL BRIEF— summarizes facts and law that will be presented at the trial, educates judge about issues of the case.

14 PROPOSED VOIR DIRE— parties submit lists of questions for judge and counsel to ask the jury.

15 MOTIONS IN LIMINE Motions to  exclude certain evidence as improper, or unduly prejudicial or confusing  include evidence where legal dispute anticipated

16 EXHIBIT LISTS Most courts require a list of exhibits, and exhibits must be premarked for presentation in trial.

17 WITNESS LISTS— to read to prospective jurors so those who know witnesses can be excused.

18 STATEMENT OF THE CASE— brief, objective statement of nature of the case read to prospective jurors by judge.

19 PROPOSED JURY INSTRUCTIONS Statements of the law  to be read to the jury at end of case  most important trial effort  frames the presentation of the case

20 JURY SELECTION  Each side challenges jurors for cause  Each side uses peremptory challenges  When all challenges are used or each side passes, jury is sworn

21 OPENING STATEMENT  Plaintiff presentation of what the evidence will show  Defendant can make opening, or reserve until after plaintiff rests

22 PLAINTIFF’S CASE-IN-CHIEF Plaintiff presents witnesses on direct examination Defendant presents cross-examination of witnesses using leading questions

23 PLAINTIFF RESTS— when plaintiff has presented all testimony and evidence.

24 MOTION FOR DIRECTED VERDICT— defendant moves to dismiss on grounds plaintiff has failed to offer evidence to support claims—rarely granted.

25 DEFENDANT’S CASE-IN-CHIEF Defendant presents witnesses on direct examination Plaintiff presents cross-examination of witnesses using leading questions

26 REBUTTAL— each side presents responsive evidence until they are both done.

27 CLOSING ARGUMENTS Plaintiff argues favorable evidence and law Defendant argues favorable evidence and law, and attacks plaintiff argument Plaintiff argues to rebut defendant’s arguments

28 JURY INSTRUCTIONS— some judges “pre-instruct” before closing arguments, others read them to jury after arguments completed.

29 JURY  Is given the case  Deliberates  May ask questions  Returns with verdict

30 POLLING THE JURY  Losing party may request  Each juror asked if he agrees with verdict  May suggest grounds for post-trial motions, appeal

31 TRIAL ENDS  Jury excused  Judgment prepared  Judgment entered

32 TRIAL ENDS But the case is far from over…

33 SUMMARY Order of Trial Presentation PREVIEW Judgments, Post-Trial Motions SUMMARY Order of Trial Presentation PREVIEW Judgments, Post-Trial Motions