Reaching a Decision: Conduct of Trial Flashcards
Time of Trial
- All civil cases are triable any time after the last day upon which defensive pleadings were required to be filed in the case.
a. The court must give the parties reasonable time for discovery procedures, subsequent to the date that
defensive pleadings were required to be filed.
Assignment of Cases for Trial
The courts must arrange to place cases upon the trial calendar either without request but upon notice to the parties, or upon request of a party and notice to the other
parties.
Jury Trial: Demand for Jury Trial
A jury trial is assumed in cases in which it attaches,
unless the parties consent to a bench trial. This means that demand is not strictly required.
Jury Trial: Waiver of Jury Trial
A pre-litigation contractual waiver of the right to jury trial is not enforceable in Georgia.
Number of Jurors
a. In civil cases, including equity cases if a jury trial is
authorized by the court, a superior court jury must be
composed of 12 members
b. The General Assembly may prescribe any number, not less than 6, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases.
Function of a Jury
a. General verdict.
b. Special verdict via questions.
(1) Upon written request by any party made on or before the call of the case for trial, the court must require the jury to return only a special verdict in any case involving:
(a) Equitable relief;
(b) Mandamus;
(c) Quo warranto;
(d) Prohibition;
(e) Declaratory Judgment; or
(f) Any other case or proceeding where special verdicts are specifically required by law.
Motion for Directed Verdict
a. A motion for a directed verdict may be made:
(1) at the close of the evidence offered by an opposing party; or
(2) at the close of the case.
b. Georgia law explicitly provides that making the motion for a directed verdict does not prevent a party from presenting evidence if the motion is denied, nor does the
making of such motion constitute a waiver of jury trial.
Motion for Judgment N.O.V
a. Georgia permits a motion for judgment notwithstanding the verdict (JNOV) by a party who previously moved for directed verdict.
b. The motion must be made:
(1) within 30 days (28 days under the Federal Rule) after entry of judgment; or
(2) after the jury is discharged, if no verdict was returned.
Judgment: Generally
a. Georgia follows the Federal Rule in that the court may order relief to which the party in whose favor the judgment is rendered is entitled, even if the party has not
demanded such relief in its pleadings.
b. In Georgia, the court may not give the successful party relief, even though he may be entitled to it where: the
propriety of the relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.
Judgment: Default
a. In Georgia, a case will automatically become in default when: an answer has not been filed within the time required (30 days), unless the time for filing the answer has been extended as provided by law.
(1) If the case is still in default after 15 days: the plaintiff will at any time thereafter be entitled to verdict and judgment by default and will not be required to introduce evidence and establish damages.
(2) Exceptions:
(a) A tort action; or
(b) Involves unliquidated damages.
(c) In these cases: the plaintiff must introduce evidence and establish damages before the court without a jury, and the defendant may also introduce evidence
as to damages.
b. Either party may move for a new bench trial on damages.
c. If defendant places damages in issue by filing a pleading raising this issue: either party may demand a jury trial of
the issue as to damages.
Opening a Default
d. Opening a Default
(1) Within 15 days of the default: a defendant may open a default as a matter of right by filing an answer and paying costs.
(2) After those 15 days:
The defendant must seek from the court permission to open the default and must demonstrate some
providential cause preventing the filing of required pleadings, or excusable neglect, or where the judge
determines, based on all of the facts, that a proper case has been made for the default to be opened.
(a) The showing described above must:
1) Be made under oath;
2) Set up a meritorious defense;
3) Offer to plead “instanter” (instantly); and
4) Announce that defendant is ready to proceed with
the trial.
Judgment in Default Case
A judgment by default may not differ from or exceed the amount sought by plaintiff.
Judgment: Med Mal
(1) In Georgia, where a claim in an action for medical malpractice does not exceed $10,000: a judgment by default may not be different in kind from or exceed in
amount that demanded by plaintiff.
(2) Where the claim exceeds $10,000: a judgment by default may be rendered for the amount determined
upon a trial of the issue of damages, provided notice of the trial is served upon the defaulting party at least three days prior to that trial.
Bench Trials
The court will only make special findings of fact and
conclusions of law upon the request of a party prior to the ruling.
Awards of Costs and Fees
As under the Federal Rule, Georgia provides that costs will be allowed to the prevailing party unless a statute or the court directs otherwise.
