Trial

Question 1

Trial - Happens when

Answer 1

• Assumes proper commencement
• Post Discovery
• No summary judgment happened

Question 2

Trial - Burden of proof (standard)

Answer 2

• Gral rule for both P/D: Preponderance of E
• EXCEPTION: Clear and Convincing for libel/slander/fraud

Question 3

Trial - Procedure - Gral

Answer 3

1) Pre trial orders from pre-trial conference
2) Opening statements
3) Objections
4) Potential mistrial

Question 4

Trial - Procedure - Opening Statements

Answer 4

• Party w/burden of proof opens statement
• Limited to the facts presented

Question 5

Trial - Procedure - Timeliness of trial objections - Gral

Answer 5

• To preserve rights for post-judgment motion/appeal
• Counsel must argue objections at earliest practicable opprtunity

Question 6

Trial - Procedure - Timeliness of trial objections - Specific Rulings different from general rule of presenting at “earliest opportunity”

Answer 6

• Ruling on E: object before answer of W
• Other rulings: on the record as soon as possible
• EXCEPTION: Constitutional issues: can be raised for the first time on appeal

Question 7

Trial - Procedure - Mistrials - Methods

Answer 7

• Can be sua ponte or by motion
• If motion as soon as practicable

Question 8

Trial - Procedure - Mistrials - Grounds (2)

Answer 8

1) Major misconduct/irregularity by court/counsel/party/ W -i.e. unwarranted statements (improper action, clerical error)
2) Lack of unanimity on jury verdict - “hang jury”

Question 9

Trial - Procedure - Mistrials - By motion - Difference with motion for new trial

Answer 9

TIMING:

• mistrial: during trial (as soon as possible)
• • if granted trial can declared void
• new trial: after trial - if granted new trial