VIII. PRETRIAL MATTERS Flashcards
A. Right to a Jury Trial
A. Right to a Jury Trial
In order to perfect the right to a jury trial, civil litigants must file a written request for a jury trial with the clerk and pay the jury fee within a reasonable time before the date set for trial on the non-jury docket, but not less than 30 days before the trial date. [July 2000 #11]
If the request or payment is late and the opposing party objects, the requesting party must show that granting the request will not injure the other party, disrupt the court’s docket, or impede the ordinary handling of the court’s business. [February 2005 #12; July 2007 #13; July 2009 #13; February 2010 #13]
Once a party requests a jury and pays the jury fee, the party will not be allowed to withdraw the request and have the case placed on the non-jury docket over the opponent’s objection. [July 2011 #11]
B. Motion for Continuance
1. General Standard
2. Unavailable Witness or Incomplete Discovery
Example [July 2005 #12; February 2006 #15; July 2008 #13]: Suppose plaintiff learns that a critical witness will not be available to testify at the trial and that depositions of important eye witnesses have not been taken. What must plaintiff include in a motion to obtain a continuance?
B. Motion for Continuance
1. General Standard
A motion for continuance must be in writing, under oath, and show “sufficient cause” supported by affidavit, unless all parties agree to the continuance. The trial court’s grant or denial of an application for continuance will not be disturbed unless the record shows a clear abuse of discretion. [July 2004 #16]
- Unavailable Witness or Incomplete Discovery
The plaintiff should submit an affidavit asserting:
• the testimony is material and explain why;
• diligence was exercised to secure the testimony;
• the cause of the problem;
• the testimony is not available from another source;
• the name and address of the witness and the substance of the testimony; and
• the continuance is not sought for delay but for justice.
Motion in Limine
1. Purpose
Example [July 1999 #18; February 2006 #17; February 2007 #11; February 2009 #16; February 2010 #10; July 2010 #16; February 2011 #13]: Suppose plaintiff sued defendant for personal injuries. The defense attorney is aware that the plaintiff’s attorney has a history of mentioning matters in his opening statement that are inadmissible at trial. Specifically, the defense attorney is concerned that the plaintiff’s attorney will include in his opening statement the fact that the defendant’s agent offered to pay all of plaintiff’s medical bills and that the defendant is a very “rich man” who can afford to pay a “big” judgment. Defendant is concerned that the jury will be prejudiced by “hearing” about this evidence. What, if anything, can the defense attorney do to obtain a pretrial ruling to prohibit plaintiff’s counsel from commenting on these issues?
- Preservation of Error
Example [July 2002 #17; February 2003 #15]: Suppose the trial court granted the defendant’s motion in limine. Despite this fact, plaintiff’s attorney refers to the offer to pay medical bills and defendant’s wealth in the opening statement in violation of the court’s order. What should defense counsel do to preserve error?
When a judge rules against a party regarding the admissibility of her evidence in a motion in limine, to preserve the issue for appeal, the party:
File a motion in limine asking the court to order opposing counsel and her witnesses not to mention or ask questions about a matter without approaching the judge for a final ruling. If granted, the court should instruct opposing counsel to follow this procedure at trial.
The ruling on the motion is preliminary and preserves nothing for appeal. To properly preserve error, the defendant must:
object at the time plaintiff makes the statements;
obtain a ruling by the court disallowing the evidence; and
have the court instruct the jury to disregard the statement. If the defendant fails to object during trial, the defendant will waive any complaint.
Must approach the judge outside the presence of the jury to get a final ruling, then submit an offer of proof or bill of exceptions.
D. Jury Voir Dire … Jury Selection
1. Jury Shuffle
Example [February 2003 #13]: Suppose jury selection is about to begin and the defense counsel notices that the prospective jurors on the first three rows appear to be less sophisticated than the jurors on the last three rows. The defense counsel believes that sophisticated jurors will be more favorable to his case. What, if any, procedural options does the defense counsel have?
The defense attorney can demand a “shuffle” of the panel. The demand must be made prior to voir dire examination. Where a party demands a shuffle, the panel is randomly rearranged with the possibility that potential jurors at the end of the list may be moved up and be more likely to serve on the jury. There shall only be one shuffle by the judge in each case.
D. Jury Voir Dire … Jury Selection
2. Challenges for Cause
a. General Standard
Example [February 2007 #12; July 2007 #14; July 2009 #14]: Suppose plaintiff sues defendant for breach of contract. During jury selection one of the veniremen states that “a deal is a deal” and that contracts should be enforced, but he also states that he will keep an “open mind” if he is selected to serve on the jury. Defendant challenges the juror for cause. Should the court grant the challenge for cause?
b. Preservation of Error
Example [February 2005 #13]: Suppose defendant challenges a specific juror for cause and the court denies the challenge. What must defendant do to preserve error?
- Challenges for Cause
a. General Standard
A juror may be challenged for cause when some legal reason exists to disqualify the juror. There are unlimited challenges for cause in any court. A party may challenge a juror for cause if a prospective juror:
• is interested directly or indirectly in the subject matter of the case;
• is a witness in the case;
• has a bias or prejudice in favor of or against a party in the case; or
• is related to a party in the case. [July 2001 #12; July 2003 #12]
depends. A prospective juror who has expressed equivocal bias is not disqualified as a matter of law. Additional voir dire questions may be allowed and may establish that the person may be fair and objective.
The challenging attorney must show prejudice. The attorney must make known to the trial court the identity of the juror that he will be unable to strike peremptorily due to the use of the strike on an unqualified juror (i.e., a juror who should have been dismissed for cause).
- Peremptory Challenges
a. Generally
b. Number
c. Other Limits
- Peremptory Challenges
a. Generally
A peremptory challenge is one which strikes a jury panelist for any reason or no reason.
b. Number [July 2001 #13; February 2003 #14; February 2004 #14; February 2005 #14; July 2008 #14; July 2010 #17]
• in a case in which there is only one party on each side, each party is entitled to 6 peremptory challenges (strikes) in a district court and 3 strikes in a county court.
• in a case in which there are co-parties (i.e., co-defendants), the co- parties share the 6 peremptory challenges unless the co-parties are antagonistic (fighting each other) on any issue to be submitted to the jury. Proof of antagonism entitles each co-party to 6 peremptory challenges.
• if the court grants additional challenges, a party may move for additional peremptory challenges by filing a motion to equalize so that no side or litigant has an unfair advantage. The court should consider any matter related to achieving a just result and eliminating an unfair advantage.
c. Other Limits
An objection that a jury panelist was excluded because of some prohibited classification is called a Batson challenge. Common examples of prohibited classifications include race, ethnicity and gender. [July 2002 #16; February 2008 #12]
