A personal injury trial is the culmination of the personal injury lawsuit process. Although a great number of disputes are resolved before trial (via a settlement, mediation, arbitration or a dismissal), some cases do go to trial. When this happens, a jury or judge will examine the evidence and decide if, by a “preponderance of the evidence,” the defendant is legally responsible for the injuries alleged by the plaintiff. Both plaintiff and defendant will present their sides of the issue. The jury or judge decides if the defendant (usually ICBC hires lawyers to represent defendants) is liable for the plaintiff’s injuries and what amount of damages (money) a defendant should pay.
Overall, a personal injury trial has eight basic phases:
1. Jury Selection
While some cases are tried before a judge only, some require a jury. In the USA the judge as well as the plaintiff and defendant’s attorneys question potential jurors about matters pertaining to the case. Topics can include their life experiences and personal ideologies that could pertain to the case. Some jurors may be excused at this stage based upon their responses to questions. In British Columbia, no questions are asked of jurors. Some jurors may be excluded through challenges “for cause” and “peremptory challenges.” A challenge for cause can exclude jurors who can’t be objective in their decisions. A peremptory challenge can exclude a juror for any reason, including ethnicity and gender in civil cases.
2. Opening Statements
Opening statements from the attorneys are the first part of the trial. No witnesses testify and no physical evidence is presented. The plaintiff’s opening statement is first and is often more detailed than the defendant’s. The plaintiff’s attorney presents the facts of the injury and the defendant’s alleged part in it. The defendant’s attorney presents the defense’s side and sets the stage for refuting the plaintiff’s allegations.
3. Testimony of Witnesses
The heart of the personal injury trial is the “case-in-chief,” the phase during which each side presents its arguments and evidence to the judge and jury. The plaintiff methodically sets forth evidence to try to convince the jury the defendant is liable for the plaintiff’s injuries. Witnesses and experts may be called to testify to strengthen their case. They may also introduce physical evidence including documents, photos and medical reports.
The witness testimony process usually goes as follows:
- The witness is called to the stand
- The witness is “sworn in,” i.e. takes an oath to tell the truth.
- The lawyer who called the witness questions them through “direct” examination, i.e. questions and-answers
4. Cross-Examination and Re-Direct
After the plaintiff “rests,” it’s the defendant’s turn to question the witness in the same manner in “cross-examination.” They may also call their own witnesses to the stand and present evidence to refute or downplay the plaintiff’s allegations. Once the defense has rested, the plaintiff can respond once again through “re-direct,” during which they will address witnesses to try and refute the defense’s evidence.
Testimony of experts
Many injury trials will include testimony of medical doctors and/or treatment providers. Sometimes, this evidence is admitted via written report; however, in most cases the medical expert will answer questions in court.
Other experts who attend may be car accident reconstruction specialists, engineers, economists, accountants, psychologists … pretty much any expert who can provide relevant opinions about the case. Experts are hired by both plaintiff and defence lawyers.
5. Closing Arguments
The closing argument allows the plaintiff and the defendant to “sum up” their cases. They will each recap evidence in a way that is favorable to their cases.
6. Instructions to the Jury
Instruction involves the judge informing the jury of the legal standards and principles they should use to decide the case. The judge may describe key concepts like “preponderance of the evidence” and “torts” the jury may consider (such as fraud and emotional distress.) Different types of damages may be discussed, i.e. compensatory or punitive.
If it’s a jury deciding the case, it then “goes to the jury.” The jurors then attempt to agree about the outcome of the case. It is the first opportunity they will have to discuss the case. It is a methodical process that can take from just a few hours to a number of weeks. If a judge is deciding the case, in almost all cases, the Judge will reserve judgment and issue it in writing several months down the road.
Once the jury reaches their decision, the jury fore person informs the judge. The judge will then usually announce the verdict in open court.
We don’t mean to frighten you about the complex trial process; the fact is most car accident cases don’t go to trial. If you’re concerned about where your claim is headed, schedule a free consultation with one of our Langley personal injury lawyers.