W W W . I N S U R A N C E - D I S P U T E - A T T O R N E Y. C O M
TRIAL
At trial, the parties present evidence in support of their claims or defenses to a jury and/or judge.
T R I A L : Some trials, known as “bench trials,” do not involve a jury and are decided by the judge alone. Other trials are
jury trialsOnce the trial begins, each party presents its outline of the case in an opening statement. Then, the parties present
evidence. Each party may call witnesses or introduce documents and exhibits in support of its arguments. After each witness
is called and questioned, the opposing party has an opportunity to cross-examine the witness. The plaintiff presents evidence
first, then the defendant. Sometimes, the plaintiff is allowed to present additional evidence, called rebuttal evidence, after
the defendant has finished presenting its case. Once all the evidence has been presented, the parties give their closing arguments. After closing arguments, the court instructs the jury on the law to be applied to the evidence. The jury then deliberates
and reaches a decision or verdict.
P O S T- V E R D I C T: A party may challenge a jury’s verdict. Errors of law committed by the trial court or a jury’s disregard of
law or evidence are common reasons for challenging a jury’s verdict. A motion for judgment notwithstanding the verdict asks
the court to disregard the jury’s verdict and enter a different decision. A motion for a new trial asks the court to set aside the
jury’s verdict and order a new trial of the case.
APPEAL
Following trial, a party dissatisfied with the result may appeal. During an appeal, a party asks a higher court to review the
trial court proceeding. The parties present their arguments in briefs, which are submitted to the appellate court along with the
record of evidence from the trial court. The appellate court usually reviews a case for legal error only. Except under unusual
circumstances, the appellate court will not review factual evidence or override a jury’s findings of fact. The appellate court
announces its decision in a document called an opinion. The appellate court will affirm the verdict if it finds that there was
no error in the trial court proceeding. However, if there was an error, the appellate court can reverse the verdict or order the
trial court to conduct a new trial. An appeal can extend the litigation process by a year or more.
A LT E R N AT I V E S
Alternatives usually save time and expense, but they may not result in a final resolution of the dispute. The desirability of
these alternatives should be evaluated early to allow their timely implementation.
S E T T L E M E N T: It is generally wise at the outset of any litigation proceeding to review the potential for an out-of-court
settlement. Indeed, most matters settle before reaching the trial stage. Settlement can be discussed by any party at any time
during litigation and is often a cost-effective alternative to trial. Usually the court does not require the parties to discuss or
attempt settlement, but most courts have procedures by which a party can request the court’s assistance in settlement.
M E D I AT I O N : The parties may be able to negotiate a settlement without outside help, but it is common to involve a neutral
third party, known as a “mediator.” The mediator’s job is to assist the parties’ settlement efforts. The parties select the mediator, who meets privately with each party to discuss the strengths and weaknesses of each side’s case. The mediator helps the
parties identify the risks of the case and encourages them to consider how those risks can affect their goals. The mediator
does not have the power to force the parties to agree on a settlement.
A R I B I T R AT I O N : Arbitration is an adversarial proceeding in which the parties select a neutral third party, called an “arbitrator,” to resolve their dispute. In arbitration, the parties present evidence and argue the case to the arbitrator, who then
decides which party wins. The process is abbreviated and less formal than a trial. Arbitration often arises from private agreement, but many courts also require the parties to smaller disputes to explore arbitration as an alternative to trial. Parties who
agree to settle their dispute using binding arbitration usually cannot appeal the arbitrator’s ruling to a court.