The Trial

Many judges have policies, procedures, and guidelines to supplement state statutes and rules. These may be found online for each judge as follows:

• Unlimited Civil – Click on General Policies and Procedures for each judge
• Complex Civil – Complex Civil Guidelines

Be sure to read these before proceeding. Limited Civil cases do not have general policies or guidelines, but do adhere to state statutes and rules.

EXHIBITS-GENERAL:

At trial, you can show exhibits to support or refute what a witness is saying. There are rules about making sure your evidence is admissible, so make sure you know the rules of evidence when preparing your exhibits. Examples of exhibits may include:

• A written contract
• Receipts
• Letters
• Estimates in writing
• Repair orders
• Photographs/videos
• Canceled checks
• Account books
• Advertisements
• Warranties
• Service contracts
• Other documents
• Depositions

If your case is about damaged property, some judges may ask you to show 2 or 3 repair estimates to prove that your claim is reasonable. Make a map, diagram, or drawing if it will help you explain your case. Do not hesitate to bring papers that you think might help the judge understand the case.

DOCUMENTARY EXHIBITS:

A lot of times you have to show the court written papers to prove:

• What you agreed to,
• What was said,
• How much you were charged, and so on.

Ask the other person to agree to give the court some papers as evidence. They may not agree to this. Then, you must prove that the papers are true and correct. This is called "laying the foundation".

In general, you cannot submit a photo or photocopy unless there is a witness, to testify that the evidence is true. You can be that witness.

Make 2 copies of any paper you want to give the judge so that you and the other party have a copy. Complete Exhibit Tags (L-529) in advance for exhibits that you will be introducing at trial.

The court encourages the return of exhibits to the parties at the conclusion of the trial. The form entitled Stipulation and Order for Return of Exhibits (L-1068) is available for use and must be signed by all parties.

You have to tell your witnesses about the trial date and make sure they are ready to come to court. Witnesses that you need to prove your side of the case should always be served with a subpoena to appear so that their employers will allow them to leave work to come to court. Also you can get the trial continued (postponed) if a witness fails to appear in response to a subpoena. The subpoena form requires you to say what you want and why you need it. You can ask the witness to bring the papers and testify, or just bring the papers.

A witness can ask for $35 a day plus 20 cents for every mile they drive each way. If your witness is a police officer or government employee, you will have to pay more. The witness does not have to go to court if they have not been paid. The person who served the subpoena should be ready to pay when they give the witness the subpoena. If the witness does not ask to be paid, you do not have to offer.

You do not need an expert witness for every case. But if you need one for your case, be ready to tell the other side the names, addresses, and phone numbers of any experts who will be testifying for your side and their areas of expertise. You will also have to give the other side a statement about the expert’s testimony or what you think the expert will say in court. NOTE: Expert witnesses generally charge for their time, and it can get very expensive. It is not unusual for expert witnesses to charge several thousand dollars for each day of testimony.

Talk to your witness before the trial. They may not see things the same way you do. Or, they may have forgotten the important points. If the witness is hostile to you, they can do more harm than good.

The witness has to be served with a copy of the subpoena. You or anybody else can give a copy of the subpoena to the witness. After they get a copy, the server fills out the Proof of Service on the last page of the original Subpoena form. Bring the original subpoena and completed proof of service with you to the trial.

There are several types of subpoena forms on the California Courts website, including the Notice to Consumer or Employee and Objection form which must also be served when personal records of a consumer or employment records are being subpoenaed.

Additionally, the Superior Court of Orange County pre-issues the following subpoena forms in blank for parties who are not attorneys of record:

• Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents and Things at Trial or Hearing and Declaration (L-0835)
• Civil Subpoena for Personal Attendance at Trial or Hearing (L-1226)
• Deposition Subpoena for Personal Attendance (L-1257)
• Deposition Subpoena for Production of Business Records (L-1258)
• Deposition Subpoena for Personal Appearance and Production of Documents and Things (L-1259)

You can read more about subpoenas in Code of Civil Procedure sections 1985-1997and 2020.010-2020.510.

Every legal paper that you file in your lawsuit is a pleading. The court uses papers like the complaint, cross-complaint, and answer to decide what proof should be in the trial. What the complaint and cross-complaint says will be important. It helps the judge decide what legal instructions the judge or jury will use.

Part of getting ready for trial is making a summary of these papers, and of what you have to prove to make your case or defend it.

The discovery phase enabled you to:

• Collect facts,
• Get witness statements informally, or
• Get witness statements in a deposition,
• Find out what the other side is going to say
• See how good you think their case is, and
• Get all the important information you need to present your case in court.

When you get ready for trial, look over all this information and make a summary of what you think will help you present your proof or question the other person’s proof.

Get to the courthouse 30 minutes early. Check the calendar monitors in the lobby to verify that your case is on calendar and that the courtroom has not changed. Go to the courtroom where your case will be and wait for instructions from the bailiff or court staff.

Many courts, especially in limited civil cases, use temporary judges to hear cases. A temporary judge or referee is a lawyer that has a license to practice law in California with at least 10 years of experience. The temporary judge has to take training courses before hearing cases. On the day of the trial, you may be asked if you agree, (called consenting or stipulating) to have a temporary judge or referee decide your case. Everyone in your case has to agree. You may have to sign a consent form. If someone does not agree, your case will be heard by a permanent judge.

The clerk will call the cases scheduled to see who is there. You and the other party or parties may be asked to go outside to talk and attempt to settle your case.

Before you get ready for trial, think about how you got to where you are now. If you got this far, it means you could not agree on a settlement. If you have not done all you can to settle with the other person, do it now. Be aggressive about trying to settle the case. It is very hard and expensive to get ready for trial.

Here are some tips for thinking about settlement:

• The other side probably has a good reason to settle the case, too.
• You have already finished discovery. You both know the case. You both have to face the cost and risk of going to trial. Both of you should want to talk.
• Think of what is most important to you, not what is fair. Do not go to trial to get what you think is fair. You will probably be disappointed. Think about what is most important to you and what kind of settlement or solution will give you what you need.
• Compromise. If you wait because you think you will get everything you want at trial, or if you will not settle because you think you do not owe money, you can be found wrong. If you reach an agreement on the day of trial, go back in the courtroom and tell the judge that you settled.

Depending on the terms of the settlement, you may have to:

• Dismiss the action, or
• Move the hearing until the terms of your agreement are met, or
• Put your agreement in the court record as an Offer to Compromise (CIV-090) or formal judgment.

If you settle your case before the trial date, file with the court prior to the trial date a:

• Notice of Settlement of Entire Case (CM-200); or a
• Request for Dismissal (CIV-110). If the defendant has filed a Cross-Complaint which has also been settled, the defendant also signs the form in addition to the plaintiff.

There are two ways to dismiss a case:

• With prejudice (cannot sue again for the same reason). Typically a case is dismissed with prejudice when the parties have completely settled the case or it has been paid in full and there are no outstanding issues.
• Without prejudice (can sue again for the same reason). Sometimes the parties dismiss a case without prejudice because the case has settled but the terms of the settlement may not be completed for a period of time. If one of the parties breaches the terms of the settlement, another lawsuit could be filed if the original case was dismissed without prejudice.

After the dismissal has been filed, a Notice of Entry of Dismissal and Proof of Service (CIV-120) must be served on all parties and filed with the court.

If you have a jury trial, the first thing you will do at your trial is choose the jury. The process in which the parties and judge pick a jury is called "voir dire."

During voir dire, each party can ask the jurors questions. The main purpose of these questions is to make sure the jurors can be fair and open-minded. It can be hard to tell if a person already has an opinion or prejudice. Spend a little time questioning every juror, to the extent the court allows. To prepare for voir dire, before you go to court, write down some questions that will help you choose jurors for your case. Be prepared because this process takes time.

Also, the party that asks for a jury trial must pay the jury fees. They must pay for every person in the jury every day. If the people on the jury come from far away, the party that wanted the jury will have to pay their travel expenses. Every day before court begins, that party will have to deposit the fees and travel expenses for the trial.

If you have a jury trial, you have to submit jury instructions. These are the formal instructions that the judge will read to the jury to guide them in their deliberations. Jury instructions are found in books in the law library, and it is up to you to find instructions that are appropriate for your kind of case and support your side of the story. You can also find jury instructions in plain language at the California Courts Website. Both sides give the judge their instructions before trial. The judge chooses what instructions to read to the jury.

If all parties have agreed to an expedited jury trial, be sure to read the Expedited Jury Trial Information Sheet (EJT-010-INFO).

Once a jury has been selected and sworn in, each side has the right to make an opening statement. The opening statement is intended to inform the jury in a jury trial, or the judge in a court trial, about the nature of the case and what you intend to prove. What is said in the opening statement is not considered evidence. It is just the opinion of the party (or lawyer) giving the opening statement.

Once the opening statements have been made, the plaintiff’s attorney begins presenting his or her case first. The plaintiff’s lawyer introduces the evidence supporting his/her case, and puts witnesses on the stand, and conducts a direct examination. The defendant has the opportunity to cross-examine the plaintiff’s witnesses.

Once the plaintiff is finished presenting the case, the defendant has the right to present his or her case. Like the plaintiff, the defendant can introduce evidence and witnesses, who can be cross-examined by the plaintiff after the defendant finishes the direct examination.

During the trial, both sides may object to questions or statements made by the other party or by a witness, based on the rules of evidence. The judge rules on those objections as they are raised.

Once both sides are done presenting their cases, each can then address the jury or the judge one last time in a closing statement. The plaintiff once again goes first. After the plaintiff is finished, the defendant has the opportunity to give a closing statement as well. The plaintiff may be given a last rebuttal (a chance to respond to the defendant’s closing statement) since the plaintiff has the burden of proof in the case. These are the last words the parties will direct to the jury (or, in a court trial, to the judge) before the jury goes to deliberate on a verdict or the judge makes his or her decision in the case.

At the end of a jury trial, the judge will give the jury instructions on how to apply the law. The jury first decides what facts they believe are true. Once they have determined the facts, they must apply the law as the judge gives it to them in the form of jury instructions. Then, the jury will go to the jury room and talk about the case. This is called "deliberating."

In most civil cases, the jury must apply the "preponderance of the evidence" standard of proof. This means that, to win, the plaintiff’s lawyer must prove to the jury that the plaintiff’s side of the story is more likely than not. It does not mean that one side brought in more evidence than the other side. It means that one side’s evidence was more believable than the other. This standard is much less strong than the standard in criminal cases, where the prosecutor must prove that the defendant is guilty "beyond a reasonable doubt." Also, in a Civil case only three-quarters of the jury must agree in order to reach a decision.

When they make a decision, the jury will go back to the courtroom. The clerk will read the decision. The jury can make a decision quickly, or they can take days if the case is complicated.

If the judge decides your case, the judge may make a decision on the spot or may need time to make a decision and announce the decision later. If the judge decides the case later, he or she takes the case under submission. The decision is mailed to the parties at a later date.

An appeal is when someone who loses a case in a trial court asks a higher court (the appellate court) to review the trial court's decision.

In almost all cases, the appellate court ONLY looks at two things:

• Whether a LEGAL mistake was made in the trial court; AND
• Whether this mistake changed the final decision (called the "judgment") in the case.

An appeal is NOT:

• A new trial with witnesses or a jury;
• A chance to go to court and present your case all over again in front of a different judge; or
• A chance to present new evidence or new witnesses.

The filing of an appeal does not stop the enforcement of any judgment unless the judge has approved a bond to be posted or has ordered the enforcement of the judgment stopped.

TALK TO A LAWYER:

You have the right to appeal a case without a lawyer. But appeals are very complicated and take a lot of time, effort, and money. You have to do all the paperwork correctly, meet the deadlines, and follow all the court's rules and procedures. If you make mistakes, your case may be dismissed and you may have to pay the appeal costs of the other side. A lawyer with experience in appeals can help you make sure you complete every step correctly and on time. Also, a lawyer can help you decide if you can or should file an appeal at all. A lawyer may know how to get what you want faster and cheaper by using a different legal process. Many lawyers do not do appeals, so make sure you talk to a lawyer who specializes in appeals

Click here to read more about Appeals on the California Courts website.

• The following publications are available at the Orange County Public Law Library:
  • Bennet, et. al., Guide to Jury Selection and Trial Dynamics, West (1994)
  • Cotchett, California Courtroom Evidence, Lexis, 5th ed.
  • Cal Practice with Forms, Bancroft Whitney, 20 Vols.
  • Books that talk about evidence
• California Courts website on Preparing For Court
• General Information section of this website
• Before Trial section of this website
• Collecting the Judgment section of this website
• Paying the Judgment section of this website