I’m heading into my second year of law school and I’ve been spending my summer working for a trial judge in Philadelphia and yet I still feel I don’t have a strong grasp of the practical in’s and out’s of the legal process. So, I guess I’ll describe how it works as far as I know, and if anyone could fill in the holes I’d be very appreciative… as would my future clients I’m sure. Thanks guys.
Your Basic Civil Trial:
Plaintiff files a complaint. Defendant answers. Both parties file briefs explaining their argument and the substantive law they believe supports it, and pre-trial motions with the court. (What kind of motions are most common? Motions to exclude evidence, motions to remove to another court, motions to dismiss?)
Motions are ruled upon. Interrogatories, depositions, and other discovery take place. The parties select a jury. The trial proceeds. General law instructions are given to the jury. Direct examination, cross-examination, redirect, recross. The judge can sustain objections to questions outside of the scope of the complaint and answer or prejudicial (what does that mean exactly, and what else is not permitted? What are the most common objections?)
Lawyers and the judge go to sidebar to discuss whether an issue can be raised in open court, whether evidence can be admitted, and general practice limitations. Once all testimony is heard the judge and lawyers decide upon jury instructions and a verdict sheet, which are delivered to the jury. (Is that right? What does this process entail?)
The jury deliberates and delivers a verdict. Post trial motions are filed. (Motion for judgment not withstanding the verdict, motion for post-trial relief? What really are these things? What else is motioned for after the trial?)
Motions are ruled upon. The losing party often files notice of appeal with an appellate court. (What issues does the appellate court review and who decides?)
Obviously I’m not looking for the textbook descriptions. Lord know I have those. I’m trying to find what generally happens in real life cases. Like what motions, objections, and practices are commonplace.
Motions that are common: motion to dismiss; motion to compel; motion for summary judgment; motion in limine.
Objections that are common (at trial): outside the scope; foundation.
Practices that are commonplace: litigation by letter.
Truthfully, as pravnik has said, this is a huge question. I would suggest breaking it up and asking a more focused, narrow question, and dole out a question a week until you’ve found out what you want.
By the way, kudos for working for a judge. It gives you a great perspective on the law. And, incidentally, many of the things you ask about you’ll only pick up after years of practice. It’s one of the reasons that the top dogs in the legal profession make the big bucks.
Also, I bet you haven’t taken Evidence yet. Do so. That will give you an academic but nonetheless valuable understanding of what objections can be made at trial – such as when something is overly prejudicial.
In real life what frequently happens is that a settlement is negotiated and none of that trial stuff coming to pass. Of course, without all that, or the possibility of all that, the settlement would never occur either.
I’m a German law student finishing his second year in October, and I find it very interesting to hear that the criticism of the legal education being a bit too focused on theory is not restricted to German universities.
My father is a judge (juvenile penal law), and my mother a criminal investigator, so I knew a bit (not much, but at least I had an idea) about how legal procedures go on. At university, we learn procedural law, but also with a theoretical approach (which are the conditions for the admissibility of a remedy, etc.), not the practical question of just how all this is going on.
During an internship at a criminal defense lawyer last march, I got some insights into a lawyer’s daily work, and found it highly interesting. The case he was defending at that time was also very interesting from the educative point of view, although emotionally pretty depressing; it was about child homicide.
I worked for a trial judge in law school, too. That experience was a far more valuable introduction to the practical side of the legal world. I’m willing to bet you are far ahead of your classmates in that area.
The Rutter Group publishes manuals, in loose-leaf-filler form, for various trial procedures. These should be available in most public law libraries.
I also suggest two books by Melvin Belli–Modern Trials and “Ready for the Plaintiff!”
One clarification – Rutter covers, as far as I know, California procedure (federal and state) and 5th Circuit procedure only. While they are a godsend in California (I loves me my Rutter and my Witkin!), they aren’t much good outside that arena for understanding the procedure you’re actually going to be living.
Here’s the good news, though: you’re starting your 2L year, going into OCI (I assume), so you’ll get a great job with a top-notch firm for your 2L summer. At that point, you will learn tons about procedure and strategy from your colleagues next summer. And, as Cliffy said, a good Evidence class will do wonders for your understanding. Evidence and Civ Pro are really the backbone of your practice as a litigator. Best of luck.
Taubman sucks is a long but very interesting read with a lot of good details on a real case. It’s written from a winning defendant’s point of view. Aside from a lot of the legal details, it’s an interesting read in its own right.
I agree with my learned friends, Cliffy and Campion - take Evidence and Civ Pro. I would add Crim Pro to my list of required courses, if you have any inclinations to trial work.
Getting back to your OP, my Canuck experience may not be as relevant, but in our jurisdictions, between 90 and 95% of all cases are settled at some stage prior to the court rendering a verdict. Mediation and pre-trial conferences now play a major part in our civil procedure.
In my own practice, I do a lot of chambers work - not sure of the equivalent in the U.S., but motions to strike as disclosing no cause of action, chambers applications on particular points of law, etc. I’ve only been involved in one full civil trial from start to finish.