The Discovery Phase
The discovery phase of litigation is often the most time-consuming and painful for the parties. It involves answering difficult and at times embarrassing questions, both in written and oral form during depositions, providing documents, and generally assessing your own and your opponent’s case. Sadly, it is often during discovery that a weak case falls apart. Evidence that appears at the outset to be dispositive and compelling can, on detailed inspection, be minimal, scant, and downright weak. It is important to realize that the plaintiffs have the heavy burden of proving their case. The standard of proof is not as high as for the prosecutor proving criminal guilt, but it is still the plaintiff who must prove civil liability.
It is true that somewhere over 80% of civil cases never see the inside of a courtroom. There are myriad opportunities to settle, from both sides of the aisle. The system is structured to encourage settlement. In fact, settlement discussions or offers are generally inadmissible during a trial since the court system wants people to settle cases without fear that their open-handed discussions will be turned against them at trial.
The Trial (not the existentialist novel written by Franz Kafka)
Assuming a case makes it to trial, which again most here do not, a civil jury must be chosen through a process called voir dire. Here, tons of lucky, tax-paying citizens are called for jury duty and called into the courtroom. Eight at a time they are placed in the jury box where the opposing attorneys, along with possibly the judge, ask questions about their fitness to serve on the jury for that case. Conflicts of interest or other biases can be identified and used to eliminate jurors. There is a certain strategy to seating the best possible jury. In Ohio, civil courts seat eight jurors instead of 12 for criminal cases. Of those eight, six have to vote for your side for a trial victory, as opposed to all 12 unanimously in criminal trials. Once the eight are seated, the trial begins. Typical civil trials last between 1-3 days, but can go on far longer if the case is complex and there are many witnesses to be called. Here, evidence is review, based on the pertinent Rules of Evidence, witnesses are examined and cross-examined, and opening and closing statements are offered by each side. Think Law & Order, but usually less exciting and dramatic since civil cases are not about murder, rape, assisted suicide, and the like.
The Bottom Line
In closing, most attorneys who I battle in civil litigation are honest and honorable. We battle tooth and nail, then have a drink and talk about our families and fantasy football. Indeed it can be “civil”. Yet all clients must go into civil litigation with eyes wide open as to the time and effort involved, and have realistic expectations regarding total victory.
*Editors Note: This post has been presented over three days due to it’s length and amount of detail.
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