Conventional Trials

This is the Big Daddy of all forms of litigation. These are the Trials that we all know about from television and movies – both civil and criminal. I’ll be limiting my discussion to my main area of practice – civil trials. Nevada Civil Trials are controlled by the Nevada Rules of Civil Procedure. This post will discuss Conventional Trials from a big picture point of view. Details of specific topis will be addressed in later posts.

Litigation by Conventional Trial begins when a person (or other entity such as a Corporation or Trust) files a Complaint. The person filing the initial Complaint is called a “Plaintiff.” The Complaint advises the person being sued (the “Defendant”) why they are being sued by stating which cause(s) of action (the wrong the Defendant is accused of such as negligence, assault, medical malpractice) the Plainitff is claiming against the Defendant and the facts that support the cause(s) of action. The Complaint must be served on the Defendant(s) through various means. The Defendant(s) must file an Answer to the Complaint within time limits set by the Rules of Civil Procedure. The Answer may also contain a Counterclaim against the Plaintiff or claims against other Parties.

The longest phase of the Conventional trial process tends to be Discovery. Discovery can be thought of as a set of tools that enables each Party (Plaintiffs, Defendants, etc.) to find out what information the other Parties, witnesses and other sources have that is relevant to the case. Some Movies show a taste of the Discovery process. This happens in The Rainmaker when the Plaintiffs travel to take the Depositions of the insurance executives and take the Deposition of their client to preserve his testimony in case he was not able to testify at trial.

Discovery in Nevada starts with mandatory disclosures pursuant to Nevada Rules of Civil Procedure (NRCP) 16.1. In addition to the mandatory disclosures, NRCP 26 allows for the following additional Discovery tools : “depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or Rule 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission.”

It’s my belief that one of the reasons for allowing extended Discovery as provided for in Nevada’s Rules of Civil Procedure is to give the Parties opportunities to discuss the issues and settle the case if the facts prove one Party’s position is correct. It’s aldo my experience that this was wishful thinking in a large portion of the cases.

Once Discovery has been completed (assuming it has not settled or been dismissed by Motion), the case is ready for Trial. In Trials, there are two vital people other than the Parties and their Attorneys. The Trier of fact and the Trier of Law. In a jury trial the jury determines the facts; the judge the law. In a bench trial the judge is both the trier of fact and of law. My thanks to ‘Lectric Law Library for that succint explanation.

Lengths of Trials vary with the complexity of the evidence. Trials can take anywhere from a day (or less) to several months depending on factors such as the number of witnesses that will be called at the Trial, the amount of information each witness must provide to the Trier of fact, the style of the Attorneys representing the Parties, and the length of deliberation by the Trier of fact.

There are four main stages in Trials:

  • opening statements where the Attorneys tell the Judge or Jury what facts they are going show during the Trial;
  • presentation of facts where the Parties present evidence to prove facts necessary to support their cases; c
  • losing arguments where the Attorneys get to tell the Jury why, based on the facts and the law, their clients should prevail; and
  • a decision by the Trier of Fact as to which Party (or Parties) proved their case

After the Trial, Parties may file post-Trial Motions for attorneys fees, costs, interest. They may also file Motions for New Trials, Remittitur, Additur, or other relief if they feel that something was wrong with the Trial process. Lastly, Parties may file Appeals if they feel something was wrong with the litigation process and was not corrected by the Judge.

This entry was posted on Monday, July 7th, 2008 at 7:37 am and is filed under conventional trials, Discovery, Short Trial, Stages of Trials. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

  • hank freid

    This is really an idea, which will be a revolution for the future! Thanks for sharing this information.

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