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The trial can be held before a judge, a bench trial, or before a jury with a judge presiding, a jury trial. If a jury trial, the next stage is for the parties to pick the jury, the voir dire. Jury trials are one of the most prominent, and perhaps notorious, features of the American legal system.(1) However, recent legal scholarship has shown that the quantitative results in jury and judge trials do not reflect the popular myth that juries are out of control. In two rather controversial areas of modern tort law, products liability and medical malpractice, the win rates do substantially differ between judge and jury trials as is the popular belief. However, they so this in the opposite direction: plaintiffs prevail after trial at a much higher rate before judges (48%) than they do before juries (28%). In medical malpractice cases, the mean recovery in judge trials is higher than the mean recovery in jury trials.(2) Judge-tried cases are on the court docket longer than jury-tried cases even though jury trials proceed twice as slowly as judge trials: the mean judge-tried case spends 755 days on the federal district court docket, while the mean jury-tried case terminated in 678 days.(3)

The trial is based on the adversarial system, which is generally viewed as having four components. The first is an objective and passive decision-maker. The judge does not participate in developing the record of the case. This is the responsibility of the parties. Second, the parties develop and present the evidence as well as the legal arguments upon which the decision is to be based. Third, the proceedings are to be concentrated and uninterrupted. The trial is not to be dragged out for long periods with many interruptions. Fourth, the parties are to have equal opportunities to present and argue their cases.(4) The adversarial system is in contrast to the inquisitorial trial system, in which the judge takes a more active role with respect to fact gathering and the development of the issues at trial. An assumption in some civil law countries is that the court knows the law and the parties need simply to present the facts of the case.

The trial commences with opening statements, first by the plaintiff, and then by the defendant, in which they present the parties’ outlines of the case. The opening statements cannot be considered as evidence. Next, evidence is presented in the form of witnesses and exhibits, first by the plaintiff. If after the presentation of the evidence the plaintiff has not proven her case, the defendant can move for a directed verdict. Otherwise, the defendant presents her evidence. Closing arguments are then made, first by the plaintiff followed by the defendant. No new evidence can be referred to in the closing arguments and the closing arguments cannot be considered evidence.

The rules concerning the admission of evidence in the American systems are in place to prevent undue influence of the jury. Juries are only triers of fact, deciding the facts in the case. Questions of law are to be decided by the judge. The boundary between questions of law and questions of fact is not always easy to determine. Whether A crossed the street is obviously a question of fact. However, whether A by crossing the street can be seen as negligent, in some situations, can be either a question of fact or of law. The judge makes the determination whether it is an issue of fact or law. In a legal system using only judges as the triers of fact, all evidence is admissible, its weight to be determined by the judge. In contrast, the introduction of inadmissible evidence before an American jury can result in a mistrial. In addition, the jury has no right to actively participate in the trial by asking questions. Any concerns that the jury has must be addressed to the judge through the foreperson appointed as head of the jury.

After closing arguments, the jury is charged by the judge, given instructions as to the law applicable to the case, the issues to be decided, and the standard of proof to be applied. In civil cases, the standard of proof typically is a preponderance of the evidence or sometimes the higher standard of clear and convincing evidence. The parties can submit proposed jury instructions to the court. The federal courts and many states have pattern jury instructions. These are a series of questions for the jury to answer. They are used in certain types of cases, for example, driving while intoxicated. The answers then become the basis for the jury’s verdict.

The jury enters into deliberations. In the best of cases, the jury arrives at a verdict. A simple majority of two-thirds is sufficient for a civil verdict. If this is not reached, the case results in a hung jury and the judge must declare a mistrial. In the event there is no substantial evidence which supports the jury’s verdict, the trial judge has the power to set aside the verdict.

In some civil law countries, the panel of judges includes lay judges. The lay judges have a function similar to the one served by juries in the United States, allowing the defendant to be tried by her peers. In the American systems, the jury only participates at the trial court level. In some civil law systems, such as Sweden, politically appointed lay judges also sit on the appellate courts, and no distinction is made as to questions of fact or law, these lay judges ruling on both.(5)

Excerpted with permission of the author from: American Business Law A Civil Law Perspective, Laura Carlson, J.D.(USA), LL.M.(Sweden)

(1) The use of juries in civil trials has sharply decreased in England in the past fifty years. ATIYAH at 170.
(2) Clermont at 144.
(3) Id. at 130.
(5) In Sweden, lay judges serve only in civil cases which cannot be settled privately, criminal cases and certain administrative cases. Furthermore, in Swedish cases regarding crimes relating to the freedom of press and certain other specific types of cases, the case is also tried by a jury.