There are two types of trials: Bench trials and jury trials. In bench trials, the judge will resolve the factual disputes presented and issue a ruling which explains the basis for her decision. Conversely, jury trials are heard before six or twelve members of the surrounding community who often have no legal expertise whatsoever, but who are sworn to decide the case fairly, impartially and on the basis of the judge’s legal instructions.

To obtain a jury trial in cases where such a right exists, a litigant must demand one in a timely manner. Generally speaking, in actions at law where there is an amount in controversy which exceeds $10,000, a litigant must file a written Demand for Jury Trial within fifteen days of the last pleading (usually, the Answer), or within ten days of the Notice of Intention to Defend filed in a District Court action.

Where a right to jury trial exists, determining whether to demand a jury trial or waive that right in favor of a bench trial is one of the most important strategic decisions facing any litigant. Depending upon the facts of a case, and on the venue of the action, some litigants will benefit from the common sense and sympathetic ears of jurors while others would prefer the more restrained judicial outlook of seasoned judges. Only experienced litigators can truly determine which route would be most beneficial to the client’s interests. Even then, this strategic decision involves a judgment call which is not an exact science.

Jury trials begin with a selection of jurors in a process known as "voir dire." In this phase of the trial, jurors are asked several questions designed to determine whether they have any bias which would interfere with their decision making. After jurors are selected and sworn to decide the case impartially, they are greeted with the "coming attractions" for the trial in the form of opening statements which highlight the evidence to be produced. Thereafter, the parties will produce this evidence by calling witnesses and introducing documents of relevance to the case. Because the plaintiff has the burden of proof, the plaintiff produces evidence first by calling witnesses on direct examination who are then subject to cross examination by the defense. After the plaintiff rests her case, the defense may then call its witnesses and introduce relevant documents to refute the plaintiff’s case. Finally, the plaintiff may call additional witnesses to rebut the defendant’s case in what is called a "rebuttal case."

After all of the evidence is in, the attorneys may once again address the jurors in closing arguments. If done effectively, the closing arguments will permit lawyers to marshal all of the facts introduced into evidence to persuade the jury that their clients should win the case. Because the plaintiff has the ultimate burden of persuading jurors, the plaintiff argues first and also gets the last word by rebutting defense counsel’s arguments. Ultimately, the jury will deliberate over the facts of the case and render its decision in the form of a verdict.

Interestingly, not all trials end in verdicts. Much can happen on the way to the jury room. Indeed, plaintiffs who fail to produce sufficient evidence to meet their burden of proof may lose before jurors ever get to deliberate over a verdict. In general, to prove her case and ultimately win at trial, a plaintiff must satisfy two separate burdens of proof: (1) the burden of production; and (2) the burden of persuasion.

To satisfy the burden of production, the plaintiff must produce enough evidence in her case-in-chief to permit reasonable jurors to return a verdict in her favor. Stated differently, the plaintiff must produce enough evidence that reasonable minds could differ on the outcome of the case. If reasonable minds could differ on who should win or lose, the case must be submitted to the jury for a verdict answering that question. Conversely, if the plaintiff failed to produce enough evidence to permit reasonable jurors to return a verdict in her favor, there is no need to postpone the inevitable and the court should "direct a verdict" against her.

If the plaintiff has met her burden of production, and the case is submitted to the jury, the jury must decide whether they are sufficiently persuaded by plaintiff's evidence to return a verdict in her favor. In other words, the jury must determine whether the plaintiff has met her burden of persuasion. The burden of persuasion specifies the degree to which the plaintiff must persuade the jury to win the case. In most civil cases, the plaintiff must persuade the jury by a preponderance of the evidence in order to win. Stated differently, the jury must conclude that the plaintiff's version of events is "more likely than not" an accurate rendition. However, if -- after weighing the evidence -- jurors are evenly split over which side to believe, they must return a verdict for the defendant.

In deciding the all-important motion for judgment, the court is only concerned with whether the plaintiff has satisfied her burden of production -- whether reasonable jurors could rule in plaintiff's favor. If reasonable minds could at least differ on the ultimate outcome, the court will submit the case to the jury. Once in the jury room, jurors will deliberate over whether they are sufficiently convinced by the evidence to return a verdict for the plaintiff, i.e., whether the plaintiff has satisfied her burden of persuasion

The following chart may aid your understanding of the burdens of proof:

In this chart, plaintiff must produce enough evidence to get into "the land where reasonable minds can differ" over the ultimate outcome of the case. If she fails to produce enough evidence to cross the "P" threshold, she has failed to meet her burden of production and will suffer a directed verdict in favor of the defendant. However, if she gets into the land where reasonable minds can differ, she has met this burden and the jury must then deliberate over whether she has also met her burden of persuasion. Under the burden of persuasion applied in most civil cases, the jury must be more than 50% persuaded that the plaintiff is right (i.e., they must be persuaded by a "preponderance of the evidence"). If they are, they will return a verdict for the plaintiff.

Theoretically, the plaintiff could make such a compelling case that reasonable minds could only rule in her favor -- producing so much evidence that she crosses the "D" line. If she does this, the burden of production will then shift to the defendant, who must produce enough evidence that reasonable minds can once again differ over the ultimate outcome. If the defendant fails to produce enough evidence disputing the plaintiff's claims and establishing a valid defense, he will suffer a directed verdict in favor of the plaintiff. Of course, the defendant could theoretically produce such overwhelming evidence in his favor that reasonable minds could only find in his favor -- producing so much evidence that he crosses the "P" line. If he does this, the burden of production will shift back to the plaintiff.

Of course, the bottom line is winning. To win, a plaintiff must meet her burden of production and her burden of persuasion. A failure to meet both burdens will result in a loss. But, even after a loss, there is always another step in the litigation process ...