Plaintiff’s Case-in-Chief; Motions Made After Plaintiff’s Case-in-Chief
Prima Facie Case:
The plaintiff’s case-in-chief is the time that the plaintiff has the opportunity to present evidence in support of its position. The reason that the plaintiff is the first party to present evidence is that the plaintiff has the burden of proof. What this means is that it is the plaintiff who must prove that the defendant is liable. The jury does not assume that the plaintiff is automatically entitled to relief; rather, the jury assumes that the plaintiff is not entitled to relief, unless the plaintiff proves otherwise.
The main objective of the plaintiff’s case-in-chief is to establish a prima facie case. Every cause of action has elements that must be established and proven in the plaintiff’s case-in-chief. When each element has been established, the plaintiff has established a prima facie case. If the plaintiff fails to establish a prima facie case, the defendant may move to dismiss the case for failure to establish a prima facie case. For example:
Mark Jones has brought an action against Marcy Bing for negligently failing to keep her sidewalk in a safe manner. During Mark’s case-in-chief, Mark establishes that Marcy owed him a duty to keep the sidewalk in a safe manner, that she breached her duty, and that Marcy’s breach was the reason Mark tripped on the sidewalk. What Mark failed to establish is that he was injured when he tripped. Because Mark did not establish every element of negligence (duty, breach, causation and damages), Mark did not establish a prima facie case. Upon Marcy’s motion to dismiss, the court must grant her motion.
When the plaintiff begins its case-in-chief, it will call its first witness, who, once at the witness stand, is sworn in by either the judge or the clerk of the court. Once the witness is sworn in, the plaintiff’s attorney may begin questioning the witness. Usually, the first questions are preliminary and ask the witness to identify himself for the record, tell the jury where he lives, etc. The plaintiff’s attorney often inquires into the witness' educational background, as well. For example:
Attorney: Please state your name for the record.
Witness: Mark Markson.
Attorney: Where do you live?
Witness: 643 Main Street, Texarkana City, Texarkana.
Attorney: What is your occupation?
Witness: I’m a garbage collector for Texarkana City.
Attorney: How long have you been employed as a garbage collector for Texarkana City?
Witness: Over ten years.
Once the preliminary questions are out of the way, the substantive questioning will begin. The purpose of the direct examination is to have the witness tell a story and testify about facts personally known to the witness.
When the plaintiff’s attorney has finished his or her direct examination of the witness, the defendant’s attorney has the right to cross-examine the same witness. The purpose of the cross-examination is to discredit the witness’s testimony, by establishing inconsistencies or holes in the testimony or by attacking the witness’s credibility. In most jurisdictions, the topics on which one may cross-examine are limited to those discussed during direct examination, except that a witness’s credibility may be attacked even where the credibility issues were not raised during direct examination. For example:
Susie has brought an action against Jonas for injuries stemming from a motor vehicle collision. On direct examination, Susie testifies that as a result of the collision, she sustained serious physical injuries for which she has incurred $60,000 in medical bills. On cross-examination, the defendant’s attorney asks Susie whether she has ever been convicted of fraud. Susie testifies that she has. Because the crime was fraud, such questioning affects Susie’s credibility and is permissible on cross-examination.
When the defendant’s attorney has completed his or her cross-examination of the witness, the plaintiff’s attorney may re-examine the witness. This is called redirect examination (often just called “redirect”.) Redirect examination is usually limited to issues raised during cross-examination. For example:
Same facts as above. After the defense attorney cross-examines Susie, Susie’s attorney conducts redirect examination and asks, “Was your fraud conviction later overturned on appeal?” to which Susie replies, “Yes.” The next question Susie’s attorney asks is, “Susie, will you please explain to the jury why the conviction was overturned?” Susie turns to the jury and says, “The conviction was overturned because the real perpetrator of the fraud confessed to the crime.” This is an example of how redirect examination can be used to refute issues that were raised during cross-examination.
After the redirect examination, the defense attorney may re-cross examine the witness ("re-cross"). the re-cross is limited to issues addressed during redirect. For example:
Same facts as above. After the plaintiff’s attorney conducts redirect, the defense attorney asks Susie, “But Susie, didn’t Mr. Smith confess to the crime because you paid him to do so?” This is an example of how re-cross examination can be used to refute issues addressed during redirect.
Most jurisdictions limit a witness' testimony to four examinations – direct, cross, redirect and re-cross. Some jurisdictions will allow, in special circumstances, another re-direct and re-cross. Some jurisdictions also allow the judge to ask the witness questions. In a few jurisdictions, jurors are allowed to examine the witnesses through written questions.
After direct, cross, redirect and re-cross examinations, the witness will be directed to “step down”, or leave the witness stand.
The plaintiff’s case-in-chief will then continue with more witnesses, who will be examined in the manner described above. If appropriate, the plaintiff will introduce exhibits to support its position. Exhibits are introduced through witnesses who have personal knowledge of the particular exhibit. For example, a police officer may testify that he has knowledge about his police report, that he prepared the report, etc., after which the plaintiff’s attorney may seek to have the police report entered as an a exhibit. Whether a particular exhibit is admissible depends on the jurisdiction’s rules of evidence.
Beyond testimony and exhibits, the plaintiff can seek to have the court take judicial notice of a fact that is well known to most people, or that can be determined from a reliable, available source. For example, a court could admit as evidence, through judicial notice, that the United States Declaration of Independence was signed on July 4, 1776.
Another way to have evidence admitted is through a stipulation. A stipulation is simply a document in which the parties state that they agree to certain facts. In other words, the parties admit the facts contained in the stipulation – therefore, there is no need to present evidence pertaining to that particular fact. Parties may stipulate, for example, that the motor vehicle accident in question in the case occurred on a particular day, or that a contract was signed on a particular day, etc. A list of stipulations might look something like this:
“By and through their attorneys, the plaintiff, James Jones, and the defendant, Mike Miller, do hereby stipulate to the following facts:
These facts do not have to be proved during the trial.
- The plaintiff and the defendant were involved in a motor vehicle collision.
- The defendant’s motor vehicle struck the plaintiff’s motor vehicle.
- The collision occurred on April 2, 2016.
- The collision occurred in the intersection of Main Street and Elm Street.
- At the time of the collision, the defendant was traveling East on Elm Street and the plaintiff was traveling South on Main Street.”
Once the plaintiff has called all of its witnesses and has presented all of its evidence, the plaintiff “rests” its case.
A Note About Admissible Evidence
This is not a course on evidence, and the paragraphs that follow cannot substitute for a thorough understanding of the purpose of evidence and what evidence is admissible. The next paragraphs will help you understand the basic purpose of testimony and what type of testimony is generally allowed.
As explained earlier, the purpose of direct examination is to let the witness tell his or her story. The attorney is merely there as a guide – to direct the witness’s testimony. Witnesses are supposed to testify about what they know – their own personal knowledge. On cross-examination, however, the purpose is not to let the witness tell the story. Rather, the attorney conducting a cross examination is trying to discredit or mitigate the effects of the testimony of the witness. The attorney will usually ask "yes or no" questions. In a way, the attorney becomes the "testifier", and the witness merely offers confirmation or denial of the attorney’s assertions.
In similar vein, an attorney may not, for the substantive portion of direct examination, ask questions that suggest the answer. Such questions are known as “leading questions”. For example:
Attorney: Please state your name for the record.
Witness: My name is Amy Myerson.
Attorney: Ms. Myerson, will you please explain to the jury what you witnessed on the morning of July 8th?
Witness: I witnessed an automobile collision.
Attorney: And you were standing on the corner of Main and Elm, where the accident occurred, correct?
Witness: Yes, that’s true.
Attorney: And you saw the blue car hit the red car?
Witness: Yes, it hit the red car.
Attorney: And you saw the defendant, Mr. Markson, exit the blue car after the collision?
Following the initial two questions, the other questions are leading because they suggest the answer – the witness is unable to really testify about what she knows personally. On direct examination, such a line of question is not permissible.
The Federal Rules of Evidence (“FRE”) offer rules for what types of evidence (evidence includes testimony, exhibits, documents, records, etc.) are admissible in an action. One type of generally inadmissible evidence is “hearsay”. Hearsay is an out-of-court statement offered for the truth of the matter asserted. See FRE Rule 801(c):
"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Hearsay is generally not admissible in court. See FRE Rule 802. For example:
John and Phil are involved in an automobile collision. John drives a red car and Phil drives a blue car. As a result of the accident, John brings an action against Phil. During the trial, John’s attorney calls Amanda as a witness.
John's Attorney: Amanda, where were you when the accident occurred?
Amanda: I was home.
John's Attorney: So how do you know about the accident?
Amanda: Well, when I went into the diner later that day, you know, the diner on the corner of the intersection where the accident occurred? I was in the diner talking to my friend Stacy and she told me about the accident.
John's Attorney: And what did Stacy say?
Amanda: Stacy said that a blue car ran the red light and slammed into the side of a red car.
When John’s attorney asked Amanda what Stacy told her, John’s attorney asked Amanda to relate a statement that was said out of court as evidence that the blue car hit the red car. This is hearsay. John’s attorney wants the jury to believe Stacy, through Amanda, that the blue car hit the red car. This type of testimony is not allowed. As stated earlier, witnesses are supposed to testify about what they know personally – not what someone else told them.
Finally, even though a statement might qualify as hearsay, it may qualify for an exception to the hearsay rule. Such exceptions include admissions by party opponents, business records, and excited utterances. See FRE Rules 803 and 804.
Motions Made After Plaintiff’s Case-In-Chief
Once the plaintiff rests, the jury will leave the courtroom while the parties, the judge, the attorneys, and anyone watching the trial, remain. At this point, the defendant may move the court to order a verdict in its favor. Sometimes called a “motion for a directed verdict” or “motion for judgment as a matter of law”, such a motion asks the court to dispense with either some or all of the rest of the trial. If the court grants the motion, judgment will enter for the defendant. Through such a motion, the defendant will attempt to convince the court that the plaintiff has failed to prove an element of at least one of the claims against it. Said another way, the defendant will try to convince the judge that the plaintiff has failed to establish a prima facie case for one or more of its causes of action.
If the plaintiff has filed a one-count complaint and does not offer evidence to support every element of the only claim against the defendant, the judge will enter total judgment in the defendant’s favor. If the plaintiff has filed a multiple-count complaint and does not prove an element of one of the claims against the defendant, the judge will enter partial judgment in the defendant’s favor (only as to that claim). For example, where the complaint contained six counts and the plaintiff did not support an element of one of the claims, the court will enter judgment for the defendant as to that particular count; the rest will remain, and the trial will continue as to those other claims.
The plaintiff is not required to overwhelmingly prove every element, however. Federal Rule of Civil Procedure (“FRCP”) 50, applicable only to jury trials, states that a party is entitled to a judgment as a matter of law if the opposing party has been fully heard on a particular issue
“and there is no legally sufficient evidentiary basis for a reasonable jury” to find for the party with the burden of proof".
(Note that the federal rules no longer call such a motion a motion for a “directed verdict”; rather, the federal rules always use the terminology “judgment as a matter of law”.)
Once the motion is made, the non-moving party, that is, the one who has allegedly presented the insufficient evidence, has the right to an opportunity to supplement its evidence so as to defeat the motion. If the non-moving party does not present adequate evidence, the motion must be granted. See Waters v. Young, 100 F.3d 1437 (9th Cir. 1996). The court, however, must view all of the evidence in the light most favorable to the non-moving party. See Williams v. County of Westchester, 171 F.3d 98 (2d Cir. 1999). FRCP Rule 52(c) applies similar rules to trials without a jury.
Once the judge rules on the motion, if entire judgment is not granted in the defendant’s favor, the jury will be brought back into the courtroom and the defendant will begin its own case-in-chief. See Daniels v. United States, 967 F.2d 1463, 1464 (10th Cir. 1992).