Pre-Trial and Trial Procedures for Personal Injury Cases

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If you are involved in a personal injury case, you’ll want to know what happens during a pretrial and trial, should your case need to go to trial. While a good personal injury attorney will be able to prepare you for the trial, it’s always nice to have an idea of what can be expected.

 Pre-Trial and Trial Procedures for Personal Injury Cases

If you are unable to reach a settlement in your personal injury case, it will most likely need to go to trial. But before you go to trial, a pretrial conference needs to take place.

Pretrial Conference

During a pretrial conference, the judge, attorneys, and both parties will meet to clarify certain legal matters before trial begins. This conference often eliminates any unnecessary issues from being raised later on during trial. A pretrial conference also gives both sides a chance to file and discuss pretrial motions, as well as other procedural matters. You should expect to receive a basic overview of the issues that will be raised during the trial.

Issues Discussed

During civil pre-trial conferences, the judges and lawyers may meet in order to:

  • Simplify legal issues involved in the trial
  • Eliminate claims or defenses that would be considered frivolous
  • Identify documents that can be used as evidence
  • Identify witnesses
  • Obtain admissions of guilt or liability
  • Create a timetable for when motions and briefs need to be submitted
  • Discuss rulings on motions that have already submitted
  • Determine if a settlement can be made out of court

If a settlement can be determined, then the case will not need to go to trial. A judge and lawyers will also discuss if a pretrial settlement is achievable.

Sometimes during a pretrial conference, additional issues are uncovered. This can often result in disputes between the parties. If this happens, either party is able to file another motion in response, or can also request another pretrial conference. If the dispute can still not be resolved, then the issue has to be resolved during the trial.


During a trial, the judge or jury will examine the evidence to decide if the defendant in the case is legally responsible for the injuries allegedly caused by the plaintiff. Once all the evidence is presented, a judge or jury will consider if the plaintiff is liable. They will also determine, if liable, to what extent the plaintiff is liable.

Phases of a Trial

There are typically six phases of a personal injury trial:

  • Choosing a Jury
  • Opening Statements
  • Witness Testimony and Cross-Examination
  • Closing Arguments
  • Jury Instruction
  • Jury Deliberation and Verdict

Choosing a Jury

While some cases are tried only before a judge, some are tried before a jury. For those cases, the jury will need to be selected. During the jury selection process, a judge, the plaintiff and the defendant (through their respective attorneys) question a pool of potential jurors. They will often ask about any personal biases that a juror might have, including ideological predispositions or life experiences.

A judge is able to excuse any potential jurors at this stage based on their responses to questions.

Both the plaintiff and the defendant (through their respective attorneys) are also able to exclude a certain number of jurors through use of “peremptory challenges” and challenges “for cause.” A peremptory challenge is used to exclude a juror for any reason - even gender and ethnicity in civil cases. A challenge for cause is used to exclude a juror who has shown that he or she cannot will not be able to be truly objective in deciding the case.

Once a jury is selected, it is time for opening statements.

Opening Statements

Opening statements are given by the plaintiff’s attorney, and the defendant’s attorney. During these statements, the following is presented:

  • The plaintiff’s attorney presents the facts of the accident or injury and what the defendant’s alleged role was in causing the plaintiff’s damages. The plaintiff’s attorney will outline what will be demonstrated in order to get a civil judgment against the defendant.
  • The defendant’s attorney gives the jury the defense’s own interpretation of the facts. The defendant’s attorney also outlines the defenses to the plaintiff’s allegations.

Witness Testimony and Cross-Examination

Next, each side will present its key evidence and arguments to the judge and jury.

In presenting key evidence and arguments, the plaintiff’s legal team may call witnesses and experts to testify, may decide to introduce physical evidence, such as photographs, documents, and medical reports, all in efforts to prove the case. Witness testimony’s will follow a standard format, that goes as follows:

  • The witness is called to the stand and “sworn in” by taking an oath to tell the truth.
  • The side that has called the witness to the stand questions the witness through “direct” examination. This examination is meant to elicit information that will strengthen the party’s position in the dispute.
  • After direct examination, the opposing party will question the witness through “cross-examination.” This is the opposing party’s time to poke holes in the witness’s previously told story in an attempt to discredit the witness or his or her testimony.
  • After cross-examination by the opposing side is concluded, the side that originally called the witness has a second opportunity to question the witness through “re-direct examination.” This is where the original party that called the witness will try to remedy any damaging effects from the cross-examination.

Once this is concluded and the initial party “rests,” the opposing side will be able to present its evidence in the same manner. Once the opposing party “rests,” the initial party is able to respond through a “rebuttal,” where a party is able to contradict the evidence that has been put forth.

Once both sides have presented their sides, and have been give a chance to challenge the presented evidence, then both sides “rest.” This means that no more evidence will be presented to the judge and jury. Next, closing arguments are made.

Closing Arguments

During closing argument, the plaintiff and the defendant both have opportunities to “sum up” the case. Both sides will recap all the evidence presented in order to shed a favorable light on their respective positions. This is the final opportunity for both sides to show why the defendant may or may not be legally responsible and to prove their point and sides to the jury.

After the judge and jury hear the closing arguments, it will be up to them to weigh the case. But first, the jury must be given instruction.

Jury Instruction

During jury instruction, the judge sets forth a set of legal standards that the jury will need to follow to decide whether the defendant should be held accountable for the presented allegations.

The case then goes “to the jury.”

Jury Deliberation and Verdict

The jury next enters “deliberation,” the process through which they all attempt to come to agreement on whether the defendant should be held liable for the plaintiff’s claimed injuries. If the defendant is to be found liable, the jury will also discuss appropriate compensation for those injuries.

Most states require a 12-person jury in a personal injury case to be unanimous on their decision. Some states allow for verdicts based on a majority as low as 9 to 3. If a jury is unable to reach a unanimous or sufficient majority and finds itself at a standstill (often referred to as a “hung” jury), a judge may declare a “mistrial.”

The case is then either dismissed, or a new trial must be held. At this point, a new trial begins from the jury selection stage.

When a jury reaches a decision, the appointed jury foreperson will inform the judge. The judge will then announce that verdict in open court.

There are many steps to a trial, should your personal injury dispute need to go to trial. For a person unfamiliar with the legal system, this can be a hard process to understand. A personal injury attorney will be able to explain each step so that you know what is expected of you.

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