The Trial Process In Business Litigation

A trial is where the “trier of fact” (usually either judge or a jury) makes a determination about facts which are in dispute. So for example, if the plaintiff has set forth facts supported by evidence that a defendant has committed fraud and the defendant has set forth facts supported by evidence that no such fraud has occurred, either a judge or jury will need to determine whether fraud has actually occurred.

Generally, no. In such instances, a summary determination can be made by the judge usually by means of a motion for summary judgement.

No. Generally speaking, one has the right to a jury trial when they are seeking “legal” relief (such as claims for monetary damages) but they are not allowed for claims seeking “equitable” relief (often non-monetary relief like injunctions). The rules for determining whether or not a jury trial is permitted are complicated, contain many exceptions, and should be addressed with the attorney handling your case. A party may waive the right to a jury in a contractual provision. This is particularly common in commercial leases, for example.

It depends on the court that you are in. In New York state court, a decision on whether to have a jury trial is usually made after discovery has been completed. In New York Supreme Court actions, a decision as to whether to proceed with a jury trial is made by the plaintiff when a document known as a note of issue is filed. In New York City Civil Court, the plaintiff sets forth such decision in a notice of trial. If a plaintiff does not opt to have a jury trial, the defendant has a limited time period in which to demand a jury trial and such time limits are strictly enforced.

In actions pending in federal court, in contrast, a jury trial must be demanded at the beginning of the case and the time limits for making such a demand are strictly enforced.

This is a complicated and important decision and should be addressed with the attorney who is handling your case. In some instances it makes sense to have a jury decide your case whereas in others a judge might be a more effective trier of fact.

A trial usually beginning with each side making an opening statement. After that, a plaintiff usually puts on its case. This involves calling witness from which the attorney elicits direct testimony and also involves attempting to get certain key documents into evidence. Once the direct testimony of a particular witness has been completed, the defendant’s attorney then has the opportunity to cross-examine that witness by asking questions based on information elicited on direct examination. Once the plaintiff has called all of its witnesses, it is defendant’s turn to put on its case and same procedure is followed as was for plaintiff’s witnesses. After all testimony has been completed, each side generally has the opportunity to make closing arguments.

Yes. This is typically encouraged in commercial cases. Judges often have detailed pre-trial rules and schedules when it comes to business litigation which, among other things, typically involve pre-marking exhibits and encouraging agreement between the parties regarding the admission of same.

Yes. Cases are often “bifurcated” with the court first holding a trial on the issue of liability and- in the instance that liability is found- thereafter holding a trial to determine the amount of money damages.

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