Answer ... This question focuses on federal district court civil litigation, with and without a jury. State civil litigation is often similar, but may vary. Federal Trade Commission administrative procedures are similar to the description of a bench trial below, but may also vary. Criminal procedure differs substantially. The course of any two litigations may differ substantially. This summary provides only common milestones as a trial progresses in US federal civil court.
Filing and early motions practice: In civil proceedings, the plaintiff files a complaint and serves a copy with a summons on the defendant. The defendant may either:
- file an answer responding to the allegations in the complaint; or
- move for dismissal on any number of grounds (some of which are waived if the defendant does not move for dismissal before answering).
The defendant may also seek to change the venue of the litigation to another court by agreement or by court order.
Discovery, class certification, summary judgment: If the complaint is not dismissed, the court will, in consultation with the parties, establish a schedule for the case. The schedule will typically set deadlines for:
- fact discovery;
- expert discovery;
- motions for class certification (in collective actions);
- motions for summary judgment; and
- trial.
The schedule may also lay out rules governing discovery in the case, to the extent that they differ from the default.
The parties will engage in discovery, which can be very complex and time intensive in an antitrust case. The parties manage discovery largely on their own, bringing disputes to the court for resolution; the court is not closely involved in the exchange of documents and information. Often in large and complicated cases, a magistrate judge or a special master may be appointed to handle discovery disputes. In complex cases, discovery may also be broken up into multiple rounds (eg, class certification fact discovery, class certification expert discovery, merits fact discovery, merits expert discovery). If the plaintiffs seek to certify a class, they may move to do so after limited discovery, depending on the court’s scheduling order. By the end of discovery, all parties have the option to move for summary judgment, which may dispose of all or part of the litigation.
If multiple actions relating to the same conduct and defendants are filed in the same federal court, they may be consolidated to increase efficiencies. Cases may be consolidated:
- for purposes of discovery;
- for all pre-trial proceedings; or
- for all purposes.
If related actions are filed in multiple federal courts, they may be referred to the Judicial Panel on Multi-District Litigation. This body may consolidate all actions in a single court before a single judge for purposes of:
- pre-trial motions practice;
- discovery;
- class certification; and
- summary judgment.
Although multi-district litigation actions can be settled before this assigned judge, they are sent back to the original courts in which they were filed for trial.
Pre-trial: If not disposed of on summary judgment, the case will proceed to pre-trial. If a jury has been demanded, the trial will begin with voir dire or jury selection. A large panel of potential jurors will be called from the community, and each party and the judge often will have an opportunity to question, approve or challenge their inclusion on the jury until a jury has been selected. The court will hear motions in limine or motions to exclude evidence in order to resolve foreseeable disputes before evidence begins to be presented to the jury. In some instances, the court will delay deciding such a motion until the trial has begun to unfold; but in most cases, the court will decide the motion before the evidence is presented to the jurors.
Trial: Trial begins with the plaintiff’s opening statement, followed by the defendant’s opening statement. The plaintiff then puts on its case in chief – fact witnesses, documents, and expert witnesses in an order of its choosing. The defendant may, but is not required to, present its own evidence after the plaintiff rests. During each party’s presentation of evidence, the other party has the right to object to improper questions or inadmissible evidence. The other party also has the right to cross-examine its opponent’s witnesses. The judge may, but is not required to, ask questions as well. Finally, the parties give their closing statements.
A party may move for a judgment as a matter of law after its opponent has finished presenting its evidence – a defendant may move with or without presenting evidence of its own. The court will grant a judgment as a matter of law if it determines, based on the presentation of evidence, that no reasonable jury could decide against the moving party. A judgment as a matter of law will dispose of the case, subject to any appeals.
Assuming that a judgment as a matter of law is not issued, the jury will be instructed on the law by the judge. Judges may also provide instructions at the beginning of trial; and some judges in some cases will even provide written instructions that the jurors can consult as they deliberate. The jury deliberates confidentially for as long as necessary until it reaches a decision. In federal court, its decision must be unanimous, but this rule varies in state courts. The jury then delivers its verdict on liability and damages.
In particularly complex cases, judges may order that trial be bifurcated or trifurcated – splitting up the presentation of evidence by issue (eg, liability and damages, separately). In such a situation, statements and evidence related to the first issue will be presented to the jury and then the jury will decide that issue. If the jury decides against the plaintiff on an essential issue, the trial will end. If the jury decides in favour of the plaintiff, the trial will move on to the next issue.
The parties may waive their right to a jury and proceed with a bench trial, where the judge serves as the sole fact finder. Some parties find this preferable to explaining complex economics to a lay jury. Bench trials proceed in a similar fashion to jury trials, except that the structure may be more relaxed depending on the preferences of the judge. In some cases, evidentiary motions, arguments and presentation of evidence may be less segregated. When issuing a verdict in a bench trial, the court will write an opinion and memorandum explaining its findings of facts and conclusions of law in detail.
Post-trial and appeal: In a jury trial, the judge has the opportunity to adjust the damages award downward if the jury’s decision appears to be unreasonable. In both jury and bench trials, parties may move for a new trial, claiming some fundamental defect in the proceedings. Ultimately, the judge will enter a judgment as a final disposition of the case. In most cases, the parties must notice an appeal within 30 days.