The first phase of the trial is when the jury is selected. This is referred to as jury selection or sometimes as voir dire. In civil cases in New York this is typically a phase of trial that is conducted by the lawyers under the supervision of a clerk without the trial judge present. During this phase each side’s attorney is permitted to question prospective jurors on their knowledge of the case, parties and witnesses, and also on areas of potential bias for or against a party or a type of lawsuit. Civil juries consist of six jurors as opposed to twelve for a criminal jury. Depending on the length of the trial there will also be one or more alternate jurors chosen in case one of the six primary jurors becomes ill or is otherwise unable to complete the trial. During jury selection each side gets to excuse jurors whose answers to the questions posed provide cause to dismiss them as not likely to be impartial. Each side is also permitted to dismiss any three other potential jurors it chooses without stating any reason why. The dismissal of a juror in this fashion is referred to as a peremptory challenge, while dismissing a juror for cause is referred to as a challenge for cause.

Once the jury is selected, the trial begins in earnest and from that point forward the trial judge is in charge. After the judge provides some initial instructions to the jury, the opening statements are given by each side, with the plaintiff’s attorney always going first. The opening statement is a preview of what the proof is going to be in the case, to set a context for the jury for what they are about to hear. The judge instructs the jury that the opening statements are not evidence, meaning that the jury cannot decide the case based on facts stated by the attorneys, but rather, can only decide the case based upon facts stated by witnesses or found in documents and other physical evidence admitted into evidence.

After the opening statements, the plaintiff presents all of his or her proof. Once this is done, the plaintiff rests his or her case, and it is the defendant’s turn to present proof. Plaintiffs have the burden of proof on all matters alleged in their complaint. This means that they have to prove that each allegation they have made is more likely to be true, than not. This is a different burden of proof than the beyond a reasonable doubt standard in a criminal case. The civil standard, called proof by a preponderance of the evidence, is meant to require the plaintiff’s proof of a given point to outweigh, even slightly, the proof presented opposing that point. Where a defendant has alleged an affirmative defense in his answer, then he must bear the same burden of proof on that defense.

When proof is completed then both sides are permitted to make a closing statement or summation, summarizing the evidence presented and what they think the outcome should be on each issue. In this instance, the defendant goes first and the plaintiff goes last. After the closing statements are made to the jury, the judge then instructs the jury as to the rules of law they must apply to the facts they find. The jury is the ultimate finder of the facts, but the jury must accept the rules of law that that the judge provides to them and apply those rules to the facts that they find to come to an outcome.