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Home Blog Dick and Jane: The Trial
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IMG_8717By Justin O’Dell

When we last saw Dick and Jane, Dick had been served with a lawsuit for breach of his employment contract, but had prevailed in avoiding an interlocutory injunction shutting down his new company.  We moved through discussions of the discovery process, mediation/arbitration and are now on to a final trial.  Recall that employment contracts are unique in that a Judge decides whether or not the contract can be enforced as a matter of law.  If the Judge decides that the contract is not clearly in violation of public policy, the matter can proceed to a jury on damages.  In our last discussion, we outlined the process for selecting a jury.  Now that a jury is in the box, we turn to the process of a final trial.

A jury trial is a very complicated process and can vary slightly based on the type of case being presented.  Nonetheless, virtually every trial will follow this process:

1)      Pre-trial matters outside the jury;

2)    General Instructions from the Court;

3)    Opening Statements;

4)    Presentation of the Plaintiff’s Case;

5)    Motions for Directed Verdict by Defendant;

6)    Presentation of the Defendant’s Case;

7)    Presentation of Rebuttal Evidence by the Plaintiff;

8)    Closing Argument by the parties;

9)    Jury Charges and Instruction

10)  Jury deliberation & verdict

The pre-trial motion phase conducted outside the presence of the jury is the final attempt by the Court and the lawyers to outline the evidence which can and cannot be presented to the jury.  Most evidentiary issues must be handled during the trial as the case is being presented and unfolds.  However, there are certain types of evidence which could be so prejudicial and harmful to one side or the other that it would be improper for a party to even make reference to it.  Using our present case as an example, it would be out of bounds for either party (Dick or his former company) to make reference to the total financial condition of the other.  The case involves a dispute over an employment contract and potential breach of the same.  While it might be permissible for Dick’s former company to discuss specific customers that had been “poached” by Dick, the total amount of money Dick is making on other clients and customers had no bearing on the dispute.  Likewise, it is immaterial for the jury to learn or be made aware of the total amount of money the former company is making even despite Dick’s departure.  If a jury heard this information (even if it were ruled inadmissible upon an objection), the jury could be prejudiced into deciding the case based on the financial equities involved rather than the contract dispute itself.

Following the resolution of the pre-trial matters and some general instruction by the Court, each party is allowed to present an opening statement.  The opening statement to the jury is the first time that each party has a chance to introduce the case and their client.  An opening statement is not evidence, but rather an outline by the lawyers about what each believes the evidence will show and the conclusion to be drawn.  The lawyers often use the phrase “We anticipate the evidence will show….”  The best opening statements are those that tell a story or paint a picture almost leading the jury to the desired conclusion.

In our case, a formalistic opening statement for Dick would start with his employment contract and recount the anticipated evidence about the terms of the contract and Dick’s good faith compliance with the same.  The statement would conclude with the lack of damages on the part of the Defendant and the lack of evidence of any such damages.

A better opening statement would commence like this….  Dick is a married man with a wonderful wife and two beautiful children.  Dick spent most of his life dedicated to X Company.  He took a job there in 2005 and signed a contract regarding his rights and responsibilities to the Company and its customers.  Dick was a valued and dedicated part of the team and did an outstanding job for X Company.   Unfortunately, X Company did not see employees that way.  On October 12, 2009, a personnel memorandum was generated by Susan in HR.  That memorandum, obtained in discovery, will be in evidence and you will learn that X Company decided that it “should do everything in its power to make sure that its employees could never leave and take competitive jobs.”  That memorandum led to the contract that is the dispute in this case.  That contract was given to Dick one day along with a big stack of other new policies and he was told to sign.  Your decision will be to decide whether or not X Company should be allowed to “do everything in its power to make sure that its employees could never leave and take competitive jobs.”

Next month, we will continue our trial discussion and look at the presentation of the case and evidence.  In June, we will discuss the process of a jury verdict.

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