The time has come. You’ve been sued. Suffered through discovery. Talked about the project under oath til your throat turned raw. And responded to the umpteen million request from your lawyer. You’ve engaged experts, second-guessed your work, and looked at copies of legal documents that made your head spin. Now, at long last, you will have your day in court. Or will you?
When will your case be heard?
Your trial date is a moving target, at least in North Carolina. Depending upon the county or jurisdiction the lawsuit is filed in, you are probably looking at your case taking from 1 year (for a small homeowner lawsuit) to 2 or 3 years for very complex cases. This is one reason why court ordered mediation is required in all Superior Court cases in North Carolina. It is also why most construction lawsuits do settle– at some point– prior to trial. Some cases settle, literally, on the courthouse steps (or in the courthouse conference room). Others settle during trial itself. But if you find yourself settling at the last minute, you will have spent the time and money for trial preparation for naught. A somewhat bitter pill to swallow.
What is involved in trial preparation?
Expect to review many documents relating to the project all over again with your lawyer(s), even if you’ve previously discussed them. Expect to spend time with your expert(s) discussing your plans and design intent. Expect to have some mock testimony sessions with your lawyers and others on their team. Mostly, expect a lot of aggravation. Trial preparation takes time. A lot of time. While much will be done by your construction lawyer, you will need to be actively involved.
How does the trial work?
The trial itself is probably the closest to a Law & Order scene that you will experience. But don’t expect Jack McCoy (or Perry Mason) moments. Very little happens in a trial that is completely unexpected.
If the trial is a jury trial (and most are), your lawyers will question the potential jury pool to try to weed out folks that have predisposed themselves to one side of the case. The other side will do the same. The result, ideally, is a group of disinterested, neutral folks that will decide your case.
After jury selection, opening statements are given. These are speeches given by the lawyers to forecast the evidence that will be given to the jury.
The, the plaintiff (that is, the party suing you) will be told to call its first witness. The plaintiff will proceed to call witnesses to the stand to testify. The order that they are called in is up to their lawyers, and different lawyers have different strategies for deciding which witnesses they call first, middle, and last.
With each witness, the plaintiff’s counsel will ask open ended, non-leading direct examination questions. After that, your counsel will ask leading questions on cross examination aimed at poking holes in the other side’s case, and establishing your own case theory.
After the plaintiff has presented its case and rests (and following some procedural motions at that point), the roles are reversed, and your lawyer will conduct direct examination, while the plaintiff will cross examine witnesses.
There are often legal sidebars during a trial, where the lawyers approach the judge and whisper about legal matters. If extended debate on something is needed, the jury will be excused. While you will not be invited to the bar to talk during sidebars, your lawyer can tell you what was discussed and how it effects your case.
At the conclusion of all evidence, the jury is given a set of legal jury instructions, and the lawyers present their closing arguments as to why their position should prevail. Then, you wait. And wait. And wait, until the jury reaches a verdict. The jury foreperson will read the verdict into the record.
What happens after trial?
Depending on the trial results, one side may ask the judge to set aside the verdict (called a j.n.o.v.), which is rarely granted. Whoever has lost may decide to notice an appeal of the verdict. Appeals must be based on legal errors that the judge made during trial. An appeal can take years, and the end result can be the same (that is, the verdict is upheld), overturned (set aside), or remanded for a new trial. Yes, that’s right: you can be forced to re-try your case.
Is all lost, then, if you lose the jury verdict? No; definitely not. No one likes to spend time and money on appellate briefs. So, even though the case is over, the parties may *still* negotiate a settlement. Be aware, however, that you will have a judgment “on the books” against you if the jury found that way, and that can affect your credit ratings. However, the judgment will also be rendered “satisfied” if you settle (or pay it off), which generally helps re-establish your good credit rating.
That’s it! You now know just enough about the construction trial process to be dangerous! I’ve obviously had to condense many details in this series, so if you have any questions or want me to expand on any area, drop me a note or comment in the comment section of the blog.
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In a case that goes to a jury trial, it is in fact the jury, not the judge, who decides the case. The judge handles order in the courtroom, the admissibility of evidence or witnesses, and other legal issues. But at the end of the day, the factual issues (that is, was your plan defective? If so, what if any damages did that defect cause?) are decided entirely by the jury. Most of the time.