Getting Ready For Trial

Pretrial

Most of the progress of a federal case happens in what is called the pretrial phase, and will include actions that must occur before the start of the trial.  Strict rules and policies dictate what happens at the pretrial stage of both types of cases.  This is to be sure both sides are treated fairly and are afforded their rights equally.   At the federal level, all filings, including briefs, are made electronically online.  All hearings and trials happen in a courtroom that is open to the public, except in rare cases such as when a juvenile is involved.

• Civil Pretrial
• Criminal Pretrial

• • A person or entity (the plaintiff) files a civil complaint against another person or entity (the defendant).
  • The plaintiff must serve the defendant with the complaint by officially delivering it to them in person or electronically.
  • The defendant files and serves an answer, which is their response to the complaint.
  • If the defendant fails to respond, the plaintiff can request default judgment, meaning the case would be decided in favor of the plaintiff.
  • After the complaint and answer, the judge meets with the lawyers to work out a schedule.  The judge issues a case management order, setting all dates and deadlines needed to manage the case.
  • The judge may refer the parties to alternative dispute resolution/mediation, where the parties may reach a settlement without the need for a trial.
  • If settlement cannot be reached, the case moves toward trial.
  • To prepare for trial, both sides will conduct discovery.  During discovery, both parties gather all the information and evidence they will present in court.  Both sides can take depositions of witnesses.  Either side can request documents and statements from the other side when building their case.
  • Both parties are required to disclose everything they’ve collected about the case to each other, during the pretrial phase.  It’s common for a settlement to be reached after discovery, but before trial.
  • Both parties can file pretrial motions, seeking rulings from the judge on certain issues.
    • For example, either party can file a motion to compel the other party to give up certain evidence needed for discovery.
    • A motion in limine asks the judge to exclude certain evidence from being used by the other side.
    • Another common motion filed is for summary judgment, which requests the judge to rule for the party filing the motion. The party filing the motion for summary judgment will argue that no facts are in dispute, so there is no need for a trial.
  • The attorneys for both parties are required to attend a final pretrial status conference to inform the court how they are proceeding in preparation for trial.

   

• • Suspicious activity occurs and is investigated.  An arrest may happen at this stage.
  • The U.S. Attorney in that federal district seeks an indictment from the Grand Jury.  The grand jury sees evidence and hears testimony.  Only the prosecution presents evidence to the grand jury.  The accused person does not have any right to present evidence to the grand jury.
  • The grand jury decides if there is enough evidence to proceed with prosecution or not. If not, the case is dismissed.
  • If an indictment is issued, the prosecuting attorney for the government seeks an arrest warrant from a judge.  The defendant can surrender, or may be arrested by the U.S. Marshals Service.
  • The defendant meets with a Pretrial Services Officer, who prepares a report recommending whether or not the person should be released on bail.
  • The defendant appears before a Magistrate Judge to hear charges – called an initial appearance.  At this hearing, the defendant is asked if they have an attorney, or if they need an attorney appointed for them because they can’t afford it.
  • If the government’s attorney seeks to have the defendant detained until trial, a detention hearing is held.  The defendant is present, and is represented by a lawyer, at this and all future hearings.  The judge will use the report from the pretrial services officer, among other things, to make the decision.
  • The defendant is either released on bail or kept in custody until the next court date.  If released, the defendant usually must follow conditions like submitting to drug testing and reporting to a pretrial services officer while awaiting trial.
  • The defendant appears before a magistrate judge to be formally advised of the charges, and to enter not guilty plea – this is called an arraignment.
  • If plea is later changed to guilty, a hearing is scheduled before the District Judge for the defendant to enter the guilty plea.  After entering a guilty plea, the defendant will then meet with a Probation Officer, who prepares a pre-sentence report.  The defendant will appear before a district judge at a separate hearing, to be sentenced.
  • If the plea is not guilty, then the attorneys will begin preparing for trial.  During pretrial discovery, the defense attorney and the prosecuting attorney conduct an investigation to gather all the information and evidence they will present in court.
  • The government must disclose the information and evidence they have against the defendant, so that the defendant and their attorney can prepare the defense.
  • Both sides can file pretrial motions seeking information from the opposing side or rulings from the judge.  The defendant can seek to suppress evidence, statements, or identification that were obtained in violation of his/her constitutional rights, or otherwise challenge the charges.

Let’s Make a Deal

Realistically, only a small percentage of federal cases, criminal or civil, actually go through the entire trial process.  Because trials are risky, many parties look to settle their differences during the “pretrial” phase of the process.

Criminal

In criminal cases, the defendant will likely get a shorter sentence or less harsh punishment by accepting responsibility by pleading guilty.  The prosecutor may agree to drop some of the charges if the defendant admits guilt.  The defendant’s attorney works with the prosecutor to come to terms both sides can agree with.  These pretrial negotiations, sometimes called a plea bargain, do not involve the judge until the defendant formally changes their plea from not guilty to guilty.  At that time, the judge will put the defendant under oath, and ask a series of questions to determine not only that the defendant is competent to enter the plea, but also that he is doing so truthfully and willingly.  Once the judge accepts the guilty plea on the record, a sentencing hearing is scheduled for a future date. Visit the Student Center page about Your Day in Court to learn more.

Civil

In federal civil cases, the judge often recommends or requires the parties to attempt to reach a settlement in the pretrial phase.  This often takes the form of Alternative Dispute Resolution(ADR) or mediation.  This provides a cheaper and faster way for parties in a civil law suit to settle their disagreement without a full trial.  This process is non-binding until an actual settlement is reached, so the parties can request an actual trial at any time.  An impartial person, sometimes called a neutral or a mediator, facilitates discussions between the two sides, to assist them in coming to an agreement.  Many civil disputes must first go through the mediation process, by order of the judge.  All mediation proceedings are confidential, and never become part of the court record.  If the parties don’t reach a settlement this way, the case will continue to proceed through the court system.