C. Evidence

Evidence is information in the form of oral testimony, exhibits, physical items, or affidavits used to prove a party's claim. Evidence can be presented in many forms. For example, exhibits are tangible evidence presented in a court proceeding for the purpose of supporting factual allegations or arguments. Testimony from expert witnesses may be introduced as evidence. In certain kinds of criminal cases, physical evidence such as fingerprints or hair samples can be helpful in proving who harmed a victim if no witnesses were present.

In a civil case, the plaintiff has the burden of proving its case by a legal standard called preponderance of the evidence ("more likely than not") through witnesses, charts, documents, photographs and other forms of physical evidence. In a criminal case, the prosecution must prove a person's guilt beyond a reasonable doubt. This is a more difficult standard to achieve.

During the trial one side will try to get evidence admitted into the court record for consideration by a judge or jury when deciding the case. The other party, through his or her lawyer, will seek to exclude such evidence through objections; for example, by stating that the evidence is irrelevant or inadmissible. A judge will either deny the objection and allow the evidence to be admitted or sustain the objection and exclude the evidence. The introduction of evidence in any case depends upon an attorney's arguments and the judge's interpretation of that state or federal court's rules. Certain types of evidence, such as hearsay evidence (a witness's testimony about what someone else said outside of the courtroom), must be excluded (and may be excluded in advance of a trial).

Each party has the opportunity to discover what evidence the other intends to introduce at the trial to prove its version of the facts. This is done through depositions where a witness's testimony is taken under oath and during discovery procedures whereby records and other physical information is turned over to the other side for evaluation. In most states it is against the law to destroy evidence.

Tip:Because the success or failure of a case often depends on the type of evidence introduced and admitted (or excluded) from the record at a trial, it is important to hire an employment lawyer who is very knowledgeable about the rules of evidence. For maximum success, always hire an employment lawyer who possesses competent trial skills.

After the plaintiff's case is completed, the defendant presents its side of the case. When both sides are finished, each attorney gives a summation. This is a review of the facts, testimony, and other evidence. If no jury is involved, the judge will render a decision. Typically, both parties have to wait a period of time (up to 30 days) before receiving the judge's written decision.

If a jury is involved, a judge will instruct its members as to what law is applicable to the facts and statements they have heard. The jury will then leave the courtroom and return with its determination. In rare cases, a judge may disregard the jury's findings and grant a motion for judgment notwithstanding the verdict (called a JNOV) when she believes there was insufficient evidence to support a jury's conclusion.

After the judgment is made, either party can appeal the decision by filing a written document called a brief. Information about appeals is discussed in the next section. It is also important to take proper steps to collect the judgment if the losing party doesn't pay. This may involve placing a lien on real estate property owned by the losing party or attaching such property to prevent the transfer, assignment, or sale without your consent. Speak to your attorney for more information about how this can be accomplished.

Tip:Litigation is complicated, time-consuming, and subject to many hazards. Unless absolutely necessary, or involving a small amount of money that can be handled by yourself in small-claims court, do not attempt to file papers and represent yourself (pro se) in a lawsuit without an attorney.

The following is a summary of key strategies to follow in any lawsuit, whether you are the plaintiff or the defendant:

1.Hire a lawyer skilled in conducting trials. Many attorneys do not litigate cases, which is a specialty.

2.Play an active role in all phases of the case. Request that your attorney routinely send you copies of all incoming and outgoing correspondence on a regular basis. This will help you monitor and question the progress of your case.

3.Never ignore a summons and complaint if you are served. Ignoring a summons and complaint can result in the imposition of a default judgment with huge damages, penalties, and interest assessed against you without your filing a defense. Speak to a lawyer immediately to protect your rights.

4. Never ignore a subpoena if you are summoned to court to appear as a witness. A subpoena is an order requiring your presence to testify. If for some reason you cannot be present on the date specified, speak to the clerk of the court for advice and guidance. Ignoring a subpoena can result in a fine, imprisonment, or both.

5.Be prepared at all times. Competent attorneys work with their clients in anticipation of the upcoming deposition and trial. There should be no surprises in what you will testify to and what the opposing lawyer will ask you. Your lawyer should advise you how to react if you do not understand a question or do not wish to answer.

6.Consider alternative methods to settle your dispute. This includes.findlaw arbitration and mediation (which are discussed in other sections of this chapter). Ask your lawyer to actively seek and encourage a settlement where warranted.

7.Determine if the opposing party has sufficient assets to pay a successful verdict before starting an action.

8.Assess the chances of winning or losing and how much a lawsuit will cost to commence or defend before getting in too deep.