Although 90+ percent of all personal injury cases never see a courtroom, our collective attention focuses on those cases that proceed to trial. Personal injury trials have spawned books, movies, media coverage and on occasion, legends. All for good reason. Trials are exhilarating, dramatic and unpredictable. There are surprises during trial – not always welcome ones – in even the best prepared personal injury case. Witnesses forget what they saw or heard or testified to three years previously at their depositions. Expert witnesses make unnecessary and damaging concessions under skilled cross-examination. Lawyers being human, make their share of gaffes as well. If the lawyers are skilled and well-prepared, however, the stories of the injured plaintiff and the defendant individual or company will have been presented with clarity and force to the jury for their decision. For those readers who have never witnessed the trial of a personal injury case, this article will present an overview of what happens from start to finish.

A few days before the trial, the lawyers usually appear before the judge to argue contested points of evidence that they anticipate will occur – for example, whether a certain official report should be admitted into evidence or a deposition videotape be used in place of a live witness. These arguments are known as “motions in limine” (at the start of). On the day of trial, the first order of business is selecting a jury. In Massachusetts, lawyers received brief forms filled out by each prospective juror giving cursory, but important information, such as age, marital status and occupation. As each group of jurors is seated in the courtroom, the judge identifies the lawyers, parties and witnesses who will testify and makes sure that no prospective juror has a relationship with any of them.

In most states, lawyers are allowed to question potential jurors to determine likely biases or prejudices – a practice known as “voir dire.” In Massachusetts, however, the judge questions jurors and can dismiss any he believes will not be able to consider the evidence fairly. Each lawyer is then allowed to dismiss several jurors without explanation – a practice known as “peremptory challenges.” While peremptory challenges can be based on nothing more than a lawyer’s intuition about a prospective juror, the challenge cannot be made because of a person’s race, ethnicity or gender. A number of jury verdicts have been overturned and the cases retried because the appellate courts believed that one or more jurors were peremptorily challenged for prohibited, discriminatory reasons. While most trial lawyers value their peremptory challenges, the practice is in jeopardy of being eliminated by the Supreme Judicial Court.

Eventually – in complex trials, jury selection can take hours or even days – a jury of twelve jurors and two alternates is seated. After the judge welcomes the jury and makes some introductory remarks, he turns to plaintiff’s counsel and tells him "you may make your opening statement." The trial thus begins.

Next: The Final Installment: What Happens During a Personal Injury Trial.