By: Stephen E. Arthur
A trial is a forum in which disputes are resolved through the submission of evidence and adjudication by a court or jury. Trials are needed when parties cannot resolve their disputes informally. There are two types of trials – jury trials and bench (or court) trials. Indiana civil actions are governed by the Indiana Rules of Trial Procedure, Indiana Rules of Evidence, Indiana Jury Rules, Indiana common law and statutes, a trial court’s inherent and equitable power to act, and other court rules, including various local rules of court.
The trial judge serves as the administrator and representative of the power and authority of the judicial branch of the State. In this capacity, the trial judge is empowered to control the trial, the courtroom, the parties and attendees in the courtroom, courtroom personnel (e.g., the court clerk, bailiff and reporter), the witnesses and members of the jury, and all that relates to the administration of justice in that court. The trial judge is responsible for correctly implementing the rules of court, including the Indiana Rules of Evidence, and administrating the proceedings so that each party receives a constitutionally adequate resolution of its dispute. To this end, a trial must be conducted in an orderly, dignified, and legal manner.
The trial court can control pre-trial and in-court proceedings through the use of Ind. Trial Rule 16 conferences and the implementation of scheduling or case management orders. Such orders typically impose deadlines for the exchange of final witness and exhibit lists, the filing of motions in limine, the submission of documentary and deposition evidence (and objections to such evidence), and the submission of proposed jury instructions. Following a Trial Rule 16 conference, the court shall enter an order reciting the actions taken at the conference and those orders will control the proceedings unless modified to prevent manifest injustice. Ind. Trial Rule 16(J). In addition, many Indiana courts have local rules, courtroom customs and protocols, and special equipment requirements which govern the trial.
The trial court must balance the public’s right to access court proceedings against the right of the State and litigants to confidentiality. Indiana policy favors public access to information and documents filed in court proceedings, except as provided in Ind. Administrative R. 9(G). A party that wants to exclude a court record or evidence from public access must comply with Ind. Trial Rules 5(G), 43(E), and 86(M).
The trial judge is given wide discretion to control the courtroom and the manner in which the trial is conducted. But there are limits. An abuse of discretion occurs when the court’s decision or action is clearly erroneous, against logic and the evidence, or is contrary to law. Importantly, trial court error is subject to Ind. Trial Rule 61 — the harmless error rule. Under this rule, error will be disregarded as harmless unless it actually prejudices or violates a substantial right of a party. Trial Rule 61 accords with Ind. Evid. R. 103(a) [Preserving a Claim of Error] and Ind. Appellate Rule 66(A) [Harmless Error].
The order of proceedings in Indiana civil trials is governed by Ind. Trial Rule 43(D), the Indiana Jury Rules, and Ind. Code 34-36-1. Trials typically follow the following format, subject to the trial court’s discretion to change that procedure when necessary to prevent prejudice to the parties or otherwise serve the interests of the court.
In a bench trial, the case officially kicks off with opening statements. By contrast, in a jury trial, the trial begins with the selection and swearing of a jury following a voir dire examination. After the jury is selected, the court will instruct the jury regarding their duties, the issues for trial, applicable burdens of proof, credibility of witnesses, the manner of weighing evidence, a juror’s prerogative to take notes during trial, the order in which the case will proceed, and the right of a juror to ask questions of witnesses at trial or to discuss evidence in the jury room during a recess. Ind. Jury R. 20(a). Jurors must be admonished not to discuss the case with anyone other than fellow jurors during the trial; not to use computers, laptops, cellular telephones, or other electronic communication devices while in attendance at trial, or during discussions or deliberations, unless specifically authorized by the court; not to use such devices to conduct research about the case; not to “read, watch, or listen” to anything about the case from any source; and not to communicate with the parties, attorneys, third parties, or the media about the case. Ind. Jury R. 20(b). Following jury selection and preliminary instructions, parties present opening statements.
The opening statement is a party’s, usually the first, oral presentation at trial. It is an opportunity to identify the parties, describe the claims or issues in dispute, tell the trier of fact what a party expects to prove, and describe the key evidence the party will use to prove it. The opening statement can be used to address expected evidentiary gaps, prepare the trier of fact for a particular witness, or reduce the element of surprise by disclosing damaging evidence that an opponent is expected to present at trial. An opening statement is not substantive evidence. The order in which opening statements are presented is governed by Ind. Trial Rule 43(D) and Ind. Jury Rule 21. The plaintiff, or the party with the burden of going forward with proof, will make an opening statement first. The defendant goes second and similarly states its defenses, counter claims, cross-claims, third-party claims, and supporting evidence.
After opening statements, the parties commence the evidence phase of the trial. The order of proof is governed by Ind. Trial Rule 43(D) and Ind. Jury Rule 22. These rules require the plaintiff to go first in presenting witnesses and documentary evidence. In all Indiana civil trials, the testimony of witnesses shall be taken in open court, unless state law, court rules, or the Indiana Rules of Evidence provide otherwise. Ind. Trial Rule 43(A). It is the court’s responsibility to determine preliminary objections about the admission of evidence, including questions of foundation and privilege. Ind. Evid. R. 104(a). After the plaintiff completes the direct examination of a witness, the defendant may conduct a cross-examination. Cross-examination is an attack on the witness’s testimony and generally is limited to impeachment and matters addressed during direct examination. Cross-examination is followed by redirect examination and, subject to court discretion and in limited circumstances, a recross examination. When the plaintiff completes its presentation of evidence, it will “rest” the plaintiff’s case.
Following the close of plaintiff’s case-in-chief, the defendant is permitted to attack the sufficiency of plaintiff’s evidence. In a jury trial, this challenge is made by a motion for judgment on the evidence [Ind. Trial Rule 50]. In a bench trial, the defendant must use a motion for involuntary dismissal [Ind. Trial Rule 41(B)]. If a motion for judgment on the evidence or involuntary dismissal is granted on all issues, the trial ends, and the plaintiff is left with post-judgment remedies such as a motion to correct error or appeal. In jury trials, the trial court may enter judgment on the evidence sua sponte or in response to a party’s motion at any time before final judgment, a notice of appeal, or the court’s ruling on a motion to correct error. Ind. Trial Rule 50(A)(6).
Where a defendant does not challenge the plaintiff’s evidence by motion under Ind. Trial Rule 41(B) or 50, or if the motion is made but denied in whole or in part, the defendant must proceed with its case-in-chief. The defendant’s evidence should be designed to negate the plaintiff’s claims and prove any affirmative defenses, counterclaims, cross-claims, or third party claims. The defendant must present evidence via witness testimony and documents. Witness examination follows the normal practice of direct examination, cross-examination, redirect examination, and if allowed by the trial court, recross examination. After the defendant completes its presentation of evidence, it will “rest” its case. Regarding issues upon which the defendant has the burden of proof, the plaintiff (or a third-party defendant) may challenge the defendant’s evidence by motion under Ind. Trial Rule 50 or 41(B).
The plaintiff may present rebuttal evidence in response to matters addressed in the defendant’s case-in-chief. Ind. Trial Rule 43(D); Ind. Jury R. 22. Rebuttal evidence is that which tends to explain, contradict, or disprove an adversary’s evidence. The scope of rebuttal and whether rebuttal evidence should be admitted are matters left to the discretion of the trial court. In limited circumstances, the court may allow the defendant to present surrebuttal evidence where the plaintiff’s rebuttal evidence raises new matters. Further, for good cause shown, the court may allow a party to reopen its case-in-chief and offer evidence upon its original cause. Ind. Jury R. 22. Typically, at the close of all evidence, the court will address pending or renewed motions under Ind. Trial Rule 50 or 41(B).
Following the close of evidence, the parties present final argument. Unlike opening statements, which are intended to serve as a statement of issues and a party’s supporting evidence, final argument allows a party to argue the meaning and effect of evidence, attack or support the credibility of witnesses, discuss applicable law, and persuade the trier of fact that it should win the case. Allowing a party to argue the merits of the case serves to assist the trier of fact in determining a just and fair verdict. Arguments of counsel are not evidence.
Longstanding practice in Indiana allows the plaintiff (the party with the burden of going forward) to open and close final argument. In jury cases, Ind. Jury Rule 27 expressly mandates this practice. The defendant’s final argument is presented between the plaintiff’s split arguments. Ind. Jury Rule 27 and Ind. Code 34-36-1-1 impose another important final argument requirement. If the second part of plaintiff’s split final argument refers to a new point or fact not disclosed in the initial presentation, the defendant will be given an opportunity to reply to the new point or fact. In that circumstance, the defendant’s reply will close final arguments in the case.
Following final arguments, in a jury trial, in accordance with Ind. Trial Rule 51 and Ind. Jury R. 26, the trial court must instruct the jury on applicable burdens of proof, credibility of witnesses, the manner of weighing evidence, and applicable law. Jurors are provided a copy of the written instructions before the court reads them. Jurors then retain those instructions during deliberations. Ind. Jury R. 26(a).
Following final instructions, the jury will be sent to a designated place to deliberate and return a verdict. The bailiff will collect juror cell phones or other electronic communication devices and store them during deliberations. Ind. Jury R. 26(b). When the jury has agreed to a verdict, the foreperson shall sign the verdict form. In open court, the judge shall read the verdict. The court or any party may poll the jury. If, during polling, a juror dissents from the verdict, the jury shall again be sent out to deliberate. Ind. Jury R. 30; Ind. Code 34-36-1-9. In polling the jury, parties and the court are not permitted to question the juror about his/her reasons for dissent.
Once the jury returns a verdict, and the court accepts and reads the verdict, the jury will be officially discharged, and the trial ends. In a bench trial, the court will either issue a judgment from the bench or take the matter under advisement and decide the case at a later time.
[This entry has been adapted from Stephen E. Arthur, Trial Handbook for Indiana Lawyers, Indiana Practice, Vol. 6, §§ 1:1, 1:2 (Thomson West 2018)]