4.2 Trial Preparation & Trial

Most federal civil cases settle or end on motion, but the CP exam expects you to know exactly how a case that survives to trial is prepared and tried. Paralegals sit at the center of that effort: building trial notebooks, managing subpoenas, preparing exhibit lists, and coordinating witnesses.

The Pretrial Conference and Pretrial Order (Rule 16)

Rule 16 authorizes the court to hold scheduling and pretrial conferences to narrow issues, rule on pending motions, explore settlement, and set the trial plan. The final pretrial conference — held as close to trial as reasonable — produces the pretrial order, which lists the witnesses and exhibits each side may present and the issues to be tried. The critical exam point: the pretrial order supersedes the pleadings and controls the subsequent course of the action; it may be modified only to prevent manifest injustice. A witness or exhibit omitted from the pretrial order is generally excluded. This is why paralegals treat the pretrial disclosures (witness lists, exhibit lists, objections due 14 days later under Rule 26(a)(3)) as drop-dead deadlines.

Subpoenas (Rule 45)

A subpoena compels a nonparty (or a party's non-attending witness) to appear. Two forms, both under Rule 45:

• Subpoena ad testificandum — commands attendance to testify at a trial, hearing, or deposition
• Subpoena duces tecum — commands production of documents, ESI, or tangible things (and may be combined with a testimonial command)

Territorial limits matter: a subpoena may command attendance at a trial, hearing, or deposition only within 100 miles of where the person resides, is employed, or regularly transacts business in person (or within the state if the person is a party or party's officer). Subpoenas must be personally served with witness fees and mileage tendered. A recipient may move to quash or modify, and Rule 45 requires the court to quash subpoenas that fail to allow reasonable time to comply, exceed territorial limits, seek privileged matter, or impose an undue burden. Paralegals routinely prepare, serve, and track subpoenas — and must remember that attorneys (not courts) issue them as officers of the court, carrying sanction risk for misuse.

Jury Selection: Voir Dire and Challenges

The right to a civil jury in federal court flows from the Seventh Amendment for suits at common law (typically claims seeking money damages). Jury selection proceeds by voir dire — questioning of prospective jurors by the judge, the attorneys, or both, depending on local practice — followed by two kinds of challenges:

Challenges for cause target bias — a juror who is related to a party, has financial interest, or admits inability to be impartial. Peremptory challenges historically required no explanation, but Batson v. Kentucky (1986) bars race-based strikes and J.E.B. v. Alabama (1994) bars gender-based strikes, enforced through a three-step burden-shifting analysis. Note that peremptory numbers are set by statute in civil cases (3 each), unlike criminal cases where the numbers differ by offense severity — a classic exam trap.

Order of Trial

A civil jury trial follows a fixed sequence:

1. Opening statements — plaintiff first; roadmaps, not evidence or argument
2. Plaintiff's case-in-chief — direct and cross-examination of witnesses, exhibits admitted
3. Rule 50(a) motion for judgment as a matter of law (JMOL) — typically made by the defense at the close of plaintiff's evidence, arguing no legally sufficient evidentiary basis exists for a reasonable jury to find for the plaintiff
4. Defendant's case-in-chief
5. Rebuttal and surrebuttal (if any)
6. Closing arguments — plaintiff argues first and, because it bears the burden, usually receives rebuttal time
7. Jury instructions — the court charges the jury on the law; proposed instructions are settled at the Rule 16 conference or a charging conference
8. Verdict — federal civil verdicts must be unanimous unless the parties stipulate otherwise; a general verdict answers who wins, while a special verdict (Rule 49) makes the jury answer specific factual questions

Burden of Proof

In civil cases the plaintiff bears the burden of proof by a preponderance of the evidence — the fact-finder must conclude the claim is more likely than not true, often described as tipping the scales just past 50 percent. Know the ladder:

• Preponderance of the evidence — ordinary civil claims (contract, negligence)
• Clear and convincing evidence — heightened civil standard (fraud, punitive damages in some jurisdictions, reformation)
• Beyond a reasonable doubt — criminal cases only

The burden of production (producing evidence) can shift during trial, but the burden of persuasion stays with the plaintiff on each element of the claim.

Evidence Basics Every Paralegal Must Know

The Federal Rules of Evidence (FRE) govern what the jury may hear. Two concepts dominate the exam:

Relevance (FRE 401–403). Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Relevant evidence is generally admissible (FRE 402), but the court may exclude it under FRE 403 if its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Hearsay (FRE 801–802). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and it is inadmissible unless an exception or exemption applies. Remember: "I heard the defendant say he ran the light" — the same words are hearsay when offered to prove he ran the light, but not hearsay (or an exemption) when offered as a statement of an opposing party under FRE 801(d)(2). Common exceptions include present sense impression, excited utterance, business records, and dying declarations. Paralegals do not make objections, but they flag hearsay problems in deposition summaries and organize exhibits around evidentiary foundations (authentication under FRE 901, for example).

Paralegal scenario: During trial prep you build the trial notebook with the pretrial order, witness files, and pre-marked exhibit binders. A witness in Wyoming refuses to travel to a Chicago trial voluntarily. A Rule 45 subpoena cannot reach her — she lives more than 100 miles from the courthouse — so the attorney must rely on her video deposition instead. Knowing that territorial limit before service saves the case from a last-minute hole in the proof.