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Preparing for Trial in Formal Civil Cases

Will there be a trial?

If the parties do not settle the case, and the case does not end with a Motion for Summary Judgment or Motion for Judgment on the Pleadings, there will be a trial.

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Will there be a jury at my trial?

Most debt collection cases are presented before just the judge and there is no jury. However, either party has the right to request that a jury hear the case at trial. The request must be made in writing no later than ten days after the Defendant files the Answer. Most people representing themselves find it much easier to present the case in front of a judge instead of a jury because jury trials are more complicated and time consuming for a variety of reasons. It is challenging for someone without a lawyer to select a jury and deal with evidence and witnesses in ways that are permissible in front of the jury. In addition, a jury trial can greatly increase the legal fees and costs in a case, which may mean the unsuccessful party is ordered to pay more in attorney fees and costs to the successful party at the end of the case. However, if the other party requests a jury trial, you will have to present your case in front of a jury, whether you want one or not. You may want to talk to a lawyer about how to prepare for a jury trial.

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What is a trial brief?

A written document explaining your position to the judge. The trial brief states the facts, evidence, and legal arguments that you plan to present at trial and typically includes citations to legal authority (such as statutes, case law or rules) to support your position. The judge will usually issue an order that tells each party when the trial brief is due. File the brief with the court and serve it on the other party by the deadline, which is usually before the day of trial.

NOTE: If you attach any documents to the trial brief that you later want to introduce as an exhibit at trial, make sure to bring new copies of these documents to the trial. You have to prepare your exhibits BEFORE you come to court. Learn how to prepare your exhibits. Learn how to introduce exhibits at a trial.

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What happens at trial?

The judge will likely introduce the case by stating the parties and any lawyer's names and the type of trial that will happen. The judge will likely explain the order of what to expect during the trial. The Plaintiff will present their case first. This involves presenting an opening statement that explains the version of the facts best supporting their side of the case, how these facts will be proven, and how the law applies to the case. The Defendant will have a chance to give an opening statement after the Plaintiff, or before the Defendant calls witnesses.

After that, the Plaintiff (or their attorney if represented) will present their evidence through testimony spoken by witnesses and information shown in exhibits. The Plaintiff (or their attorney if represented) will ask each of their witnesses' questions called "direct examination." Then the Defendant (or their attorney if represented) can "cross-examine" the same witnesses. The Plaintiff can then ask more questions called "re-direct," to try to fix any inaccurate information that arose from the cross-examination. The Plaintiff repeats this cycle until all witnesses for their side are done. During relevant parts of a witness's testimony, the Plaintiff may present exhibits to be admitted as evidence.

The Defendant goes next and presents their opening statement, if it wasn't made earlier, and repeats the cycle of calling witnesses.

The parties may present rebuttal witnesses if needed to address issues raised by the previous witnesses.

After the both sides present all of their witnesses, they each give a closing statement, highlighting the version of the facts that best supports each side of the case, how these facts were proven during the testimony, how the law applies to the case, and why the judge should rule for one side and not the other.

The judge will issue a decision after considering arguments presented at trial, witness testimony, and evidence. The judge's decision may be made orally from the bench immediately after the trial, or issued in writing after the conclusion of the trial.

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What do I say in my opening and closing statements?

The purpose of making these statements is to give the judge a road map of your side of the case. In the opening statement, state specifically what the case is about, the evidence you will present, and what you want the judge to do at the end of the trial.

For example, a Plaintiff's opening statement may be:

"This case is about an agreement between the Defendant and me about the sale of a snowmachine and the Defendant's refusal to pay for the property. I agreed to sell the Defendant a snowmachine for $1,100 before winter and he agreed to pay for it with his next PFD in October. He never paid me. I will prove this by showing the bill of sale, a copy of the DMV form showing a change of ownership and testimony from the Defendant's ex-wife who will say the Defendant said he would never pay me. After considering my evidence, I want the court to find in my favor and issue a judgment for $1,100 plus my costs in bringing this case."

For example, a Defendant's opening statement may be:

"This case is about a defective snowmachine that the Plaintiff sold me. I will present evidence that shows the Plaintiff knew the snowmachine was broken beyond repair. I will testify that the Plaintiff lied to me and said that the snowmachine was in great shape and reliable. I will also present a witness who is a mechanic and will testify that it would be $3,000 to get it rideable. After considering my evidence, I want the court to find in my favor and not issue a judgment against me because the Plaintiff misrepresented the condition of the snowmachine and I never would have bought it had I known it was broken. I want the court to find for me and not order me to pay for a snowmachine that was broken when I bought it."

In the closing statement, you summarize the evidence and explain how it supports your case, PLUS state what is wrong with the other side's position, and state again what you want the judge to decide.

For example, a Plaintiff's closing statement may be:

"The court heard evidence about the agreement that the Defendant and I made. The Defendant admitted he agreed to pay me $1,100 for my snow machine. The bill of sale and a copy of the DMV form showing a change of ownership were admitted as exhibits. The Defendant's ex-wife testified the Defendant told her he was not going to pay me. The Defendant argued that his ex-wife is just mad at him because of the divorce, but I had to subpoena her to come. The court heard her, and she was believable. The Defendant said that I knew the snowmachine was broken but my neighbor and I both testified that it was not broken when I sold it to him. Based on all the evidence, I am asking the court to find in my favor and issue a judgment for the $1,100 plus my costs in bringing this case."

For example, a Defendant's closing statement may be:

"The court heard evidence about a defective snowmachine that the Plaintiff sold me. John Smith the mechanic testified that it would take $3,000 to fix the snowmachine enough to be rideable. My ex-wife testified that I told her I was not going to pay the Plaintiff, but she admitted we had a nasty divorce. You could tell how much she is still mad at me. She was not believable. Neither was the Plaintiff's neighbor. He admitted he is the Plaintiff's best friend. And he admitted he had not seen the snowmachine run right before the sale; he hadn't seen it run since last winter. Based on all of the evidence, I am asking the court to find that I do not owe the Plaintiff any money."

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How does questioning witnesses work?

There is a specific order to how the parties (or their lawyers if represented) question witnesses. The Plaintiff calls their witnesses first. The Plaintiff asks the first witness questions which is called direct exam. The other side then asks that witness questions which is called cross-exam. The Plaintiff can ask more questions of that witness which is called re-direct exam. This cycle goes on for all of the Plaintiff's witnesses. Then the Defendant asks their witnesses questions and the cycle starts over again.

Cycle of questions for each witness the Plaintiff calls:

Who asks witness questions Name of questions Type of questions
Plaintiff / their Lawyer Direct Exam Open-Ended
Defendant/their Lawyer Cross Exam Leading
Plaintiff/their Lawyer Re-Direct Open-Ended

Cycle of questions for each witness the Defendant calls:

Who asks witness questions Name of questions Type of questions
Defendant / their Lawyer Direct Exam Open-Ended
Plaintiff/their Lawyer Cross Exam Leading
Defendant/their Lawyer Re-Direct Open-Ended

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How does direct examination work?

Direct examination is when you ask your witness open-ended questions and have them tell a story. The answers are called direct testimony.

For example, "Tell me what happened on August 15." or "Please tell the Court what experience you have maintaining your business's records of debt purchases?"

When it is your turn to testify, tell an organized story. It is helpful to prepare your comments in advance by making an outline of the issues you would like to tell the judge. Do not write out and read your testimony. You want to sound natural when speaking, not like you are reading from a script. Tell the judge where you are going with your testimony. For example, "Now I'm going to talk about the payments I made to the Plaintiff."

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How does cross-examination work?

The other side gets to ask cross-examination questions to you (if you testify) and to your witnesses. Cross-examination questions are leading questions that usually have a "yes" or "no" answer. Examples are: "Isn't is true that you don't have a copy of the contract that you say we entered?" or "Isn't it true that you saw the Defendant writing and mailing checks to Mighty Bank credit card?"

When the other side is asking leading questions, the intent may be to make you look bad or untruthful so it is important to listen carefully. It is helpful to take notes when the other side is questioning you and your witnesses on cross-examination so you can remember to address any issue that came up when you ask re-direct examination questions.

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How does re-direct examination work?

After the other side questions you or your witnesses on cross-examination, you have a turn to let the witness explain to the court how the cross-examination testimony might have been misleading and what more there is to the story. This is your opportunity to "fix" the cross-examination and give your witness the chance to explain.

For example, you might say, "On cross-examination you said you saw me writing checks to Mighty Bank Credit Card, but WHEN did you see me writing those checks?"

This would give your witness a chance to give the judge the full story and say, "Not since we lived in our old house over 10 years ago."

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What is the difference between testimony and asking questions?

It is important to understand that testimony provided by a witness is considered evidence which the judge can use to decide an issue in the case. The questions you ask a witness are not considered evidence. Only the witness's answer is evidence.

If you are questioning a witness, do not try to use your questions to provide testimony to attack an answer that you disagree with or think is not honest. Instead, ask questions that will bring out the witness's testimony to support the information you want the judge to know.

For example, the following testimony does not give the court any evidence about a change in the parties' agreement:

You: "Didn't we change our agreement about payment?"

Witness: "No."

You: "Last summer at my Fourth of July barbecue?"

Witness: "No."

You: "Out in the driveway right before we drove to see the fireworks?"

Witness: "No."

You: "My wife was right there and heard the whole thing."

Witness: "There was nothing to hear."

You: "But you did come to a barbecue with me at my house on the Fourth of July?"

Witness: "Yes."

You: "And my wife was there too, right?"

Witness: "Yes."

At this point the court has no evidence that you changed the agreement about payment. But you did provide evidence that the witness was at a barbecue at your house with you and your wife on the Fourth of July. You or your wife, or both, may testify about the conversation you had with the witness to change the payment agreement when it is your turn to testify for yourself and to call other witnesses to testify. In the example above, having you or your wife testify about your side of the story is the only way for the judge to be able to consider the conversation about changing the payment agreement as evidence if the witness will not testify about it directly.

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What is a rebuttal witness?

Someone who is not on the witness list whose testimony is needed suddenly to rebut or explain something unexpected that another witness said. For example, if one party surprises the other party and testifies there was no agreement about building a fence, the other party might call a friend who saw the parties discuss and sign a contract about building the fence as a rebuttal witness.

Rebuttal witnesses are only for testimony or evidence that was a surprise to you at trial. If the rebuttal witness is coming to testify about something new, or something you should have brought up with your regular witnesses, the judge may decide you cannot have them testify as a rebuttal witness.

Question a rebuttal witness the same way as other witnesses. The person calling the witness asks direct examination questions, the other party asks cross-examination questions and the person who called the witness then asks re-direct examination questions.

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What does the court consider evidence?

Evidence is the information you provide to the court to support your argument at trial. There are two main forms of evidence - testimony from witnesses and items presented as exhibits.

When people speak as witnesses in court it is called testimony. You can testify if you are the Plaintiff or Defendant. Other people who have direct and relevant knowledge can testify as witnesses. Also, people who keep records can testify about the records. Learn how to choose witnesses and prepare witnesses below.

When things such as documents are used to present a case and support a witness's testimony, they are called exhibits. This can be photographs, or records such as debt sale receipts, credit card statements, cashed checks, etc. Basically, any item that is relevant to the case can be considered as evidence. You have to prepare your exhibits BEFORE you come to court for the trial, and then bring them to the trial. Even if you already filed them earlier in the case with other documents such as motions or a trial brief, you still need to prepare your exhibits and bring new copies to the trial. There is a specific way to prepare exhibits. Learn how to prepare your exhibits and introduce exhibits during the trial.

They are rules that control what evidence (testimony and exhibits) the court is allowed to consider at trial, called the Rules of Evidence. Their purpose is to get the most reliable, relevant and accurate evidence to the judge. For example:

You can read the Rules of Evidence PDF.

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How do I choose my witnesses and make a witness list?

You should carefully choose all witnesses. Find out how much time you will have to question your witnesses so that you can figure out which ones are the most important to present. You can get a good idea of the available time from how long the trial is scheduled and then plan for no more than ½ that time to present your side of the case. Figure out why you want to call a particular witness by thinking about the following questions:

Prior to trial you will have to create a witness list which you exchange with the other side and file with the court. The judge will usually issue an order that tells you when the witness list is due. The point is to give the other side notice of who you may call as a witness at the trial. Both the Plaintiff and the Defendant are automatically witnesses. You don't have to call everyone on the list at the trial if you decide a particular witness's testimony isn't needed. You must also state whether someone will be an expert witness. If you do not file your witness list, the court may sanction you by not allowing you to call your witnesses.

Once you decide which witnesses to call, you can prepare an Offer of Proof for each witness (see below). Think carefully about whom you choose as witnesses and what they might say in their testimony because you do not want any surprises!

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What is an offer of proof?

Sometimes, before you call a witness, the judge may want to know why you are going to call that person to decide whether the testimony is necessary and relevant. An Offer of Proof is a short statement from you telling the judge

To help you organize your thoughts, we have forms that you can use to prepare Offers of Proof for witnesses and exhibits:

Do not file the Offer of Proof, but use it as a tool to get organized and be prepared if the judge asks you why you need a specific witness.

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How do I prepare my witnesses?

It is not cheating to prepare your witnesses by talking to them about what you will ask them in court. To best prepare your witnesses for the direct examination, write out the questions you will ask them at trial. Practice asking your witnesses these questions. Preparing an Offer of Proof will help you figure out what you want to focus on in their testimony.

To prepare your witnesses to be cross-examined by the other side, talk with to them about what questions the other side might ask them.

Remind your witnesses that they will be testifying under oath, which means they will swear to tell the truth. Emphasize that they are not allowed to make up information. It is OK to say, "I don't know" or "I don't remember" or "please rephrase the question because I don't understand."

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What if a key witness says they won't come to court?

You may subpoena a witness who tells you he or she will not come to court to testify. A subpoena is a court order requiring a witness to show up in court for a specific reason. The court has different forms to use for subpoenas:

Please see the detailed instruction sheet, How to Subpoena a Witness, CIV-109 PDF, for more information.

If someone does not want to testify, think about whether it is worth it to subpoena that witness. You may be able to present the same information from another witness or piece of evidence. Also be aware that you may have to pay the witness for their time in court.

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How do I prepare my exhibits?

According to the Civil Rules of Procedure PDF , you get to see the other side's exhibits before the trial so that you can think about any objections or comments you might have, and they get to see yours. This is called exchanging exhibits.

The judge will usually issue an order with a specific date, sometime before your trial, for both sides to exchange copies of each other's exhibits.

You have to prepare your exhibits BEFORE you come to court for the trial. Even if you already filed them earlier in the case with other documents such as motions or a trial brief, you still need to prepare your exhibits and bring new copies to the trial. There is a very specific way to prepare your exhibits that involves:

Step 1: The Deadline

Read your pre-trial order and find out the deadline for exchanging copies with the other side.

Step 2: Sorting

Sort your papers, pictures, receipts, etc...

Step 3: Planning Your Case

Decide what you might want to use

Step 4: Stickers & Copying

Now it is time to physically prepare the items and documents selected so that you will have an exhibit packet ready for copying and distribution. This packet will include the exhibit list as the cover page, and then each individually labeled and stapled exhibit.

Step 5: Giving Them to the Other Side

The last step is to give one copy of the packet to the other side by the deadline on the pre-trial order. You can mail the packet or hand deliver it.

Remember: DO NOT file the exhibit list or actual exhibits with the court before your trial. Nothing goes to the judge until you are at your trial and you come to the part of your case when someone is testifying and wanting to admit a particular exhibit for consideration as evidence.

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How do I introduce an exhibit?

Just because you have exhibits to give to the court, does not necessarily mean that they will be accepted. In fact, the judge cannot consider an exhibit until it is admitted into evidence. Over time, a standard procedure has developed for admitting exhibits at trial, and you need to understand this if you plan to submit exhibits.

Exhibits cannot testify for themselves, so somebody has to introduce them to the court. The person introducing the exhibit has to know about it, be able to identify it and confirm that it is authentic. For example, you could testify to introduce a letter the other party wrote to you or a photograph of your house, because you will have firsthand knowledge to identify it. However, you could not testify to introduce a photograph you did not take of a car you've never seen, because you do not have firsthand knowledge of whether the photograph is an accurate picture of the car because you have never seen it.

Steps to Get Your Exhibit Admitted to Court

1) Mark the exhibit. For example, "Plaintiff's Exhibit 1" or "Defendant's Exhibit A"

2) When the time is right during the witness's testimony, tell the judge that you want to introduce an exhibit(such as Plaintiff's Exhibit 1) into evidence.

3) Ask the witness what it is and how they know that. If you are the witness testifying, identify the exhibit ("I would like to introduce Defendant's Exhibit A which is written amendment to the contract. I know it is authentic because I recall signing it and the document includes my signature. I sent a copy of this document to Plaintiff's lawyer with my exhibit list.")

4) Show it to the other side. Remember, they should already have a copy from when you exchanged your exhibit lists.

5) If the other side does not object, you can ask to have it admitted. If the other side objects, you will have to explain to the judge why you think the objection is wrong and why the court should admit evidence.

6) The judge will decide whether to admit it or not.

7) Once it is admitted, you can go on asking the witnesses questions about it to make your case. If you are testifying, you can discuss the contents of the exhibit.

EXAMPLE: WHAT YOU MIGHT SAY TO ADMIT A LETTER FROM THE OTHER SIDE

You: The Plaintiff wrote me a letter on August 12 in which she told me that I did not owe any more money on my debt. I have the letter here, marked Defendant's Exhibit A for identification. I know this is from the Plaintiff because it is the Plaintiff's letterhead and all the letters the Plaintiff sent me were on this letterhead. I sent a copy of this letter to the Plaintiff's lawyer with my exhibit list. I ask that it be admitted into evidence.

Judge: Is there an objection?

Defendant's lawyer: No. (Although he might object on some other evidentiary grounds.)

Judge: Defendant's Exhibit A is admitted into evidence.

You: Your honor, I will now read the relevant section to the court.

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What about objections?

You have the right to tell the court that you think the other side is somehow violating the Rules of Evidence by objecting. The Rules of Evidence set out the reasons to object, which are very complicated. If you do not feel comfortable with objecting, you should consult with a lawyer. You can read more about your options to find a lawyer.

As soon as you hear something (usually a question but it could be an exhibit) that you think violates the rules, say "I object!" The judge may ask you why, or may simply decide by saying either "Sustained" (which means the judge agrees with you and the other side must stop that question and the witness shouldn't answer) or "Overruled" (which means the question or exhibit is allowed and other side can continue).

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Will the judge object for me?

No, the judge will not object for you. The judge is not like a referee, who calls a foul when he sees one. You need to let the judge know that you think the evidence that the other side is trying to admit is not allowed by saying "I object!" The judge will then rule on whether the objection is correct and if evidence can be admitted or not.

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What are some of the documents that I will be required to prepare for trial?

Before trial, you will be required to prepare documents. These include a witness list, and exhibit list and a trial brief.

The witness list is the list of people you plan to call as witnesses during your trial which you exchange with the other side and file with the court. The judge will usually issue an order that tells you when the witness list is due. The point is to give the other side notice of who you may call as a witness at the trial. Both the Plaintiff and the Defendant are automatically witnesses. You don't have to call everyone on the list at the trial if you decide a particular witness's testimony isn't needed. You must also state whether someone will be an expert witness. If you do not file your witness list, the court may sanction you by not allowing you to call your witnesses.

The exhibit list is the list of exhibits you plan to introduce as evidence during your trial. It will be the cover sheet for all of the exhibits you have at trial.

You will exchange the list and all exhibits with the other side in the case BEFORE the trial, but do NOT file them with the court before the trial. The judge will usually issue an order that tells you when the exhibits must be exchanged. At the trial, you will introduce the specific exhibit at the appropriate time when a witness testifies about its contents. Learn how to prepare your exhibits. Learn how to introduce exhibits at a formal trial.

The trial brief is a written summary or statement explaining your position on a particular issue to the judge. The trial brief states the facts, evidence, and legal arguments that you plan to present at trial. It typically includes citations to legal authority (such as statutes, case law or rules) to support your position. The judge will usually issue an order that tells you when trial briefs are due.

NOTE: If you attach any documents to the trial brief that you later want to introduce as an exhibit at trial, make sure to bring new copies of these documents to the trial. You have to prepare your exhibits BEFORE you come to court. Learn how to prepare your exhibits. Learn how to introduce exhibits at a trial.

You must give a copy of the trial brief and anything else that you file in court to the other side or their attorney if there is one. This is called serving the other side. You can read the information about serving the opposing party.

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What's the best way to prepare for formal trial?

One way is to watch a trial. Most court proceedings are open to the public and if they are closed, there will be a sign on the door.

Don't miss any deadlines in your case. If you do, you may not have the chance to go back and fix what you missed.

Plan your case, remembering all the important steps along the way. Start out by writing out your plan, including your witnesses and exhibits. Write out what you are going to say and what questions to ask your witnesses. Use the forms available from the Alaska Court System to introduce evidence. Practice. Remember what your end goal is.

You can discuss how to prepare for trial with a lawyer. You can read more about your options to find a lawyer.

The Internet, your local bookstore or law library also have materials available for preparing for trial or hearings.

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Rev. 5 March 2019
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