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How Does A Personal Injury Civil Trial Work In Florida? Part II: Trial And Evidence, Burden Of Proof, and The Verdict.

While most personal injury cases settle in the pre-suit phase, a small percentage do not settle and then have to be filed in circuit court, where the legal and factual issues are litigated. Most of those cases are settled prior to trial, either through standard negotiations between the attorneys or during a mediation conference. Generally, settlement is in the best interests of both parties in a personal injury lawsuit, but some cases are resolved through a jury trial.

How Civil Trials Work: Part II – Trial And Evidence, Burden Of Proof, and The Verdict.

Opening Statement

After the jury is selected and sworn in by the judge, the attorneys make opening statements. Attorneys often say this is a “roadmap” of the evidence and the issues in the case. While attorneys may not argue the case in the opening, they should discuss the issues in the case and the evidence that will come in as related to the issues in the case. In most personal injury cases, these issues include fault, or negligence, injuries and damages. The attorneys may also explain how the issues and evidence relate to the law in the case and how the trial will proceed.

Attorneys often introduce who their witnesses will be and how they will testify. As the plaintiff has the burden of proof, the plaintiff’s attorney goes first, followed by the defense attorney.


The Trial And Evidence

After the openings, the trial begins. As with openings, the plaintiff goes first in submitting evidence to support the claims. Evidence includes live testimony by witnesses, the reading and playing of video depositions, and the introduction of documentary evidence.

The submission of evidence at trial is governed by the Florida Evidence Code and the common law rules of evidence. These rules are complex and require a detailed understanding of the law.

For example, the term “hearsay” is known by most non-lawyers, but it is a specific term for a type of evidence that may not be admitted at trial. Hearsay is an “out of court” statement that is not sufficiently reliable to come in as evidence. A statement by a witness that “he said the light was green” or “my doctor told me I would need surgery” is generally not admissible to prove the assertion. In such a case, the actual witness who said the light was green or the doctor who told the patient “he needed surgery” would need to testify in court about these issues. Otherwise, such testimony will be excluded. There are certain exceptions to the hearsay rules, which require the legal analysis of experienced attorneys.


Generally, the attorneys will call witnesses to testify about liability, injuries, and damages. If medical testimony is necessary, doctors may generally testify by video deposition, as they are difficult to schedule for court appearances. The rules of evidence apply to videos as they do to live witnesses. If there are objections, they must be resolved before the video is shown to the jury. The general procedure for witness testimony is “direct” examination, “cross” examination by the opposing party, and “re-direct” to cover issues raised in cross-examination. As with most issues in the trial, any limits on the testimony will be resolved by the trial judge.


In addition to testimony, the parties may submit documentary evidence, or “exhibits,” to prove the case. These may include photos of the accident scene, photos of the vehicles, medical records and bills, and documents to support lost wages. The attorneys may object to this material, but the objections are usually resolved by the parties or the court before trial.

The plaintiff puts his or her case on first, followed by the defense case. After that, the plaintiff may submit rebuttal testimony or evidence. After that, the evidentiary portion of the trial is concluded. Depending on the complexity of the trial, this phase may last a day, a month or more. Regardless, the same rules of evidence apply no matter the complexity of the trial.

Questioning Of Witnesses By The Jury

In Florida, jurors may question the witnesses via written questions. After the witness testifies, the judge will ask the jurors if they have any questions. If there are questions, the court and the attorneys will review them before they are submitted to the witness to answer.


The Burden Of Proof

The plaintiff has the burden of proof in civil trials. The burden is the “greater weight” of the evidence. That means the plaintiff must prove the case by the “more convincing force and effect of the entire evidence in the case” (FLA JURY INST 405.3). This has been argued to be “tipping the scales of evidence” in favor of the party.

This burden is much less than the “beyond and to the exclusion of a reasonable doubt” that is required in civil cases.

This burden applies to the plaintiff’s claim and any affirmative defenses raised by the defense. All must be proven or else the judge can dismiss the case and the defenses at the conclusion of the evidence. This procedure is called a “directed verdict” and means the court did not think the evidence established the case.


Closing Arguments

If the case is not dismissed by the court, the attorneys will make closing arguments. Again, the plaintiff goes first, the defense next, and then the plaintiff may make a rebuttal. In closing, the attorneys will argue the facts and the law (which will be read to the jury in the jury instructions) and ask the jury for a verdict for their clients. While closing arguments may be emotional, there are limits to what the attorneys can do when asking the jury for a favorable verdict. The court will enforce these limits by way of objections and cautionary instructions to the attorneys and/or jury.

In closing argument, the attorneys will often refer to the verdict form when requesting a verdict for liability and damages. The defense attorney has the right to respond and argue the case also. In a rebuttal, the plaintiff’s attorney can respond to the defense as the plaintiff has the burden of proof.


Jury Deliberation

After the closing arguments, the judge will read the jury instructions and send the jury back for private deliberations on the verdict. If there were any alternate jurors, they would be excused from the trial at that point. Jurors may deliberate for as long as it takes to get a verdict.

In Florida, a unanimous verdict is required, meaning all 6 jurors must agree. If all cannot agree, the jury may be “hung,” and in a worst-case scenario, the case will have to be retried.



The case does not end with the verdict. Each side has the opportunity to challenge the verdict through post-trial motions and appeals.

As you can see, the trial of even a “simple” personal injury case is a very complex and uncertain undertaking. That is why most cases settle. An attorney can never know what a jury will do. However, having an attorney who is very experienced in trials will always increase the value of your case, whether at trial or through settlement.

This is why it is important to hire a board-certified civil trial lawyer to handle your personal injury case and navigate the complexities of the trial process.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit