Trial

What happens at this stage

If you’re reading this, you survived the motion to dismiss, discovery, summary judgment, and possibly two interlocutory appeals. You are now in a place where fewer than 2% of § 1983 cases ever arrive: trial.

Trial is where a jury (or judge, in a bench trial) hears the evidence and decides whether your constitutional rights were violated and what you’re owed.

Jury vs. bench trial

You have a right to a jury trial for damages claims under § 1983. Either side can demand one. In most cases, you want a jury — juries are more sympathetic to individual plaintiffs than judges are, and government defendants generally prefer bench trials.

If neither side demands a jury, the judge decides everything (bench trial).

The structure of trial

1. Jury selection (voir dire)

Both sides question potential jurors to identify bias. You can challenge jurors:

• For cause — the juror has a demonstrated bias (unlimited challenges)
• Peremptory — you don’t need a reason, but you can’t strike based on race or gender (Batson v. Kentucky). Limited number (typically 3 per side in civil cases).

What to look for: jurors who are automatically deferential to police, jurors who believe “if you were arrested, you must have done something,” jurors with close law enforcement ties. Ask questions that reveal these attitudes.

What to avoid: don’t try to be clever. Ask straightforward questions about whether they can be fair. Jurors who say they can’t be fair are doing you a favor — challenge them for cause.

2. Opening statements

You go first. Tell the jury what the evidence will show — not argument, not emotion, just a roadmap. Keep it clear and chronological.

Structure: “This case is about [one sentence]. The evidence will show that on [date], [what happened]. You will hear from [witnesses]. You will see [evidence]. At the end of this trial, we will ask you to find that [defendants] violated [plaintiff’s] constitutional rights.”

Defendants give their opening next (or they can reserve it until their case-in-chief).

3. Plaintiff’s case-in-chief

You present your evidence first because you bear the burden of proof. This includes:

• Your testimony — you will likely testify. Prepare for cross-examination.
• Witness testimony — anyone with relevant knowledge (bystanders, medical professionals, other officers)
• Documentary evidence — body camera footage, medical records, police reports, photos
• Expert testimony — if you have experts (force experts, medical experts, policy experts)

For each witness:

1. Direct examination — you ask questions (open-ended: who, what, when, where, why, how)
2. Cross-examination — defense attorney questions your witness (leading questions allowed)
3. Redirect — you can ask follow-up questions to clarify anything raised on cross

For each exhibit:

1. Lay foundation — establish what the exhibit is through witness testimony
2. Authenticate — prove it’s genuine (FRE 901)
3. Move to admit — ask the court to admit it into evidence
4. Publish to jury — show it to the jury

4. Rule 50 motion (judgment as a matter of law)

After you rest your case, the defendant will move for judgment as a matter of law under Rule 50 — arguing that no reasonable jury could find in your favor based on the evidence you presented.

This is standard. Don’t panic. The standard is high — the court must view all evidence in your favor. But if you failed to present evidence on an essential element, the motion may be granted.

5. Defendant’s case-in-chief

Defendants present their evidence. You get to cross-examine their witnesses. This is where preparation pays off — you should know their witnesses’ prior statements (depositions, reports) and be ready to impeach inconsistencies.

Cross-examination tips:

• Ask leading questions (yes/no): “You told Plaintiff he was free to go, correct?”
• Don’t ask questions you don’t know the answer to
• Use prior deposition testimony to lock them in: “At your deposition, you testified [X], correct?”
• Keep it short. Make your points and stop.

6. Rebuttal

After the defendant rests, you can present rebuttal evidence — but only to address new issues raised in the defendant’s case. You can’t introduce your whole case again.

7. Closing arguments

Both sides argue what the evidence showed. This is your chance to tie the facts to the law and tell the jury why you should win.

Structure: Walk through each claim. For each one: “The evidence showed [facts]. The law requires [standard]. The evidence meets that standard because [reasoning]. We ask you to find for Plaintiff on this claim.”

Don’t over-argue. Don’t insult the defendant’s lawyer. Don’t misstate the evidence. The jury was there — they remember what they heard.

8. Jury instructions

The judge reads the agreed-upon instructions to the jury. These tell the jury:

• What the law is for each claim
• What elements you must prove
• What standard of proof applies (preponderance of the evidence)
• How to evaluate credibility
• What damages they can award

9. Deliberation and verdict

The jury deliberates in private. They can send questions to the judge. When they reach a verdict, they return to the courtroom and announce it.

In most federal civil cases, the verdict must be unanimous (or as the court directs). The jury fills out a verdict form — typically a series of yes/no questions for each claim and each defendant, followed by damages if they find liability.

Burden of proof

For liability: preponderance of the evidence — more likely than not (51%). This is much lower than the criminal standard (beyond a reasonable doubt).

For punitive damages: varies by circuit. Some require clear and convincing evidence that the defendant’s conduct was willful, malicious, or showed reckless disregard for your rights.

What it feels like

Exhausting. Fast. Overwhelming. Nothing like TV.

You’ll be on your feet all day. You’ll make mistakes. Witnesses will say things you didn’t expect. The judge will sustain objections you thought were wrong. Evidence you wanted admitted will be excluded.

This is normal. Stay calm. Focus on the key facts and your strongest evidence. The jury is watching how you handle pressure as much as they’re listening to the evidence.

Common traps

• Not making timely objections — if you don’t object when inadmissible evidence is offered, you waive the objection. You can’t raise it on appeal.
• Testifying when you should be questioning — during cross-examination, ask questions. Don’t make speeches.
• Not preserving the record — anything you might appeal must be objected to on the record at trial.
• Getting emotional — understandable, but the jury needs facts, not outrage. Let the facts create the outrage.
• Not resting your case — when you’ve presented your evidence, say “Plaintiff rests.” Don’t leave it ambiguous.

Timeline

• Trial duration: 3-10 days typical for a § 1983 case
• Jury deliberation: hours to days
• Verdict: announced in court