This blog/article was written primarily for my, Eric Roy’s, own benefit. It covers some of the basic rules governing the setting and conduct of trial in the state of Nevada. For a more thorough understanding of the subject please see the Nevada Civil Practice Manual which outlines these rules with greater sufficiency.
As a general rule, trials may be set by initiative of a litigant or the court. A litigant may submit a request for a trial setting assuming that litigant gives notice to the remaining parties. The setting of such trial date is within the discretion of the district court. However, there are circumstances in which a preferential trial setting can be requested and potentially granted. For example, if one of the parties is terminally ill or over the age of 70 years then the court must give these individuals a preferential trial setting. To accomplish this goal counsel needs to file a motion requesting as much. If counsel seeks the benefit of a jury then he or she needs to make a demand for the same at some time after the filing of the complaint but no later than the order setting a trial date.
In the Eighth judicial district, a case commenced by way of the filing of a complaint is set for trial by way of a scheduling order issued by the discovery commissioner advising the trial court of the next available trial date. The court then will prepare, serve, and file a notice or order setting the matter for trial. There will of course be times in which one of the parties will wish to continue the trial to a later date. To accomplish this goal counsel is to file a motion supported by a sufficient affidavit. Thus the question of whether such continuance will be granted is in the discretion of the trial court, which requires “good cause”. The question thus becomes what is sufficiently “good cause”? Absence of a material witness or material evidence will generally suffice. Any motion requesting as much must state why such witness or evidence is material and what due diligence was exercised for the procurement of this evidence. If it turns out that the moving counsel is in somehow responsible for the circumstances necessitating the continuance then the court will likely be reluctant to approve of the same. For instance, if counsel was negligent in obtaining a key deposition then the court may be unlikely to provide a cure for counsel’s deficiency. By the same token, if a party substitutes new counsel in on the case this would be insufficient justification for a continuance. However if counsel for the party withdraws at no fault of the moving party then this might be sufficient as the moving parties’ hands are clean in this event.
In the event the moving party prevails on a motion to continue, certain obligations may attach. For instance, the moving party must then permit the taking of witness depositions to preserve this testimony for trial. This will apply to the adverse parties’ witnesses whose testimony may need to be preserved. The moving party may incur costs associated with obtaining this continuance. Be advised that counsel who fails to subpoena a witness will be without grounds to continue trial if such witness fails to attend trial. Counsel should subpoena all witnesses whom he or she wishes to call at trial in order to guarantee their appearance. Without such subpoena these witnesses are under no obligation to attend trial. If the witness is outside the jurisdiction of the court then a deposition may be used in lieu of live testimony.
If counsel wishes to command not only the presence of the witness but also for the witness to provide documents or other items within his or her control then counsel should file a subpoena duces tecum. In opposing counsel seeks to quash or modify the other party’s subpoena then opposing counsel should file a motion for a protective order. This motion need be filed prior to the subpoena’s compliance date. This motion to quash or modify such subpoena can be granted to the extent that the motion is unreasonable, oppressive, or privileged.
The trial court has discretion as to the conduct of trial. However the customary order of the proceedings, for a jury trial, are mandatory unless the court provides special reasons to deviate from that order. Prior to voir dire, the parties can read the pleadings to the jury or otherwise the parties or the court can give a brief explanation as to what the case is about to the prospective jurors. The purpose of this is to get the jurors oriented with the case. As plaintiff’s counsel, this is not a good time for advocacy. After this introduction to case takes place counsel will conduct the voir dire process, wherein jurors are eliminated by way of cause or peremptory challenges. Following this process both counsel have an opportunity to present an opening statement. The moving party will present his or her opening statement first, to be followed by an opening of the opposing party. During this opening statement counsel will have the opportunity to supplement their oral presentation by way of visual aids. However, counsel should seek permission of the court for the use of these aids in advance of trial.
Remember that opening statement is not a time for strong argument, this is for closing. Moreover, arguing in opening is a quick way to kill your credibility with your jurors. This is a time in which reference to evidence which counsel wishes to admit into trial can be mentioned to the jurors. There should of course be no mention of evidence which will not be supported by admissible evidence, nor should counsel make any mention of matters which are subject to a pending motion in limine. Objectionable remarks by counsel, at this stage in trial, could be grounds for a mistrial.
After opening statement, the parties will be allowed to put on their respective witnesses for the purpose of direct examination. This process begins with the moving party. Of course a party will not be able to present such witnesses unless they have made proper disclosure of these witnesses. With each witness, whether that witness be a lay or expert witness, a preliminary examination may be conducted by counsel for purposes of testing the witnesses’ competency to testify on the subject. This voir dire process simply proves the witness is qualified to speak on the subject matter. If the witness is an expert then the court may require counsel to tender the witness as such expert, requiring the court’s recognition as such before such witness can testify. Generally speaking, leading questions are not permitted in direct examination. However an exception to this applies in the case that an adverse or hostile witness is called on direct examination.
Following direct examination, the parties are free to conduct cross examination of those witnesses who presented testimony on direct. This examination is generally to be confined to those matters touched upon in direct examination. After this cross examination process takes place the opposing counsel will have an opportunity to conduct a re-direct examination. This re-direct is confined to the area of cross examination typically. Following this redirect examination opposing counsel can conduct a re-cross examination if the trial judge so allows it.