Q: How does the judicial system work?

A: Any of us may become involved in the judicial system voluntarily and involuntarily. You may have witnessed a car accident, may be involved in a divorce, may have been sued in the course of your care of a patient. It helps to have a basic understanding of criminal and civil procedures and terminology.

The court system is basically divided between civil and criminal cases and there are many divisions within those categories. Criminal cases can involve misdemeanor and felony prosecutions. Civil cases can involve traffic tickets, divorce, personal injury law suits, litigation over business issues like contracts and landlord-tenant issues, just to name a few. There are general procedures followed in each kind of case.

Criminal Prosecutions

Criminal prosecutions are cases brought by a government lawyer, (e.g., county prosecutor for the county, Attorney General for the state, or U.S. Attorney for the federal government) on behalf of the People of the State of Michigan or the United States Government against someone who has been accused of a crime. Misdemeanors are crimes generally punishable by jail terms of a year or less. Felonies typically are crimes punishable by jail terms of a year or more.

Charges may be either issued by the prosecutor, in his or her discretion, based on information provided by a police agency as a result of an investigation, or handed down by a Grand Jury. A group of citizens is formed as a Grand Jury to hear evidence presented by the prosecutor and they are asked to decide if there is enough evidence to believe a crime has been committed and by whom.

Once the charges have been issued and arrests made, prosecutions usually begin with the Arraignment. The Arraignment is the opening stage of the prosecution in which charges are read to the accused in open court before the judge and the accused has the right to enter a plea at that time, that is, to deny the charges, admit the charges or stand mute. Arraignments are held to insure that there are no secret charges being made against an individual. The judge verifies that the charges have been read and understood by the accused the accused has an opportunity to respond at that time. Under our system, if the accused does not enter a plea or stands mute, a plea of not guilty is entered on behalf of the accused because everyone in our system is presumed to be innocent until the government proves her/him guilty. Arguments about bail are often held at this time. Bail is a way to prompt accused persons to come back for trial - money or property is pledged to the court to insure the accused's appearance later at trial. If the defendant fails to show, the money or property is forfeited. Our Constitution guarantees that reasonable bail not be denied accused persons. The court will consider if it can release the accused and be reasonably assured that the accused will come back to court for the trial. Whether bail should be granted and the amount required depend on a number of factors pertaining to the likelihood that the accused will return for trial. Factors like the extent of community ties the accused may have, the presence of family, property, business in the community and the seriousness of the charges are all considered.

The next stage in a felony prosecution is usually the Preliminary Exam. The prosecutor is required at this hearing to admit sufficient evidence to show 1) that a crime has been committed and 2) that there is reasonable grounds to believe that the accused committed the crime. The reason for this hearing is to ensure that there are good reasons for the accusation and that accused persons are not being jailed and accused unnecessarily. The hearing is a screening device to allow the court to determine the reasonableness and substance behind the charges. The hearing also allows the accused an opportunity to see some of the evidence the prosecutor intends to introduce at trial. The Fifth Amendment of our Constitution guarantees that the accused cannot be compelled to testify personally in a case against him.

When the court finds that the prosecution has satisfied its burden of proof at the preliminary exam, the court "binds the defendant over for trial." At that point, the court usually revisits the issue of bail and may revise the amount or change its decision now that it has determined that the accused will stand trial on the charges. A trial is then held, unless the parties enter a plea bargain. A plea bargain is an agreement between the accused and the prosecution in which the accused admits guilt in return for an agreed-upon punishment. The courts are not required to accept the prosecutor's deal and may impose a sentence greater than the one agreed upon, in which case the accused usually can rescind the agreement and proceed to trial. Plea bargains are arranged as an alternative to the expense and uncertainty of trial for both sides. If a trial is held, the prosecution has the burden of proof, which means showing, beyond a reasonable doubt, that a crime was committed and that the defendant is guilty of the crime. The courts have the power to command the attendance of a witness or production of evidence by the use of subpoenas. The prosecutor and the defendant's attorney are considered officers of the court and have the power to issue subpoenas. Subpoenas, considered orders of the court, cannot be ignored. Penalties for failing to obey a subpoena can include a finding of contempt of court punishable by financial penalties and jail time for disobedience.

Civil Litigation

Civil litigation is a lawsuit brought by one party against other parties to resolve a dispute or correct a condition. The goal of the case may be to recover monetary damages, get divorced, evict someone, ask the court to order someone to do something or refrain from doing something (actions for injunctions). Parties to lawsuits may be individual people, groups of people, companies and organizations. The party bringing the lawsuit is the plaintiff - the person or party being sued is the defendant.

Trials are very expensive. Civil cases must take a back seat to criminal trials. The court system is motivated to do whatever it can to resolve civil cases without resorting to time consuming and expensive trials needlessly. Indeed, less than 10% of cases filed actually require a trial to decide the dispute. To accomplish this, litigants in civil cases usually have the right to pretrial discovery. Discovery is a process by which the parties, through various means, learn about the theories and evidence their opponents intend to introduce at trial. The parties can use discovery tools, like subpoenas for records, requiring litigants to submit to independent medical and psychological exams and allowing experts to inspect and test and examine people, accident sites, allegedly defective products and nearly anything else that is relevant to the issues raised in the suit. Parties may take pretrial testimony in proceedings called depositions, in order to find out what a witness's testimony would be at trial should the matter proceed that far. Depositions proceed in much the same way as trial testimony is taken, except in most cases the judge is not present during the deposition. Witnesses may be represented by their own attorneys and the parties to the case are invited to have their lawyers present and participate in the questioning. Witnesses may be subpoenaed to appear for deposition, just like trial.

As the parties learn more about their opponent's evidence and arguments, the court usually employs various means to stimulate settlement amicably and without the need for a trial. The court may require them to attend settlement conferences, during which time the parties may attempt negotiations on their own or with the assistance of the court. The court may require them to have a facilitated settlement conference called mediation, during which a person unconnected to the litigation and skilled in mediating disputes serves as a go-between and attempts to move the parties to a settlement. The court can also require the parties to submit their case to case evaluation. Case evaluation requires that the case be presented by both parties in writing and in a relatively brief oral presentation before a panel of three lawyers, one who typically represents plaintiffs, another who usually represents defendants and a third neutral. The panel reads the summaries and hears the arguments and renders a largely advisory opinion on the value of the case. The parties have 28 days to accept or reject the opinion. If both parties accept, the case is settled for that amount. If a party rejects and does not improve his position at trial, the court can order penalties equal to the opposition's actual attorneys fees and costs.

The case is also assigned a trial date. Because criminal cases have priority and because civil cases sometimes settle "on the courthouse steps," usually several civil cases are assigned the same trial date. It is not unusual for trials in civil cases to be adjourned, or rescheduled to another date. Adjournments can cause great anxiety and time consuming expense as parties prepare literally and emotionally for trial, only to be adjourned, sometimes at the last minute, to another day.

If the parties have not settled the case and it actually proceeds to trial, the parties start the case with opening statements. The plaintiff goes first because the plaintiff has the burden of proof. The burden of proof in a civil case is a preponderance of the evidence, often characterized by attorneys as merely 51%. You should note that the burden in a civil action is different than the burden of proof in a criminal case, which requires proof beyond a reasonable doubt in order to support a guilty verdict. The civil plaintiff puts in his or her case first, calling any witnesses whose testimony is relevant and helpful to their case. They can present the testimony of eye witnesses and expert witnesses. Expert witnesses have been described by well known trial attorney Michael Tigar as witnesses, "who were not there when it happened, but who for a fee will gladly imagine that they were." Generally, only experts are permitted to offer opinions in trials, and usually only on matters deemed outside the experience and training of the average juror. Other witnesses are restricted to just relating the facts allowing the jury to reach its own conclusions.

At the end of the trial a verdict is rendered by a jury, in a jury trial and by the judge in a "bench trial." The verdict itself has no force of law; after receiving the verdict, the court is then asked to enter judgment on the verdict, or sometimes, notwithstanding the verdict. It is the Court's judgment which is enforceable.