Part I: The Litigation Process

Legal Representation

If you become involved in legal proceedings as a plaintiff bringing suit against another party, as a defendant being sued, or as a defendant in a criminal case you may choose to represent yourself in court (pro se representation), or you may retain the services of an attorney to represent you.

Finding Legal Assistance
If you do not know a lawyer who can assist you, you may want to consult friends, relatives, or business associates, the Yellow Pages of your telephone directory, the county bar association, or the Maine State Bar Association Lawyer Referral Service. If your income falls within certain guidelines and your case is a civil one, you may be eligible for free or low cost legal assistance from any office of Pine Tree Legal Assistance, Inc., from the Volunteer Lawyers Project of the Maine Bar Foundation, or the Cumberland Legal Aid Clinic at the University of Maine School of Law in Portland. If you are 60 or over, you may be eligible for legal assistance from any office of Legal Services for the Elderly, Inc. If your case is a criminal one where conviction could result in imprisonment, you have a constitutional right to be represented by an attorney. If the court finds that you cannot afford a private attorney, the court must appoint an attorney to defend you at the State's expense.

If you are the victim of a crime, you do not need to retain an attorney. The District Attorney will bring criminal charges against the accused on behalf of the State. However, if you wish to bring a civil suit against the individual who committed the crime to seek protection from abuse or to recover any damages you may have suffered, you may wish to seek legal advice or representation by a private attorney. See also Representing Yourself, on this site.

Pretrial Procedure - Civil Cases

To bring a civil action as a plaintiff in either the Superior Court or the District Court, you or your lawyer must prepare a written statement, called a complaint, describing the nature of your claim. You must arrange to have the party you are suing (the defendant) served with a summons (formal notification that a suit has been commenced), as well as a copy of the complaint. The defendant must file a written response to the complaint within a period of time specified in the summons, normally 20 days. The response is called the answer.

Once the complaint and answer have been filed, each party may obtain information about the other's case through a process called discovery that is available in most civil cases. During the period prior to trial, you or your lawyer should be attempting to reach settlement of the case with the opposing party. Discovery allows each party to approach settlement discussions with a more realistic view of the chances of winning. A settlement saves both the parties and the public the substantial costs of a full trial.

Mediation - Civil Cases

The court system provides procedures under which both parties may attempt to settle certain types of civil cases with the help of a third person. These procedures are called alternative dispute resolution and mediation and may be less time consuming, less expensive, and less acrimonious than a trial. Alternative dispute resolution and mediation take place in an informal setting with the parties (and sometimes their lawyers) working with a court appointed mediator or neutral toward an agreement. If a mutually satisfactory agreement can be reached, it is signed and submitted to the judge for approval. If the parties cannot agree, the case is scheduled for trial. In most civil cases and in alternative dispute resolution or contested divorce cases, mediation is required. Mediators and neutrals are selected from a pool of trained persons who have been placed on a roster by the Court Alternative Dispute Resolution Service (CADRES).

Pretrial Procedure - Criminal Cases

Most criminal cases begin with the service of a citation or summons, or the arrest of an individual by a law enforcement officer and the filing of a criminal complaint. The Constitution provides that the arrest can be made only if the officer has probable cause to arrest or has a warrant issued by a magistrate who has found probable cause.

Probable cause is a reasonable belief, based on reliable information, that a crime has been committed and that the individual being apprehended committed the crime. An individual can be arrested for certain minor offenses only if the offense is committed in the officer's presence.

Once an individual has been arrested, he or she is brought to a police station or county jail and booked. At that time, the law enforcement agency takes the person's photograph and fingerprints and checks for the existence of any other outstanding arrest warrants.

After booking, the individual must be admitted to bail or be taken before a judge within 48 hours. At that time, the person will be informed of the charge or charges filed and the right to legal assistance. Additionally, the court will set bail (unless the person is arrested for murder).

Bail is a sum of money or property deposited by a person to assure that person's appearance at trial. It is not a fine, but it will be forfeited if the person does not appear at court. Bail may be set by a Bail Commissioner who may charge a non-refundable fee as part of the bail setting process.

When a person is arrested for murder or a Class A, B, or C offense, any trial must be in the Superior Court. A preliminary hearing may be held to determine whether there is sufficient evidence to warrant going ahead with the case. If the judge believes that there is sufficient evidence, or if the defendant waives the hearing, the case is presented to a grand jury, a group of citizens whose task is to review the prosecution's evidence and decide whether it is sufficient to justify a trial. In many cases, evidence of wrongdoing is presented directly to the grand jury without a preliminary hearing. If the evidence appears sufficient, the grand jury will return an indictment, a formal charge of a crime. If the defendant in a Class A, B, or C offense waives the grand jury, or if the court in a Class D or E offense gives permission, proceedings are begun directly by the prosecuting attorney, who files an "information" setting forth the charge.

Following indictment or information in the Superior Court an arraignment is held. At this point the individual pleads guilty, not guilty, not criminally responsible by reason of insanity, or nolo contendere (a latin phrase meaning "I will not contest the charges").

  • If a person pleads guilty or nolo contendere, the judge imposes sentence, either immediately or after a pre-sentence investigation.
  • If the plea is not guilty, the case is scheduled for trial. There is a process of discovery similar to that in civil cases, through which the defendant has access to any information the prosecuting attorney has.

Class D and E offenses may be brought under a simplified procedure by complaint in the District Court. The defendant pleads to the complaint at the first appearance before the court. Trial then follows on a separate date before the judge alone unless the defendant requests a jury trial in Superior Court by filing a "Jury Trial Request Form" within 21 days of the arraignment in District Court. .

Criminal cases are frequently settled without trial because many defendants negotiate with the prosecuting attorney in a process known as plea bargaining. A plea bargain is an agreement between the prosecutor and the defendant that in return for a guilty or nolo plea to a certain charge or charges, the prosecutor will drop other charges or recommend a specific sentence to a judge. If the judge wishes to impose a greater sentence than recommended, the defendant may withdraw the guilty plea and go to trial.

Trial by Jury

In all criminal cases and in those civil cases where monetary compensation is sought, the parties have a constitutional right to a jury trial. (In certain cases, such as divorces and actions for injunctions, there is no jury right). A trial jury (also called a "traverse jury") is a group of citizens who determine whether the defendant is guilty in a criminal case, and decide who wins and the amount of any damages in a civil action. Serving on a jury is hard work, but it is an important service of citizenship that preserves our fundamental rights to liberty and property.

Jury trials are held in the Superior Court. A defendant in a civil action in the District Court may remove the case to the Superior Court in order to have a jury. Even in the Superior Court, a civil action brought originally there will be tried by a judge unless one party demands a jury. A $300 fee is required in civil cases to be tried by a jury.

Criminal cases filed in the District Court are tried in the District Court unless the defendant demands a jury trial within 21 days after the arraignment date. If the defendant demands a jury, the case is transferred to the Superior Court for trial.

Jurors are selected in a two step procedure.

  1. First, citizens' names are drawn at random from a list of people who hold Maine drivers' licenses, or who have been issued an identification card by the Secretary of State, or who voluntarily register with the Superior Court. When an individual is chosen, he or she reports for jury duty and becomes a member of a panel. A justice of the Superior Court will speak to jurors about the nature of the service they are about to give.

  2. The second step in the selection process is called the voir dire examination. The purpose of voir dire is to determine whether there are any reasons why a particular juror might have difficulty making a fair decision in the case. The judge asks questions of the whole panel and then may speak to each juror individually. (In special circumstances, the attorneys may be permitted to question the jurors).

Each side in a case may challenge any juror for cause, and is allowed to exercise a limited number of peremptory challenges for which no cause need be shown to excuse a juror. A successfully challenged juror is excused from that trial. After the twelve jurors required in a criminal case (or the eight or nine jurors used in a civil case) are selected, they are administered the juror's oath and are impaneled.

The Trial Process

The trial process is much the same in civil and criminal cases. Each party may present evidence and oral argument on the meaning of the evidence and the law. Then the trier of fact (the jury or, if there is no jury, the judge) must reach a decision based solely on the evidence presented in the courtroom.

Start of Proceedings
At the beginning of the trial all interested parties should be in the courtroom before the proceedings start. When the judge enters the courtroom, everyone stands and remains standing until the judge is seated.

Opening Statement
Beginning with the plaintiff, or the District Attorney in a criminal case, each side normally makes an opening statement outlining the facts he or she expects to establish during the trial. This statement is not evidence. A criminal defendant may elect not to make an opening statement.

The plaintiff or District Attorney then calls witnesses and asks questions. These questions are known as direct examination. The defendant may ask questions of each witness called by the other side. These questions are called cross-examination. The plaintiff may also offer in evidence documents or objects, called exhibits.

After the plaintiff or the State has presented witnesses and exhibits, the defense has an opportunity to present its own witnesses and exhibits. A similar sequence of direct and cross-examination takes place. A criminal defendant may elect not to testify. In addition, criminal defendants may choose not to present any witnesses.

Closing Arguments
After each party has presented its case, each side makes its closing arguments summarizing the testimony and the law governing the case. These statements are not evidence.

Judge's Instructions to the Jury
In a jury trial, the judge instructs the jury on the law that governs the case, defines the issues the jury must decide, and charges the jurors to reach a fair verdict, applying the law to the facts as they find them from the evidence presented.

Jury Deliberations
The jury then adjourns to the jury room to deliberate and reach a verdict. The verdict must be that of at least two-thirds of the jurors in a civil trial. The jury verdict in a criminal case must be unanimous. If there is no jury, the judge considers the evidence and arguments and states his or her findings and conclusions.

The Verdict
The verdict of the jury (or the finding of the judge in a non-jury trial) decides not only which party will prevail, but also the amount of any damages to be awarded and any other orders or relief to be awarded. In a criminal case a jury's verdict, or the judge's finding, establishes the defendant's guilt, but it is up to the judge to impose a sentence on a guilty defendant.

Admission and exclusion of evidence

The rules of evidence, codified in Maine since 1976 govern the admission or exclusion of particular statements of witnesses or exhibits to be considered by the judge or jury. The rules of evidence address many questions, including who has the right to be a witness, the limits on the subject matter of a witness's testimony, and the methods by which exhibits can be determined to be authentic. The basic issue is whether the evidence is reliable and relevant to the case at hand. The purpose of the rules is to assist the judge or jury in ascertaining truth and reaching a just determination of a dispute by excluding evidence that may mislead, confuse, or prejudice the trial, or waste time.

If you are a participant in a trial, you will notice that the lawyers will from time to time object to a question being asked by the other side or to the admission of a particular exhibit. Such objections are used to bring into play the rules of evidence, having the judge decide whether the objection is valid or not.

If the objection is valid, the judge will say, "Sustained." If the objection is not well taken, the response will be, "Overruled." If there is a jury hearing the case, the judge may ask the lawyers to step to the side of the bench and present their arguments on the objection out of the hearing of the jury. This is done to prevent the jury from hearing evidence that may not turn out to be admissible.

The most common objections at trial are:

  • that a particular question is leading (that the question suggests its own answer),
  • that the testimony of the witness is hearsay (words that the witness heard someone say outside the courtroom),
  • or that a particular piece of the testimony or an exhibit is irrelevant (has little or nothing to do with the legal issues of the case).


In most civil and criminal cases each party has the right to appeal the decision to a different court. The issues heard on appeal, however, are limited to questions of law considered in the trial court. A trial judge's decision about what the law is or whether to admit testimony is generally reviewable, but a jury's (or judge's) decision to believe or disbelieve properly admitted evidence is reviewable only for abuse of discretion or insufficiency of evidence.

Previous Page | Next Page