English for the Legal Profession

Discovery also helps make summary judgment(即决判决) a viable and fair procedure, because it enables a party to find out issues on which the opposing party has no evidence(调查取证使即决判决成为一种公正并切实可行的程序，因为它使一方当事人发现对方当事人在哪些争议问题上不掌握证据。). Thus if a party finds that an issue that is decisive of the case does not exist, he may make a motion for summary judgment. This motion can be supported by affidavits(书面陈述) and depositions(证词) gathered during discovery. It asks the court to decide the case in the mover’s favor by showing that the opposing party does not have any admissible evidence to support his position on the issue at trial(它通过证明对方没有在审讯中可允许提出来的证据来支持其对分歧所持的立场，要求法院作出对动议方有利的判决。). Summary judgment saves the parties the trouble of going to trial.

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English for the Legal Profession

Chapter 13 The Trial

American law provides for(规定) jury trials in most actions for damages. This means that in those cases, either party may assert the right to(主张…权利) have the facts tried by the jury. If neither wishes so, the judge will try the facts as well as the law.

If a jury has been demanded, the first step of the trial is to impanel the jurors(挑选陪审员以组成陪审团), who are selected at random from lists of eligible citizens. The court and lawyers for each party will question the prospective jurors to determine their fairness and impartiality. If any of them is found to be biased, he may be challenged for cause(以明确的理由对陪审员人选提出异议) and excused. A certain number of peremptory challenges(绝对异议权), for which no cause need be given, may also be exercised to reject potential jurors (可以行使一定数目的绝对异议权否定陪审员的人选，这种异议权无须说明理由。).

After the jurors have been sworn, the lawyers make opening statements to familiarize the jury with the essential facts that each side expects to prove. Following these statements, plaintiff’s lawyer will present the evidence by examining his witnesses and producing the documents or other exhibits(物证). Each witness is first questioned by the lawyer who has called that witness––this is the direct examination; then by the lawyer for the other side––cross examination; this may be followed by re-direct and re-cross examination, and even further stages. Each side may object to the evidence that is thought to be inadmissible(不可允许出示的) under the rules of evidence. The judge rules on(对…作出裁决) the objections and maintains some control over the length and tenor(趋向) of the examination.

When the examinations of plaintiff’s witnesses are over, defendant’s lawyer may ask for a directed verdict(指令裁定，法官指令陪审团作出某种裁定). A motion for a directed verdict asks the judge to rule that the non-moving party has failed to introduce enough evidence for the injury to find in his favor(指令裁定的动议要求法官作出裁决，认定未提动议的一方未能举出充分的证据使陪审团作出有利于他的裁定。). If the motion is overruled, the defendant will present his own witnesses, who will be exposed to the same process of direct and cross-examination(如果动议被否决，被告将提出自己的证人，这些证人也同样要受到直接质证和交叉质证。). When neither party has any additional evidence, either or both may move for a directed verdict. If these motions are denied, the case must be submitted to the jury.

The lawyers and the judge then retire for a conference to consider the matter of jury instructions(法官对陪审团的指导). Each lawyer may submit proposed

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English for the Legal Profession

instructions, but the judge decides on the content.

Then the lawyers will make their final arguments to the jury. After the arguments, the judge will instruct the jury on the applicable law on each issue, the rules for determining the credibility of witnesses, and state who has the burden of proof(举证责任). In other words, the judge tells the jury that if it finds certain facts, its verdict should be for the plaintiff. If it fails to find these facts, the verdict should be for the defendant.

Following the instruction, the jury retires to reach its verdict. If a required number of jurors are able to reach a verdict, judgment will be entered accordingly. If no verdict is reached, the jury is said to be hung(未能达到多数人赞同的，未能作出决定的) and a new trial before a different jury is necessary. A dissatisfied party after the judgment may make some post-trial motions, such as a motion for a judgment notwithstanding the verdict (a judgment n.o.v法官推翻陪审团裁定的判决) or a motion for a new trial(要求重审的动议). Such motions may be granted if the judge feels that the verdict of the jury is contrary to the clear weight of the evidence, or is erroneous as a matter of law(如果法官认为陪审团的裁定与证据的明显倾向相悖，或者从法律上来说是错误的，这种动议可被接受。).

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English for the Legal Profession

Chapter 14 Appeal and Enforcement

Every judicial system provides for review by an appellate court of the decisions of the trial court. When the system ahs two levels of appellate courts, appeal usually lies initially to one of the intermediate courts; review at the highest level is only at the discretion of that court except in certain classes of cases. (如果某司法体系有两级上诉法院，上诉一般起始于中级法院；除某些种类的案子之外，最高级法院的复审由该法院自行斟酌而定。)

Most states provide that the appellant must, within specific time after judgment is entered, give notice of appeal to the trial court and opposing parties, file an appeal bond [上诉担保书]to guarantee to pay costs that may be charged against him on the appeal, and file with the clerk of the appellate court a transcript[复本]. The transcript shall contain the record of the testimony, a copy of the judgment, decree, or order appealed from [不服下级法院判决进行上诉], and other papers relevant to the appeal.

The parties present their contentions to the appellate court by written briefs and in addition, in most cases, by oral argument[口头辩论]. After the oral argument, the court prepares a written opinion[判决书] stating the applicable law involved and giving the reasons for its decision. The court, by its decision, may affirm[维持原判] or reverse[推翻原判] the court below, or may remand the case for a new trial[将案子发回重审]. After this, the dissatisfied party may request a rehearing or a further review of the case.

Usually, only the legal rulings of the trial court are subject to review. Very seldom are the jury’s or judge’s factual findings reversed on appeal.

After the appeal and whatever further proceedings that may take place, or, if on appeal is taken, when the time for appeal expires, the judgment is final. It cannot be challenged in another proceeding.

After judgment becomes final, if the losing party does not voluntarily comply with it, the judgment creditor will apply for a writ of execution[执行令]. This writ directs the sheriff to seize the personal property of the judgment debtor and to sell enough thereof to satisfy the judgment and to cover the costs and expenses of the sale. (这一令状命令司法行政官没收判决债务人的动产，将其足够部分出卖，用以抵消判决债务并支付拍卖的花费。) If the proceeds from such sale do not produce sufficient funds to pay the judgment, the unpaid judgment creditor is entitled to have the real estate of the debtor sold at a judicial sale and to have the net proceeds of the sale applied on the judgment. (如果所得资金不够支付判决金额，未得到偿付的判决债权人有权通过法院主持的拍卖将债务人的不动产卖掉，所得的收益用于抵偿判决金额。) He also has a judicial

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