Ch 15 Trial Techniques

15-7k Jury Deliberation and Verdicts

-

Chronology of the Case as a Trial Exhibit

- A chronology of the case, especially in a tort suit like the Delgado case, is an effective trial exhibit. You should review the litigation files, depositions, and documents and construct the critical events in the case. A color-coded, large trial board may be an effective way to present the chronology of the Delgado case, including the date of the accident, the days that Mr. Delgado was unable to work, the dates of all doctor visits and periods of hospitalization, the dates of all physical therapy treatments, and the date that he finally returned to work. Removable color magnets might also be used with this type of trial exhibit to focus on a particular type or length of treatment. Jurors can more easily assimilate a large amount of data if it is presented in an enlarged, color-coded, well-organized exhibit.

15-7 The Trial

- A civil trial consists of six main phases: Jury selection Opening statements Witness testimony and cross-examination Closing arguments Jury instructions Jury deliberation and verdict

Deposition Summaries

- A complex case may require a separate binder for the deposition summaries. You will recall from our discussion in Chapter 9 on depositions that a deposition summary is a written record that reduces many hours of testimony to a few concisely drawn, easily read, and quickly understood pages. The three types of deposition summaries are the page-line deposition summary, the topical deposition summary, and the chronological summary. The page-line deposition summary covers testimony as it occurred in the deposition itself. The topical deposition summary organizes the material into specific subject areas. Finally, the chronological deposition summary organizes the testimony according to a particular time sequence. A complex case involving numerous depositions would require an index of these summaries. The index should be arranged in alphabetical order by the last name of each deponent.

Motion for Judgment as a Matter of Law

- A motion for judgment as a matter of law (JMOL), formerly known as a motion for directed verdict, allows the trial judge to remove a case or issues in a case from the jury's consideration when the facts are sufficiently clear that the law mandates a particular result. - The moving party for a JMOL must wait until the opposing party has rested its case. After the JMOL has been urged, the opposing party must be given an opportunity to cure any deficiency in its proof. Two situations generally result in the court's granting a JMOL: 1. There is a total absence of pleading or proof on an issue that is material to the claim or defense. 2. There are no controverted issues of fact on which reasonable persons could differ. - The court is required to view all evidence presented for a JMOL in the light most favorable to the nonmoving party and grant all inference in favor of the nonmoving party.

Motion for New Trial

- A motion for new trial asks the district court to correct a trial error by granting a new trial. (See Rule 50(d) of the Federal Rules of Civil Procedure.) This motion must be filed within 28 days after the entry of judgment. When a motion for new trial is based on affidavits, they must be filed with the motion. The time limit cannot be extended by the district court or by the parties. - A motion for new trial asks the district court to correct a trial error by granting a new trial. (See Rule 50(d) of the Federal Rules of Civil Procedure.) This motion must be filed within 28 days after the entry of judgment. When a motion for new trial is based on affidavits, they must be filed with the motion. The time limit cannot be extended by the district court or by the parties. - The court has the authority to grant a new trial for any reason that would justify granting one on a party's motion.

Motion to Strike

- A party may move to strike evidence that has been improperly admitted. for example, if a witness blurts out an answer to opposing counsel's question quickly, before her counsel can object, the witness's counsel may move to strike that testimony. The motion to strike should include a request that the judge instruct the jurors, in a jury trial, to disregard the improper evidence during its deliberations.

Renewed Motion for Judgment as a Matter of Law

- A renewed motion for judgment as a matter of law, formerly known as a motion for judgment notwithstanding the verdict, asks the district court to disregard the jury findings and enter judgment for the movant in spite of the jury's verdict for the nonmovant. Rule 50(a)(2) of the Federal Rules of Civil Procedure permits the consideration of a renewed motion only if the moving party made a motion for JMOL before the case was submitted to a jury. Additionally, if the party made a pre-verdict JMOL, but not a renewed motion for JMOL after the judgment, the district court and the appellate court are powerless to direct entry of judgment in favor of the party. - Rule 5(c)(J) of the Federal Rules of Civil Procedure allows the filing of a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment, "or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged." - Objections by the nonmovant are permitted under Rule 50, with no deadlines for the filing specified. The court may grant the renewed motion for JMOL and render judgment for the movant or grant a new trial.

Trial Outline

- A trial outline is a chronological listing of the tasks that must be performed just prior to and during the trial. Such a chronological outline is a vital part of the trial notebook because it simplifies and organizes the tasks facing the paralegal and the attorney as the trial date approaches. For example, the paralegal may be asked to assist in drafting the questions to be used during voir dire. voir dire examination is the process by which the jurors are questioned to determine any bias they might have that would affect their ability to be fair and impartial in the case. Allow space on the trial outline for annotations and changes.

15-7i The Presentation of Rebuttal Evidence

- After each side has had the opportunity to see the entire case-in-chief presented by the other party, both have the chance to present rebuttal evidence. rebuttal evidence, or evidence in rebuttal, is designed to discredit the other side's evidence and to reestablish the credibility of the side presenting the rebuttal. To make the rebuttal as efficient and as fair as possible, the scope of rebuttal is limited to the evidence presented during the case-in-chief. No new evidence is to be presented during the rebuttal. When the plaintiff has completed her rebuttal, the defendant has the same chance to call rebuttal witnesses. Some states use the term surebuttal to describe the defendant's rebuttal. Others use the phrase evidence in rejoinder or rejoinder evidence. Regardless of the terms used to describe it, the defendant's rebuttal is limited to the rebuttal evidence presented by the plaintiff.

15-7m Motions at the End of Trial

- After the jury has rendered its verdict, and the court has entered its judgment, a dissatisfied party has the opportunity to file a motion to have a judgment set aside.

15-7a Jury Selection

- Although a trial does not technically begin until the jury is seated, the process of jury selection or seating the jury is generally referred to as the first stage of the trial process. The jury members are selected from a jury pool that has been gathered from among the local citizenry. Most jury pools are taken from the ranks of registered voters. The introduction of the eJuror program for U.S. District Courts in late 2008 greatly simplified the prospective juror process. Potential jurors now may go online to respond to juror questionnaire forms and summons, update their personal information, request a deferral or excuse from jury duty, select an alternative time for jury service, and check to see when they need to report for jury service. As of March, 2013, 72 of the 94 district courts have adopted eJuror. A national directory of courts participating in the program is available on the U.S. Courts Web site. Each court's Web site has a jury service page link, enabling a potential juror to access the site from any location 24 hours a day. - Once a jury pool has been assembled at the courthouse, members of the pool are asked to fill out preliminary information forms, copies of which are given to the attorneys in the case. Exhibit 15-12 is an example of a Juror Information Sheet. Once the juror information sheets have been received by the trial team, the paralegal may be asked to assist in researching the potential jurors. Exhibit 15-13 is a chart of sources for information on potential jurors. These forms are used as part of the jury selection process. - Sources of Juror Information: 1. Jury panel. Many clerks' offices provide a list of all jurors for the upcoming court term. 2. Voter registration records. The county clerk's office maintains information that could be beneficial in evaluating potential jurors, including political party. 3. Internet searches. Using the juror data sheet, Westlaw databases or search engines will reveal information such as the potential juror's assets, type of automobile driven, number and sizes of residences owned, and any lien or bankruptcy filings. 4. Trial psychologist/jury consultant. Specialists often maintain databases of area jurors. In addition, they are equipped to offer special insights into what type of juror should be selected and what type of juror should be avoided for your particular case. This process is expensive, but the results obtained may more than offset that expense. 5. Friends, coworkers, and attorneys. It is worthwhile to review the juror information sheets with friends and other law firm personnel. - Technology has significantly changed the jury selection process. Several software packages and applications are now available to trial attorneys for the construction of a searchable database of prospective jurors. One example of such products is JuryPad, an application for the iPad and iPad mini, which allows attorneys to view jury demographics by race, age, or gender. It also permits searches regarding marital status, employer, and home address. Using the home address of a potential juror, you are able to take a virtual tour of the neighborhood. - The ability to track juror challenges, both peremptory and for cause, using a list of jurors, seating chart, or both tools, is a valuable asset. JuryPad notifies your attorney when she is down to her last peremptory strike. - Instead of the yellow notepad or yellow sticky note process previously used during voir dire, JuryPad permits the attorney or paralegal to take notes, sort, and evaluate jurors online, in a speedy and orderly fashion. - In federal court, a civil trial uses 12 jurors. However, the parties are allowed to stipulate that fewer than 12 jurors will hear the case. Many state courts require only eight jurors for a civil trial. Most states also allow parties to stipulate that fewer than eight jurors may hear their case. The federal court and most state courts also allow for the use of alternate jurors.

Delivering an Interesting Opening Statement

- An experienced attorney will take advantage of the jury's high attention level at the beginning of the trial by delivering an interesting, even captivating, opening statement. The opening statement involves facts, and nothing conveys facts in a more interesting or convincing fashion than a story. Cold, antiseptic facts, exhibits, and statistics should be avoided in favor of conveying a sense of the people and the action involved in the case. For instance, in presenting the case of Mr. Delgado to the jury, your attorney might begin by stating that, "On the morning of March 4, 2013, Mr. Delgado awoke and prepared for a routine day conducting an audit at the offices of Bio-Med Pharmaceuticals here in downtown Red Forest. At that time he had no idea that this day would be one of the worst of his entire life." From this point on, your attorney would follow the events of that day much as if she were telling a story. Such an opening statement is much more likely to capture the attention and sympathy of the jurors than one limited to a long procession of facts.

Chronology

- Another important tool in the trial notebook is the chronology—the listing of what happened, when it happened, where it happened, and who was involved. A properly constructed chronology includes information regarding the source of each fact. However, a chronology is more than a document index sorted by date. A chronology moves from the beginning of the case—the first client interview—and includes the most current information on the case up to the time of trial. Use database software, not word-processing software, to create your chronology. If your firm has a multiuser database, several trial team members can simultaneously enter, edit, or review the facts in the chronology. The most important benefit of a database-generated chronology is the ability to quickly make choices in what is to be printed from a voluminous chronology—perhaps facts dealing with a particular issue, witness, or time frame. When reviewing documents, depositions, and so forth for preparation of a chronology, list facts, not documents. For each fact, begin by entering the information reflected in Exhibit 15-4. Include both prospective facts and disputed facts in your chronology. You may not have a document source at the time of the entry, but that can be added when a document is subsequently produced or a deposition of a witness is taken. Certain facts in a chronology may not have an associated date. Use "N/A" in the date column. When the chronology is sorted, all facts for which a date is inappropriate will be sorted together. - In addition to some facts that have no associated date, many facts in your chronology may have an incomplete date. For example, the client has stated in his deposition that a meeting took place in March 2012 or that the decision to sell the company was made in "the fall of 2012." The entry is critical, and should be entered into the computer as 03/00/12. Such an entry is a reminder that further research is needed to establish the exact date of the meeting. A separate column might be added to the chronology form to indicate the disputed or undisputed status of each entry. - A chronology should include issues in addition to dates and facts. The majority of cases involve multiple and often complex issues. Apply the issues previously developed by your attorney to the chronology, perhaps through a column entitled "Related Issues." Creating a link between facts and issues in a chronology facilitates isolating facts relating only to a particular issue. From the issue list, develop the chronology to include facts currently known about an issue and a "wish list" of facts. This might include testimony that you "wish" you could obtain from a treating physician, accident witness, or other key players in a case. A chronology reflects important and trivial facts. An additional column in the chronology might be used to "rate" the significance of a fact to a case. As the trial approaches, you must review the chronology for completeness by checking key documents, pleadings, witness interviews, depositions, and exhibits to make certain that all dates from these sources have been placed in the chronology.

15-2 Preparation of Witnesses

- As a paralegal, you will be instrumental in assisting your attorney with preparing the witnesses for trial. One task that you may have to perform is drafting and arranging for the service of subpoenas to certain witnesses. You may also be charged with communicating the details of the trial to the witnesses. Finally, you may be required to arrange and attend all witness preparation meetings.

Exhibits

- As a second type of evidence, and to bolster the witness testimony phase of evidence, the plaintiff may also introduce physical evidence, such as documents, photographs, and medical records, discussed earlier in this chapter, throughout the case-in-chief. The admissibility of exhibits is governed by the Federal Rules of Evidence.

Leading Questions by the Defendant

- As is the case with the plaintiff's counsel, when the defendant's attorney is faced with an adverse or hostile witness, he is permitted to ask leading questions. For example, in the Delgado case, if the defense attorney has elected to call Mr. Delgado to testify, he would be the legitimate target of leading questions by Bio-Med's attorney. For instance, Bio-Med's attorney would be permitted to ask Mr. Delgado the following question: "Isn't it true that you knew of the risk imposed by the combustible chemicals located in the storeroom next to your office?"

Delivering a Tactful Opening Statement

- As noted earlier, the attorney should be brief, interesting, understandable, and sympathetic in the opening statement. However, this can go for naught if jurors are intimidated by the presence and actions of the attorney. For this reason, the delivery of the opening statement should be as tactful as possible. Attorneys should not be overly emotional, too loud, or excessively boastful in the opening statement. Rather, they should be soft-spoken, even-tempered, and genuine. It is important for the attorney to keep her distance from the jury. Moving close to the jurors may make a powerfully dramatic scene in a movie or television show, but in real life it invades the space of the jurors, intimidates them, and destroys their concentration on what the attorney is saying.

Characteristics of a Good Closing Argument

- As noted earlier, the jury has a heightened awareness of the trial process at the beginning of the trial. The same is true, though to a lesser degree, at the end of the trial. This fact, plus the fact that this is the attorney's last chance to reach the jury, makes the closing argument very important. Because so much of the success of a jury trial depends on the closing argument, an attorney should take great care in fashioning the closing. It is critical to know the characteristics of a good closing argument. A closing argument must be well-planned and persuasive.

15-8c Participating in Jury Selection

- As the paralegal assigned to the case, you may be asked to prepare a jury seating chart similar to the one depicted in Exhibit 15-14. The purpose of this chart is to track voir dire examination. While your attorney is conducting the jury examination, you should note the verbal and nonverbal communication of potential jurors, particularly with respect to factual issues or prejudices that are germane to the case. - The paralegal must record the information learned through the voir dire process to assist the attorney with her decisions regarding which jurors to strike and which to retain. Unless you are fortunate enough to have a remarkable memory, it is very difficult to process and record all of the requisite information while your attorney is in the process of questioning the potential jurors. - The use of a spreadsheet that lists the potential jurors in either alphabetical or seating order will make this process much less cumbersome. This spreadsheet enables you to enter on your laptop computer all personal and case-specific information that will go into your attorney's decision-making process for each potential juror. Additional information that should be entered includes notes of strikes, including who struck the individual, how many strikes each side has used, and potential jurors who have been excused for cause by the judge. This chart preserves critical and complete information on the jury selection process in the event that becomes an issue on a subsequent appeal of the final decision in the case.

15-7j Closing Argument

- As the trial begins to wind down, one of the final steps is the presentation of the closing argument. The objective and scope of the closing argument are more precise and definitive than for the opening statements. The evidence has already been presented, so it is clear that the closing arguments must refer to that evidence and must attempt to convince the jury that the attorney's interpretation of that evidence is the correct one.

Expert Witnesses

- At the beginning of this section, place a list of all expert witnesses that each side intends to call at trial. As in the case of the factual witnesses, include their addresses, telephone numbers, fax numbers, and e-mail addresses. Copies of each expert's curriculum vitae should also be included. A curriculum vitae lists the expert's professional credentials. The list will include each witness's educational and professional credentials, as well as a summary of his publications and research projects. If the witness has written any reports regarding the present case, they should be included in this section. You may want to include a list of any other cases in which the expert has testified and a list of all documents or other materials that the expert has reviewed for the case. Major components of this section are the potential questions that each expert will be asked at trial and a copy of potential trial exhibits to be used with the expert witnesses.

15-7e Characteristics of a Good Opening Statement

- Because so much of the success of a jury trial seems to depend on the opening statement, an attorney should take great care in fashioning it. A good opening statement should be brief, interesting, understandable, sympathetic, and tactful.

Attorney's Notes

- Blank pages should be inserted in this section of the trial notebook for the attorney's notes about witnesses, legal issues, or other general information to be used during the trial.

15-6b Holding a Mock Jury Trial

- Complex cases often require a jury trial of several months. To help facilitate a favorable jury decision, many firms stage a mock trial prior to the actual trial. A mock trial is a practice trial. Again, social psychologists and litigation specialists can be retained to arrange the mock trial. Legal directories, litigation journals or newspapers, and Internet sites are excellent sources for locating companies that specialize in conducting mock trials. - The paralegal is often responsible for arranging the mock trial. The first step in the mock trial is to select the mock jury. A mock jury is a group of independent individuals chosen to reflect the probable makeup of the actual jury. Again, social psychologists and litigation specialists can interview and hire the persons to make up the mock jury. Once the mock jury panel is selected, your firm presents the mock trial. Key witnesses and principal exhibits are presented to the jury in the same way that they will be presented at the actual trial. Part of your legal team also presents the case that you envision being presented by the opposition. To ensure an impartial evaluation, the jurors should not know which side your law firm represents. The mock jury evaluates the testimony and exhibits and renders the verdict. - Following their decision, the jurors may be questioned about their perceptions of the strengths and weaknesses of the case. For example, in the Delgado case, you may discover that the medical model you intended to present at trial is far too complicated for the jury to understand. Or you may discover that your attorney's cross-examination of the opposing witnesses offended certain jurors. In contrast, you may find that some of the evidence presented by the corporate defendants was very convincing. You would then concentrate your forces on countering this evidence. The period between the mock trial and the actual trial should be devoted to correcting these and other weaknesses pointed out by the mock jury.

15-4 Coordinating Trial Logistics

- Coordinating the logistics of a trial is often the paralegal's responsibility. If the trial is held at the local court where your attorney usually works, coordinating the logistics will be a routine matter. However, when the trial is held in another district or another county, or when your client and many of the witnesses are from out of town, you may be asked to arrange for hotel and office space near the courthouse. Also, for both local and out-of-town trials you will have to examine the courthouse and contact local court personnel.

The Strategy of the Closing Argument

- During closing arguments, each attorney will explain her theory of the case and will demonstrate how the evidence presented at trial supports that theory. Each attorney also will do her best to destroy the jury's belief in the credibility of the other side's witnesses. Destroying the credibility of the opponent's witnesses can be accomplished in a number of ways. The attorney may demonstrate that the witness has contradicted himself on the stand. The attorney may point out discrepancies between the witness's testimony in a deposition or interrogatories and his testimony during the actual trial. It also may be demonstrated that the witness lacks credibility because of bias or because of the inability of the witness to really know the facts that he testified to.

15-7c Peremptory Challenges

- Each side also has a limited number of peremptory challenges. The federal courts and some states allow only three such challenges; other states allow as many as four. Additional peremptory challenges are allowed when alternate jurors are to be chosen. However, the number of peremptory challenges is always limited because an attorney making a peremptory challenge does not have to give a reason for the challenge. He simply exercises the peremptory challenge, and the juror is dismissed. The objective of the peremptory challenge is to allow attorneys an opportunity to dismiss jurors for certain "intangible" reasons that cannot be logically explained to the court. For instance, your attorney may feel that there is a certain air of hostility about a certain juror, or she might feel that the "chemistry" is not right between them.

Definition and Limitations

- Each side in a jury trial is allowed time at the end of the presentation of evidence to make a closing argument. The closing argument will help jurors review the evidence that the attorneys introduced during the trial. Unlike the procedure followed during the opening statements, which prevents the attorneys from arguing their case, during the closing arguments attorneys are permitted to do their best to persuade jurors of the validity of their case. Moreover, they are also permitted to attack the presentation of the other side's evidence.

Definition and Limitations of the Opening Statement

- Each side in a jury trial is allowed time to make an opening statement. An opening statement presents facts to the jury and introduces the evidence that the attorney intends to use to prove those facts. A general rule of trial procedure states that attorneys are not permitted to argue their cases during opening statements. The exact meaning of this rule is not clear. Consequently, the judge has an enormous amount of discretion in what the attorneys can and cannot say during opening statements. Some judges are strict in adhering to the general guideline that attorneys cannot argue their cases in the opening statement; others are more lenient, allowing attorneys to introduce points that another judge would almost certainly label as argument. To be successful in an opening statement, an attorney must have an understanding of just how much "argument" a particular judge will allow. Such an understanding comes from experience and from a willingness to ask questions about the processes when the attorney is unfamiliar with a court and its judges.

15-4b Visiting the Courthouse

- If the trial is to be held in another district or another county, or if you have never been to the courthouse where an upcoming trial is scheduled, you should visit that courthouse several weeks before the trial begins. You may need to locate a work area for meeting with the client or witnesses during the trial. - In many courthouses all of the courtrooms are identical; in others each courtroom is configured differently. If possible, locate and examine the exact courtroom where the trial will be held. Determine the amount of space available for exhibits, briefcases, and supplies. Also check for the potential location of easels, charts, chalkboards, overhead projectors, slide projectors, video equipment, and audio equipment. This check is critical because you will have to bring any equipment that your attorney will need that is not provided by the court. Note whether the courtroom is equipped with enough electrical outlets for the operation of a VCR or laptop computers. If the number or location of these outlets is inadequate for your needs, you will have to arrange for adapters or extension cords. - A trial box, consisting of all supplies needed during the trial, should be put together after the visit to the courthouse. Any special items noted during the courthouse tour should be included in the trial box

15-3b Researching for the Trial Brief

- If your jurisdiction requires filing a trial brief, you may be asked to assist with its preparation. A trial brief explains the legal issues involved in the case and the law that demonstrates the validity of the position your attorney has taken in relation to those issues. - Your role in preparation of the trial brief may consist of legal and factual research. For example, your attorney may request that you locate specific testimony from a particular witness's deposition. You may also be asked to determine the validity of the cases cited in the brief. This task is known as a cite check. - The paralegal is often responsible for coordinating the preparation and filing of the brief with the court. You should be familiar with your local court rules pertaining to the form of the brief, the number of copies needed, and the time for filing.

Motion for Mistrial

- In a motion for mistrial, a party asks the court to terminate the trial before judgment and set the case for trial at another time, on the basis of improprieties. This motion should be reserved for an impropriety so severe that a party cannot receive a fair trial before that particular jury. Usually, improprieties can be corrected by instructing the jury to disregard the impropriety. Possible improprieties might include improper and inflammatory argument, or improper contact between a party and a jury member or members.

Motion for Involuntary Dismissal

- In a nonjury trial, a defendant might, upon completion of the presentation of plaintiff's evidence, move for dismissal upon facts and law, without waiving the right to offer evidence if the motion is not granted. This motion is similar to a motion for directed verdict in cases tried by a jury. The judge can rule on the motion at the time it is made, or wait until the close of the trial. Requirements for a motion for involuntary dismissal are discussed in Rule 41(b) of the Federal Rules of Civil Procedure. - If the court denies the motion or renders judgment on the merits against the plaintiff, the court must make findings of fact required by Rule 2(a) of the Federal Rules of Civil Procedure. In the event that the court denies the defendant's motion or reserves its decision until the conclusion of the presentation of evidence, the defendant may renew its motion after all of the evidence has been presented.

Pleadings, Motions, and Discovery Responses

- In a simple case, a copy of all the pleadings, motions, and discovery responses would be filed in the trial notebook. However, in a complex case only pertinent pleadings, such as the complaint and the answer, would be placed in the notebook because of space limitations. Separate notebooks of motions and discovery responses should be prepared in advance of trial and updated with new filings.

Document Index

- In a simple case, the trial notebook may contain all documents that are produced in the case. However, in more complex cases, an index of all documents produced by each party should be sufficient. A comprehensive but clear document index will enable you to quickly yet unobtrusively locate a document during trial, when time and discretion are of the essence.

"Things to Do" List

- In addition to the trial preparation checklist, you will discover tasks that must be performed in the case. You should make notes of these items as they arise, then transfer them to the trial calendar specifically developed for the case.

Jury Instructions

- In both federal and state courts, the judge has the responsibility of delivering jury instructions. These instructions include an explanation of the law, the burden of proof, the weight that should be given to the evidence, the process to be followed during the deliberations, and the verdicts that can be rendered, all based solely on the evidence presented during the trial. Usually, such instructions are given to the jury after the closing arguments, immediately before the deliberation process begins. However, the judge may instruct the jury on some things, such as the law relating to the procedure at trial, the duties and the functions of the jury, the law that pertains to the case, and the use of evidence, before the trial begins and whenever needed during the actual course of the trial. Also, although the responsibility of final jury instructions belongs to the judge, the attorneys have, at the close of evidence, the opportunity to file a written request with the judge to deliver the instructions in a particular way. Before closing arguments the judge will inform the attorneys how she will instruct the jury. After closing arguments, the judge delivers the jury instructions. Before the jury retires to consider its verdict, the attorneys may, out of the hearing of the jury members, object to the instructions. The objection must specifically explain the grounds for the objection.

Types of Verdicts

- In civil cases, the court has the broad discretion to decide which of three types of verdicts a jury will use: general verdict, general verdict with interrogatories, or special verdict. That decision does not depend on the type of litigation but rather on the complexity of the legal issues. Often the court waits until the end of the trial before determining which type of verdict to use and, in some cases, may submit some issues on a general verdict form and others on a special verdict form. - The general verdict is a verdict in which the jury must simply decide in favor of the plaintiff by specifying an amount of money damages, or decide in favor of the defendant. - Rule 49 of the Federal Rules of Civil Procedure provides for a general verdict with interrogatories and not only requires that the jury find for the plaintiff or the defendant, but requires that the jury members answer specific fact questions. Questions are phrased so that they may be answered with a short response, generally a "yes" or "no." In the event of inconsistencies in the answers, the court may ask the jury to deliberate further in an attempt to correct the inconsistencies. The court also has the option of declaring a mistrial and trying the case again with a new jury. - The verdict form used most often currently is the special verdict, in which the jury answers specific questions about the case. It is the responsibility of the court then to apply the law to the facts found by the jury to determine which party is entitled to judgment. (See Rule 49(a) of the Federal Rules of Civil Procedure.)

15-7g The Plaintiff's Case-in-Chief

- In its case-in-chief, the plaintiff's attorney methodically sets forth its evidence in an effort to persuade the jury that the defendant is legally responsible for the plaintiff's damages or that judgment for the plaintiff is warranted.

Evaluating Documents as Trial Exhibits

- In most lawsuits the discovery process produces a mountain of documents. Not all of these documents, however, make effective trial exhibits. Consequently, it is crucial that the attorney and the paralegal ask the following questions to evaluate how effective a document will be as a trial exhibit: Is the document relevant? Is the document admissible? Is the document necessary? Does the document support the cause of action? Is the document confusing? Does the document contain repetitive information? Will the document detract from the witness's testimony? Does the document increase the effectiveness of the witness's testimony? Is the document easy to read from the jury box and counsel table? Is the document accurate? Does the document have an attractive appearance? Is the document clear? Can a clear and readable copy of the document be made? Can the procedural foundation be laid for introduction of the document at trial? - If the document meets these tests, it is marked as a trial exhibit and entered on the trial exhibit log. You should make copies of the exhibit and place those copies in manila folders. Label the files by trial exhibit number and by the name of the witness through whom the exhibit will be introduced. Make copies of each exhibit for all of the attorneys, a copy for the judge, a copy for the trial notebook, and at least two extra copies. Many courts require that a trial exhibit notebook for the exclusive use of the court be delivered to the court prior to the beginning of the trial.

15-3a Preparing Trial Exhibits

- In some jurisdictions, court rules require that the parties exchange lists of all the trial exhibits before the trial. A major source of trial exhibits is the universe of deposition exhibits. Once you have established the documents or the materials that your attorney will introduce at trial, you may begin to prepare a trial exhibit log that will trace the trial exhibit's progress throughout the trial. It is important for the paralegal to know how to determine the effectiveness of a document that may be used as a trial exhibit.

15-6 The Jury Process

- In the past, planning for, conducting, and winning a case before a jury were to some degree matters of chance. Today, however, attorneys have a wide variety of tools at their disposal to help them maximize the effectiveness of a jury trial. These techniques include the juror profile, the mock jury trial, and the shadow jury.

Enlarged Exhibits and Unusual Graphics

- It may be necessary for you to obtain enlarged exhibits or unusual graphics. For example, in the Delgado case, your attorney may request that you have Mr. Delgado's X-rays enlarged for the jurors to view during his testimony. In addition, many litigation support services offer models of various parts of the human anatomy, created to show the effects of certain types of injuries to various parts of the body. You should obtain printed copies of any charts or diagrams that will be used as exhibits. For instance, if you use a large chart to portray the extent of Mr. Delgado's medical expenses in this case, you should prepare a printed copy for the jury to take into the jury room when deliberations begin. Photographs should be reproduced by a photocopy machine. All of these exhibits must be secured several weeks in advance of the trial. Once your attorney has selected the exhibits that she plans to use, you should immediately locate companies that can produce effective trial exhibits.

15-7b The Voir Dire Process

- Literally, voir dire means "to speak the truth." In trial practice, voir dire is the process by which the jurors are questioned to determine any bias that they might have that would affect their ability to be fair and impartial in the case. For example, in the Delgado case your attorney would want to determine whether any potential jurors are related to or are friends of the officers and employees of Bio-Med Pharmaceuticals, Diversified Security Solutions, Inc., or the Rawlings Maintenance Corporation. She might also want to know if any of the potential jurors has any financial interest in the outcome of the trial. Such information would indicate bias on the part of the juror and would be grounds for a challenge. Each side in the suit has an unlimited number of these challenges for cause.

15-3 Preparation of Trial Exhibits and Briefs

- Often the paralegal is called upon to gather and organize the exhibits in a case. This responsibility may require obtaining enlarged exhibits or unusual graphics. Whatever they may be, it helps to know what to look for in the evaluation of those exhibits. It is also possible that the paralegal may be called upon to help conduct research for the trial brief.

15-7d Opening Statement

- Once the jury is seated, the second phase of the trial process begins—the presentation of opening statements. The objectives and scope of these statements are not as precise and definitive as one might expect in a profession that prides itself on both accuracy and clarity. Still, the opening statement is one of the most important steps, if not the most important step, in a jury trial. Consequently, a skillful attorney will know that he should keep the opening statement brief, use ordinary language in the statement, make the statement interesting, and use appropriate body language in delivering that statement.

15-7h The Defendant's Case-in-Chief

- Once the plaintiff has completed her case-in-chief and rests, the roles are switched. The defendant's efforts are directed to discrediting the case that was presented by the plaintiff. The objective is to demonstrate that the plaintiff's version of the facts is not supported by the evidence. In addition, if the defendant raised any affirmative defenses, now is the time to present evidence that demonstrates the validity of these defenses.

15-1b Litigation File Organization

- One of the tasks in trial preparation that can be completed during the preliminary stages of litigation is the organization of the litigation files. Naturally, it is best if the files are kept current as the case develops. For example, each time a pleading is filed by either side it should immediately be placed in the pleadings binder. However, the hectic pace of most law firms will challenge even the most efficient paralegal. Consequently, not all litigation files are kept up to date. The setting of the trial date, however, signals the need to organize the litigation files. This will mean reviewing all the pleadings and motions that have been filed in the case. It will also necessitate locating all documents, records, deposition transcripts, interrogatories, and admissions generated during discovery. You may have to transcribe all witness interview notes that you have not yet examined. Reviewing the litigation files at an early stage will probably add a number of items to the to-do list on the trial preparation checklist

15-1c Amending the Pleadings

- One problem that might surface during organization of the litigation files is the need to amend the pleadings in the case before expiration of the time to do so. According to Rule 15(a)(1) of the Federal Rules of Civil Procedure, once a case has been placed on the trial calendar, the pleadings in that case can be amended only with permission of the court or with the written consent of the opposing party. Fortunately, most state courts do not have this strict requirement. However, it is best to check local court rules to determine the procedure that must be followed should you find that a pleading in your case must be amended after the trial date has been set.

Delivering a Well-Planned Closing Argument

- Planning the closing statement is important because the attorney must organize a mass of evidence and testimony into a coherent pattern that the jury can understand. The attorney begins the closing argument with his theory of the case and then moves to an explanation of the burden of proof and the evidence that strengthens his theory. The attorney also attempts to point out weaknesses in the evidence the other side has presented and to discredit the witnesses upon whom his adversary has relied.

Polling the Jury

- Polling the jurors involves asking each juror if the verdict announced was the verdict that he or she rendered. As long as the required number of jurors answer that the verdict announced is the verdict that they agreed to, there is no problem and the jury is dismissed. For example, suppose in the Delgado case eight jurors were involved in the deliberations. Suppose further that three-fourths of those jurors were required for the rendering of a verdict. If six of the eight answer during the polling process that they agreed with the verdict, the jury members are discharged. If, however, fewer than six concur with the verdict, then the jurors are sent back to continue their deliberations.

15-1a Pretrial Conference

- Rule 16(c) of the Federal Rules of Civil Procedure provides for a pretrial conference, a meeting between the presiding judge and attorneys, to facilitate both the preparation for and management of a trial. There may be two such conferences, one several weeks before the trial and the final pretrial conference immediately before trial. Pretrial conferences narrow and simplify the legal and fact issues of the case. The judge may ask for briefing on particularly difficult legal issues in the case. All uncontroverted facts will be included in the pretrial order entered by the court. - Stipulations for the handling of evidence is another topic of the pretrial conference. Parties may agree to the use of copies of records rather than originals. In addition, they may stipulate to the foundation of certain business records so that the custodian does not have to appear in court to identify the records. - The initiation of a summary judgment motion is often considered at the pretrial conference, if the judge or magistrate believes that an issue or the case as a whole may be disposed of through this means. Scheduling of oral argument for the summary judgment motion may also be handled at that time. During the pretrial conference, the judge may suggest Alternative Dispute Resolution (ADR), and increasingly more courts' rules now require the parties to undertake nonbinding ADR before the case may be tried. Rule 16(c)(2)(I) of the Federal Rules of Civil Procedure authorizes the presiding judge to encourage settlement negotiations. It is not unusual for a judge to attempt to mediate or to appoint a magistrate to mediate the case.

Delivering a Brief Opening Statement

- Setting an absolute minimum or maximum length of time for an opening statement beyond which an attorney should never wander is difficult. It is, however, safe to say that an attorney should rarely, if ever, pass up the opportunity to make an opening statement, unless both parties waive that right. Waiving the opening statement, or even postponing it, gives a psychological advantage to the other party. The opening statement should be long enough to capture the attention and imagination of the jurors, but not so long that it puts them to sleep. Most opening statements can be limited to 30 to 45 minutes. Occasionally, when the facts are extremely complex, more time is needed.

Factors in Choosing a Judge or a Jury Trial

- Several factors should be considered by your attorney as she attempts to decide whether it would be in the best interests of the client to try the case before a judge or before a jury. - The first factor to consider is the complexity of the case. If the case involves legal issues and concepts that may be difficult for the layperson to grasp, your attorney may prefer to present the case before a judge. The same might be true if the facts in the case are extremely complicated. - Another factor to consider is available time. In general, the attorney can be relatively certain that a trial before a judge will take less time than a jury trial because in a trial before a judge there is no need to select the members of the jury and no need to explain the law or the legal process to the judge—he will already be well versed in both. - Another factor to consider is the condition of the client. If the case is a personal injury case involving a client who has been disfigured or otherwise permanently disabled, the attorney representing the plaintiff would probably want to ask for a jury trial. In the Delgado case, for example, your attorney would most likely decide to demand a trial by jury. Because the plaintiff has been badly burned through absolutely no fault of his own, your attorney would want to rely on eliciting the sympathy of the jury. In contrast, attorneys who represent large, impersonal corporate defendants, like Bio-Med Pharmaceuticals in the Commentary, might prefer to have a judge decide the case. Naturally, any party requesting a jury trial will have that request honored because, as noted earlier, trial by jury is a constitutional right. - Even the location of the trial can be a factor in the decision to demand a jury trial. If your client is a local community member, and the opposition is someone from out of town, your attorney may elect to demand a jury trial. In the Delgado case, for example, the plaintiff is a locally prominent CPA who was born and raised in the town of Red Forest, Alabama, and the defendant is a large corporation formed in Delaware. This would seem to indicate that your attorney would prefer a jury trial. However, she might also consider the fact that Bio-Med is one of the largest employers in town and is therefore an integral part of the local economy. Knowledge of its importance to the economic health of Red Forest might cause her to reconsider the advisability of demanding a jury trial.

15-2c Witness Preparation Meeting

- Shortly before trial, your attorney will probably request that you arrange a meeting between each witness and your attorney. Before the meeting, you may be asked to collect all documents that refer to the witness. You should review the witness's deposition and note any areas that gave the witness difficulty or that may require further clarification. In addition, a review of other deponents' references to the witness is necessary. That review will include determining any discrepancies between the other deponents' testimony and the previous deposition testimony of the witness. You may be asked to assist the attorney with the preparation of an outline or actual questions that your attorney anticipates asking each witness during the trial. Make sure that you correlate the necessary trial exhibits with that outline. During the witness preparation meeting, your attorney will explain the trial process and what is expected of the witness during trial. Many attorneys conduct mock questioning sessions so that the witnesses will know exactly what questions will be asked during direct examination. Your attorney may request that you videotape this mock questioning session for evaluation of the witness's appearance and testimony prior to trial. Many of the guidelines for testifying in a deposition carry over to preparation for trial testimony. However, there are some significant differences. Witness Instructions for Trial Testimony: Arrive at the courthouse well in advance of your scheduled appearance time. Wear appropriate courtroom attire; avoid flashy or unusual styles. Do not discuss your impending testimony with friends or family. Speak slowly, distinctly, and loud enough to be heard by the judge and jury. Listen carefully to the question. Request clarification if the question is unclear. Do not guess at the answer. "I don't know" or "I don't recall" are acceptable answers. Allow sufficient time for your attorney's objection to the question before answering. Follow your attorney's advice if your attorney instructs you not to answer. Look at the attorney asking the question or at the jury, not at your attorney. Such glances may indicate that you are asking your attorney for guidance on answering the question. Answer a question as briefly, but completely, as possible. Avoid using the qualifiers "I think," "maybe," "I believe," or "I honestly." When questioned about prior testimony or the contents of a document, request a copy to review prior to answering the question. Be polite and respectful of the attorney asking the questions in both your answers and body language. Do not argue with the questioning attorney. If asked a general question such as, "Is there anything else?" your answer should be clear that your testimony is all that you recall at this time. In response to a question about discussions with your attorney prior to testifying, answer truthfully. There is nothing wrong with a witness's meeting with his or her attorney prior to trial testimony. Request a short recess for a water or bathroom break if you become tired, irritated, or confused with the line of questioning. If you realize that a prior answer is incorrect, you should notify the judge as soon as possible that you want to correct earlier testimony.

15-6a Preparing a Juror Profile

- Social psychologists and litigation specialists are often utilized to provide law firms with valuable statistics and jury sampling information to create not only the image of the preferred jurors but also a profile of the jurors that your attorney will want to avoid. For example, in the Delgado case, the litigation specialist may conclude that well-educated, white-collar workers will be more sympathetic to your client. One reason for this may be that your client is a well-educated, white-collar professional. Another reason may be that well-educated jurors tend to be skeptical of the motives of large corporations such as the defendants in this case. The social psychologists and litigation specialists also may indicate that lower-income, less-educated jurors may be swayed by the presence of the corporate defendants. Your attorney would therefore try to steer away from including such people on the jury as often as possible. It is important to remember that the cost of this service may be prohibitive for smaller cases. If the expense results in a favorable decision or reduces the judgment against a client, though, the cost will certainly be justified.

15-5 Preliminary Steps in the Trial Process

- The Delgado case, which served as the Commentary case opening this chapter, has not settled, despite lengthy settlement discussions and mediation efforts. Consequently, the time for the trial has arrived. - Although most cases are settled or dismissed before reaching the trial stage, you must proceed on the assumption that eventually the case will reach trial. Your attorney will make the determination of whether a jury trial or a trial by a judge alone will be in the best interests of your client. If you are going to face a jury, one of the first steps in the trial will be to select the jurors. This selection process must be done with great care because the jurors play a key role in the success or failure of your case.

The Cast of Characters

- The cast of characters is a roster of all key participants in the case. This list can be developed from witness interviews, documents, depositions, exhibits, and pleadings. As is true of the chronology, you must be careful to update the cast of characters as new information is received.

Delivering a Persuasive Closing Argument

- The closing argument must be persuasive. Persuasiveness is difficult to manufacture, so it is extremely helpful if the attorney is convinced of the righteousness of her client's cause. If jury members doubt the attorney's dedication to vindicating the rights of the client, they will have little faith in anything she says on behalf of that client. For these reasons, in the closing argument, as in the opening statement, an attorney should identify herself with the client's cause. In the Delgado case, for instance, the jury will be much more easily convinced by your attorney if she concludes her argument by saying, "We have proved that the officers and directors of Bio-Med Pharmaceuticals attempted to hide behind the facade of Diversified Security Solutions and Rawlings Maintenance in a feeble attempt to escape their legal obligation to protect all those who used their offices," than if she were to say, "The defendant's attorney did not prove that Diversified Security Solutions and Rawlings Maintenance were not the alter egos of the defendants."

Direct Examination by the Defendant

- The defendant's attorney calls his witnesses and subjects them to direct examination. This is the same type of question-and-answer period that was conducted by the plaintiff. As was the case with the plaintiff's attorney, the defendant's counsel may not ask his own witnesses leading questions. For example, the defendant's attorney could not call Lon Anderson, an employee of both Diversified Security Solutions and Rawlings Maintenance, to the witness stand and ask him, "Isn't it true that Diversified Security Solutions and Rawlings Maintenance management decisions were made separately from any and all management decisions made for Bio-Med Pharmaceuticals?" Such a question would be considered leading and would not be permitted.

15-9 The Electronic Courtroom

- The electronic courtroom, a courtroom equipped with electronic equipment to be utilized in trial presentation, is not a new phenomenon. Rather, it has evolved, becoming more sophisticated and pervasive over the past 30 years. Courtrooms fall into two categories, a courtroom wired for evidence presentation systems, or a traditional courtroom, a courtroom not wired for evidence presentation systems. To determine which category your trial courtroom falls into, you will need to check the court's Web site, or tour the courtroom early in the trial preparation stage. Most federal court Web sites contain information regarding the electronic capabilities of your assigned courtroom. - In the event your courtroom is a traditional courtroom, you will need to contact the appropriate court representative to arrange for a portable video cart with evidence presentation equipment, or make arrangements to bring your own equipment to the courtroom. - Evidence presentation systems are technologies that present evidence electronically and simultaneously to everyone in the courtroom. The technology may include all or part of the following: Document camera Laptop computer with presentation software Electronic whiteboard Annotation equipment Digital monitor, projector, and projector screen Integrated lectern Kill switch and control system - The document camera, a compact, high-resolution camera, is the successor to the projector. Evidence utilized with the document camera is not limited to documents, but includes photographs, X-rays, maps, and diagrams. The unit is approximately 12 in wide and 16 in tall. A magnification zoom lens permits enlargement of a particular portion of evidence for the fact finder.

Requesting a Jury Trial

- The fact that the Constitution guarantees the right to a jury trial does not prevent the courts from making the request for such a trial the responsibility of the litigants. For example, Rule 38(b) of the Federal Rules of Civil Procedure requires the litigants to demand a trial by jury. Such a demand must be made in writing at any time after the lawsuit has begun, but not later than 14 days after the last pleading in the case has been served. If such a demand is not made by either party, the right has been voluntarily surrendered by the parties. This means that the trial will be conducted before a judge. In such a trial the judge acts as both the finder of fact and the determiner of law. In a jury trial the jury plays the role of fact finder.

Information Regarding the Parties and the Attorneys

- The first entry in the trial notebook is a list of all the parties and attorneys involved in the lawsuit. This list can also function as a service list for pleadings. In addition to the names and addresses of the attorneys, the list should include the telephone numbers, fax numbers, and e-mail addresses of their law firms. Updating this list is extremely important. Each time a pleading is received, you should check to determine that the attorney's name, firm, address, and client represented are correct on your list of parties and attorneys. If you do not take this simple precaution, you may send a pleading to the wrong address or to an attorney who has withdrawn from a case. Such an error is not only embarrassing and costly, but it is also grounds for a potential malpractice action.

Witness Testimony and Cross-Examination

- The heart of a civil trial is often referred to as the "case-in-chief," the stage at which both sides present key evidence and arguments to the jury. The plaintiff presents his evidence by calling witnesses to testify, placing those witnesses under oath, and then beginning his direct examination. The defendant then has the right to conduct a cross-examination of each witness. The roles are then reversed. The defendant places her witnesses on the stand for direct examination. The plaintiff then has the opportunity to engage in cross-examination.

Importance of the Opening Statement

- The imprecise nature of the opening statement is even more critical because of its importance. Some legal scholars argue that the opening statement is the most important part of the trial. First, because the opening statement occurs so early in the trial, the jurors are very attentive. This attentiveness heightens their awareness of what is being said and done during the opening stages. As the trial progresses and they become more comfortable and secure in the courtroom, their attentiveness lessens. Also, although jurors are counseled to remain as objective as possible, they are, nevertheless, human beings who have a natural tendency to pick sides in any adversarial contest. When they watch a television show or a movie, they know whose side they are supposed to be on. When they attend a sports event, people are quick to pick sides. - The jurors carry this tendency to choose sides with them into the courtroom, and as early as the end of the opening statements may have unconsciously decided who is the "good guy" and who is the "bad guy." This places a heavy burden on the attorney who has been labeled the bad guy and gives an edge to the one who has been labeled the good guy. The advantage given to the good guy has been termed by some scholars as the "halo effect" and by others as the "white hat syndrome." Basically, the halo effect or the white hat syndrome means that everything said by the good guy and every piece of testimony and evidence that is introduced in support of the good guy's argument is interpreted favorably, while everything damaging to that side's case is somehow rationalized or explained away. Of course, this does not mean that a juror will never change her mind. It just means that attorneys who have been labeled bad guys have a much more difficult time getting jurors to believe them.

15-6c Using Shadow Juries

- The increasing complexity of litigation has resulted in the introduction of a technique known as the shadow jury. A shadow jury is a secret jury selected by the law firm or the outside consulting firm to match as closely as possible the individuals who will serve on the actual jury. The shadow jury then attends the trial. To assure fairness, these individuals are not told which party has retained them. During each break and at the end of each day's court session, the shadow jury reports to another paralegal or legal team member on their impressions of the trial witnesses, the exhibits, and the attorneys. The shadow jury's reports are given considerable weight. Adjustments in the order of witnesses, changes in the trial exhibits, or alterations in the attorney's examination technique may result from the observations and the suggestions made by shadow jury members. A substantial amount of expense and time is involved in this exercise. If the shadow jury strengthens a case, however, both the expense and the time are justified.

15-9a Laptop Computer with Presentation Software

- The laptop is the most frequently used type of computer in the courtroom because of its built-in monitor and portability. The laptop may utilize external monitors also. Another advantage of the laptop is that it generally offers the same amount of storage capacity as desktop models. Document exhibit retrieval for view on a monitor or monitors in the court room can be accomplished by storing the documents/exhibits in files and retrieving them through software, or by a touch screen sensor through which exhibit numbers are stored on the display, and through use of a bar code system. With the latter system, the attorney runs a handheld bar code scanner over the bar code and the document appears. - Two major types of presentation software are utilized in the courtroom. The first type, standard software that has sufficient capability for litigation purposes, generally consists of Microsoft's PowerPoint and Corel's Presentations. Changes to the slides generated with these programs must be made prior to their use in the courtroom, not at the last moment when a witness is testifying regarding the slide. The second type of presentation software, often referred to as "high-end" includes all the attributes of the standard software, but permits changes to be made to the document as it is presented in the courtroom. There are many commercial software packages, including ANIX from DOAR Communications, Inc., Sanction from Verdict Systems, and Trial Director from InData Corp., in addition to proprietary packages developed by specific companies or law firms for their individual purposes. - The electronic whiteboard, is a surface that can be written on and erased, display computer images, and send commands to the computer. The whiteboard may contain a pressure sensitive surface for writing, or it may utilize markers that are embedded with a tracking device. Sensors in or around the board capture the position, movement, and color of the marker. A personal computer saves the writing, including any deletions, or changes. Images on the whiteboard can be transmitted instantly to all monitors in the courtroom. - Annotation tools are hardware devices that coordinate with the document camera and laptop to mark screen images. Three such tools are the touch screen monitor, which responds to pressure on the surface, the telestrator tablet and the light pen, which works only with a CRT monitor.

15-1d Motions at the Beginning of Trial

- The paralegal may be asked to assist with drafting trial motions for inclusion in the trial notebook. A motion in limine is one of the first motions filed before or at the beginning of trial. "In limine" is defined as "at the threshold." Such motions are frequently used to prevent opposing counsel from introducing certain evidence at trial. Motions in limine often attempt to exclude an opponent's expert witness or an expert opinion. Success in this area can severely damage the opposition's case and possibility of success. For instance, your attorney might prepare a motion in limine to exclude one of the opposition's expert witnesses on the grounds that his only security experience has been in the area of residential property security services. She might argue that security requirements for a 40-building condominium development are not applicable to the demands of a multi-acre commercial park, such as the one which included the building in which your client was injured.

15-4c Contacting Court Personnel

- The paralegal should schedule a meeting with the court clerk and the court reporter before the trial. Determine whether the courtroom will be available on the evening before or early on the morning of the trial for the delivery of exhibits, documents, and equipment. You may need to arrange for security clearance and access to the courthouse elevators and the loading dock after hours. The paralegal should ask the clerk whether trial exhibits and other trial material can be left in the courtroom throughout the trial or arrangements must be made to remove those items at the end of each trial day. - During the trial, the court clerk will receive many calls and inquiries concerning the case. If the paralegal furnishes the clerk with a list of the law firm personnel who will be present in the courtroom, the possibility of missing an important telephone call is diminished. The court reporter will make a transcript of the trial proceeding. You should meet with the court reporter prior to the trial and give him your business card just in case there are any problems in the transcription of trial testimony. At this point, you will need to inform the reporter of any special transcript requirements. For example, daily transcripts are often available several hours after the completion of each day's proceeding. This expedited service is normally rather expensive. However, the availability of the day's testimony is a valuable asset for your attorney as she prepares for the next day's witnesses.

Direct Examination by the Plaintiff

- The plaintiff's attorney subjects each of the witnesses who will provide facts to verify the validity of the plaintiff's version of the case to direct examination. This is a question-and-answer period conducted under oath and recorded by the court stenographer. In general, the plaintiff's attorney may not ask her own witnesses leading questions. A leading question is one containing the answer. For example, your attorney could not call Mr. Delgado to the witness stand and ask him, "Isn't it true that the storeroom next to the room where you conducted the audit for Bio-Med Pharmaceuticals contained combustible material?" Such a question would be considered leading and would not be permitted.

15-1 Preliminary Preparation for Trial

- The preparation for trial actually begins at the initial client interview. It is at this point that the attorney begins to develop the theory of the case, the plan for where you are going with the case and how you will shape the law and the facts to achieve your ultimate destination. The late great baseball player, Yogi Berra, has been credited with the quote, "If you don't know where you're going, when you get there, you'll be lost." That statement is especially true in the planning and execution of trial strategy. As a paralegal, you may be involved in establishing the theory of the case. Perhaps when your attorney first assigned you to work on the case, she began by saying, "This case is about...." Many attorneys have difficulty articulating the theory of the case. They often equate the theory with a claim or defense. That is the beginning point. For example, in the Bennett case featured in this text, you might begin with the complaint in Appendix B. The theory should be succinct, credible, interesting, utilize common sense, and include the emotions of the client's case. Once you have developed the theory of the case, you are ready to identify witnesses and exhibits through which you can flesh out this theory. - A proof chart is a list of the elements of the case that must be proved, witnesses to prove the element, the exhibit to be utilized, and any anticipated objection(s) to the exhibit. Completion of a proof chart enables the attorney or paralegal to determine any gaps in establishing their theory of the case - Each of the processes and tasks that we have examined thus far in the text advances the prosecution or the defense of the case. Although most cases are settled or dismissed before reaching the trial stage, you must proceed on the assumption that eventually the case will reach trial. Some preparation tasks may be performed several months in advance of trial, whereas others must be handled at the last minute. - Whatever the case, the client will prevail only if you and your attorney are thoroughly prepared for all eventualities. To insure the success of such preparation, the paralegal should develop a trial preparation checklist of all the tasks that must be performed before the trial and the time frame for completion of those tasks. Regular monitoring and updating of this checklist will ensure that the case is truly ready for the trial Trial Preparation Checklist: Three to Six Months Prior to Trial Date Place the trial date on the law firm's docket system and on the individual calendars of the trial team. Reschedule any conflicts within the docket or individual calendars. Schedule regular trial team meetings. Review and docket all entries on a trial scheduling or case management order. Review all discovery to determine whether any supplementation is required for witnesses or documents and coordinate any necessary supplementation. Check with the attorney for additional depositions that should be scheduled. Begin logistical planning, particularly if the trial is out of town. Contact hotels, conference centers, copy vendors, and so forth. Coordinate technological requirements for the trial with the trial team and the firm's litigation support staff. If exhibit enlargements, computer-generated exhibits, or models made to scale are required, begin the process of ensuring that these are under way in time for review well before the beginning of trial. Review litigation files and organize. Complete trial notebook. Finalize trial logistics, including travel, hotels, conference rooms, and food arrangements. Four to Six Weeks Prior to Trial Review pleadings and check with the attorney regarding any amendments necessary. Assist with drafting to the extent requested by the attorney. Begin the preparation of exhibit lists and witness lists. Coordinate deposition designations with the trial team. Assist with the drafting of the pretrial order, if requested by your attorney. Assist with drafting pretrial and trial motions, including motions in limine and voir dire, if requested to do so by your attorney. Coordinate mock jury or focus group. Visit the courtroom, if possible, to review space available, placement of electronic equipment, and so forth. Two to Three Weeks Prior to Trial Contact the client and other witnesses regarding the trial schedule and logistics. Schedule meetings to prepare for their trial appearances. Prepare trial subpoenas. Conduct jury investigation if the jury pool data are available. Continue the preparation of trial exhibits and trial notebook. One Week Prior to Trial Verify service of trial subpoenas. Finalize logistics such as hotel rooms, travel arrangements, and transportation of trial materials to the courthouse. Confirm arrangements for expedited or regular trial transcripts with the court reporter. Assist with cite checking of trial brief. One Day Prior to Trial Conduct meetings with trial team and office support personnel who will be assisting at trial. Review all trial exhibits and trial notebooks for accuracy and completeness. Assist with final changes to motions and/or trial brief. Check with the clerk's office regarding potential jury pool information, and prepare juror information sheets or summary sheets, as necessary.

15-2b Communicating with Witnesses

- The preparation of a witness for trial is much more involved and generally much more critical than the preparation of the witness for the deposition. For this reason it is usually advantageous for the paralegal to work with the witnesses in the case from the time of the initial interview. This early involvement will build a relationship that facilitates communication and helps put the witnesses at ease while working with the paralegal. - As the paralegal, you may be asked to communicate with witnesses early in the trial preparation period about the basic details of the trial, including the date, the location, and the anticipated length of their testimony. The witnesses should be informed that they may have to meet with the attorney and the paralegal closer to the time of the trial. Remind the witnesses to review their deposition and/or affidavit at least once before the meeting. - It is essential that the paralegal be able to reach witnesses to advise them of changes in the trial schedule. Also, the client and all the witnesses should be given a designated contact person at the law firm. Each morning and afternoon during the trial, the client and the witnesses should check with this person to make certain that there have been no changes in the schedule and order of witnesses.

Rules Regarding the Defendant's Direct Examination

- The same rules governing the plaintiff's strategy on direct examination also apply to the defendant's direct examination. Thus, the defendant's attorney should prepare in advance by meeting with friendly witnesses before trial. The defendant's attorney should never ask a question to which he does not already know the answer, and he should develop the discipline to know when to stop asking questions.

Stipulation

- The third type of trial evidence is the stipulation. A stipulation is an agreement between the parties that certain facts are not in dispute. A stipulation may be shown or read to the jury. The parties in the Delgado case might stipulate that an expert witness for the opposition is indeed an expert, thus avoiding wasted trial time establishing the witness's credentials.

15-1e The Trial Notebook

- The trial notebook, a vital part of any trial preparation, usually is the paralegal's responsibility. The trial notebook is a binder that contains, in complete or summary form, everything necessary to prosecute or defend a case. Preparation of the trial notebook, like the preparation of the trial itself, begins with the initial client interview. The contents and the organization of the trial notebook are determined by the individual preferences of the attorney or the paralegal. The form of the notebook is dictated by the type of case, the number of pleadings, the complexity of the legal issues, the number of exhibits and witnesses, and the anticipated length of the trial. However, most trial notebooks include the following basic sections: (1) information regarding the parties and the attorneys; (2) the pleadings, motions, and discovery responses; (3) information regarding the witnesses; (4) information regarding the expert witnesses; (5) document indices; (6) deposition summaries; (7) chronology; (8) the cast of characters; (9) legal research; (10) trial exhibits; (11) jury profiles and instructions; (12) the trial outline; (13) the attorney's notes; and (14) the "things to do" list. - It is not unusual for a paralegal to maintain a hard copy of the trial notebook and a computerized version also. In those instances, caution must be taken to ensure that updates and deletions are made in both.

Leading Questions by the Plaintiff

- There is an exception to the rule that prohibits asking leading questions. When an attorney is faced with an adverse or hostile witness, he is permitted to ask leading questions. For example, in the Delgado case, your attorney has elected to call several adverse witnesses, including Mario Montalvo, CEO of Diversified Security Solutions; Sam Guzman, CEO of Bio-Med Pharmaceuticals; Angie Guzman, treasurer of Bio-Med Pharmaceuticals; Alex Rawlings, CEO of Rawlings Maintenance and vice-president of Bio-Med Pharmaceuticals; and Mercedes Herrera, treasurer of Rawlings Maintenance and vice-president of Bio-Med Pharmaceuticals. Each of these witnesses could, therefore, be the legitimate target of leading questions by Delgado's attorney. For instance, Delgado's attorney would be permitted to ask Sam Guzman the following question: "Isn't it true that the storeroom next to the room where the audit was conducted contained combustible chemicals?"

Judicial Notice

- This fourth type of trial evidence, judicial notice, occurs when the trial judge takes judicial notice of a fact that is commonly known in the jurisdiction where the trial is held, easily determined and verified, and that fact is assumed true and admitted as evidence. For example, the trial court in the Delgado Commentary in this chapter might take judicial notice of the location of the facility where Delgado sustained the alleged injuries. The primary purpose of this type of evidence is to move the pace of trial with regard to evidence that is relevant but not in dispute.

Juror Profiles and Instructions

- This section of the trial notebook consists of two parts. The first part is a juror profile. The juror profile lists the characteristics of the ideal jury that you would like to assemble in the case. For example, you might want the jury to include persons with a certain background or with a certain level of education - The second part of this section is the jury instructions. jury instructions explain the legal principles that the jury must apply to the facts in the case in reaching the verdict. Jury instructions also outline the procedures that the jury members must follow as they attempt to reach a verdict. Although these will change during the course of the trial, drafting a proposed set of jury instructions and placing them in the trial notebook will save a substantial amount of time during the trial. A disc containing the proposed set of jury instructions should be included with trial materials to enable changes while the trial is in process. The ultimate responsibility for giving the jury instructions lies with the judge. However, attorneys are permitted to suggest the substance of those instructions to the judge and may object when they feel the judge has not properly instructed the jury. Attorneys who fail to object to jury instructions cannot raise the inaccuracy of the instructions as an issue on appeal.

Legal Research

- This section of the trial notebook should contain copies of all cases that are on point with the legal issues involved in the present case. A case on point is one that has been decided in your jurisdiction and that involves both facts and legal principles that are so similar to the facts and principles in the present case that your attorney feels the court will be bound to follow the court's ruling in that earlier case. If the cases on point are numerous and lengthy, the paralegal should include a case summary and a citation to the case and maintain the actual cases in a separate, clearly marked cases binder.

Witnesses

- This section should include a list of all witnesses, their telephone numbers, addresses, fax numbers, and e-mail addresses, and a copy of their trial subpoena, if one was issued. A copy of potential trial exhibits to be introduced through this witness should be placed within this section of the trial notebook. If possible, it also includes a summary of the factual areas that each witness is expected to cover in his testimony. Your attorney will benefit from an outline of the questions that the witnesses will be asked at trial

Trial Exhibits

- This section should include lists of plaintiff's and defendant's proposed trial exhibits, a normal requirement of the final pretrial conference. In addition, the paralegal should place a copy of each exhibit that her attorney plans to introduce into the notebook unless the number and size of the exhibits precludes such inclusion. In that case, the exhibits would be placed in separate trial exhibit binders. As an exhibit is introduced at trial, the paralegal notes the following on the trial exhibits list: the exhibit number; the party introducing the exhibit; the witness through whom the exhibit was introduced; whether there was any objection to the exhibit; and the court's ruling on the objection, either admitting or rejecting the exhibit. If an exhibit consists of an enlargement, photograph, or medical model, for example, a hard copy of the exhibit should be included in the notebook, or an entry should be made to indicate what the exhibit is, and its location.

Delivering a Sympathetic Opening Statement

- To make the opening statement as convincing and sympathetic as possible, the attorney must show the jury that he believes in the client's cause. If the jury members doubt the attorney's dedication to vindicating the client's rights, they will have little faith in anything that he says on behalf of that client. For these reasons an attorney should immediately identify himself with the client's cause. The jury will be much more convinced by the attorney who says, "We will prove that our case against the defendant is as solid as a rock," than one who says, "Don't believe everything the other side has to say about the plaintiff."

Redirect Examination by the Plaintiff

- When the defendant has completed the cross-examination of a witness, the plaintiff's attorney has the opportunity to redirect questions to that witness. The objective of this part of the trial process is to allow the plaintiff's attorney the chance to reestablish the credibility of her witnesses and to clear up any factual disputes raised on cross-examination. To make redirect examination as efficient as possible, the plaintiff's attorney is limited to those matters addressed by the defendant's counsel during the cross-examination period.

Redirect Examination by the Defendant

- When the plaintiff has completed the cross-examination of a witness, the defendant's attorney has a chance to redirect questions to that witness. This step allows the defendant the same chance that the plaintiff had to reestablish the credibility of his witnesses and to clear up any factual disputes raised on cross-examination.

15-4a Arranging for Accommodations

- When the trial is to be held in another district or county, or when your client and several of the witnesses are from out of town, you as the paralegal may be responsible for travel, hotel, and food arrangements. Often a suite of offices in a hotel near the courthouse is set up as a war room. The war room is an area containing additional trial documents and supplies. It also doubles as a conference room where the legal team, the client, and the witnesses may gather during trial recesses or at the end of the trial day to regroup and prepare for the next day of the trial. - You should locate hotels near the courthouse and determine whether your firm has a corporate account with any of them. An actual review of the available hotel accommodations is necessary to ensure that the site contains the space and setup required for your particular trial needs. Once the hotel has been selected and the necessary rooms reserved, make any travel arrangements that may be required for the client and out-of-town witnesses, and confirm the travel arrangements in writing. Write to the client and the witnesses informing them of the location of the hotel and the details of the travel plans. Remember to enclose the airline tickets and hotel confirmation, if requested, along with a map of the area around the courthouse and the hotel. - Once the trial is under way, the paralegal may be called upon to arrange for catered meals in the war room to avoid crowded, noisy restaurants near the courthouse. Having catered meals also prevents the awkwardness of being seated in a restaurant next to the opposing counsel or several of the jurors. However, often these arrangements should be delegated to another member of the legal team. This delegation is especially important at the relatively short lunch breaks that occur during the trial because the paralegal may be needed elsewhere. For example, the paralegal may have to use this valuable break time to locate a witness, secure another copy of an exhibit, or locate a case for inclusion in the trial brief.

15-7l Motions During Trial

- While a trial is still in progress, the litigants have the opportunity to end the dispute in a number of different ways. As discussed in Chapter 14, settlement may occur even after the trial has commenced. During the trial, a party may attempt to arrive at a speedy conclusion by asking the court to grant a motion for judgment as a matter of law. Also, throughout the trial, both parties have the opportunity to present a variety of motions to the court, including a motion for involuntary dismissal, a motion to strike, or a motion for mistrial.

15-2a Subpoena of Witnesses

- You must consult with your attorney to determine whether any witnesses will require a subpoena. In some instances, attorneys prefer to subpoena only witnesses who are not considered "friendly." However, a friendly witness may request a subpoena to present to an employer as evidence that she has been ordered to appear and testify at trial. - Trial subpoenas require the same procedure as deposition subpoenas. You should review your state and local rules to determine whether there are any unusual requirements for subpoenas. In federal courts, the subpoena process is governed by Rule 45 of the Federal Rules of Civil Procedure. According to Rule 45, the clerk of court is responsible for issuing subpoenas. Attorneys can also issue subpoenas in federal court under Rule 45(3) of the Federal Rules of Civil Procedure. - In federal court under Rule 45, a federal marshal can serve a witness with a subpoena. However, the rule also states that any person who is 18 years of age or older can serve a subpoena. A trial subpoena must be personally served on the witness, and all mileage and witness fees required must be tendered to the witness. - Payment for only the first day's trial appearance fee plus round-trip mileage is tendered with the subpoena. The clerk of court will be able to supply the paralegal with the amount of that fee and mileage. - Subpoenas are valid for the date or dates reflected and for the remainder of the trial, unless the witness is dismissed prior to the end of the trial by either the party that subpoenaed the witness or the court. It is virtually impossible to know precisely when a witness's testimony will be required at trial. Thus, the appearance date on the subpoena should reflect the earliest possible time that a witness's presence in court might be necessary. The witness's schedule can be accommodated during the uncertain trial schedule by allowing the witness to remain at home or near a telephone to receive updates on the trial's progress. - The trial subpoena remains in effect through a continuance or postponement of trial. The one instance where a subpoena must be reissued is in the event of a change of venue. - A person who has been subpoenaed may challenge the subpoena on the basis that it is unreasonable, oppressive, or insufficient through a motion to quash, modify, or vacate. - Finally, the return-of-service information on the subpoena must be completed and filed with the court for the subpoena to be considered valid. An important paralegal responsibility is checking for the filed return prior to the time the witness is to testify. Failure to do so may result in a "no-show" witness and a major hole in your trial schedule.

Delivering an Understandable Opening Statement

- Your attorney will be more likely to gain the interest and sympathy of the jury members if she avoids legal jargon and speaks the language of the jurors. Opening statements that are full of legal terms and unintelligible Latin phrases are guaranteed to alienate jury members, who may already view all attorneys with a certain degree of distrust, if not downright hostility. If your attorney, for example, buries the Delgado opening statement in references to respondeat superior, vicarious liability, piercing the corporate veil, and alter egos, she may bury her case along with it. In addition, depending upon the opinion of the judge in the case, the use of such terms may be considered arguing the case. Your attorney will do better to speak in ordinary, everyday language.

15-8d Taking Notes During the Trial

- Your attorney's full energy and concentration must be directed toward the witness on the stand, the objections raised by opposing counsel, and the court's rulings on particular motions. You should, therefore, assume responsibility for taking full and accurate notes of the trial proceedings. A lined notebook with a wide left margin will assist you in noting inconsistencies in testimony, incomplete answers to questions, and exhibits that have not yet been admitted into evidence. You may want to use red ink to record "things to do" that arise during the trial. Note the beginning time of each session and all breaks. These notations will enable you to quickly locate a particular piece of information.

15-8b Keeping Track of Exhibits

During the trial, you must keep track of exhibits introduced by both sides. The exhibit log reflects which exhibits have been offered and admitted, which exhibits have incurred objections, and whether the exhibit was ultimately admitted into evidence. At each break in the trial, you should compare the court reporter's original exhibits against the exhibit log to be sure that all exhibits are accounted for. During the trial, you should confer with your attorney at the end of each day to determine which exhibits will be introduced the next day. Review your exhibit files to make certain that adequate copies of these exhibits are ready for the next trial session

Actual Deliberations

Following the judge's instructions, the jury as a group considers the evidence in light of those instructions and attempts to arrive at a verdict. If the jurors are confused about some point or unsure of the law, they can ask for clarification from the judge. The jury can also see any of the evidence presented at trial. In a civil case tried in federal court, a unanimous verdict is required unless the parties have agreed on some number less than a majority. In many state courts, a three-fourths majority is sufficient for a verdict in a civil case.

15-7f The Presentation of Evidence

Four types of evidence are presented during a civil trial: (1) witness testimony and cross-examination, (2) exhibits, (3) stipulation, and (4) judicial notice.

Rendering a Verdict

Once the jury reaches a decision, the foreperson notifies the judge. In most jurisdictions, parties and lawyers are not required to wait at the courthouse for a verdict. The clerk or bailiff may telephone them when a verdict has been reached. Some lawyers even elect not to be present when a verdict is returned. The verdict is generally read aloud by the judge and then filed with the clerk of court.

15-5a Decisions Regarding Jury Trials

The Seventh Amendment to the U.S. Constitution guarantees the right to a trial by jury in certain types of civil cases. The amendment states, "In Suits at common law, where the value in controversy shall exceed 20 dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of common law." The amendment clearly preserves the right to a jury trial in cases involving common law for those litigants who wish to take advantage of that right. It does not, however, give the litigants a right to a jury trial in cases tried in equity. Therefore, jury trials are not allowed in divorce proceedings, in disputes involving custody rights, or in other equitable cases.

15-8a Ensuring the Presence of Witnesses

The paralegal may be responsible for locating and having the witnesses present in the courtroom for their testimony. Your witness control log, discussed earlier, will assist you in coordinating the production of witnesses at the appropriate times. You also may be asked to provide for transportation of witnesses. This task may even include picking up out-of-town witnesses arriving at the airport. If possible, delegate this responsibility to another member of the legal team so that you are not away from the courtroom for any extended period of time. The paralegal may be called upon to calm or reassure a nervous witness. It may even be your responsibility to work with hostile witnesses whom your attorney is forced to call to the stand. Your demeanor must be firm but relaxed when dealing with hostile witnesses. If a contact person for witnesses has been designated at the law firm, you should check with that person frequently to ensure that all witnesses will be present in court as scheduled.

15-8 The Paralegal's Role at Trial

The paralegal's role at the trial involves many of the same areas that the paralegal was involved in during the preparation stages. These areas of participation include witnesses, exhibits, note taking, jury selection, and general trial coordination tasks.

Rules Regarding the Plaintiff's Direct Examination

The process of asking precisely the right questions during a direct examination session is not as easy as it may appear. Advance preparation is essential. All friendly witnesses should be properly and thoroughly prepared before the day of the trial. They should meet with the attorney and discuss the questions that will be asked, the answers that the witness intends to give, and the probable questions to expect on cross-examination. An attorney should never ask a question to which she does not already know the answer. The time for exploratory questions is during the discovery process, not at trial. An attorney also needs to know when to stop asking questions. Once the attorney has elicited the facts that she wants, questioning should stop. Continuing questions after that point can be very damaging.

Cross-Examination by the Plaintiff

When the defendant's attorney has completed the direct examination of each witness, the plaintiff's attorney has the opportunity to engage in cross-examination. The scope of plaintiff's cross-examination is limited to facts covered in direct examination. Like the defendant, the plaintiff wants to discredit the defendant's witnesses, to cast doubt on the accuracy of their testimony, or to show that the witnesses are somehow biased in favor of the defendant.

Cross-Examination by the Defendant

When the plaintiff's attorney has completed the direct examination of each witness, the defendant's attorney has the opportunity to engage in cross-examination. In federal court and in most states, the scope of cross-examination is limited to facts covered in direct examination. If the defendant's attorney wants to explore new territory with a witness, he will have to call the witness during the defendant's direct examination session. The objective of cross-examination is to discredit the witness, to cast doubt on the accuracy of the witness's testimony, or to show that the witness is somehow biased in favor of the plaintiff. One way the defendant can do this is to show that the testimony delivered at trial by the witness contradicts the testimony presented during the discovery process. Another way is to use leading questions that require simple "yes" or "no" answers from the witness, thus limiting his ability to elaborate on those answers.