Trial Advocacy

40- Steps in introducing Exhibits

1) Ask that the exhibit be marked for identification 2)Let Opposing counsel examine the exhibit 3) Lay the Foundation of the Exhibit Picture - True and Accurate Representation PRR -A writing -made at or near the event by the W. or someone acting under his direction and control -no present recollection by the W. as to the matters recorded and sought to be introduced , and - a "voucher" of correctness" or statement that the witness is certain the the information recorded was accurate at the time made. 4) Offer the Exhibit into Evidence 5) Show the Exhibit to the trial judge - if he does not already have a copy 6) Voir Dire examination of the Witness, objection and Argument by opposing Counsel. 7) Ruling from the court -if the judge forgets, ask for one. 8) Testimony Concerning the Exhibit -only after admitted into evidence [ask the judge to instruct jury to disregard] 9) Give the jury the Exhibit or Copies of it.

Objections -43 Effective Objections

1) Be Prompt -if ANSWER is the issue "The Question was fine, your Honor, It was the answer that was improper". 2) Rise when you object 3)Object to Judge - not other lawyer 4)Be Simple and Direct 5)Be Specific DON'T UNDERSTAND -Can I object to being overruled and cite a rule for why objection should be sustained? -103(a)(1) - Overruled objection must state the specific grounds if not reasonably apparent from context -up to loser to create the record. 6)Object Before Trial Whenever You Can 7)Use Supporting Memos -Spot objection before trial and write SHORT memo. 8)Only Object When It Counts -Matters -You are right -Ask the judge to give you a running objection to the entire line of evidence you want to exclude [so your failure to continue to object does not count as a waiver] 10)Convince the Judge that you are Right -How do win a legal argument? A. make J/J want you to win -INjustice stirs peoples blood [more than Justice] -Use Objections to show other side is UNfair [on important points] by showing [not telling] "Your honor, they'r trying to introduce a document without proving it's genuine. It's not authenticated." [Facts are more persuasive than opinions] B. Show them how the Law justifies deciding the point your way. Use Rule numbers. 11) Object in English 12) Keep you Cool -It's not personal -Make your record -Get the basis for your [overruled] objection on the record. So make sure the court reporter is there too. -Try for a second bite. [save judge's face - "Your honor, may I be heard. I'm afraid that I did not put my objection very well, and this is an important point." - Try to follow up with the right rule, case on point, or short memo.

Direct Examination 46-The Language of Examination 47-Direct Questions 48-Simple Direct

1) Guide the Witness -As many facts as possible -Volunteer information -Explain as much as possible -OK to lead on preliminary matter [stuff not in dispute] -Use VERBAL HEADLINES ----"Before talking about Toys inc., I'd like to talk about your background in the industry". 2)Use Plain Language 3)Ask Short Questions - helps turn spotlight on witness, not the lawyer 4) Start questions w. News Reporters - Who Where What When How and Why 5) Take the blame when communication breaks down 6) Ask follow-up questions - makes case more coherent -jury likes you to ask for things they want to know SIMPLE DIRECT 1) Be a Teaching Team [witness/lawyer] for the J/J. 2) Concentrate on the Story -Witness testimony=a story 3) Use Organizational System - List every FACT you want to cover in direct -Review list for LEGAL SUFFICIENCY [what do you have to establish to get past SJ] -Gather Facts into "Snapshots" - groups of facts that logically fit together [put each group of facts/snapshots on separate piece of paper so you can think of each group as a unit] -Give each snapshot a HEADLINE [each title says what that group of facts is going to do in the case] -Use headlines to introduce each new topic as you examine the witness [and fit pictures together to tell witness' story] -Keep Moral Imperative [the injustice done by the other side] when organizing the headlines/snapshots -Start/End strong, but admit weakness/mistakes [in the middle] -Cut out Clutter [ie. most exact dates not important, sequence is] -Highlight what Really Counts -NO SCRIPT [Write down the answers, not the questions] -Think of Snapshots as paragraphs [On direct, you just announce each new paragraph to the witness, makes it easy for you to ask the questions that start with who etc.] BEING SIMPLE, DIRECT and WELL-ORGANIZED earn trust.

TRIAL PREPARATION 10 - The Trial Preparation Plan

1) Spell out the Basics - make an outline of you need to prove and what you've got that proves it. A. Analyze your Cause of Action - write down every element you have to prove to keep the judge from granting the other side's motion for a directed verdics B. Under each Element, list ADMISSIBLE Evidence that proves it. C. Have 2 sources for each essential fact/Key Point. - Documents, demonstrative evidence, admissions, depositions, live testimony. 2) Look at everything and ask "what really happened and why?" [To work out The Theory of the Case" 3) Make 4 lists - Your Strength - Their Strength -Your Weaknesses -Their Weaknesses 4) Tell a Story

TRIAL PREPARATION 18 - The Trial Notebook

1) Table of Contents and Index - go in first finish last 2) Analysis of the case - Unifying Concept - notes 3) Analysis of Opponent's Case 4) Proof Checklist for the Case - Elements: Formal Facts the law require me to prove - Evidence, support for each element - Source of evidence 5) Jury Selection - Outline/list of questions/supplementary questions - Chart of members 6) Opening Statement - Notes 7) Stipulations and pre-trial orders - only as needed 8) Witnesses - Order on stand - Alphabetical w. Focus Sheet: Contact info/place subpoenaed, employment, relationship to the case [repeat on Witness list] + why on stand [what am I trying to prove w. this witness] 9) Examination Outline for Witnesses - Left-hand side [room for colorful language or important concessions] 10) Proof Checklist for Witnesses - Short list of all the important bits of evidence I expect to elicit from the witness. 11) Deposition Index - List topic and page number 11) Documents and Exhibits - List [order on stand/alphabetical] - Doc/Exhibits themselves - w. each a sheet with the requirements for the necessary foundation and the names of the witness that can do the job, including case citations to counter objections re foundation. Copy of each for court, jurors and opposing counsel. 12) Evidence and procedure memoranda - one sheet w. "memo" re procedure. 13) Final Argument - notes 14) Motions and requests for Instructions.

37 - Nine Ways to Use a Deposition

1) Trial Testimony 2)Admissions 3)Impeaching w. a Prior Inconsistent Statement 4)Refreshing Recollection 5)Guiding the Witness 6)Past Recollection Recorded 7)A Cure for Selective Memory 8)The Pavlovian Impeachment 9)A basis for expert testimony

STARTING THE TRIAL 22 - Jury Selection

1) While you're picking a jury, they're picking a lawyer 2) Be the GUIDE they can trust 3) You have to earn your credibility - The lawyer who makes the most sense Wins. 4) You are the most important witness in the case - Jury learns about a little bit about the fact of the case through me in voir dire, opening statement, cross and final argument. 5) Give an intriguing snapshot of your case - but without arguing the case - Stick to the FACTS - word pictures that tell the story. 6) You can't really pick a jury 7) Don't shoot yourself in the foot 8) Everyone is a Bundles of Biases and Preconceptions - think Scripts that people use to make sense out of new situations. 9) Don't think you can talk a juror into changing his or her mind about anything 10) You can't reason down from statistics 11) Ask don't tell, Listen don't talk, Feel don't think - Get the jurors to talk to get to know them. - Get them in touch w. their feelings 12) Keep it short

55 - Impeachment by Omission

1)Validate Prior Statement Would have contained missing info if info was true 2) Find pressure point 3)Closing the Trap

Evidence -26 The Big Idea

BIG IDEAS 1) We don't want the whole truth -Privileges [Some things are more important than the whole truth] -Client/Lawyer [so the next client will feel free to disclose] -Husband/wife, doctor/patient -Trade Secrets and subsequent remedial measures [kept out unless Fraud/Other injustice] -Repairs of defective products [to encourage fix] [but debated and sometimes not followed] -Rape Shield -Illegal Search and Seizure 2) We Judge the Act, Not the Person - 404 , Character is not admissible to prove conduct -Crim Case: Good Character only as defense in crim case - door open - allows Bad -Civil Case:No, no. 2A) Give Defendant Advantage in Crim Case [To make up for notion that Defendant is probably guilty] -Burden of proof -Admissiblity of certain types of evidence 3) No Three-Ring Circus Character Witnesses Opinion & Reputation [ Direct][efficient ways of proving character] Specific Instances [Cross] [efficient way of attacking character] -Bound by "witness answer" - not extrinsic evidence Improper to attack/bolster credibility before testimony Cannot impeach witness on collateral matter [board meeting/breakfast] 608 (b) ok to ask witness about prior bad act [to test credibility] but must take answer. 609 But if there's a Conviction [and w. denies] then ok to prove w. copy of record. 4) Call the Real Witness Hearsy - when out-of-court statement is offered for its truth [which is when we need to X the real witness - the Declarant] Past Recollection Recorded - not admitted, unless Witness on Stand cannot fully remember what he wrote down. Not allowed, unless real witness in Unavailable: -Former Testimony -Declarations against interest -Statements of Personal or Family History 602 Personal Knowledge BER - when "witness" is a document. 803 exceptions vary for historical, convenience common sense. 5)The Sporting Theory of Trial Adversarial Process give-and-take 106 unfair selection of part of document opes door to other part/any other writing that should be considered contemporaneously 612 - Document used to refresh recollection - cam be used to X. 613 - PIS - witness allowed to explain/deny. 806 - hearsay evidence opens door to attack credibility of hearsay declarant, just as if he was in court. 6)Watch Out for Lawyers - Leading on direct is improper -Biz Record made for litigation is inadmissible [palver v. Hoffman] -901 (b) (2)Lay witness made familiar w. handwriting in prep - opinion inadmissible -Courts concerned w. partisan arguments dressed up in scientific garb [conditions of reenactement/experiments for litigation must be "in every material aspect" the same] -PRR - ma be read into record but not received as an exhibit [803(5)] - unless offered by the opponent. [don't want W to "forget" and then have written testiony admitted as exhibits] 7) If the Judge Wants to Hear it, it is admissible

Expert Witness -56 The Law of Experts -58 Direct of Experts

Expert is an Explainers - CL -FRE -Good Result -Problems DIRECT: -Make the Jury Want to Listen -Lead on the Qualifications -Start with the Conclusion -Plain English [by expert] -NOT ADVOCATE -Don't let the jury suffer [simplify] Wing w. Ice don't fly well -Use Exhibits -Be a Teacher [use visualizing words]

41 - Foundations

Foundation of basic points -Witness qualification Personal knowledge [even if found on X that it lacks, can be striken] -Authentication Take nothing for granted. Necessary to prove that the thing is what it purports to be. -Relevance rational tendency to prove a fact. [Probative value outweights prejudice] -Best Evidence Rule DOCUMENTS only [photos, x-rays too in some jurisd] Best="Original" 1)to prove content [if W has personal knowledge ok] 2)centrail to case 3)ok w. non-original, if o. is accounted for. -Hearsay and appropriate exceptions 1)Relevant for purpose OTHER than proving its truth? 2)Verbal Act [offer/acceptance, words of defamation] 3)Establish exception -Procedural prerequisite such as confrontation, corroboration, attack, or notice To introduce Prior CONSISTENT, foundation of impeachment [done by other side] must be established. Notice [807, 609] -Magic words

STARTING THE TRIAL 23 - Goals for Opening Statements

Goals: 1) Comprehension - think Teacher - make them "get" the case 2) Credibility - Mine. That I'm a credible source of info. 3) Identification - With client, so judge and jury will look at case from his/her pow. - think "the ties of basic values" by recounting simple facts [ie. borrowed money to open shop, got runaround from bureaucracy] -Talk about people if its a corporation. 4) Support - Get J/J to root for my client, to hope the evidence supports my case. 5) Impact - should make strong impression that impacts how J/J looks at evidence as case develops. - start w. a Crisis - a powerful Theme. "They did not do it by the book" [negligent maintenance of a nuclear power plant].

83-The Final Five

Last five minutes of rebuttal Approaches: Classical Arguments -They picked the witness -The Indelible Pencil -One Day in Court -Immunity Protects the Truth Anticipate Rebuttal

STARTING THE TRIAL 25 - The Snapshot

People believe what they can see. Think of every part of the trial as images. Pictures that show what happens. 1) The Package of Relevant Facts - Group the facts into a SERIES of relevant facts 2)The Language of Visualization -Speak to the eye [use words that invite people to visualize what you are saying] 3) It's happening NOW -pictures makes you use PRESENT TENSE -Use it when examining witness ["you stop at the corner. Then what happens?"] 4) Facts, not Opinion -Refrain from arguing the case w. adjectives and adverbs 5)Which Photos do you Show? -Go for Interest, Clarify, Understanding. -Impact, people say "that could've been me" -Pick the right POW [avoid whine/complaint] show stoic dad rather than injured victim dad. 6) Foreshadow -In Opening THEME ["a young woman's eye" - plants worry] -in Opening Picture ["he would have to cross X street" - worry] -in Introduction of Eyewitness ["when the time comes, will you be able to show . . ."] -In the Middle of Direct Examination of Expert Witness [Before you tell us about X, let's recall what happened in 2003] 7) Putting the Pieces Together Lay out to pieces of the case - the different pictures - in a way that almost forces the fact finders to put them together the right way - your way.

41 - Common Foundations

Photographs -Fair and accurate Sketches, Maps & Charts -Sufficiently Accurate Real Evidence -Establish chain of custody Telephone Conversations -Witness familiarity w. voice -Dial number and id responding person. [?] Letters -Familiarity w. signature -Response to some other communication received w/o delay Copies of letters -Circumstantial evidence through business habit and custom. -406 - not enough to claim original is in the hands of the other party unless a demand for its production is made. Business Record -made in the regular course of business -lack of personal knowldge only goes to weight, not admissiblity [a)writing or record b)of an act, transactio, occurence, or event c)made in the regular course of business -W. must be qualified to testify to elements [may take more than one w.] ok by "custodian" -Authentication by w. [this is the record in question] -Relevance [to tie record to case, may require other witness] -BER copy okay unless genuine question about authenticity of original. -Hearsay [exception covers OVERALL record, if hearsay within record has to be dealt with, ie statement by someone not connected w. the business] -Opinion [especially in hospital reports] - 803(6) allows. Lay Opinions -Establish w.'s qualifications [speed, time, distance "rationally based on the perceptions of the w. and helpful to the finder of fact] Prior Inconsistent Statements -Non hearsay, admissible for truth if made under oath in official proceeding 1)Commitment [commit w. to story on stand] 2)Confront a. where/when/circumstance prior was made b. if writing have w. authenticate [date, signature, read out loud]

STARTING THE TRIAL 24 - The Story Method

Stories go deeper than just the law. They are at the heart of how we think and act. 1) Beginning and end 2) Setting in time and place 3)Characters 4)Action [something happens] Advise: a. Believe in what you say b. Create the sense of reliability - Plausibility - "relive" it. c. Make your audience identify with your client -Crisis in the beginning -Tell story to make J/J look at evidence from client's pow -Sense of Injustice - other side has been UNfair d. Show don't tell -don't tell them what to think, "show" what happened and gather SUPPORT e. Use Pictures - Think of case as series of snapshots

3 - Theory of the Case

Theory of the Case -fact -applicable statutes -statutes of limitations -permissible damages -right to jury? -state/federal -state where filed Guide: Plausibility, Community values, lights the spark of fairness in people's minds so they want you to win.

Forbidden

To ask the jury directly to put themselves in your client's shoes.

Cross Examination -50 Choices -51 The Real Purpose of the Cross -52 Evasive Witnesses

When choosing technique Think: THEORY OF THE CASE when answering 1) What are you going to do? 2)How are you going to do it? -Watch out for Mouse Traps [topic "forgotten" by opposing counsel on direct, but w. perfect answer prepped by witness] - Don't take witness evasive answer PERSONALLY. Purpose: To let YOU testify, to tell OUR side of the witness's story, so that the witness has to agree that what YOU say is true. To put on the part of the OPPONENT's evidence that will help YOUR Case. [But don't use X to ask witness for information. You already have the information] Opportunity to argue your case during the testimony of the other side's witness. You are entitled to LEAD.[=you are the witness, the guide for the jury] Show J/J that YOUR are the better witness To show something about the other side, to tell the good guys from the bad [usually don't get much info on X] 3 Means 1) Have witness give USEFUL testimony that HELPS your case [instead of trying to tear down what she said on direct] - expert testimony verifying that client will never work again - but stopping before allowing expert to repeat medical causation defense. 2) Have witness VALIDATE your testimony [demonstrating that you are a better source of info] - Focus on WHAT was said. -Pick only fights you know you will win [you're the picker] -How simply and easily can you prove it. [doesn't matter how right you are if you can't prove it] -be nice and pleasant about it. 3)Attack Witness Character/Integrity [usually a mistake, unless essential to Theory of the Case] - tug of war where J/J takes either witness or your side. - Assume opponent will try to stop effective cross [Prep answers to objections, like within scope established on direct] Style: Use short leading questions, that are really simple statements of facts. [=Short Declarartive Statements] - "You were on 3rd and Proctor?" Break your narrative into little points that the witness must agree with. EVASIVE WITNESSES 1)It's not just logie 2)Expert Evasion STOP CHOKING THE WITNESS 1) Take the Blame -"I'm sorry doctor, I mean to ask you if you did a spinal tap on Mr. Client" [after Dr. talks after initial question avoided to answer by talking about dangers of spinal taps] 2) Ask the question again -repeat more than once if necessary. 3) Let the Witness Answer -cut-offs = lawyer not good guy -witness explanations=witness too much of an advocate 4) Does that mean Yes? -after a long witness verbage/explanation "does that mean no, you didn't do a spinal tap on mr. client?" 5) Did your lawyer tell you to say that? -especially if witness uses unexpected words. 6) I'm sorry, but the rules of evidence don't let me answer your question -reparte to when witness start asking questions of you. 7) That's the best you can do? -set up level of expert prep -to counter evasive expert answer. 8) That's going to be up to the jury -response to evasive answer: "I did the proper thing" -What the jury WOULD like to know, is whether you could have pulled off the road. RULES Non-responsive answer can be stricken [X is designed to give the lawyer the opportunity to tell "the rest of the story".

78 - Law Of Final Argument

You may not - misstate the evidence or the law -argue facts that are not in evidence -state your personal belief in the justice of your cause - personally vouch for the credibility of a w. -appeal to passion or prejudice -urge an irrelevant use of evidence

Winning Case

story of an INJUSTICE - THE WRONG DONE BY THE OTHER SIDE -Put the focus of judgment on your opponent. -Create a sense that your opponent is the one who is on trial. Case is about what THEY did that caused the problem [not about how good YOU are]