Published on February 26, 2014
BUILDING YOUR CIVIL TRIAL SKILLS: How to Present Your Case at Trial John N. Zarian firstname.lastname@example.org December 20, 2007 Boise, Idaho Owyhee Plaza www.nbi-sems.com
Overview of Subject Matter Opening Statements Effective Use of Evidence to Support Your Case Tips and Techniques for Direct Examination Successful Cross Examination How and When to Make Objections Using Rebuttal to Cast Doubt on the Other Side Powerful Closing Arguments
The 12 Days of Christmas Source: http://www.dezert-rose.com/humor/christmas/12daysreply.html December 14th Dearest John: I went to the door today and the postman delivered a partridge in a pear tree. What a delightful gift. I couldn't have been more surprised. With dearest love and affection, Agnes *** December 15th Dearest John: Today the postman brought your very sweet gift. Just imagine, two turtle doves.... I'm just delighted at your very thoughtful gift. They are just adorable. All my love, Agnes *** December 16th Dear John: Oh, aren't you the extravagant one! Now I must protest. I don't deserve such generosity. Three french hens. They are just darling but I must insist.... you're just too kind. Love Agnes
continued … December 17th Today the postman delivered four calling birds. Now really! They are beautiful, but don't you think enough is enough? You're being too romantic. Affectionately, Agnes *** December 18th Dearest John: What a surprise! Today the postman delivered five golden rings. One for each finger. You're just impossible, but I love it. Frankly, John, all those squawking birds were beginning to get on my nerves. All my love, Agnes *** December 19th Dear John: When I opened the door there were actually six geese-a-laying on my front steps. So you're back to the birds again, huh? Those geese are huge. Where will I ever keep them? The neighbors are complaining and I can't sleep through the racket. PLEASE STOP! Cordially, Agnes
continued … December 20th John: What's with you and those birds???? Seven swans-a-swimming. What kind of joke is this? There's bird do-do all over the house and they never stop the racket. I'm a nervous wreck and I can't sleep all night. IT'S NOT FUNNY.......So stop with those birds. Sincerely, Agnes *** December 21st OK Buster: I think I prefer the birds. What am I going to do with eight maids-a-milking? It's not enough with all those birds and eight maids-a-milking, but they had to bring their own cows. There is poop all over the lawn and I can't move into my own house. Just lay off me. . Ag *** December 22nd Hey: What are you? Some kind of sadist? Now there's nine pipers playing. And do they play! They never stopped chasing those maids since they got here yesterday morning. The cows are upset and are stepping all over those screeching birds. No wonder they screech. What am I going to do? The neighbors have started a petition to evict me. You'll get yours. From Ag
continued … December 23rd You Creep! Now there's ten ladies dancing - I don't know why I call them ladies. Now the cows can't sleep and they've got diarrhea. My living room is a river of poop. The commissioner of buildings has subpoenaed me to give cause why the building shouldn't be condemned. I'm sicking the police on you. One who means it, Ag *** December 24th Listen Idiot: What's with the eleven lords a-leaping? All 234 of the birds are dead. I hope you're satisfied, you rotten swine. Your sworn enemy, Miss Agnes McCallister *** December 25th (From the law offices Taeker, Spedar, and Baegar) Dear Sir: This is to acknowledge your latest gift of twelve fiddlers fiddling, which you have seen fit to inflict on our client, Miss Agnes McCallister. The destruction, of course, was total. All future correspondence should come to our attention. If you should attempt to reach Miss McCallister at Happy Dale Sanitarium, the attendants have instructions to shoot you on sight. With this letter, please find enclosed a summons and complaint.
Basic Trial Considerations A jury trial is about persuasion Credibility really is king (or queen) Understand the mind of the juror Biases are as important as evidence Develop effective case themes The focus should be on story telling Who can/should tell your story? Case analysis is guided by foregoing
Key Substantive Considerations What are the elements of proof? What is the key evidence in the case? How do the various parts fit together? Opening statement Evidence and proof Closing argument Jury instructions Verdict form
Key Non-Substantive Considerations Control the “atmospherics” Connecting with the jury Jury management during trial Your credibility as a lawyer Style considerations Dress Reactions Courthouse conduct
Focusing Your Case for Trial: The Case Strategy Process Identify case strengths and concerns/problems Focus on key jury decisions Identify story elements (i.e., theory of the case) Consider the evidence to support your story Develop case themes Develop labels/language Create a 10-point story Write a “silver bullet”
Effective Use of Trial Themes Importance of Themes Psychological anchors for information Examples of Themes Our driver did nothing wrong The plaintiffs won’t pay their debts The plaintiff did not invent anything The government makes mistakes This is a case about greed
Preparing Your Case for Trial Develop themes Develop a compelling story Marshall your evidence Plan order of presentation of evidence Prepare witnesses to testify Prepare witness “folders” Use trial “notebooks”
THE PSYCHOLOGY OF PERSUASION
Basic Persuasion Strategies Manage everything before the jury Use cues (visual, verbal, etc.) Use repetition, trilogies, etc. Use good storytelling techniques Persuade through eyes/ears/minds Confidence is persuasive Avoid large, complex, technical words Respect the jury’s capacities Stay focused on broad themes
The Key to Persuasion: Understanding the Mind of a Juror Jurors lack knowledge about law Jurors lack case information Jurors scrutinize “everything” Jurors impose story structures Jurors take shortcuts Jurors have backgrounds Jurors have biases Jurors interact (Rule of Four)
Frequent juror “shortcuts” Conscious shortcuts Credibility (attorneys, experts, parties) Appearance/demeanor Identification Subconscious shortcuts Background experiences / juror’s world view Biases, assumptions, expectations Jurors impose story models on trials
The Story Model World knowledge about similar events Case Information Knowledge about story structures VERDICT Jurors sort information through their narrative schemes / stories Ambiguous information is interpreted as consistent (narrative reasoning) 90% of jurors decide on a story of what happened before they enter the jury room
Pre-Trial Considerations: Your Client Preparation to testify is critical Practice cross-examination questions Understand your client (or witness) Be very direct with the client Client should understand big picture Pre-trial: must prepare for deposition
Pre-Trial Considerations: Supporting Cast Other officers/employees of client Other employees of the opposing party who will cast negative light Non-party witnesses with consistent testimony or sympathetic views All must be identified before trial
Pre-Trial Considerations: Opposing Party Opposing party’s deposition is key Think about trial during deposition Think about impeachment techniques Party deposition should be videotaped Whenever possible, use video clips
Pre-Trial Considerations: Expert Witnesses Prioritize expert witness needs Does it satisfy the legal test? Experts cannot win your case Not having an expert can lose a case How will the expert do at trial? Use caution in cross-examination
Pre-Trial Considerations: Documents Focus on most important documents Consider strategies to make documents more understandable Use consistent exhibit numbers At trial, understand the difference between identification, admitting a document into evidence, and “publishing” a document to the jury
THE NUTS AND BOLTS: PRESENTING YOUR CASE AT TRIAL
The Opening Statement Legal function is to assist the jury in understanding the evidence to be presented at trial. Studies show that jury verdicts are, in the substantial majority of cases, consistent with the initial impressions made by the jury during opening statements (rule of “primacy”). Importance cannot be overstated.
The Law of Opening Statements Argument is not permitted Is it evidence or rhetoric? “The evidence will show …” Persuasive ordering of facts is OK No “discussion” of the law OK to frame the legal issues for the jury OK to explain legal significance of evidence in a sentence or two
Opening Statements: Potential Objections No personal opinions or knowledge of the facts by counsel Most judges will not rule on evidentiary objections (motion in limine) “Mischaracterizes the evidence” is not a valid objection (unless argument) When should you object? As a practical matter, very rarely
Opening Statement: General Tips “Loosen up” before you go to court Do not read, use movement and pacing Keep the opening statement brief The first 90 seconds are critical (rule of primacy) Begin and end with your theme(s) Let the facts persuade – use visual aids Deal with bad facts – defuse, don’t defend Do not overstate your case Conclude with a request for verdict
Opening Statement: Structure and Elements Create labels (e.g., the “clerk” v. the “man in charge”, “Helen” v. “defendant”) Communicate a coherent theory, built around a persuasive story of the case Communicate your theme Use as introduction to facts that follow “Ladies and Gentlemen, this is a case about a driver who was too busy to be careful …” vs. “too busy to be on the road …”
Opening Statement: Structure and Elements (cont.) Use the evidence Avoid witness by witness summaries Utilize issues to frame the evidence “One of the issues in this case is …” Make out a prima facie case Lay out basis for liability, damages Burden of proof, order of proof
Opening Statement: Structure and Elements (cont.) Dealing with the other side’s case? No rebuttal in opening statements Consider issues of primacy, credibility Consider need for advance accreditation of a witness, particularly defending a defendant’s credibility in the opening On defense, avoid flat “denials” Avoid conspicuous omissions
Direct Examination: Introduction Trial is generally won during your case Key opportunity to tell your “story” Prepare your witnesses! Focus jury’s attention on the witness Listen to the answers, pay attention Put yourself in the jury’s shoes
Opening Statement: Strategic & Evidentiary Issues Introduce the parties Use facts that are true and provable Present the operative facts Use of adjectives and adverbs? Actions and key events Transactions and business context Schools of thought re: damages Get a transcript of the openings
Direct Examination: Basic Issues Use non-leading questions “yes” or “no” answers OK in preliminary matters (FRE 611) “What happened next …” “What did you do then?” “Mr. Smith, what exactly did he take?”
Direct Examination: Key considerations Leading questions Avoid narratives Non-opinion rule Personal knowledge Refreshing recollection
Direct Examination: Elements and Structure Keep it simple Organize logically Use introductory/transition questions “Officer, you arrested the defendant?” “Let’s turn now to the day you signed the contract” “I’m going to ask you questions now about what happened during the afternoon of June 15” Introduce witness and develop background Who is she? Why is she here? Why should I believe her?
Direct Examination: Elements (cont.) Set the scene and recreate action Cover preliminary material first Do not interrupt action testimony Avoid unnecessary detail or technical information On the other hand, details lend credibility Help the jury “see” the action through witness’ eyes Using present tense to create drama Create sensory images, use pacing “How long have you been employed?” vs. “How many years have you been a bricklayer?” “Just before the impact, what were you doing?” What did you hear? See? Feel?
Direct Examination: Elements (cont.) Have the witness explain where appropriate Put yourself in the jury’s shoes Volunteer weaknesses as necessary Bury in the middle of examination Use exhibits to highlight and summarize facts Don’t let the exhibits distract from the examination Lay foundation for key evidence, think about how to get key documents into evidence
Direct Examination: Additional tips and techniques Start strong and end strong Always try to end with a clincher Use pacing and body movement Repeat important points Ethical considerations E.g., clearly inadmissible evidence
Foundation and Exhibits: Introduction Pre-trial procedure and stipulations Laying a foundation for exhibits Qualifying witness must be competent Exhibit must be relevant, reliable Exhibit must be authenticated Consider issues raised by tangible objects, photographs, etc. Drawings by witness in court
Foundation and Exhibits: Procedure Have the exhibit marked for i.d. Show the exhibit to opposing counsel Ask permission to approach witness Lay foundation for exhibit Offer exhibit into evidence Have the exhibit marked in evidence Obtain permission to show or publish the exhibit to the jury
Foundation and Exhibits: Additional Considerations Develop a visual strategy May need to be tailored to case Prepare courtroom visual aids / exhibits Introduce exhibits during your case When to use exhibits When exhibit is first mentioned At the end of the direct examination How to use exhibits (know the court) Demonstrative exhibits in deliberations?
Objections at Trial Technical vs. artistry of trial advocacy Anticipation by motions in limine Preservation of record on appeal Not every objection should be made Consider your theory of the case State your objection carefully
When to Object The Decision to Object Recognition Formulation Evaluation Reasons not to Object Juror’s reactions Judge’s reaction Opponent’s reaction
How to Make an Objection Must object as soon as grounds apparent, may need to interrupt (or use motion to strike) Generally, stand and state grounds “Objection, Your Honor, relevance.” Consider adding a descriptive tag line However, no speaking objections Consider use of “same objection(s)” Try to avoid “standing objection” to a particular “line of questioning” … if necessary, state objection clearly.
Dealing with Objections May request argument / ask to be heard Be specific in responding to objection (e.g., relevance) Consider suggesting limited admissibility Consider making a “conditional offer” by promising to “tie it up later” In advance of trial, prepare for objections and evaluate admissibility of all key evidence Overruled? make sure evidence actually gets in Sustained? Protect the record (offer of proof?) If an objection is sustained, keep trying if important But avoid fighting over objections if can be avoided
Short List of Common Objections to Form of Question Leading Compound Vague Argumentative Calls for a narrative Asked and answered (cumulative) Assumes facts not in evidence Non-responsive
Short List of Substantive Objections Hearsay (FRE 801) Irrelevant (FRE 401, 402) Unfair Prejudice (FRE 403) Improper Character Evidence (FRE 404, 608, 609) Lack of Personal Knowledge (FRE 602) Improper Lay Opinion (FRE 701) Speculation or Conjecture (e.g., hypotheticals) Authenticity (often stipulated) Lack of Foundation (see FRE 104) Best Evidence (FRE 1001-1004) Privilege (FRE 501) Settlement Offers (FRE 408)
Cross Examination: Introduction Leading questions permitted Limited to scope of direct But credibility is always an issue Also, OK if witness “opens the door” Other restrictions Argumentative questions Intimidating behavior Unfair characterizations (e.g., “Have you resigned from the Communist Party?”)
Cross Examination: Threshold considerations Should you cross-examine? Has the witness hurt your case? What are your expectations on cross? Consider purposes of cross Eliciting favorable testimony Do this first, while credibility is higher Conducting a destructive cross Discredit the witness
Cross Examination: Elements Scope The “usable universe” of cross Risk averse preparation for cross Structure Don’t repeat the direct examination Keep to as few points as possible Try to start strong, but it’s more important to finish strong with a zinger Admissible, evokes your theme, undeniable
Cross Examination: Elements (cont.) Rules to follow Start and end crisply Avoid written questions But, “reference” your outline Know the probable answers to questions Don’t argue with the witness Don’t ask open-ended questions Don’t ask the one-question-too-many Listen to witness, insist on an answer
Cross Examination: Elements (cont.) Questioning style Again, make your questions leading Make a statement and ask to agree Use “right,” “correct,” “true,” etc. Keep control of the witness Move to strike when appropriate Use the “whip” (deposition testimony) Use additional “whips” (e.g., documents) Be a good actor
Cross Examination: Discrediting unfavorable testimony Discredit or limit testimony Perception Memory Ability to communicate Discredit the conduct Conduct inconsistent with testimony
Cross Examination: Impeachment Jurors appreciate effective impeachment Must have good faith belief to impeach Basic impeachment techniques Bias, interest, and motive Prior inconsistent statements Contradictory facts Prior convictions Prior bad acts Bad character for truthfulness
Cross Examination: Impeachment (cont.) Procedure for Impeachment During cross-examination (but see FRE 607) If witness admits, no need to prove up If denies a collateral matter, must take witness’ answer If denies noncollateral matter, may prove up on your case Prior inconsistent statements Hearsay objection improper (limited purpose) If made by a party, also substantive evidence as an admission, FRE 801(d)(2) If made by a non-party, may be substantive evidence if under prior statement was under oath, FRE 801(d)(1)(A) FRE 613 requires witness have an opportunity to admit, deny, or explain inconsistent statement
Cross Examination: Prior Inconsistent Statements Use of prior deposition testimony Make sure it’s material and fairly impeaching Emphasize timing and oath previously taken Read questions and answers verbatim Avoid asking questions like “did you say that?” Avoid statements out of context (see FRE 106) Q: If it’s a party and a noncollateral matter, and you have called the witness during your case, can you impeach without giving an opportunity to explain? Project your attitude (signals to jury) Procedure: (a) commit to prior statement (but you may want to skip this step), (b) build up importance of statement, (c) confront witness
Rebuttal & Surrebuttal After defendant rests & motions made Rebuttal usually proves a defense to defendant’s counterclaims or contradicts other specific evidence Surrebuttal may give defendant last chance to rebut specific matters raised in plaintiff’s rebuttal case Strategic considerations
Closing Arguments: Introduction The first 90 seconds Theme, reason to find in your favor Communicate enthusiasm for case Reinforce images from opening Deliver on your opening promises Use visual aids, gestures Tell the jury what to do Go through the verdict form You need a “sit down line”
Closing Arguments: Format Plaintiff’s argument in chief Issue challenges? Defendant’s argument in chief Anticipate rebuttal? Plaintiff’s rebuttal More than mere retorts Caveat about trying to “sandbag”
Closing Arguments: Sample outline Introduction Issues What really happened / proof Basis for liability / non-liability Damages Instructions / verdict form Refuting the other side Conclusion
Closing Argument: Use of Theory and Theme Theory must be logical Believable Admissions Undisputed Facts Common sense & experience Legally sufficient Tied to theme – moral persuader
Closing Argument: What makes it argument More than presentation of facts Conclusions and inferences Details and circumstantial evidence Analogies, allusions and stories Credibility and motive
Closing Argument: What makes it argument (cont.) Weight of the evidence Demeanor on the witness stand Refutation of opposing positions Application of facts to the law Moral appeal (tied to theme)
Closing Argument: Tools to Consider Literature Moral story Personal story Television Lyrics Biblical references Analogies (carefully – flip side?)
Closing Argument: Structure Affirmative Case First Issues and Elements Jury Instructions Turning points Chronological organization Bury your concessions Weave in witness credibility Start strong and end strong
Closing Argument: Content Tell a persuasive story What happened, why it happened Credible witnesses Supportive details Tie up cross-examinations Comment on promises Resolve problems and weaknesses Liability vs. Damages Jury instructions and verdict forms Introductions and thanks
Closing Argument: Delivery and Technique Do not read or memorize Use transitions, headlines, questions Now, let us take a look at claim for damages Movement, verbal pacing Emotion– different schools of thought Visual aids, use of blackboard Use simple, active language
Closing Argument: Ethics and Objections Statements of personal belief Appeals to prejudice or bigotry Misstating the evidence Misstating the law Jurors personal interests, Golden Rule Appeals to emotion, passion Exceeding scope of rebuttal
BUILDING YOUR CIVIL TRIAL SKILLS: How to Present Your Case at Trial CONCLUSION
Building Your Civil Trial Skills – A Defense’s View on How to Present an Effective Case at Trial
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