Presented by Nicole Longwell Prepared by Jonathon Horton Nicole Longwell

TRIAL BASICS

Trial Basics Four Basics applicable to all trials: Understanding basic story telling principles Understanding basic story telling principles Preparing a persuasive trial story Preparing a persuasive trial story Using the appropriate trial technique tools in planning your case Using the appropriate trial technique tools in planning your case Keeping the proper demeanor in the courtroom Keeping the proper demeanor in the courtroom

Preparing a Persuasive Trial Story There are two crucial elements to telling a persuasive trial story There are two crucial elements to telling a persuasive trial story –A Theory- single paragraph which combines facts and law and leads jury to conclusion that your client should win. Cake –A Theme- no longer than one sentence which appeals to shared values, civic virtues and common motivations. Frosting

Using Appropriate Trial Technique Tools Tools applicable to all stages of the trial: Tools applicable to all stages of the trial: –Sequencing –Repetition and Duration

Keeping the Proper Demeanor in the Courtroom At all times a trial attorney should maintain the following: At all times a trial attorney should maintain the following: –Integrity- single most important tool an attorney can bring to the courtroom –Confidence- best way to be confident is to be competent. Preparation and organization are crucial to competence.

Opening Statement

“Opening” “Opening” “Statement” “Statement”

Goals for Opening Statement Establish your theme. Establish your theme. Demonstrate your credibility to the jury. Demonstrate your credibility to the jury.

3 Tips for Establishing Credibility During Opening Statements Tell your client’s story to the jury. Tell your client’s story to the jury. Tell the whole story Tell the whole story Keep it “strong and safe.” Keep it “strong and safe.”

DIRECT EXAMINATION

Direct Examination Most trials are won based upon strength of your own case and not the weaknesses of your opponent’s case. Most trials are won based upon strength of your own case and not the weaknesses of your opponent’s case. Direct examinations must be clear. Direct examinations must be clear. Direct examinations must present the facts of your case. Direct examinations must present the facts of your case. Your theme and theory should run through every direct examination. Your theme and theory should run through every direct examination.

Elements of Effective Direct Examination Keep it simple. Keep it simple. Use logical organization. Use logical organization. Proposed logical sequence : Proposed logical sequence : –Personal background –Scene description –Action description –Introduction of exhibits supported by witness –Damages description (if applicable)

Role of Direct Examination Introduce undisputed facts. Introduce undisputed facts. Put forth client’s version of the disputed facts. Put forth client’s version of the disputed facts. Lay foundation for exhibits. Lay foundation for exhibits. Reflect upon the credibility of the witness. Reflect upon the credibility of the witness.

Rules of Direct Examination Witness must be competent. Witness must be competent. Must possess personal knowledge of the material issues of the case. Must possess personal knowledge of the material issues of the case. Cannot use leading questions. Most difficult for inexperienced lawyers. Cannot use leading questions. Most difficult for inexperienced lawyers. Exceptions to non-leading questions: Exceptions to non-leading questions: –Preliminary matters –Issues not in dispute –Directing witness’ attention to specific issues.

Planning a Direct Examination Eleven elements to an effective direct examination: –K–K–K–Know what to include. –K–K–K–Know what to exclude. –U–U–U–Use topical organization. –D–D–D–Do not interrupt the action. –G–G–G–Give separate details attention. –D–D–D–Do not scatter circumstantial evidence. –U–U–U–Use defensive direct examination.

Planning a Direct Examination cont’d –Good facts before addressing bad facts. –Get to the point. –End with a clincher –Ignore all other ten elements when necessary.

Cross Examination Or thoughts about Perry Mason and Ben Matlock

Cross v. Direct Examination Witness is not friendly. Witness is not friendly. Can ask leading questions. Rule 611(c). Can ask leading questions. Rule 611(c). Cross-Examination can be either constructive or destructive. Cross-Examination can be either constructive or destructive.

Scope of Examination Normally, scope of cross-examination is limited to the witness’ testimony on direct. Normally, scope of cross-examination is limited to the witness’ testimony on direct. Mock Trial goes further. Mock Trial goes further. –Rule 611(b) allows inquiry into “any relevant facts or matters contained in the witness’ statement, including all reasonable inferences that can be drawn from those facts and matters and may inquire into any omissions from the witness statement that are otherwise material and admissible.”

Effective Cross Seeks Concessions from the witness by asking questions where the answer will: Seeks Concessions from the witness by asking questions where the answer will: –Strengthen your case with facts known by the other side’s witness; and –Weaken the other side’s case by attack the credibility, i.e. the “believe-ability” of the other side’s witness.

Tips for Surviving Cross-Examination You are testifying. You are testifying. Control the witness. Control the witness. Don’t Quibble. Don’t Quibble. Have a poker face. Have a poker face. Save It [the Argument] for later. Save It [the Argument] for later. Attack the credibility. Attack the credibility.

Strengthen Your Case – How? List out the core or indisputable facts about the case List out the core or indisputable facts about the case –If those facts are indisputable, the witness must concede the fact or appear unbelievable –We use the other side’s witness as your own witness by getting those facts into evidence which will support your witnesses

Strengthen Your Case – How? Identify the core facts for the other side Identify the core facts for the other side –What is the other side’s theory of the case? –What inferences are they relying on from the evidence? –Then develop your case to show the improbability of those inferences

Now What? Organize those concessions and improbabilities by topic – this will provide the framework for the cross Organize those concessions and improbabilities by topic – this will provide the framework for the cross If your question contains too many facts or assumptions it is too easy for the witness to avoid or explain – so break down If your question contains too many facts or assumptions it is too easy for the witness to avoid or explain – so break down

Example: Party Store Robbery The victim identifies her former boyfriend as the robber. The victim identifies her former boyfriend as the robber. The defense’s theory is the victim is a “scorned woman” and the indentification is false. The defense’s theory is the victim is a “scorned woman” and the indentification is false.

Analysis There are three parts to the defense’s theory There are three parts to the defense’s theory –Relationship – what is the basis for the witness’ ID of the robber, since the robber was wearing a mask? –Scorned – eye witness disputes, but how do you prove –False accusation – if this is true, at what point and time did she create the scheme?

Evaluate Analysis versus “Core” Facts We know:the next customer arrived two minutes after the robber We know:the next customer arrived two minutes after the robber We infer:Not enough time for eye witness to plan a revenge scheme We infer:Not enough time for eye witness to plan a revenge scheme We know:robber had eye witness lie on floor; fired shotgun inches from her head We know:robber had eye witness lie on floor; fired shotgun inches from her head We infer:eye witness must have thought that she was about to die We infer:eye witness must have thought that she was about to die

Ask: what else must be true? Inference: if eye witness thought that she almost died, why ignore real robber to get back at ex-boyfriend. Inference: if eye witness thought that she almost died, why ignore real robber to get back at ex-boyfriend. Inference: with no time to plan, how did eye witness know where the robber was? Inference: with no time to plan, how did eye witness know where the robber was? –What if the robber had an alibi? –She risked a false report of a crime –Is this probable?

Rules of Evidence Mock Trial Rules of Evidence outline the rules for the introduction of evidence, including witness testimony. Mock Trial Rules of Evidence outline the rules for the introduction of evidence, including witness testimony.

Objections Be Prepared to object during your opponent’s direct examination and to respond to objections during your cross- examination Two types of Objections Two types of Objections Objections to form Objections to form Objections to substance Objections to substance

Attacking Credibility Means of knowledge Means of knowledge Strength of Memory Strength of Memory Opportunities for observation Opportunities for observation Reasonableness and consistency/inconsistency of testimony or evidence Reasonableness and consistency/inconsistency of testimony or evidence Bias-Prejudice or interest Bias-Prejudice or interest

Attacking Credibility is Based on Witness Type Alibi witnesses Alibi witnesses –How does that witness recall the details of the day – look for inconsistencies with the indisputable facts Character witness Character witness –Demonstrate bias (good or bad) Eye-witness Eye-witness –Opportunity to hear or see actions Expert Expert –Qualifications; source of information

Character Evidence Subject to some exceptions, Rule 404 prohibits introduction of evidence of character, crimes, and bad acts, if offered to show a party acted in conformity with the character or bad acts. Subject to some exceptions, Rule 404 prohibits introduction of evidence of character, crimes, and bad acts, if offered to show a party acted in conformity with the character or bad acts. E.g. Defendant lied on his employment application, and would lie again. E.g. Defendant lied on his employment application, and would lie again.

Exceptions to General Rule Evidence offered for another purpose. Rule 404(b). Evidence offered for another purpose. Rule 404(b). In criminal cases, where Defendant raises the issue of character. Rule 404(a)(1&2). In criminal cases, where Defendant raises the issue of character. Rule 404(a)(1&2). Evidence of Witness’ Character. Rule 404(a)(3) says see Rules 607 & 608. Evidence of Witness’ Character. Rule 404(a)(3) says see Rules 607 & 608.

Rule 607 “The credibility of a witness can be attacked by any party, including the party calling the witness.” “The credibility of a witness can be attacked by any party, including the party calling the witness.” You can attack the credibility of any witness, even your own. You can attack the credibility of any witness, even your own.

Rule 608 Addresses bad acts that did not result in a criminal conviction. Addresses bad acts that did not result in a criminal conviction. 4 Basic Rules: 4 Basic Rules: –1.Trial judge may allow questioning, but has ability to stop inquiry at any time. –2.Prior bad act must relate to truthfulness –3.You’re stuck with the answer you get. –4.Good faith basis required to ask about a prior bad act.

Rule 609 Deals with Criminal Convictions Deals with Criminal Convictions 3 Basic Rules: 3 Basic Rules: –1.Prior convictions for offenses involving dishonesty are always available to impeach. –2.Other crimes may be used unless the judge thinks they are too prejudicial. –3.Rule 404 still applies to criminal defendants.

CLOSING ARGUMENT BRINGING IT HOME FOR THE JURY

Closing Argument The Role and Function of Closing Argument. The Role and Function of Closing Argument. Incorporate Themes and Theories. Incorporate Themes and Theories. Making a Closing Argument Effective. Making a Closing Argument Effective. Format. Format.

The Role and Function of Closing Argument Opportunity to tell the story of your case in its entirety, without interruptions and free from constraining formalities. Only as successful as the preceding stages of trial. Opportunity to reflect upon and encompass the evidence that has been admitted into your case.

Incorporating Themes and Theories into the Closing Argument Theory Communicate your theory which you initiated in your opening and reiterated throughout the trial. Your theory and closing argument must be logical. The application of your theory to your argument must be believable. Finally, your theory must be legally sufficient.

Incorporating Themes and Theories into the Closing Argument Theme Must be a constant presence throughout the entirety of the trial. Must be a constant presence throughout the entirety of the trial. Should evoke shared beliefs and common values. Should evoke shared beliefs and common values. Must explain to the jury why a verdict in your client’s favor is morally desirable. Must explain to the jury why a verdict in your client’s favor is morally desirable. Must demonstrate evidence admitted supports your theme. Must demonstrate evidence admitted supports your theme.

Making a Closing Argument Effective Use conclusions. Show how your conclusion logically flows from evidence. Use conclusions. Show how your conclusion logically flows from evidence. Use inferences. Show that a desired inference can be drawn from a known fact. Use inferences. Show that a desired inference can be drawn from a known fact. Explain importance and relevance of details and circumstantial evidence. Explain importance and relevance of details and circumstantial evidence. Use analogies and stories. Use analogies and stories. Comment on and compare the motive and credibility of each witness. Comment on and compare the motive and credibility of each witness.

Making a Closing Argument Effective cont’d Discuss the weight of each relevant piece of evidence to your case. Discuss the weight of each relevant piece of evidence to your case. Discuss the demeanor of the witnesses. Discuss the demeanor of the witnesses. Refute your opponent’s case by pointing out inconsistencies, implausibilites, errors and contradictions. Refute your opponent’s case by pointing out inconsistencies, implausibilites, errors and contradictions. Apply the law to the evidence presented. Apply the law to the evidence presented. Elaborate on the moral theme of the case. Elaborate on the moral theme of the case.

Format of Closing Argument Closing Argument is divided into three parts: Plaintiff’s argument in chief- must prove to jury that burden as to claims have been met and that verdict in Plaintiff’s favor is appropriate. Plaintiff’s argument in chief- must prove to jury that burden as to claims have been met and that verdict in Plaintiff’s favor is appropriate. Defendant’s argument in chief-demonstrate Plaintiff has not met burden and anticipate rebuttal of Plaintiff. Defendant’s argument in chief-demonstrate Plaintiff has not met burden and anticipate rebuttal of Plaintiff. Plaintiff’s rebuttal argument-address arguments raised and relate back to major propositions raised in argument in chief. Plaintiff’s rebuttal argument-address arguments raised and relate back to major propositions raised in argument in chief.

Customary Ending Joke

TELL THE JURY WHAT YOU WANT Jury needs to know what you want it to do (non-bifurcated): –I–I–I–In Civil Trial- Plaintiff- Tell them what their verdict should be and how much money your client wants. Defendant- Tell them what their verdict should be and why Plaintiff is entitled to a single red cent. –I–I–I–In Criminal Trial- Tell them what their verdict should be