1. Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Litigation and Procedure Trial Preparation and Trial Litigation and Procedure Trial Preparation and Trial

2. Trial Preparation and Trial Support Tasks Trial Preparation Preparation of Motions Witness Subpoenas Witness Preparation Evidence Preparation Preparation of Trial Notebook Trial Preparation Preparation of Motions Witness Subpoenas Witness Preparation Evidence Preparation Preparation of Trial Notebook Trial Assistance Shadow Jury Management Witness Control Documents and Exhibits Exhibit and Witness Logs Trial Notes Review Meetings Trial Assistance Shadow Jury Management Witness Control Documents and Exhibits Exhibit and Witness Logs Trial Notes Review Meetings Trial Jury Selection Opening Statements Plaintiff’s Case Defendant’s Case Closing Arguments Jury Instructions Deliberation Verdict Trial Jury Selection Opening Statements Plaintiff’s Case Defendant’s Case Closing Arguments Jury Instructions Deliberation Verdict Jury Preparations Jury Investigation Voir Dire Preparation Preparation of Jury Instructions Jury Preparations Jury Investigation Voir Dire Preparation Preparation of Jury Instructions

3. Outline of Trial Notebook  Section One: Reference  Section Two: Pleadings and Pretrial  Section Three: Last-Minute Motions  Section Four: Voir Dire (Jury Selection)  Section Five: Opening Statement  Section Six: Outline of Order of Proof and Opponent’s Proof  Section Seven: Witness Examination Example – Exhibit 11:4  Section One: Reference  Section Two: Pleadings and Pretrial  Section Three: Last-Minute Motions  Section Four: Voir Dire (Jury Selection)  Section Five: Opening Statement  Section Six: Outline of Order of Proof and Opponent’s Proof  Section Seven: Witness Examination Example – Exhibit 11:4

4. Outline of Trial Notebook (cont’d)  Section Eight: Exhibits  Section Nine: Trial Motions and Authorities  Section Ten: Jury Instructions (Charge to Jury)  Section Eleven: Proposed Verdict Form  Section Twelve: Closing Statement  Section Thirteen: Law Section  Section Fourteen: To Do, Notes, and Reminders  Section Eight: Exhibits  Section Nine: Trial Motions and Authorities  Section Ten: Jury Instructions (Charge to Jury)  Section Eleven: Proposed Verdict Form  Section Twelve: Closing Statement  Section Thirteen: Law Section  Section Fourteen: To Do, Notes, and Reminders

5. Key Term – In Limine A motion for protection against prejudicial questions and statements at trial. A motion for protection against prejudicial questions and statements at trial.

6. Rules Governing Evidence Submitted at Trial ActPurpose When Due Rule(s) Motion in Limine For protective order against prejudicial questions or statements by adverse party. Pursuant to scheduling order and usually a reasonable time before trial or reasonable time after selection of jury. FRCP 16(b) MRCP 16 Motion to Exclude Evidence To exclude evidence for a variety of reasons. Pursuant to scheduling order and usually a reasonable time before trial oras matter arises at trial. FRCP 16(b) MRCP 16

7. Rules Governing Jury Trials Act When Due Rule(s) Demand for Jury Trial To all parties any time after action starts but no later than ten days after the last pleading directed to such issue. FRCP 38(b) MRCP 38(b)

8. Jury Selection  Juries are chosen through random processes and deliberate choice.  Three steps: 1.Compiling a master jury list, 2.Drawing the venire, and 3.Conducting the voir dire.  The objective is to produce fair and impartial juries.  Juries are chosen through random processes and deliberate choice.  Three steps: 1.Compiling a master jury list, 2.Drawing the venire, and 3.Conducting the voir dire.  The objective is to produce fair and impartial juries.

9. Master Jury List  A master list of names is compiled for the community where the trial will be held (must be representative).  Common sources include: voter registration lists, motor vehicle records, telephone directories, driver’s license lists, utility customer lists.  A master list of names is compiled for the community where the trial will be held (must be representative).  Common sources include: voter registration lists, motor vehicle records, telephone directories, driver’s license lists, utility customer lists.

10. VenireVenire  The venire is the jury pool.  Names are drawn from the master jury list and they are asked to report for jury duty (the venire).  All citizens 18 to 70 are subject to jury duty.  Some exemptions may be made for “hardships”, but these must be individually approved by a judge.  Individuals who do not comply with jury duty summonses may be prosecuted.  The venire is the jury pool.  Names are drawn from the master jury list and they are asked to report for jury duty (the venire).  All citizens 18 to 70 are subject to jury duty.  Some exemptions may be made for “hardships”, but these must be individually approved by a judge.  Individuals who do not comply with jury duty summonses may be prosecuted.

11. Jury Duty  Jury duty is the only time when citizens perform direct service for their government.  Massachusetts was the first in the nation to implement a statewide One Day/One Trial System.  Jurors serve one day, or if impaneled, one trial.  After service is satisfied, that juror is disqualified from serving again for a minimum of three years.  Objective is to expand citizen participation by making jury service less burdensome.  Jury duty is the only time when citizens perform direct service for their government.  Massachusetts was the first in the nation to implement a statewide One Day/One Trial System.  Jurors serve one day, or if impaneled, one trial.  After service is satisfied, that juror is disqualified from serving again for a minimum of three years.  Objective is to expand citizen participation by making jury service less burdensome.

12. Voir Dire  Voir dire is the examination of prospective jurors to determine if they can be fair and impartial.  Process varies widely - sometimes (e.g., in Federal courts) only a judge is involved, while at other times (e.g., in most state courts) the lawyers also participate.  Scope and intensity of the questioning varies too - can take a short or time long depending on the case.  Voir dire is the examination of prospective jurors to determine if they can be fair and impartial.  Process varies widely - sometimes (e.g., in Federal courts) only a judge is involved, while at other times (e.g., in most state courts) the lawyers also participate.  Scope and intensity of the questioning varies too - can take a short or time long depending on the case.

13. Voir Dire (cont’d) Each side in the case can excuse potential jurors:  Challenge for Cause – is when a juror is removed because the lawyers and judge agree that the individual cannot be fair – unlimited number for each side.  Peremptory Challenge – is when a lawyer excuses a juror without giving a reason – limited number (determined by rules of court) for each side. Each side in the case can excuse potential jurors:  Challenge for Cause – is when a juror is removed because the lawyers and judge agree that the individual cannot be fair – unlimited number for each side.  Peremptory Challenge – is when a lawyer excuses a juror without giving a reason – limited number (determined by rules of court) for each side.

14. Voir Dire (cont’d)  Lawyers have wide discretion to use peremptory challenges – but may not exclude jurors because of race or gender  Lawyers use voir dire for other reasons: –Educating citizens about the role of juror. –Trying to influence how the juror views their client.  Lawyers have wide discretion to use peremptory challenges – but may not exclude jurors because of race or gender  Lawyers use voir dire for other reasons: –Educating citizens about the role of juror. –Trying to influence how the juror views their client.

15. Jury Consultants  Professional Jury Consultants:  Are used in high profile/expensive cases.  Use public opinion polls, focus groups to help write questions for lawyers to use during voir dire.  Professional Jury Consultants:  Are used in high profile/expensive cases.  Use public opinion polls, focus groups to help write questions for lawyers to use during voir dire.

16. Moving Party Presents Case  At the beginning of the trial each side makes an opening statement – presenting a version of the facts that supports their side of the case.  Next, the plaintiff’s attorney presents the plaintiff’s case by presenting evidence to support the plaintiff’s claims.  At the beginning of the trial each side makes an opening statement – presenting a version of the facts that supports their side of the case.  Next, the plaintiff’s attorney presents the plaintiff’s case by presenting evidence to support the plaintiff’s claims.

17. The Defense Presents its Case  After the plaintiff’s attorney has presented the plaintiff’s case, the defendant’s attorney carefully evaluates the plaintiff’s case and decides how to react.  T wo common strategies are: a) Burden of Proof, or b) Denial  After the plaintiff’s attorney has presented the plaintiff’s case, the defendant’s attorney carefully evaluates the plaintiff’s case and decides how to react.  T wo common strategies are: a) Burden of Proof, or b) Denial

18. The Defense Presents its Case (cont’d)  Burden of Proof  Asserts that the moving party did not provide sufficient evidence to warrant a favorable decision.  The defense is not required to call any witnesses or present evidence.  Can use cross-examination to raise doubts about the quality of the evidence.  Burden of Proof  Asserts that the moving party did not provide sufficient evidence to warrant a favorable decision.  The defense is not required to call any witnesses or present evidence.  Can use cross-examination to raise doubts about the quality of the evidence.

19. The Defense Presents its Case (cont’d)  Denial  The other strategy is to deny the facts the moving party presented and offer evidence and testimony to back up this view.  Denial  The other strategy is to deny the facts the moving party presented and offer evidence and testimony to back up this view.

20. Rebuttal  A fter the defense rests its case the moving party may call a rebuttal witness  Used to show the defendant’s explanation cannot be accurate  The rules for rebuttal are complex – the moving party must show that it could not have been used during their case in chief  A fter the defense rests its case the moving party may call a rebuttal witness  Used to show the defendant’s explanation cannot be accurate  The rules for rebuttal are complex – the moving party must show that it could not have been used during their case in chief

21. Objections to Evidence  During trial attorneys are constantly objecting to the admission of evidence.  The judge may rule on the spot or ask the attorneys to present arguments on why or why not the evidence should be admitted (a.k.a. “Offers of Proof”).  In the event that inadmissible evidence does get presented – the judge will instruct the jury to ignore the evidence or call a mistrial.  During trial attorneys are constantly objecting to the admission of evidence.  The judge may rule on the spot or ask the attorneys to present arguments on why or why not the evidence should be admitted (a.k.a. “Offers of Proof”).  In the event that inadmissible evidence does get presented – the judge will instruct the jury to ignore the evidence or call a mistrial.

22. Closing Arguments  After both sides have rested (presented their evidence) each party can make a closing argument – allow each side to sum up the facts and indicate why the jury should decide in their favor.

23. Key Term – Prima Facie Case The minimum evidence sufficient to prove a case, prior to any rebuttal by the defense. The minimum evidence sufficient to prove a case, prior to any rebuttal by the defense.

24. Rules Governing Trial Motions ActPurpose When Due Rule(s) Motion for Judgment as a Matter of Law To have court enter judgment for moving party for failure of opponent to prove prima facie case. Any time before submission of case to jury. FRCP 50(a)(2) MRCP 50(a) Renewal of Motion for Judgment as a Matter of Law To have court enter judgment contrary to that returned by jury on basis jury verdict goes against weight of evidence (may be joined with motion for new trial). Within ten days after entry of judgment. FRCP 50(b) MRCP 50(b)

25. Jury Instructions  After closing arguments the judge instructs the jurors in the meaning of the law that is applicable to the facts.  Jury instructions include:  Discussions of general legal principles.  Specific instructions regarding the case at hand.  Information about legal standards.  Information about possible verdicts.  After closing arguments the judge instructs the jurors in the meaning of the law that is applicable to the facts.  Jury instructions include:  Discussions of general legal principles.  Specific instructions regarding the case at hand.  Information about legal standards.  Information about possible verdicts.

26. Jury Instructions (cont’d)  The judge and lawyers each prepare drafts of instructions.  Jury instructions are written out, signed by the judge read to the jury. Example - Exhibit 11:8  The judge and lawyers each prepare drafts of instructions.  Jury instructions are written out, signed by the judge read to the jury. Example - Exhibit 11:8

27. The Verdict  The jury foreperson announces the verdict –The final decision of the jury regarding the questions of fact submitted to it by the judge.  Three forms of verdict: 1.General verdict 2.Special verdict 3.General verdict with interrogatories  After the announcement either party can ask for the jurors to be polled.  The jury foreperson announces the verdict –The final decision of the jury regarding the questions of fact submitted to it by the judge.  Three forms of verdict: 1.General verdict 2.Special verdict 3.General verdict with interrogatories  After the announcement either party can ask for the jurors to be polled.

28. End of Trial Preparation and Trial End of Trial Preparation and Trial