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Trial Advocacy
University of Illinois School of Law
Beckett, J. Steven

Fall 2011

Trial Advocacy

Beckett

1. The Trial Process

a. Introduction

i. Jury trials are the principal method by which we resolve legal disputes parties cant settle

ii. Jury determines the facts

iii. Judges determine the law

iv. Lawyers act as advocates

v. Tools of advocates

1. Substantive law

2. Procedural law

3. Evidence law

4. Persuasion law – hardest to learn

b. Local Practice

i. Jurisdictions differ in trial

1. Applicable substantive law

2. Applicable civil and criminal procedural rules

3. Applicable evidence law

4. Court rules and local rules implementing procedural statutes

a. Voir dire

b. How many experts

c. How much time each side case in chief

d. Time opening and closing

c. Trial Date Assignment

i. Individual calendars – case assigned to individual judge

1. Civil – 3-6 months

2. Criminal – 3-4 months

ii. Central assignment systems – cases all on one calendar and sent to judge when reach top

d. Jury Selection

i. Panel = 25-40 jurors / 1-3 hours

ii. Controlled by statues, court rules, and individual judicial practice

iii. Strike system – federal all questioned at once

iv. Panel system – state questioned 4 at a time

e. Preliminary instruction of law before opening

i. Gives overview of law

ii. Tell jury their duties

f. Opening Statement

i. Lawyer’s opportunity to tell jury what they expect evidence will be during the trial

ii. Factual not argumentative

iii. Based on theme and storytelling

iv. Most jurors return verdicts that are consistent with impression of opening

v. 10-30 min per side

g. Plaintiff Case in Chief

i. Has burden so present evidence first

ii. 4 Sources of proof

1. Witnesses – on stand for 15-90 minutes

a. direct examination -à pass the witness

b. cross examination – usually limited to direct (English rule not limited)

c. redirect / cross

2. Exhibits

a. real objects

b. demonstratives

c. writings

d. records

3. Judicial notice – when fact is well known in jurisdiction or can be readily determined/verified

4. Stipulations

h. Motions after Plaintiff’s Case in Chief

i. Defendant moves for directed verdict = in writing

1. Criminal case- motion for directed judgment of acquittal

2. Civil case – motion for judgment as a matter of law

3. Granted if P fail to prove prima facie case

4. Judge must view evidence in light least favorable to the movant

5. Judge may grant all, part, or none of the motion

i. Defendant Case in Chief

i. Evidence to refute P proof

ii. Evidence to prove any affirmative defenses and counterclaims/ cross claims

j. Motions after Defendant Case in Chief

i. P can move for directed verdict on D affirmative defense / counter claim

k. Plaintiff Rebuttal and Defendant Subrebuttal

l. Motions at Close of All Evidence

i. Directed verdict – at this point required to preserve the right to move for judgment notwithstanding the verdict after trial

m. Instructions conference – settle on which jury instructions after all evidence

i. Have jury instructions submitted before

ii. Final pretrial memo with requests and objections

iii. Given, denied, modified

n. Closing Arguments

i. Lawyers opportunity to tell the jury what the evidence has been, how it ties into jury instructions and why the evidence and law compel a verdict in favor

ii. Argue from facts and persuade jury / make inferences

iii. 30-60 minutes

o. Jury Instruction

p. Jury Deliberation and Verdict

i. Alternate dismissed and bailiff sworn to protect

ii. Select foreperson and sign verdict; rest of organization is up to them

iii. Poll jury – ask if verdict is all their responses

iv. Deliberate = 1-4 hours

v. Allen charge if cant agree then judge tell them to try and reach agreement

vi. Mistrial

q. Post-Trial motions and Appeal

i. Judgment NOV – judge set aside jury verdict and enter judgment for the other side

ii. Motion for a new trial – made error in during first trial

iii. Additur / remittitur – increase or decrease the dollar amount

iv. Entering judgment in accordance with verdict and post motions = jurisdictional fact that ends the case in trial court

v. File appeal timely with clerk and post appeal bond in amount of judgment (civil)

r. Who to ask

i. Judge clerk

ii. Court clerk

iii. Other trial lawyers / go to court

2. Trial prep and Strategy

a. Secret is prep prep and more prep

b. 90% perspiration 10% inspiration

c. 4-8 weeks: discovery/pleadings and file motions to exclude

d. 3-4 weeks: trial notebook, jury instructions

e. 2-3 weeks: brainstorm theory and prepare parts of trial

f. 1-2 weeks: stipulations, prepare witness

g. week before: prepare witness

h. Think, rehearse, refine

i. Do as much as early as possible

j. litigation files – logical, clearly indexed, bound

i. court documents

ii. attorney records

iii. evidence

k. trial notebook – only those used at trial not all/ parallel to trial process

i. facts

ii. pleadings

iii. discovery

iv. motions

v. charts

vi. Jury

vii. Opening

viii. Plaintiff

ix. Defendant

x. Clos

iii. Need to understand jury to persuade: background/belief/attitudes

b. Behavioral science and jury research

i. Old research until 50 years ago = jurors objective and waited

ii. 1940 behavior research and 1960 jury research = they do not think like us

iii. Research has little to do with courtroom environment

iv. Decision Making

1. Affective (right brain)

a. Emotional and creative

b. More interested in people than problem

c. Trial as human drama

d. Use deductive reasoning (emotional and impulsive)

e. Committed to decisions

2. Cognitive (left brained)

a. More interested in problem than person

b. Accumulate info/ Defer decision making

c. Who’s fault?

d. Higher education level / science/ inductive reasoning

v. Beliefs and attitudes

1. Belief – what we know about something

a. How we perceive life works (value system)

2. Attitude – how we feel about something

a. Expressions of our beliefs

b. Convictions, bias, prejudice

c. Subconsciously filter info accept/reject evidence / fill in gaps

d. More circumstantial evidence more important juror attitude/belief is

e. Single Demographic characteristic – limited and general attitude not individual (sex race age)

f. Direct info – more accurate

i. Frequently inaccurate need to fit in

ii. Create relax environment / question individual / written questionnaire

g. Indirect = hobbies, interest, groups orgs, person experience

vi. Decision Making

a. Individual decision making (affective)

i. Anxiety – unsure about role, selected as juror, capacity to reach right verdict

ii. Filter process – use attitude/belief to screen evidence

iii. After closing eager to share

iv. Closing only persuade – unsure or no confidence, verdict not permitted

b. Individual influenced by Group decision making

i. Persuaders – 25% – make assertive statement, freely express, actively build coalition (3 jurors more than 50%)

ii. Participants – 50% – followers, value approval, defer, readily join groups (6 jurors)

iii. Nonparticipants – 25% – rarely engage, rarely discuss other than agree/vote, followers