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

Trial Advocacy Study Outline Beckett Fall 2012
 
 
Chapter 1 – The Trial Process
 
Fourfold Tools of Litigants
1.      Substantive law
2.      Procedural law
3.      Evidence law
4.      Persuasion “law”
 
Local Parties and Procedures
1.      The applicable substantive law may differ
2.      The applicable civil/criminal procedure may differ
3.      The applicable evidence law may differ
4.      Court rules and local rules implementing procedural statutes can vary widely
 
Outline of a Trial
 
Trial Date Assignment
1.      Individual calendars
a.       Each trial judge is responsible for the overall handling of every case assigned to that judge’s docket
                                                              i.      Civil cases = at least 3-6 months after the parties are ready
                                                            ii.      Criminal cases = within 3-4 months of arraignment
2.      Central assignment systems   
a.       Found more frequently in urban areas
b.      Not assigned to a judge until it is sent for trial
c.       Cases may take one to more than five years to creep to top of the case list
 
Jury Selection
·         Controlled by statutes, court rules and individual judicial practices
·         Strike system = used most commonly in federal courts
·         Panel system = used most commonly in state courts
 
Preliminary instructions of law
·         After jury selection and before opening statements, the judge usually gives the preliminary instructions of law
 
Opening statements
·         10-30 minutes per side
·         Should be factual and not argumentative
·         Rare, but allowed by many jurisdictions to waive opening statements
·         Based on themes and storytelling, usually giving a chronological overview of “what happened” from either the plaintiff’s or the defendant’s viewpoint.
·         In some jurisdictions, the defendant may reserve the opening statement until after the plaintiff has rested his case in chief
o   Most common in criminal cases where the defense does not want the prosecution to know its affirmative defense during the prosecution’s case in chief
·         Some jurisdictions have lawyers make opening statements to the entire jury panel before selection is conducted to ascertain juror’s attitudes more accurately and openly.
 
Plaintiff’s case in chief
·         Plaintiff, having the burden of proof, presents evidence first
·         Plaintiff must present sufficient proof on each element of each legal claim alleged in the complaint or indictment, using four possible sources of proof:
o   Witnesses
§  Direct/Cross
§  Cross limited to what was on direct
§  Some states, however, follow the “English rule” under which cross-examination can go into any relevant matter
o   Exhibits (need foundation)
§  Real objects (guns, drugs, blood)
§  Demonstrative exhibits (diagrams, maps, models)
§  Writings (contracts, promissory notes, checks, letters)
§  Records (private business and public records)
·         Foundation will come from witness testimony, certification or other methods
o   Judicial notice
§  Judge can admit evidence through judicial notice when the fact is either well known or the fact can be easily determined and verified from a reliable source)
o   Stipulations
§  Agreement between the parties that certain facts exists and are not in dispute
 
Motions after plaintiff rests
·         Motion for directed finding: directed judgment of acquittal/motion for judgment as a matter of law
o   Plaintiff has failed to prove a prima facie case
o   Standard is the judge must view the evidence in the light least favorable to movant to grant the motion
 
Defendant’s case in chief
·         Evidence to refute plaintiff’s proof
·         Evidence to prove any affirmative defenses and counterclaims
 
Motions after defense rests
·         Plaintiff can move for directed finding on an of defendant’s affirmative defenses
 
Plaintiff’s rebuttal/Defendant’s surrebuttal
·         Plaintiff has an opportunity to introduce evidence that rebuts defendant’s evidence
·         Defendant gets one last chance to rebut specific matters raised in the plaintiff’s rebuttal case (surrebuttal)
 
Motions at the close of all evidence
·         Either side may make a directed finding motion
·         Many jurisdictions require a motion for a directed verdict at the close of all the evidence to preserve the right to move for judgment notwithstanding the verdict after trial
 
Instructions conference
·         Judge rules on which jury instructions will be submitted to the jury
·         Usually held after both sides have presented all of their evidence, so before closing arguments
 
Closing arguments
·         Effective closing arguments integrate the facts and law and argue that the credible evidence, when applied to the law, requires a favorable verdict
·         Plaintiff usually argues first and last in closing (Plaintiff-Defendant-Plaintiff)
·         Most closing arguments last 30-60 minutes
o   If too short, they fail to use the available time persuasively
o   If too long, they run the danger of boring or irritating the jury
·         In situations where the only issue for the jury to decide is whether an affirmative defense or counterclaim has been proved, and the defendant has the burden of proof on these issues, the defendant usually will have the right to argue first and last
 
Jury instructions
·         Judge reads agreed upon instructions of law to the jury
·         Gets verdict forms (possible multiple if multiple parties, claims, counterclaims and third-party claims)
 
Jury deliberations and verdict
·         After verdict, losing side may choose to “poll the jury”
·         Usually take about 1-4 hours
·         Allen Charge = encourages the jurors to listen to each other’s views and attempt to reach a verdict (if jury says addition time would be helpful for deadlocked jury)
·         If jury says no extra time will be helpful

.       Research has shown that several concepts can be used to increase memory and persuasion
                                                  i.      Repetition
                                                ii.      Cues = verbal/visual warning something important is about to happen
                                              iii.      Rhetorical questions
                                              iv.      Order effects = where a message is placed in relation to other information
g.      People remember what they hear first = primacy
                                                  i.      More important in short trials
h.      People also remember what they hear last = recency
                                                  i.      More important in longer trials
i.        Forewarning = Giving the listeners advance warning that they are going to hear contrary information and appeals from the other side
j.        Inoculation = Anticipating the other side’s argument and giving the listeners information and arguments that they can use to rest the other side’s argument
 
What research means for trial lawyers?
1.      Prepare from the jury’s point of view
a.       The jury’s perception of reality is the reality; everything must be planned and executed from the jury’s point of view
 
2.      Develop a theory of the case
a.       A clear, simple story of “what really happened” from your point of view
 
3.      Select themes and labels
a.       Trial vocabulary that become the psychological anchors you want the jurors to accept and adopt as their own during the trial
b.      Themes = are the anchors that summarize your case; no more than 3-4 themes per case
c.       Labels = tags you put on the people, events and things involved in the case; plaintiff will use emotional labels; the defendant will use bland labels
 
4.      Emphasize the people
a.       Jurors want to hear about the people, not the legal problems
 
5.      Use storytelling techniques
a.       Good stories organize, humanize and dramatize
 
6.      Focus on the key disputed facts and issues
a.       The crucial component to winning a jury is making them believe the disputed facts in your favor
 
7.      Understand your role as an advocate
a.       An advocate exhibits unrelenting commitment to the client’s cause, and actively seeks to influence jurors by reaching their hears and minds