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

Trial Ad – Beckett – Fall 2012

I. the trial process

A. Local Practices

1. Jurisdiction-specific court rules and local rules may effect:

a. Voir dire

b. How many experts

c. How much time each side case in chief

d. Time opening and closing

B. Trial Date Assignment

1. Individual calendars: Case assigned to an individual judge.

a. Civil Cases. 3-6 months

b. Criminal Cases. 3-4 months.

2. Central assignment systems: Cases all on one calendar and sent to judge when they reach the top.

C. Jury Selection.

1. Panel: 25-40 jurors questioned over the course of 1-3 hours.

a. Controlled by statutes, court rules, and individual judicial practice.

2. Strike System. Federal all questioned at once.

3. Panel System. State questioned 4 at a time.

D. Preliminary Instructions of Law Before Opening

1. Purpose. (1) Gives overview of the law; (2) Tells jury their duties.

E. Opening Statement

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

2. Factual, not argumentative

3. Based on theme and storytelling

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

5. 10-30 minutes per side.

F. Plaintiff’s Case in Chief.

1. Burden of Proof. Plaintiff has burden of proof, so presents evidence first.

2. Four (4) Sources of Proof (THINK: N, S, E, W)

(1) Witnesses. The plaintiff’s strategy may lie in the order that the witnesses are presented.

i. Duration. Witness on stand for 15-90 minutes

ii. Direct Examination. Side that calls witness does that direct examination.

· When done à “nothing further,” or “pass the witness,” or “your witness.”

iii. Cross Examination. Scope usually limited to subject matter of direct, except for the English rule, which does not limit scope.

iv. Sometimes then redirect and recross

(2) Exhibits. Exhibits need foundation, i.e. evidence that the exhibit is actually what it purports to be, in order to be admitted.

i. Four (4) Types of Exhibits.

(a) Real Objects. Guns, blood, drugs, machinery, etc.

(b) Demonstrative Exhibits. Diagrams, models, maps

(c) Writings. Contracts, promissory notes, checks, letters.

(d) Records. Private business records and public records.

(3) Judicial Notice. The judge admits evidence when the fact is well known in jurisdiction (i.e. Statue of Liberty located in NYC) or can be readily verified.

(4) Stipulations. An agreement between the parties that certain facts exist.

3. Concluding PL’s Case in Chief. The PL “rests” after presenting all of its evidence. At this time, the court may take a recess to hear the DF’s motions.

G. Motions After the Plaintiff Rests.

1. DF moves for a directed verdict. In writing.

a. Criminal case. Motion for Directed Verdict of Acquittal

b. Civil Case. Motion for Judgment as Matter of Law

c. Granted if PL fails to prove prima facie case.

d. Standard of Review. Judge views evidence in light least favorable to the movant.

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

H. Defendant’s Case in Chief

1. Two (2) Components

a. Evidence to refute the plaintiff’s proof

b. Evidence to prove any affirmative defenses.

2. Procedure. Evidence is presented in the same manner as PL’s case. When the DF rests, the judge may again hear motions.

I. Motions After the Defendant Rests.

1. Directed Verdict. PL can move for a directed verdict on any of the defendant’s affirmative defenses or counter claims.

2. Standard of Review. Judge reviews the evidence in the light least favorable to the movant.

J. Plaintiff’s Rebuttal and Defendant’s Surrebuttal After DF rests, PL has the opportunity to introduce evidence that rebuts DF’s counterclaims or contradicts DF’s evidence. DF’s last chance to rebut specific matters is called its surrebuttal case.

K. Motions at the Close of Evidence After both parties have rested, the PL or DF may move again for a motion of a directed verdict.

1. Standard of Review. Judge reviews the evidence in light least favorable to movant.

2. Preserving Right for JNOV. In many jurisdictions, moving again for a directed verdict is required to preserve the right for a JNOV after trial.

L. Instructions Conference.

1. Settlement instructions are ruled on; judge decides which instructions go to jury.

2. Proposed instructions are generally given before trial w/ pretrial memo, but judge makes decisions after hearing all of evidence. (Given, denied, modified).

3. In many jurisdictions, objections must be on the record in order to be raised on appeal.

M. Closing Arguments. Gives lawyers the opportunity to tell the jury what evidence has been, how it ties into the jury instructions, and why evidence and law compel a verdict in favor.

1. Duration. Generally 30-60 minutes.

2. Burden of Proof – First and Last. In most jurisdictions, the party having the burden of proof has the right to argue first and last. But some jurisdictions only allow one argument per side.

a. Note: In cases where jury must decide only whether the affirmative defense or counterclaim has been proved and DF has burden of proof on those issues, the DF usually has the opportunity to argue first and last.

N. Jury Instructions. After closing argument the ct instructs the jury on the law that must be applied in the case. The jury receives verdict form(s).

O. Jury Deliberations.

1. Procedure. Alternates dismissed, bailiff sworn to protect, select foreperson and sign verdict, rest of organization up to them.

2. Duration. Usually deliberate 1-4 hours.

3. Allen Charge. If jury can’t reach verdict, judge gives jury an “Allen Charge” which encourages jurors to listen to e/o’s view.

4. Mistrial. If jury hopelessly deadlocked, judge declares mistrial and excuses jury.

P. Post-Trial Motions and Appeal

1. Two (2) Most Common Motions

a. Motion for judgment notwithstanding the verdict. Asks judge to set aside the jury’s verdict and enter judgment for the other side.

b. Motion for a new trial. Asks judge to order a new trial b/c of claimed errors made during the first trial.

c. Additur / Remittitur. Increase or decrease in dollar amount.

d. Judgment entered

Q. Self Reflection. Win or lose, any lawyer should do this after trial.

II. trial prep and strategy

A. Timeline:

1. Discovery/pleadings and filing motions to exclude: 4-8wks

2. Trial notebook, jury instructions: 3-4 wks

3. Brainstorm theory and prepare parts of trial, 2-3 wks

4. Stipulations, preparing witness: 1-2 wks

a. Pretrial hearing (First jury instruction conference usually here for civil)

b. Coach Witness. Pretrial meetings with witness to go over actual questions to be asked and answers to be given.

B. Tools

1. Litigation Files: Contains court documents, attorney records, and evidence. Should be logical, clearly indexed, and bound.

2. Trial Notebook. Only those used at trial not all/parallel to trial process.

a. Contains: facts, pleadings, discovery, motions, charts, jury, opening, plaintiff, defendant, closing, proposed jury instructions, law.

3. Trial Chart. Outlines evidence used at trial

4. Exhibit List. Helps keep track of papers, objects, or photographs that are refused or admitted into evidence.

C. Preparing Evidence: Evidence must be legally sufficient to meet the burden of claim/defense and must be persuasive.

a. Determine “Order of Proof”: manner of presenting evidence using principles of logic, chronology, and persuasiveness.

D. Theory of Case: Your side of what happened. Contains (1) undisputed evidence, (2) disputed evidence, (3) theme, (4) labels, i.e. what word to use.

a. Simple yet logical

III. psychology of persuasion

A. Three Realities: (1) your side; (2) opponent’s side; (3) jury’s reality.

B. Behavioral Science and Jury Research:

1. Two (2) different approaches to decision making

a. Affective (right brain) Reasoning. Most jurors use this. It is the emotional and creative side, interested in people more than problems. Uses deductive reasoning.

b. Cognitive (left brain) Reasoning. Lawyers often use this. More interested in problems than people; logical; uses inductive reasoning.

2. Beliefs vs. Attitudes

A. Beliefs. What we know about something; our value system.

B. Attitudes. How we feel about something; the expression of our beliefs.

i. Juror’s attitude matters greatly. Must question each juror individually, because self-disclosure of true attitudes during jury selection is unreliable.

3. Decision Making

a. Jury verdict product of two forces:

i. Individual decision making (affective)

ii. Individual influenced by group decision making

b. Three Kinds of Members of Jury

i. Persuaders. Make assertive statements; freely express opinions; have lots of influence; leaders in deliberations. Make up about 25% of jury.

ii. Participants. Engage in group discussions; followers not leaders; about 50% of the group. (50%)

iii. Nonparticipants. Rarely become engaged/involved in discussions. (25%)

4. What Influences the Jury

a. Sender’s Credibility (Witnesses & Lawyers)

i. Four principal characteristics of credibility: (1) trustworthiness; (2) expertise; (3) dynamism; (4) credibility

1) Jurors also look at mannerisms.

b. Receiver’s Capacities (Jurors)

i. Short attention span; roughly 15-20 minutes

ii. Limited interest in learning; expectations of new learning is that it will be fast, painless, interesting, and visual.

iii. Difference in seeing “evidence” from what lawyers understand as evidence. It is all evidence to the jury.

c. Effective Messages

i. Themes: Lawyers must use strategies to improve jurors’ attention, like using themes, or psychological anchors to simplify, using visual learning, visual aids, repetition, powerful language, and cues (like “this is important”). (Translation of legalese into understandable)

ii. Order Effects. Applies to arguments, witness, exhibits, etc.

1) Primacy. Remember better what they hear first

2) Recency. Also remember best what they hear last.

iii. Forewarning and Inoculation.

osis, immediate treatment, prognosis, conclusion).

5. Preview Witness/evidence. Stated “we expect the evidence to show.”

6. Request Verdict.

B. What to Avoid: (1) Avoid being argumentative;(2) do not use opinions like “I think”—conveys personal opinion. Do not use rules, don’t overstate the evidence. Also, exhibits can be both good AND bad.

C. Waiving Opening statement? Can waive, it is a possibility.

D. Delivery. Remember that the opening statement is not a speech but a conversation. Upper body movement reinforces views, but lower body movement is distracting. Be efficient. Total time should take 15-20 minutes. Use plain speech, active voice, and energy.

a. Avoid using notes!

VI. Direct Examination

A. Introduction. Direct exam is the jury’s opportunity to relieve reality from your side’s perspective. Let the witness be the center of attention. The lawyer should conduct the examination so that she does not detract from her witness.

1. Witness Credibility: Determined by: (1) background, (2) content, (3) Demeanor.

B. Elements

1. Duration. Keep it simple, 15-20 minutes.

2. Organization. Organize logically (Generally chronological, but sometimes presenting the most dramatic testimony early on is best).

a. Use Introductory and transition questions

1) Let the jurors know what to expect. Leading questions OK here.

3. Introduce witness and develop background.

a. Cover basic three (3) questions:

1) Who is the witness?

2) Why is she here?

3) Why should the juror believe her? (credibility).

4. Set the scene. Elicit scene description first, then action.

a. Action. Action is most effective if presented in an uninterrupted manner.

b. Describing scene. Use compass direction (NSEW); describe from witness’s POV; describe lighting conditions.

c. Save Exhibits. Save exhibits for after witness has described what happened; they can disrupt the action.

d. Avoid unnecessary detail. Exact times, distances, etc. may only give opposing counsel ammunition for inconsistencies.

5. Recreate the Action through occurrence witnesses (most common types of witnesses at trial). Four (4) basic considerations:

a. Point of view. Organize so the jury sees the action from an advantageous POV, through the eyes of the witness.

b. Pace. To get a “feel of what happened”

1) Involves controlling the speed of examination.

· Eliciting testimony slowly creates the impression that the witness was totally alert and observed a lot. Give testimony in small segments.

· Eliciting testimony quickly creates the impression that the action happened quickly, w/o time to deliberate or react.

c. Sensory language. Deals w/ word choice. Choose simple words and phrases, train witness to use sensory vivid words.

d. Present Tense. In Q&As. Helps recreate a dramatic event so jury becomes involved.

6. Use non-leading questions. Open-ended questions.

7. Vary the form of question. Short, introductory, follow up, etc. Train the witness to give 5-15 second sound bites.

a. Cardinal Rule on Direct*: A lawyer should never do anything that will detract from his witness or diminish the impact of his witness’s testimony. Leading, suggestive questions do exactly that. (Except OK for prelim matters per FRE 611).

1) To that end, the lawyer should minimize his position and attention to himself, and maximize attention to witness.

8. Volunteer Weaknesses. Volunteering weaknesses takes the sting out of it before opposing counsel is able to use it on cross. It should be buried in the middle of direct for strategy purposes (not primacy or recency).

9. Use exhibits to highlight and summarize facts. Usually after a witness has substantially completed his testimony; usually after the action testimony to repeat and emphasize important facts.

10. Prepare the witness. Three things to keep in mind: (1) nonverbal communication like attire, demeanor, and eye contact; (2) actual testimony; (3) potential problems.

11. Two main problems inexperienced lawyers face: Planned examination fails in courts and/or witness sounds flat and rehearsed.