Trial Advocacy Outline

Trial Advocacy
Beckett
Fall 2013
 
 
 
 
Mauet 1: The Trial Process
–          Four Tools of Advocates:
o   1. Substantive Law
o   2. Procedural Law
o   3. Evidence Law
o   4. Persuasion Law
–          Jury Selection:
o   “Strike System” – most commonly used in federal courts
o   “Panel System” – most commonly used in state courts
o   Cause Challenges – statutory grounds to dismiss juror
§  Unlimited
o   Peremptory Challenges – party’s right to strike juror for almost any reason
–          Preliminary Instructions
o   Judge’s time to orient the jurors
§  Duties
§  How to act on recess
§  Describe how trials are conducted
§  Summarize pleadings
§  Instruct jury on substantive law
§  Some allow note taking and provide tools to do so
–          Opening Statements
o   Lawyers opportunity to tell jury what they expect the evidence will be
§  Not argumentative
o   Based Themes and storytelling
§  Chronological view of what happened
§  10 to 30 minutes long
o   Most juror return verdicts that are consistent with their impressions made during opening statements
o   Defendant may reserve until after plaintiff finishes case in chief
–          Plaintiff’s Case in Chief
o   Plaintiff presents first, unless defense has admitted all facts, leaving only the affirmative defense to be proved
o   Witness sworn to tell the truth by the court clerk
o   Witnesses, exhibits, judicial notice, and stipulations used to present sufficient proof to carry burden
o   Methods of getting evidence to the jury:
o   1. Witnesses:
§  Direct, Cross, Redirect, Recross
§  Cross – limited to scope of direct, unless under English rule
§  Judge may ask questions
§  In some places jurors may submit written questions
o   2. Exhibits:
§  4 Types of Exhibits:
·         1. Real objects (guns, blood, drugs, machinery)
·         2. Demonstratives (diagrams, models, maps)
·         3. Writings (contracts, promissory notes, checks, letters – all have independent legal significance)
·         4. Records (private business and public records)
§  Foundation is required to admit evidence
·         May come from witness testimony, certification, or other methods
o   3. Judicial Notice:
§  Fact is well known or easily determined and verified from reliable source
o   4. Stipulations:
§  Agreement between parties that there is no dispute
o   Most witnesses on stand between 15 and 90 minutes
o   Plaintiff Rests
–          Motions After Plaintiff Rests
o   Motion for directed verdict
o   Motion for a directed judgment of acquittal (JMOL)
o   If plaintiff has failed to support any element of case in chief, this should be granted
§  Judge reviews in light most favorable to non-moving party
–          Defendant’s Case in Chief
o   Two Possible Components:
§  1. Evidence to refute plaintiff’s proof
§  2. Evidence to prove any affirmative defenses
–          Motions After Defendant Rests
o   Move for directed verdict
–          Plaintiff’s Rebuttal
o   Plaintiff has last chance to counter defendant
o   Defendant has last chance, surrebuttal after plaintiff’s rebuttal
–          Motions at Close of Evidence
o   Move for directed verdict by plaintiff on any of defendant’s affirmative defenses and counterclaims
o   May be required to reserve right for judgement notwithstanding the verdict after trial
–          Instructions Conference
o   Judge must rule on instructions for the jury
o   Civil:
§  Final pretrial memorandum submitted by parties will have each side’s requested instructions and objections to other side’s
o   Instructions conference usually held after both sides rest and before closing arguments
o   Lawyers must make specific objections on the record to requested instructions
§  Failure to do so will take away ability to raise as error on appeal
§  Court reporter should be there to make record of the objections and rulings
–          Closing Arguments
o   Lawyer’s opportunity to 1) tell jury what evidence has been, 2) tie it to instructions and 3) why the law compels a verdict in their favor
o   Effective blend facts and the law and that credible evidence when applied to the law requires a favorable verdict.
o   Lawyers Can:
§  Argue inferences form facts
§  Refer to important testimony
§  Use admitted exhibits,
§  Tell stories,
§  Employ analogies
o   Generally 30 to 60 minutes
o   There are situations in which defendant may argue before the plaintiff (jurisdictions that allow only one argument per party)
§  Only proof is affirmative defense, defendant will likely go first and last because he carries the burden of proof.
–          Jury Instructions
o   Judge may instruct before or after closing arguments
o   Only guidelines on how it should organize and conduct itself is to appoint a foreperson and have everyone sign the verdict forms
–          Jury Deliberations
o   Bailiff carries admitted exhibits and written instructions to the jury room
o   Foreperson selected by jurors hands verdict to bailiff, who gives to judge, who gives to clerk
o   Jury could go back to deliberations after verdict reached
§  If losing side asks to poll jury clerk will ask e