Trial Advocacy Outline

Trial Advocacy Outline
McCormick & Santos Spring 2009

Trials – Persuasive Exercises Theory and Themes

I. Class Notes
A. Organizational or Trial Notebook
1. need to have a notebook organized and readily accessible
2. should contain all information you might possibly need for every witness
a. Example: may have a section for each witness, which contains their direct, cross, deposition and any exhibits that may be relevant
3. an elements of proof checklist
a. decide what must be proven to survive directed verdict and make a chart that includes who you will be eliciting these answers from
i. check off each element as it actually comes in from the witness
B. Common Trial Myths
1. impeachment on a witness’ personal problems is effective
2. impeachment on minor matters helps your case
3. jurors find bench conferences entertaining and a welcome break during trial
4. possible to prepare the proposed charge shortly before closing argument
5. can effectively conceal a lack of preparation from the judge and jury
6. jurors aren’t intelligent
7. can exhibit a trial personality or demeanor that is contrary to your normal personality
8. experienced trial lawyer learns how to think like a juror and can readily anticipate what the jurors will deem to be important during the trial
a. TM: use focus groups to get this information accurately
9. effective advocate can “go with the flow” at trial and create a trial theme as the spirit moves him
10. since the jury is instructed only to consider the evidence elicited from the witness stand, the behavior of the counsel, parties and witnesses outside the courtroom is irrelevant to the proceedings
11. can avoid dealing with “bad facts”
12. can effectively have an adversarial relationship with the court
13. judges do not talk with one another about how you behaved in their court
14. can argue effectively with the judge at trial in the presence of the jury
15. jurors view fancy graphics and computer presentations as too “slick” and if you use them, the jury will consider you and your client to be rich and merely trying to “con” them
a. TM: judges advise lawyers to take advantage of technological advances
16. if you cannot afford fancy visual aids, you are better off not using any at all
17. should not outline your direct of witnesses because it will no longer look spontaneous
18. should faithfully follow witness examination outlines without deviation
19. jurors appreciate counsel who does not waste their time, so you should continue your questioning of the witnesses as you publish exhibits to the jury
20. jurors like to see lawyers “beat up” on witnesses
21. jurors think that all witnesses should be treated gently
22. juries need lawyers to repeat the same points over and over
23. speaking objections are good
24. should examine each witness at trial, lest the jury think that the testimony is harmful
C. On The Record
1. means that the court reporter takes the statements down
2. in a bench conference or voir dire, must request and ensure that court reporter transcribes statements because this is the only way to preserve error
D. Basic Stages Presentation – The Art of Persuasive Communication Using the Tools of an Actor
1. acting – the honest depiction of a given set of circumstances; the ability to honestly express oneself in an effort to achieve a desired result
a. does not imply deceit, insincerity, or impersonation
2. stage fright – an adrenaline rush that prevents you from full potential
a. Causes of Stage Fright
i. lack of preparedness
ii. not emotionally prepared
iii. too preoccupied with what audience is thinking that you do not concentrate on your job
b. Ways to Combat Stage Fright
i. find your correct posture (stand up straight to maximize full potential)
ii. breath properly (using your diaphragm)
iii. become aware of what you do when you are nervous (i.e. the meaningless, random gestures)
II. Chapter 1 – Trial Process (Mauet)
A. Introduction
1. jury system is premised on the idea that pitting two adversaries against each other with each interested in presenting his version of the truth is the best way for the jury to determine the probable truth
2. three players
a. jury determines the facts
b. judge determines the law
c. lawyers act as advocates for the litigants
3. litigants have four tools
a. substantive law
b. procedural law
c. evidence
d. persuasion
B. Local Practices and Procedure
1. substantive, procedural and evidence law will differ in each jurisdiction
2. local court and procedural rules will vary widely
C. Trial Date Assignment
1. individual calendars: each trial judge is responsible for the overall handling of every case assigned to his docket
a. includes everything from setting the trial date and to actually trying the case
b. in civil cases, trial date is set after discovery is completed and parties state that they are ready for trial
i. will be between 3-6 months after the parties say they are ready
2. central assignment systems: cases remain a one central calendar for trial assignment purposes
a. found more frequently in large urban areas
b. oldest cases are at the top, new cases creep their way up from the bottom which may take between 1-5 years (sometimes longer)
i. once a case reaches the top, it is sent to judge for trial and the date is published in a trial calendar in the daily legal newspaper
ii. lawyer’s responsibility for keeping up with dates
D. Jury Selection Process
1. counsel, parties and judge are present
2. clerk calls the case for trial
3. judge orders potential jurors
a. during this time the judge may explore the possibility of settlement, resolve remaining procedural or evidentiary issues and address questions
4. judge introduces parties, lawyers and himself and explains selection process
a. some jurisdictions allow for short statements about facts and issues by lawyers
5. clerk swears in the prospective jurors
6. selection process (controlled by statute, court rules and individual practices so will vary greatly from courtroom to courtroom)
a. how jurors are initially called and qualified for service
b. number of jurors
c. whether/how many alternates will be selected
d. cases for cause challenges(statutory grounds to dismiss or strike jurors)
e. number of peremptory challenges(party’s right to strike a juror)
f. jury selection system – most common is the strike system in federal courts and the panel system in state courts
g. permissible topics on which jurors can be questioned
h. who will do questioning (typically lawyer in state court and judge in federal court)
7. jurors are sworn in
E. Preliminary Instruction of Law
1. judge usually gives jury preliminary instructions on the law to orient the jurors
a. he summarizes their duties as jurors
b. instructs them on how to conduct themselves
c. describes how trials are conducted
2. some judges summarize the pleadings and instruct jury on applicable substantive law
a. a few jurisdictions allow jurors to discuss evidence during recesses as long as all jurors are present in the jury room at the time
3. lawyers ask judge to order the exclusion of witnesses during the trial (“invoke the rule”)
a. parties are never excluded from the courtroom.
4. some jurisdictions allow jurors to take notes
F. Opening Statements
1. prosecution goes first because they have BOP (also get to sit closest to the jury in Texas)
a. should never defer opening
2. be careful:
a. of where you put the spotlight and the details you bring out
i. Where do you want jury to focus?
b. to let the facts work for you
i. cannot give certain types of personal opinions or representations (e.g. best person, nicest guy, worst case of speeding ever, etc.)
c. when/if you talk about the law
i. do not state the law of the case – that is the judge’s role
(a). he may pick between different theories
ii. can discuss it, but only by anticipating it
(a). anticipate what the judge will say about the law and jury instructions
d. to not state conclusions, only facts