TRIAL PRACTICE 101

1. TRIAL PRACTICE101 BLST, 2010 Callie S. Query, Southeastern Ohio Legal Services

2. What is a trial? Why do we have them? • Resolve factual disputes • Simple disagreement on history, chronology, etc. AND/OR • Questions of sequence, interpretation, characterization, intent, effect, and damages • Telling a persuasive story within the boundaries of evidentiary and ethical rules.

3. General Order and Components of Trial • Opening Statements (Plaintiff, then Defendant) • Plaintiff’s case-in-chief • Defendant’s Motion for Directed Verdict • Defendant’s case-in-chief (Defenses & Counterclaims) • Plaintiff’s Motion for Directed Verdict • Rebuttal & Surrebuttal • Closing Arguments (Plaintiff, then Defendant)

4. When should I start preparing for trial? DAY ONE… Never assume a case will settle Protect the record throughout the case.

5. Suggested Steps of Lit Planning • Interviews (Client, Witnesses, Experts, etc.) • Research • Discovery • Trial Notebook & File Organization • Theme and Theory • Closing Argument • Prepare for examination/questions of witnesses • Opening statement • Prepare your client and your witnesses

6. The Trial Notebook • This is not your case file. This is an organization of the materials to be used at trial. • What’s in it? • Elements chart • Witness list • Examination outlines/questions • Exhibits • Opening/closing • Relevant statutes • Pleadings • Discovery/Impeachment Materials • Rules of evidence

7. Trial Notebook: Elements Chart

8. Trial Notebook • Three-ring binder with dividers or… • Accordion file with dividers • WHY A TRIAL NOTEBOOK IS NOT A WASTE OF TIME

9. Theory of Your Case • This is what really happened… And • This is why my client must win. • A few short sentences. • Address the strengths and weaknesses of your case. • “Giving birth to a child is significant, but raising a child takes more. Ms. Pankhurst has shown, over the last three years, that she has the ability and desire to properly raise this child. She is better-suited financially and emotionally. And, unlike Ms. Shaw, she can give the child the safe and stable home that he needs. The testimony will show that it is in the child’s best interests to designate Ms. Pankhurst as the residential parent and legal custodian.”

10. Themes • One sentence to summarize your case. • The “moral hook” for why you win. • An applicable and commonly-known saying or phrase can be used…but be careful with analogy. • Plain language. Do not talk like a lawyer.

11. OJ’S THEME AND THEORY • “Conviction would be improper because the prosecution did not meet its burden of proof in light of the fact that the physical evidence admitted cannot be reliably linked to the Defendant.” • “If it doesn’t fit, you must acquit.”

12. Here we go…Opening Statement • Introduction: theme & theory. • Tell your story – Not an argument, but… • Speak in present tense • Use detail to paint a picture • Deal with weaknesses • Emphasize strengths • Facts in opening must be covered in testimony • Conclude by telling the fact finder what you will want at the end of trial. • Judge vs. Jury

13. Direct Examination • Put the focus on your witness. This is your client’s chance to shine. But don’t let the client dictate what to cover!!! • Open, non-leading questions (except Intro) • Who, what, where, when, why, how • NOT are, have, did • Use head notes to introduce and transition • Outline, do not write your questions. • Show interest in your witness; eye contact, head tilt • Exhibits • Admission, explanation, and use

14. Cross Examination • More difficult. You can win OR lose a case on cross. • Keep it simple, keep it focused, and always have a purpose. • 3 points or less • Don’t muddy the water • Leading questions…always. • One question, one issue at a time. • Short, simple, yes or no STATEMENTS. • Prepare ahead of time, but be sure to listen to the direct. • MOST LIKELY PLACE FOR LAW AND ORDER MOMENTS • Keep control of the witness. This is your courtroom. Do not expect the Judge to help you. • Start nice, with simple, undisputed facts…then get more aggressive. • Be ready to impeach. • Don’t ask the one question too many. Let the trier of fact make the conclusion.

15. Impeachment • Be prepared. Have the materials/discovery at hand. • Always ask yourself “Is it worth it?” • General Steps: • Commit the witness to the current statement, validate prior truth, confront • Q&D: “Mr. Smith, you gave a deposition and in your deposition you said…”

16. “Dancing-in” the Exhibit (Ch. VI, Mauet) • Witness is Competent • Exhibit is relevant • Mark Exhibit • Show to Opposing Counsel (copies) • Permission to approach • Give to witness • “Magic words” (Mauet at 177) • Offer Exhibit into Evidence • Have it Marked in Evidence • Permission to Publish to Jury • Publish it • Have witness use and explain the exhibit.

17. Objections • Edge of your seat and on your feet. Pay attention to opposing testimony. • Make opposing counsel do their jobs. • Anticipate objections.

18. Process of Objecting • Question asked • “Objection. Calls for hearsay.” • “Party-Opponent Statement.” • If clear, you will get a ruling. If not, approach the bench. • Objecting counsel: restate the question asked, identify your objection, and explain the basis. • Opposing counsel will argue contra, may identify what s/he expects the response to be. • Ruling • Win, lose, or draw what do you say?

19. Closing Argument • Your chance to argue. • Like opening, begin with your theory and theme. Show enthusiasm. • Argue (rhetorical questions ok, too) • Use exhibits (effectively) • Discuss witnesses, what they said, and their credibility. • Deal with strengths and weaknesses. • Use instructions and help the jury make the conclusion • Explain candidly what you want.

20. Posture and Positioning • Direct: near trier of fact so the witness is also looking that way. • Cross: away from the jury. • Move with a purpose. Transition. • Hands: find a comfortable home base. Not in pockets. Not crossed. • No pens/distracting items. • No gum. • Notes at podium/table. You elsewhere.

21. A few tips • Think of your client, your case, and yourself through the eyes of the fact finder. • All statements, all words, all movements with a purpose. • Keep your composure, keep your calm, keep your credibility • “Anger, fear, aggression: the Dark Side of the Force are they.”