HOW TO PRESENT YOUR CASE AT TRIAL By: Richard S. Dellinger

1. HOW TO PRESENT YOUR CASE AT TRIAL By: Richard S. Dellinger

2. “Next to the ministry, I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once, it is because the stream is diverted by selfishness or checked by ignorance. Its principles enable and its practice elevates.” -William Jennings Bryan

3. Presentation Outline • Opening Statement • Evidence Presentation • Direct Examination • Expert Direct Examination • Cross Examination • Expert Cross Examination • Closing Argument

4. "ON TRIAL: LEE HARVEY OSWALD" (PART 2)(G. SPENCE'S OPENING STATEMENT) - YouTube

5. OPENING STATEMENT The most successful trial lawyers are often master storytellers, making their cases come to life for their jurors. The reason is that stories matter ... stories are the deepest and most obvious way that humans organize, communicate, receive, and digest facts. G. CHRISTOPHER RITTER, Powerful Deliberations

6. Opening Statement • Preparation, Preparation, Preparation, Preparation • Introduce the theme • Be a “truth-teller” • Be a story teller • Party introductions • Conversational • Eye Contact

7. Opening Statement • Move around courtroom • Leave some mystery • Don’t over promise • Don’t argue or insult • Be positive • Be inspirational • Inflection/ Pause for Emphasis • Acknowledge weakness Colorado

8. Opening Statement Rules • No argument • No discussion of the law • No exhibits that are not admissible • Exchange exhibits in advance Miami

9. EVIDENCE INTRODUCTION Good trial lawyers are like writers with heavily plotted stories and sharply defined characters. They lay out each detail precisely to create an illusion of seamless inevitability, leaving no room for doubt, no possibility for an alternate ending. ELYSSAEAST, Dogtown

10. Evidence Presentation • Map the elements from jury instructions and tie to direct exam • Theory and Theme • Primacy and Recency • Chronological • Foundation First • Script Theory – harmonize pieces of evidence into pre-existing picture Putting the puzzle pieces on the table before putting them together

11. DIRECT EXAMINATION Successful trial lawyers are like heat-seeking missiles carrying payloads of information prejudicial to their opponent's case, constantly looking for the chance to unload their cargo, right up until the final moments of trial. DAVID BERG, The Trial Lawyer

12. Direct Examination Preparation • Review the testimony and exhibits once or twice • Show the witness the courtroom, the witness chair and the jury • Explain all the participants • Review deposition transcripts • Do not give summaries or outlines • Luzerne Co, Pennysylvania

13. Direct Examination • Mock direct exams pay off in trial • Slow down, jury’s first time • Repetition for Emphasis • Pausing for Emphasis • Reflective Questioning (speed to establish intensity) • Headlines and Transitions Morristown

14. Admission of Demonstrative and Documentary Exhibits • Demonstrative “Evidence” is not evidenceuntil admitted. Authentication • Recognize the document. • What is it? • What are the circumstances where you have seen the document before? • Is that your signature? • Is that an original or a true and accurate copy of the original? • Admit into evidence • Still subject to 401/402/403

15. 401, 402, 403 Analysis

16. Direct Examination Questions • Introduce the person (name, occupation, relationship to others) • Lay foundation (present and able to observe) • Key observations • Short and not compound • Chronological if possible • Defensive exam by anticipating cross • Look at the jury • Nottinghamshire

17. Direct Examination Problems • Forgetfulness and refreshing recollection. • No passion because over prepared. • No eye contact with the jury. • Wilting to cross. • Explains too much or too little. • Wisconsin

18. EXPERT DIRECT EXAMINATION Source: http://www.all-about-forensic-science.com/vintage-science.html

19. Expert Witnesses Consulting Experts – Expert who will not testify – Confidential/ Work Product. • Federal Rule 26(b)(4)(D) • Florida Rule 1.280(b)(4)(B)

20. Consulting Experts-Part of the Legal Team • Jury Consultants • Forensic Accountants • Construction Defects • Doctors/ Psychiatrists • Private Investigators-learn facts, interview witnesses • Document Presentation Experts

21. Testifying Experts – Experts who will Testify at Trial • Accountants-Damages, valuations, analyze/ summarize bank records • Construction Defect-Tell where the problem is • Accident Reconstruction • Handwriting – signature experts for comparision, document dating, ink dating • Firearms/Ballistics • DNA document testing/ saliva • Dog Sniff evidence • Nuremberg

22. Expert Testimony • Instruct expert by phone or meeting. • No billing contingent on results. • Have Expert sit through all testimony and testify last. • Expert is “closer” and final summary witnesses. • Expert can help you cross examine the other expert. • Expert can deliver your closing before you deliver it. • London, Old Bailey

23. Classic Expert Direct Examination • Introduction • Occupation • Teaser • Background • Tender of Expert/Voir Dire • Summary of opinion • Work done to come up with opinion • Final Opinion • Carbon County

24. Gatekeeping/Expert Standards Federal – Daubert/Kumho Tire (Koo-Moe)– Rule 702 • Sufficiently based on facts/data • Reliable principles and methods • Methods applied to the case • Old US Supreme Court at US Capitol

25. Federal Rule 702—“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” • Need a basis in sufficient facts and data • Need reliable principles and methods • Need methods/ principals to be applied reliably

26. History • Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – general acceptance within scientific community • Rule 702 adopted in 1975 – general acceptance not mentioned – more relaxed approach • Daubertv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)– because of 702 – need only be “grounded” in scientific methods and relevant

27. History (cont) • General Electric Co. v. Joiner, 522 U.S. 136 (1997) – analyze both the methodology but also the ultimate conclusions to make sure methodology applied appropriately. • KumhoTire Co. v. Carmichael, 526 U.S. 137 (1999) – 702 analysis applies to all expert testimony – not just scientific. • Burden of Proof – challenging party bears burden of showing that that the evidence is unreliable then the proponent must defend the expert’s opinion.

28. “Fit”/”Relevance” Analysis – Controversial Joiner analysis as to whether the Court “applied the principles and methods reliably”— • Some courts assess the evidence and determine whether the expert can prove what the expert purports to prove (e.g., nicotine expert testify about impact of nicotine on health, toxic tort expert and causation). • Other courts simply analyze scientific methods and do not make the litigants prove it to court before proving it to jury  City of Tuscaloosa v. HorerosChems Inc., 158 F.3d 548 (11th Cir. 1998).

29. FLORIDA EXPERT ADMISSIBILITY Florida Rule 90.702—“Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”

30. Florida EXPERT ADMISSIBILITY Florida applies the Frye test to new or novel scientific evidence and requires that scientific evidence be generally accepted in the scientific community to be admissible. Stokes v. State, 548 So.2d 188 (Fla. 1989) • Even though Rule 90.702 did not codify the Frye test, the Frye test still applies in Florida because the Courts are not laboratories and they should not be the place to test new scientific theories. Hadden v. State, 690 So.2d 573 (Fla. 1997).

31. Expert Report Admissibility • Reports are cumulative pursuant to Rule 403 of the expert’s testimony and are not admissible if the expert testifies. • Federal--Reports are hearsay and cumulative. Sommerfield v. City of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008). • Blackwood v. State, 777 So.2d 399 (Fla. 2000); McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000). • Can stipulate or admit without objection.

32. Inadmissible Evidence Conduit • Although an expert can rely upon technically inadmissible evidence “when the facts and the data are the type reasonably relied on by experts on the subject”, the witness may not be used as a conduit for inadmissible evidence. Gerber v. Ivengar, 725 So.2d 1181, 1185 (Fla. 3d DCA 1998). • Expert can rely on hearsay but cannot be used as a conduit to introduce it. Erwin v. Todd, 699 So.2d 275 (5th DCA 1997).

33. CROSS EXAMINATION

34. Objections • Questions that assume facts not in evidence are not admissible. • Lay witnesses cannot provide opinions (Rule 701). • A witness cannot be expected to respond to a compound, confusing or unintelligible question. • Character for truthfulness can only be admitted after impeachment of the same Character (Rule 608). • Jefferson County, Missouri

35. Objections • Leading is only appropriate for cross examination or hostile witnesses (Rule 611), but preliminary matters are ok. • Cross must be inside the scope of direct examination (Rule 611(b)). • Argumentative questions are not appropriate. • Questions that are asked and answered are unduly repetitive under Rule 403. • Essex County, NJ

36. 401, 402, 403 Analysis

37. Rules 401, 402, and 403 • Prejudicial value outweighs prohibitive value • Not relevant • Confusing • Misleading • Undue delay • Waste of time • Cumulative

38. Hearsay

39. Hearsay Exceptions

40. Hearsay Exceptions(Declarant Unavailable)

41. http://www.youtube.com/watch?v=_EK9SLLlObk

42. Cross Examination • Prepare every single question without regard to the answer. • Preparation can be done without a witness. • Highlight and tab exhibits. • Highlight and tab deposition transcripts • Take exam in small pieces. • Be professional and do not attack. • Start and end strong. • Be nice and sympathetic to witnesses. • Ft. Smith National Park

43. Attacking Competence • Everyone is competentunder Rule 601. • Even those who lack mental capacity. • Even spouses. • Even those who have an interest in litigation. • Territorial Hawaii

44. Testing Personal Knowledge • Make sure the witness has personal knowledge of the facts. • No personal knowledge if a failure to see, hear, experience or be involved in the circumstances. • If personal knowledge is not established ask for the predicate. • If the predicate is non-admissible hearsay, object.

45. Impeachment by Deposition/ Statements • Rule 613 – prior inconsistent statements. • Extrinsic evidence admissible if given the opportunity to explain or deny. • Monroeville, AL To Kill Mockingbird

46. Expert Cross Examination

47. Attack Credentials/Voir Dire • Before opinion is admitted, elicit weaknesses in qualifications. • Show limits/non-liability of advocate/training. • Show lack of experience. • Juxtapose against your expert. • Criticize lower certifications. • Osceola County Courtroom

48. Expert Testimony Outside Expertise • Expert cannot testify outside their field of expertise – not an expert. “[I]t is not enough that the witness be qualified to propound opinions on a general subject; rather he must be qualified as an expert on the discrete subject on which he is asked to opine.” Goodyear Tire and Rubber Co., Inc. v. Ross, 660 So.2d 1109, 1111 (Fla. 4th DCA 1995). • Learn the letters behind the names; Find out what they mean and how obtained; Do not allow testimony outside of expertise (e.g. Business valuation/ real estate values) • Pioneer Courthouse, Portland, Oregon

49. Testimony Ultimate Issue • Expert can testify about the ultimate issue in the matter. Rule 704 and Florida Rule 90.703. • But long line of Florida cases say an expert can not invade the province of the jury. Schneer v. Allstate Indemnity Co., 767 So.2d 485 (Fla. 3d DCA 2000) (private investigator takes the next step and says there was insurance fraud). • FL Wright, Marin Co, CA, near SF

50. Learned Treatise • For Federal, a statement in a learned treatise may be read into evidence, but not introduced as an exhibit. • Rule 803(18)--Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. • But note the argument that it is cumulative (Rule 403). • In Florida, A treatise on direct is hearsay and improper bolstering. Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993); BolbergCostano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).