Litigation and Procedure Trial Preparation and Trial

1. Litigation and Procedure Trial Preparation and Trial

2. Trial Preparationand Trial Support Tasks • Trial Preparation • Preparation of Motions • Witness Subpoenas • Witness Preparation • Evidence Preparation • Preparation of Trial Notebook • Trial • Jury Selection • Opening Statements • Plaintiff’s Case • Defendant’s Case • Closing Arguments • Jury Instructions • Deliberation • Verdict • Trial Assistance • Shadow Jury Management • Witness Control • Documents and Exhibits • Exhibit and Witness Logs • Trial Notes • Review Meetings • Jury Preparations • Jury Investigation • Voir Dire Preparation • Preparation of Jury Instructions

3. Outline of Trial Notebook • Section One: Reference • Section Two: Pleadings and Pretrial • Section Three: Last-Minute Motions • Section Four: Voir Dire (Jury Selection) • Section Five: Opening Statement • Section Six: Outline of Order of Proof and Opponent’s Proof • Section Seven: Witness Examination Example – Exhibit 11:4

4. Outline of Trial Notebook(cont’d) • Section Eight: Exhibits • Section Nine: Trial Motions and Authorities • Section Ten: Jury Instructions (Charge to Jury) • Section Eleven: Proposed Verdict Form • Section Twelve: Closing Statement • Section Thirteen: Law Section • Section Fourteen: To Do, Notes, and Reminders

5. Key Term – In Limine • A motion for protection against prejudicial questions and statements at trial.

6. Rules Governing Evidence Submitted at Trial

7. Rules Governing Jury Trials

8. Jury Selection • Juries are chosen through random processes and deliberate choice. • Three steps: • Compiling a master jury list, • Drawing the venire, and • Conducting the voir dire. • The objective is to produce fair and impartial juries.

9. Master Jury List • A master list of names is compiled for the community where the trial will be held (must be representative). • Common sources include: voter registration lists, motor vehicle records, telephone directories, driver’s license lists, utility customer lists.

10. Venire • The venire is the jury pool. • Names are drawn from the master jury list and they are asked to report for jury duty (the venire). • All citizens 18 to 70 are subject to jury duty. • Some exemptions may be made for “hardships”, but these must be individually approved by a judge. • Individuals who do not comply with jury duty summonses may be prosecuted.

11. Jury Duty • Jury duty is the only time when citizens perform direct service for their government. • Massachusetts was the first in the nation to implement a statewide One Day/One Trial System. • Jurors serve one day, or if impaneled, one trial. • After service is satisfied, that juror is disqualified from serving again for a minimum of three years. • Objective is to expand citizen participation by making jury service less burdensome.

12. Voir Dire • Voir dire is the examination of prospective jurors to determine if they can be fair and impartial. • Process varies widely - sometimes (e.g., in Federal courts) only a judge is involved, while at other times (e.g., in most state courts) the lawyers also participate. • Scope and intensity of the questioning varies too - can take a short or time long depending on the case.

13. Voir Dire(cont’d) • Each side in the case can excuse potential jurors: • Challenge for Cause – is when a juror is removed because the lawyers and judge agree that the individual cannot be fair – unlimited number for each side. • Peremptory Challenge – is when a lawyer excuses a juror without giving a reason – limited number (determined by rules of court) for each side.

14. Voir Dire(cont’d) • Lawyers have wide discretion to use peremptory challenges – but may not exclude jurors because of race or gender • Lawyers use voir dire for other reasons: • Educating citizens about the role of juror. • Trying to influence how the juror views their client.

15. Jury Consultants • Professional Jury Consultants: • Are used in high profile/expensive cases. • Use public opinion polls, focus groups to help write questions for lawyers to use during voir dire.

16. Moving Party Presents Case • At the beginning of the trial each side makes an opening statement – presenting a version of the facts that supports their side of the case. • Next, the plaintiff’s attorney presents the plaintiff’s case by presenting evidence to support the plaintiff’s claims.

17. The Defense Presents its Case • After the plaintiff’s attorney has presented the plaintiff’s case, the defendant’s attorney carefully evaluates the plaintiff’s case and decides how to react. • Two common strategies are: a) Burden of Proof, or b) Denial

18. The Defense Presents its Case (cont’d) • Burden of Proof • Asserts that the moving party did not provide sufficient evidence to warrant a favorable decision. • The defense is not required to call any witnesses or present evidence. • Can use cross-examination to raise doubts about the quality of the evidence.

19. The Defense Presents its Case (cont’d) • Denial • The other strategy is to deny the facts the moving party presented and offer evidence and testimony to back up this view.

20. Rebuttal • After the defense rests its case the moving party may call a rebuttal witness • Used to show the defendant’s explanation cannot be accurate • The rules for rebuttal are complex – the moving party must show that it could not have been used during their case in chief

21. Objections to Evidence • During trial attorneys are constantly objecting to the admission of evidence. • The judge may rule on the spot or ask the attorneys to present arguments on why or why not the evidence should be admitted (a.k.a. “Offers of Proof”). • In the event that inadmissible evidence does get presented – the judge will instruct the jury to ignore the evidence or call a mistrial.

22. Closing Arguments • After both sides have rested (presented their evidence) each party can make a closing argument – allow each side to sum up the facts and indicate why the jury should decide in their favor.

23. Key Term – Prima Facie Case • The minimum evidence sufficient to prove a case, prior to any rebuttal by the defense.

24. Rules Governing Trial Motions

25. Jury Instructions • After closing arguments the judge instructs the jurors in the meaning of the law that is applicable to the facts. • Jury instructions include: • Discussions of general legal principles. • Specific instructions regarding the case at hand. • Information about legal standards. • Information about possible verdicts.

26. Jury Instructions (cont’d) • The judge and lawyers each prepare drafts of instructions. • Jury instructions are written out, signed by the judge read to the jury. Example - Exhibit 11:8

27. The Verdict • The jury foreperson announces the verdict • The final decision of the jury regarding the questions of fact submitted to it by the judge. • Three forms of verdict: • General verdict • Special verdict • General verdict with interrogatories • After the announcement either party can ask for the jurors to be polled.

28. End of Trial Preparation and Trial