1. The Trial Civ Lit I: Unit 9

2. 2 Preparing for Trial

3. Case Analysis A process a party may use to determine whether his or her case is ready for trial. A process a party may use to determine whether his or her case is ready for trial. It begins by comparing the pleadings against the known facts and available evidence. It begins by comparing the pleadings against the known facts and available evidence. See page 494 for example. See page 494 for example.

4. Steps in Preparing a Case Analysis 1. Set the pleadings side by side and compare the allegations and admissions. 2. Identify each of the plaintiff’s causes of action. 3. Under each cause of action, identify the elements to the defense. 4. Identify each affirmative defense. 5. Under each affirmative defense, identify the elements to the defense.

5. Steps in Preparing a Case Analysis 6. Under each element, describe the facts that must be proved to establish those elements. 7. Identify the facts that have been conclusively established by admissions in the pleadings, by Rule 36 admissions, by stipulations between the parties, and by the court’s pretrial order.

6. Steps in Preparing a Case Analysis 8. Describe the disputed facts. 9. Examine the evidence gathered through investigation and discovery. 10. Select the best evidence to prove your case. 11. Consider the form of evidence. 12. Anticipate the opponent’s evidence. 13. Consider how to counter opponent’s evidence.

7. Trial Notebook A notebook that a lawyer prepares for his or her own use as a reference for handling a case during trial. A notebook that a lawyer prepares for his or her own use as a reference for handling a case during trial. Paralegals may help to prepare trial notebooks. Paralegals may help to prepare trial notebooks.

8. Customary Notebook Sections Trial Schedule Trial Schedule Directory (witness contact info, etc.) Directory (witness contact info, etc.) Pleadings Pleadings Witness List Witness List Exhibit List Exhibit List Motions Motions Voir Dire Questions Voir Dire Questions

9. Customary Notebook Sections Opening Statement Opening Statement Investigation Memoranda Investigation Memoranda Memoranda of Law Memoranda of Law Direct Examinations Direct Examinations Cross Examinations Cross Examinations Jury Instructions Jury Instructions

10. Pretrial Conference Rule 16(c) authorizes district courts to conduct pretrial conferences to facilitate trial preparation and trial management. Rule 16(c) authorizes district courts to conduct pretrial conferences to facilitate trial preparation and trial management.

11. Pretrial Conference Functions Deal with Legal Issues Deal with Legal Issues Simplify the Legal Issues and Amend the Pleadings Simplify the Legal Issues and Amend the Pleadings Simplify Fact Issues Simplify Fact Issues Obtain Stipulations Concerning Evidence Obtain Stipulations Concerning Evidence Limit the Number of Expert Witnesses Limit the Number of Expert Witnesses Considering Referring Matter to Arbitration Considering Referring Matter to Arbitration

12. Pretrial Conference Functions Explore other ways to facilitate disposition of the case Explore other ways to facilitate disposition of the case Amend pleadings to add claims or defenses Amend pleadings to add claims or defenses Consider appropriateness and scheduling summary judgment motions Consider appropriateness and scheduling summary judgment motions

13. Preparing Client to Testify A good witness = sincerity and authority A good witness = sincerity and authority Use full sentences and explain major points fully Use full sentences and explain major points fully Witness must not argue or joke around Witness must not argue or joke around If physically uncomfortable, should ask for a short recess If physically uncomfortable, should ask for a short recess Use big picture as a frame of reference Use big picture as a frame of reference

14. Preparing Client to Testify Reflect briefly before answering Reflect briefly before answering Look at lawyer when lawyer is asking questions Look at lawyer when lawyer is asking questions Must not steal furtive glances at her own lawyer to say “Please help me!” Must not steal furtive glances at her own lawyer to say “Please help me!” Witness should correct mistakes Witness should correct mistakes Avoid expressions like “to be honest with you” Avoid expressions like “to be honest with you” Never refer to insurance Never refer to insurance

15. Questions Why is it important to develop the details when preparing for trial? Why is it important to develop the details when preparing for trial?

16. Questions What must you do if you have two witnesses, each with a somewhat different version of a fact? What must you do if you have two witnesses, each with a somewhat different version of a fact?

17. Questions What kinds of matters may be covered at a pretrial conference? What kinds of matters may be covered at a pretrial conference?

18. Questions What are the hallmarks of a good witness at trial? What are the hallmarks of a good witness at trial?

19. The Trial

20. Examining Facts The courtroom resembles a laboratory where parties examine and test disputed facts.

21. Applying the Law Once the facts are established, the court must apply the law to the facts and resolve the dispute according to the law.

22. Preliminary Conference Informal conference in judge’s chambers right before trial. Judge generally wants to know if the parties want more time to reach settlement.

23. Selection of Jurors Parties are entitled to impartial jurors who are competent to understand the evidence and will follow the law without favor or bias.

24. Actual Bias Actual bias exists when a panel member acknowledges that he or she cannot be fair or has a close relationship with one party or a close relationship with a material witness.

25. Voir Dire A voir dire examination is a cross- examination under oath concerning a panel member’s background, qualifications and attitudes.

26. For Cause If a panel member is obviously biased or incompetent, a party may strike the panel member for cause.

27. Peremptory Challenge If a party simply does not like a panel member, the party may strike him or her using a peremptory challenge.

28. Example You represent the defendant doctor in a medical malpractice lawsuit. How would you deal with the following panel members?

29. Jane Jane Smith, a young nurse with 1 year of experience. She considers herself to be quite knowledgeable in the procedure that the defendant doctor is accused of performing incorrectly. Strike for cause? Peremptory? Keep her?

30. Ed Ed Blue, a postal worker who admits that he has had several bad experiences with doctors, but insists he can be unbiased. Strike for cause? Peremptory? Keep him?

31. Alice Alice Linden, an insurance adjuster. Her husband is a Plaintiff’s attorney specializing in suing doctors for medical malpractice. Strike for cause? Peremptory? Keep her?

32. Preliminary Jury Instructions After the jurors have been selected, they are sworn to follow the court’s orders and the law.

33. Opening Statements Opening statements are the lawyers’ opportunity to tell the jury what he or she expects to prove during trial. Not an argument about conclusions.

34. Plaintiff’s Case-in-Chief The party with the burden of proof (BOP) must present all of his or her evidence first.

35. Plaintiff Rests When a plaintiff’s lawyer is finished, he or she indicates so by stating “the plaintiff rests.” After resting, the plaintiff may present only rebuttal evidence.

36. Rebuttal Evidence Evidence that a party offers to contradict or refute evidence previously offered by another party.

37. Defendant’s Case-in-Chief The Plaintiff may object to the defendant’s evidence and test it through cross- examination, but the Plaintiff cannot present evidence during a Defendant’s Case-in-Chief.

38. Final Arguments Brings everything together Review the evidence Argue why a witness should or should not be believed Must argue from the evidence the court did receive

39. Jury Deliberations After the jurors receive their jury instructions, the jury is sequestered. The jury must select a foreperson. There is no time limit on deliberations. An average length of time for deliberation is about six hours.

40. Verdict The judge receives the jury’s verdict in open court. The lawyers and the parties have a right to be present.

41. Questions What are the limitations on a lawyer’s opening statement?

42. Questions How may a paralegal help the trial lawyer in jury selection?

43. Questions What are the limitations on rebuttal evidence?