2Trial Timeline 1. Motions in Limine 2. Opening Statements 3. Plaintiff’s Case in ChiefPlaintiff’s Direct ExaminationsDefendant’s Cross Examinations4. Plaintiff Rests – Defendant Moves to Dismiss5. Defendant’s Case in ChiefDefendant’s Direct ExaminationsPlaintiff’s Cross Examinations6. Defendant Rests7. Closing Arguments (Plaintiff gets rebuttal)8. Judges’ Critique
3Pretrial Preparation Case Theory: Your version of events E.g.: The defendant opened the door with a crowbar, hit the maid, and then took the lamp.Case Theme: The short phrase that helpsthe jury recall what your case is aboutE.g.: This is a case about choices and responsibilityEvidence Review: What are all the possibleobjections to all the evidence in the casepacket?
4Preliminary Matters Excluding Witnesses (ER 615) Moving about the well of the courtPre-marking exhibitsMotions in Limine3 MIL maximumClear evidentiary issues onlyFormat (IRAC)State evidence to exclude and groundsState the applicable ruleApply the rule
5Opening Statement Format Do NOT State theme (“This is a case about…”) Tell your storyTell the jurors which witnesses they will seeConclude (“At the end of the case, my co-counsel will ask you to find defendant guilty/not guilty.”)Do NOTArgueSay “you will hear”Make a claim unsupported by the evidence
6Examinations Generally With all examinations, you should knowHow to loop (“The light was red, but…”)How to admit evidenceHow to objectHow to impeachWhere to standWhat evidence is getting in
7Admitting Evidence (The “Evidence Dance”) Say the following in the following order:May I approach? (Approach clerk)May I have this marked?Counsel (Show opposing counsel)May I approach? (Approach the witness)I’m handing you what has been marked as Exhibit 1; do you recognize it?How do you recognize it?What is it?Plaintiff/Defense offers Exhibit 1.
8Objections How to Object Sources of Objections Avoid… Stand, state the objection confidently, and waitIf judge allows it and looks to you, respond to opposing counselMove to strike if the objection is sustainedSit DownSources of ObjectionsThe Rules of Evidence (know them!)Motions in limineLook to practice guides for lists of common objectionsAvoid…Speaking ObjectionsLooking at counsel (always argue to the bench)Overkill (choose your objections wisely)TimidityThanking the court
9Sensitive Objections In the following cases, object sparingly Opening StatementOnly when opposing counsel is clearly being argumentative or violates MIL.Closing StatementOpposing counsel asks jurors to put themselves in someone’s shoes or asks them what they would have done.Opposing counsel argues a fact not in evidence
10Impeachment by Prior Inconsistent Statement ConfirmAlways begin impeachment by confirming the witness’s inconsistent testimony exactly.Ask, “is it your testimony that [insert exact quote of oral testimony if possible]?”CreditEstablish that the witness gave a prior statement and that the prior statement was true.ConfrontRead the defendant’s prior statement verbatim.Now move on!Do not ask the one question too many.
11The Impeachment Dance Say the following in the following order: Is it your testimony that the light was green?This isn’t the first time you’ve given a statement in this case?You gave a deposition in this case?I was there?Defense/Plaintiff’s Counsel was there?Before testifying at your deposition, you took an oath?It was the same oath you took today?You swore to tell the truth?And you did tell the truth?Your deposition was taken at a time when your memory was fresh?After you testified at your deposition, you had an opportunity to read the transcript of the deposition and you signed it?
12The Impeachment Dance (cont.) Say the following in the following order:Counsel (show deposition to opposing counsel)May I approach? (Approach witness)I’m handing you a copy of your deposition in this case. Please turn to page 1 and read lines 5 and 6 silently to yourself and look up at me when you are finished. That’s the portion of the deposition where I asked the following question and you gave the following answer:Question: What color was the light when you entered the intersection?Answer: The light was red.That was the question I asked and the answer you gave?
13Direct Examination Questions = open-ended. See ER 611(c). Focus = the witness.Make no more than 3 points per witnessChaptering: Begin each segment of your questioning with a phrase like “Now I would like to talk about x…”Outline of an effective cross1. Credibility Block2. Chapter 1 (1st point)Questions3. Chapter 2 (2nd point)4. Chapter 3 (3rd point)
14Positioning During Direct Examination Jury Trials
15Positioning During Direct Examination Bench Trials
16Cross ExaminationTen Commandments of Cross Examination (Younger, VC-T004):I. Be briefII. Use plain wordsIII. Use only leading questions (ER 611(c))IV. Be preparedV. ListenVI. Do not quarrel with the witnessVII. Avoid repetitionVIII. Don’t let the witness explainIX. Limit questioningX. Save it for closing (do not ask the one question too many)FocusYou want the focus to be on you the attorney, not the witness.
18Positioning During Cross Examination Bench Trial
19Positioning Overview Jury Trial Bench Trial Direct Examination Cross
20Closing Argument Remember to Use your theme Argue (infer from the facts)Use the Jury InstructionsEsp. the “to convict” instructionUse a visualOutline of effective closingState theme argumentativelyRoadmap the three sections of your closingSection 1 (move to one location)Section 2 (move to next location)Section 3 (move to final location)Conclusion: repeat theme and ask for reliefRebuttal (plaintiff only)Choose the two major points of contention in the case and argue themManipulate opposing counsel’s theme if possible.
21Positioning During Closing Jury TrialBench Trial