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In-House Mock Trial Seminar

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Presentation on theme: "In-House Mock Trial Seminar"— Presentation transcript:

1 In-House Mock Trial Seminar

2 Trial Timeline 1. Motions in Limine 2. Opening Statements
3. Plaintiff’s Case in Chief Plaintiff’s Direct Examinations Defendant’s Cross Examinations 4. Plaintiff Rests – Defendant Moves to Dismiss 5. Defendant’s Case in Chief Defendant’s Direct Examinations Plaintiff’s Cross Examinations 6. Defendant Rests 7. Closing Arguments (Plaintiff gets rebuttal) 8. Judges’ Critique

3 Pretrial 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 helps the jury recall what your case is about E.g.: This is a case about choices and responsibility Evidence Review: What are all the possible objections to all the evidence in the case packet?

4 Preliminary Matters Excluding Witnesses (ER 615)
Moving about the well of the court Pre-marking exhibits Motions in Limine 3 MIL maximum Clear evidentiary issues only Format (IRAC) State evidence to exclude and grounds State the applicable rule Apply the rule

5 Opening Statement Format Do NOT State theme (“This is a case about…”)
Tell your story Tell the jurors which witnesses they will see Conclude (“At the end of the case, my co-counsel will ask you to find defendant guilty/not guilty.”) Do NOT Argue Say “you will hear” Make a claim unsupported by the evidence

6 Examinations Generally
With all examinations, you should know How to loop (“The light was red, but…”) How to admit evidence How to object How to impeach Where to stand What evidence is getting in

7 Admitting 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.

8 Objections How to Object Sources of Objections Avoid…
Stand, state the objection confidently, and wait If judge allows it and looks to you, respond to opposing counsel Move to strike if the objection is sustained Sit Down Sources of Objections The Rules of Evidence (know them!) Motions in limine Look to practice guides for lists of common objections Avoid… Speaking Objections Looking at counsel (always argue to the bench) Overkill (choose your objections wisely) Timidity Thanking the court

9 Sensitive Objections In the following cases, object sparingly
Opening Statement Only when opposing counsel is clearly being argumentative or violates MIL. Closing Statement Opposing 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

10 Impeachment by Prior Inconsistent Statement
Confirm Always begin impeachment by confirming the witness’s inconsistent testimony exactly. Ask, “is it your testimony that [insert exact quote of oral testimony if possible]?” Credit Establish that the witness gave a prior statement and that the prior statement was true. Confront Read the defendant’s prior statement verbatim. Now move on! Do not ask the one question too many.

11 The 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?

12 The 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?

13 Direct Examination Questions = open-ended. See ER 611(c).
Focus = the witness. Make no more than 3 points per witness Chaptering: Begin each segment of your questioning with a phrase like “Now I would like to talk about x…” Outline of an effective cross 1. Credibility Block 2. Chapter 1 (1st point) Questions 3. Chapter 2 (2nd point) 4. Chapter 3 (3rd point)

14 Positioning During Direct Examination Jury Trials

15 Positioning During Direct Examination Bench Trials

16 Cross Examination Ten Commandments of Cross Examination (Younger, VC-T004): I. Be brief II. Use plain words III. Use only leading questions (ER 611(c)) IV. Be prepared V. Listen VI. Do not quarrel with the witness VII. Avoid repetition VIII. Don’t let the witness explain IX. Limit questioning X. Save it for closing (do not ask the one question too many) Focus You want the focus to be on you the attorney, not the witness.

17 Positioning During Cross Examination Jury Trial

18 Positioning During Cross Examination Bench Trial

19 Positioning Overview Jury Trial Bench Trial Direct Examination Cross

20 Closing Argument Remember to Use your theme
Argue (infer from the facts) Use the Jury Instructions Esp. the “to convict” instruction Use a visual Outline of effective closing State theme argumentatively Roadmap the three sections of your closing Section 1 (move to one location) Section 2 (move to next location) Section 3 (move to final location) Conclusion: repeat theme and ask for relief Rebuttal (plaintiff only) Choose the two major points of contention in the case and argue them Manipulate opposing counsel’s theme if possible.

21 Positioning During Closing
Jury Trial Bench Trial

22 The Closing Dance Jury Trial

23 The Closing Dance Bench Trial

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