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Orlando, Florida HOW TO PRESENT YOUR CASE AT TRIAL By: Richard S. Dellinger
How to Present your Case at Trial2 Orlando, Florida | “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
How to Present your Case at Trial3 Orlando, Florida | Presentation Outline Opening Statement Evidence Presentation Direct Examination Expert Direct Examination Cross Examination Expert Cross Examination Closing Argument
How to Present your Case at Trial4 Orlando, Florida | "ON TRIAL: LEE HARVEY OSWALD" (PART 2)(G. SPENCE'S OPENING STATEMENT) - YouTube"ON TRIAL: LEE HARVEY OSWALD" (PART 2)(G. SPENCE'S OPENING STATEMENT) - YouTube
How to Present your Case at Trial5 Orlando, Florida | 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
How to Present your Case at Trial6 Orlando, Florida | OPENING STATEMENT Preparation, Preparation, Preparation, Preparation Introduce the theme Be a “truth-teller” Be a story teller Party introductions Conversational Eye Contact
How to Present your Case at Trial7 Orlando, Florida | 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
How to Present your Case at Trial8 Orlando, Florida | OPENING STATEMENT RULES No argument No discussion of the law No exhibits that are not admissible Exchange exhibits in advance Miami
How to Present your Case at Trial9 Orlando, Florida | 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. ELYSSA EAST, Dogtown
How to Present your Case at Trial10 Orlando, Florida | 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
How to Present your Case at Trial11 Orlando, Florida | 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
How to Present your Case at Trial12 Orlando, Florida | 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
How to Present your Case at Trial13 Orlando, Florida | 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
How to Present your Case at Trial14 Orlando, Florida | ADMISSION OF DEMONSTRATIVE AND DOCUMENTARY EXHIBITS Demonstrative “Evidence” is not evidence until 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
How to Present your Case at Trial15 Orlando, Florida | 401, 402, 403 Analysis Probative? Unfairly Prejudicial? Relevant?
How to Present your Case at Trial16 Orlando, Florida | 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
How to Present your Case at Trial17 Orlando, Florida | 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
How to Present your Case at Trial18 Orlando, Florida | EXPERT DIRECT EXAMINATION Source: science.com/vintage-science.html
How to Present your Case at Trial19 Orlando, Florida | 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)
How to Present your Case at Trial20 Orlando, Florida | CONSULTING EXPERTS-PART OF THE LEGAL TEAM Jury Consultants Forensic Accountants Construction Defects Doctors/ Psychiatrists Private Investigators-learn facts, interview witnesses Document Presentation Experts
How to Present your Case at Trial21 Orlando, Florida | 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
How to Present your Case at Trial22 Orlando, Florida | 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
How to Present your Case at Trial23 Orlando, Florida | 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
How to Present your Case at Trial24 Orlando, Florida | 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
How to Present your Case at Trial25 Orlando, Florida | 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
How to Present your Case at Trial26 Orlando, Florida | HISTORY Frye v. United States, 293 F (D.C. Cir. 1923) – general acceptance within scientific community Rule 702 adopted in 1975 – general acceptance not mentioned – more relaxed approach Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)– because of 702 – need only be “grounded” in scientific methods and relevant
How to Present your Case at Trial27 Orlando, Florida | 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. Kumho Tire 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.
How to Present your Case at Trial28 Orlando, Florida | “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. Horeros Chems Inc., 158 F.3d 548 (11 th Cir. 1998).
How to Present your Case at Trial29 Orlando, Florida | FLORIDA EXPERT ADMISSIBILITY Florida Rule —“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.”
How to Present your Case at Trial30 Orlando, Florida | 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 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).
How to Present your Case at Trial31 Orlando, Florida | 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.
How to Present your Case at Trial32 Orlando, Florida | 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).
How to Present your Case at Trial33 Orlando, Florida | CROSS EXAMINATION
How to Present your Case at Trial34 Orlando, Florida | 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
How to Present your Case at Trial35 Orlando, Florida | 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
How to Present your Case at Trial36 Orlando, Florida | 401, 402, 403 Analysis Probative? Unfairly Prejudicial? Relevant?
How to Present your Case at Trial37 Orlando, Florida | Rules 401, 402, and 403 Prejudicial value outweighs prohibitive value Not relevant Confusing Misleading Undue delay Waste of time Cumulative
How to Present your Case at Trial38 Orlando, Florida | HEARSAY Statement or writing? Prove TOMA Not Witness’ Own Statement Subject to Cross Not Party Opponent’s Admission
How to Present your Case at Trial39 Orlando, Florida | HEARSAY EXCEPTIONS Present Sense Impression Excited Utterance State of Mind Business Record Learned Treatise for Cross Only
How to Present your Case at Trial40 Orlando, Florida | HEARSAY EXCEPTIONS (Declarant Unavailable) Party’s Former Testimony Statement Against Pecuniary Interest Statement of Personal or Family History
How to Present your Case at Trial41 Orlando, Florida | LlObk
How to Present your Case at Trial42 Orlando, Florida | 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
How to Present your Case at Trial43 Orlando, Florida | ATTACKING COMPETENCE Everyone is competent under Rule 601. Even those who lack mental capacity. Even spouses. Even those who have an interest in litigation. Territorial Hawaii
How to Present your Case at Trial44 Orlando, Florida | 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.
How to Present your Case at Trial45 Orlando, Florida | 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
How to Present your Case at Trial46 Orlando, Florida | EXPERT CROSS EXAMINATION
How to Present your Case at Trial47 Orlando, Florida | 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
How to Present your Case at Trial48 Orlando, Florida | 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
How to Present your Case at Trial49 Orlando, Florida | TESTIMONY ULTIMATE ISSUE Expert can testify about the ultimate issue in the matter. Rule 704 and Florida Rule 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
How to Present your Case at Trial50 Orlando, Florida | 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); Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).
How to Present your Case at Trial51 Orlando, Florida | CROSS WITH LEARNED TREATISE Can impeach using treatise cannot use on direct Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990). Expert can admit it is authoritative or trial court can determine it is authoritative Farel v. Houghey, 727 So.2d 1033 (Fla. 5th DCA 1999). Know your material – have book with you. Be careful because expert likely knows more than you.
How to Present your Case at Trial52 Orlando, Florida | VOIR DIRE OF METHODOLOGY Florida--If no factual basis provided on direct examination, expert can be voir dired and methodology tested before the opinion is given. Rule and Myron v. South Broward Hospital District, 703 So.2d 527 (Fla. 4th DCA 1997). Federal—expert can testify without providing the factual basis for the expert opinion. Rule 705—ample opportunity for discovery/ challenge prior to trial.
How to Present your Case at Trial53 Orlando, Florida | CROSS EXPERT FOR LIMITED ANALYSIS No site visit. Limited time spend on case. Only looked at what they told you to look at. Missed something important (depo).
How to Present your Case at Trial54 Orlando, Florida | CROSS WITH A FOCUS ON STRENGTHS Ask if he considered testimony of X that is favorable. Show him favorable exhibit and make sure reviewed.
How to Present your Case at Trial55 Orlando, Florida | CROSS FINANCIAL INCENTIVES/PRO EXPERT Amount of time not testifying. Amount of money paid to date/retainer letter. Higher rate for trial. Check for contingency/financial interest in litigation. If delinquent need a win so expert can be paid.
How to Present your Case at Trial56 Orlando, Florida | Cross for Attorney Manipulation correspondence. Initial memo/later memos. Preliminary opinions? Revisions to preliminary opinions? Inconsistency with report/prior reports. Fairfax
How to Present your Case at Trial57 Orlando, Florida | CROSS EXPERT TESTIFYING OUTSIDE EXPERTISE Break down opinions into cross of expertise and areas where no expertise. Confirm that no training/not expert in some area. Bristol, UK
How to Present your Case at Trial58 Orlando, Florida | CLOSING STATEMENT
How to Present your Case at Trial59 Orlando, Florida |
How to Present your Case at Trial60 Orlando, Florida | Closing Arguments Remember time limits. Save rebuttal time. Permission to move around the courtroom. Get a break to collect your thoughts. Use exhibits. Use jury instructions. Tie in the opening statement and the witness testimony. Contrast and Apposition. Verdict form.
How to Present your Case at Trial61 Orlando, Florida |