Mock Trial Team Strategies and Formalities

Opening Statements 3 minutes Objective – Acquaint court with the case and outline what you are going to prove through testimony and admitted evidence. Short summary of the facts Mention burden of proof Mention applicable law Mention how each witness will contribute to proving your case No objections may be made during opening statements

Direct Examination 6-7 minutes long Objective – obtain info from favorable witnesses to prove facts of your case, establish witness credibility, present evidence Use clear and simple questions Cannot ask leading questions Can redirect after cross to quickly correct any problems from cross

What is a Leading Question? “Of course, you crossed the street, didn’t you?” – Leading “Did you cross the street?” – Not leading “Didn’t you cross the street?” – Depends on tone, inflection and judge

Witnesses There are two types of witnesses at trial – Fact witness Only permitted to testify about facts he observed and not his opinions – Expert witness A person who testifies because he has special knowledge in a particular field. This entitles him to testify about his opinion on the meaning of facts. – Doctors, engineers, professors, forensic specialists

Direct Examination Strategies Build up credibility of witness first No narrative questions – “Tell us everything that happened that day.” (not ok) – “What did you do next?” (this isn’t great, but ok) Start strong and end strong – Jury likes drama (keeps them awake) Bring out embarrassing facts to blunt impact on cross examination Repeat important points

Cross Examination The opportunity to cross-examine usually occurs as soon as a witness completes his direct testimony. You attempt to get the witness to say something helpful to your side, or to cast doubt on (impeach) the witness by getting him to admit something that reduces his credibility. May ask leading questions

Cross Examination Strategies Inherently risky May not argue with witness No trick questions – “Yes or no, have you stopped beating your wife?” Purpose is to discredit witness or direct testimony Save zinger for the end Don’t lose control of witness

Introducing Evidence Must be relevant (exhibits or pretrial statements) Steps to introduce (in order): – Pre-marked for identification – Show exhibit to opposition – Show exhibit to witness; “do you recognize this document which is marked for identification as Exhibit X?...Tell the Court what Exhibit X is.” – Witness describes the exhibit or reads the portion you want him to. – “Your Honor, I offer this document into evidence as Plaintiff/Defendant’s Exhibit X.”

Objections Stand and state grounds for objection: – “Objection, Your Honor, relevance.” – “Objection, counsel is leading the witness.” – “Objection, hearsay, Your Honor. The witness cannot testify to what somebody else said.” Hint to jury as to why the other lawyer is a dope Overruled – You lose – question must be answered as is Sustained – You win – question must be reworded or subject changed

Objections Leading – improper on direct examination Hearsay – testimony about what someone else has said to prove that its “meaning” is true. – Exceptions to Hearsay Former testimony State of mind Excited utterance Admission by party opponent Statements made in medical diagnosis Public records

Objections Expert opinion; Opinions of Witnesses – witnesses may not give opinions unless they are experts and qualified as such. Can give “lay” opinions based on common experience of laypersons in community if based on events of which the witness has firsthand knowledge.

Objections Lack of Personal Knowledge – A witness may not testify about any matter of which he has no personal knowledge.

Objections Relevance – Only relevant testimony and evidence may be presented. Relevant evidence is that which tends to make a fact that is important more probable. However, if the relevant evidence is unfairly prejudicial, may confuse the issues or is a waste of time, the court may disallow it.

Objections Character Evidence – character evidence (such as bad temper, etc) is generally not admissible if offered to prove that a witness acted that way on the occasion in question. – Exception of truthful or untruthful character, which is admissible. – Exception of “specific instances of conduct” of a defendant to establish a characteristic pattern of repeated offenses or a “signature” crime.

Objections Argumentative Questions – attorney can’t argue with the witness Speculation – Attorney cannot ask the witness to speculate in order to answer the question Narrative – “your Honor, the witness is testifying in the narrative.” Asked and Answered – the questions has already been asked

Objections Non-responsive – “Objection, Your Honor, the witness’s answer is non-responsive. Would you please direct the witness to answer the question as asked?” Lack of Foundation – “Objection. No foundation has been laid to show that this witness is qualified to respond to that question.”

Closing Statements 4 minutes Address the jury and review the case. Review should implicate how the evidence has or has not satisfied the elements of the charge or claim, point out the law applicable to the case and ask for a favorable verdict. Be forceful in your review…”you heard Mr. Lovell himself admit that he…”