Trial Work: The Most Fun You Will Ever Have in a Courtroom! BLST, DECEMBER 2013 MARIE C. BECHTEL, ESQ., LEGAL AID OF WEST VIRGINIA

Select a Theme & Know the Theory  Think of a one-line synopsis of your case: “This case is about X.”  Build a case outline around the theme.  Consider how to utilize the theme to convince your judge/jury.  Use the theme to tie the case together.  The theory is a more in-depth version of the theme – the legal theory, so better for the Court than a jury.  Catchy = good. Cheesy = bad.

Trial Notebook  Organization is the KEY to an effective trial presentation!  A good trial notebook has a Table of Contents and tabs.  Don’t just look prepared, be prepared: the act of preparing the notebook will assist in your preparation.  Include everything: witness examination outlines, copies of evidentiary submissions, opening and closing outlines, etc.  Bring your books! Bring the relevant statutes! BRING THE RULES!

Who are you?  Consider carefully how you are perceived by your judge/jury.  Consider the physicality of trial practice:  Where will you stand?  How close can you get to the jury box?  How close can you get to the witness?  What should you wear?  What should your client wear?

Demonstration: Know Thyself  What worked and what did not work? Why?  How much does physicality matter?  What is the comfort zone of the judge or jury?

Judge or Jury?

The Great Order  Opening Statements (Plaintiff then Defendant, or Defendant reserves until presentation of her case-in-chief)  Plaintiff’s case-in-chief  Defendant’s Motion for Directed Verdict  Defendant’s case-in-chief  Plaintiff’s Motion for Directed Verdict  Rebuttal, Surrebuttal  Closing Arguments (Plaintiff, then Defendant, then Plaintiff)

Voir Dire: Get ‘Em in the Box  Jury selection is never “just going through the motions.”  Consider carefully who will be the most sympathetic to your client, i.e., who will identify with your client.  Use jury selection as an opportunity for the jurors to like your client and you. It is the only time they get to talk to you – make the most of it!

Opening Statement: May it Please the Court  Note that these are opening statements, not opening arguments.  To a judge, an opening should be quick synopsis – no theatrics, no grandstanding.  To a jury, an opening is one of three times you get to talk to them – again, make the most of it! “Ladies and Gentlemen of the jury...”  Explain, but do not preach: “The evidence will show...”  Use that theme!  Conclude by asking for specific relief, from judge or jury.

Direct Examination: Telling the Story  Prepare, prepare, prepare your client/witness!  The witness is the storyteller – your purpose is to facilitate their telling of the story.  Anticipate objections of the other lawyer and have your response ready.  Do not lead.  Only call witnesses who serve your theme. Consider: how does this witness serve the case? What information will this witness give to the judge/jury that is necessary for a finding in my client’s favor?

Cross Examination: Let the Fun Begin!  The lawyer is the storyteller, NOT the witness.  Ideally, the witness will say one word: “yes.”  Never ever EVER ask the witness a question that begins with “why.”  Keep it rapid.  Keep control!  Be polite, professional, and vigilant.  Prepare your client/witnesses for cross examination.  Teach them to break eye contact and how to politely disagree with opposing counsel.

Objections! Impeachment! Drama!  Anticipate and prepare for objections from opposing counsel.  Anticipate and prepare for objections you foresee.  Know your evidentiary rules!  Walk opposing witnesses down the path to impeachment.

Demonstration  Objections  Thoughts?  Impeachment  Thoughts?

Presentation of Evidence  Lay that foundation!  Practice going through the motions.  Bring extra copies.  Don’t forget to move the admission of the evidence.  Practice, practice, practice!

Thank you, Ms. Foote (& Bruce Perrone!)  In presenting evidence for admission, remember the mnemonic “Ms. Foote:”  M: Mark it.  S: Show it.  F: Foundation (lay it).  O: Offer it as evidence.  O Objection (anticipate the opposing party’s).  T: Testimony (get it in via).  E: Exhibit it to your fact-finder.

Closing Argument: Don’t Forget the Bow  Unlike opening statements, closing is intended to be argument. So Argue! With Exhibits!  Wrap it all up for the judge or jury:  Start with your client’s theme  Walk through the evidence tying it together  Utilize the charge  Ask for specific relief.

Ask for Help!  Do not try your first case alone.  Do not forget the stakes for your client; his or her life should not be your learning experience.

Need a Pep Talk?  You can always call your BLST training team, including: Marie C. Bechtel, Esq. Legal Aid of West Virginia 115B S. Kanawha Street Beckley, WV , ext