CIVIL TRIAL FROM START TO FINISH: A PRACTICAL APPROACH TO TRYING A CIVIL CASE IN ARIZONA Richard K. Mahrle Dennis I. Wilenchik

Part II: Jury Selection

Using Jury Questionnaires Consider using jury questionnaires in lengthy or high profile cases If you use a jury questionnaire, you still must conduct voir dire Analyze the answers to the jury questionnaire as a member of the general public rather than a lawyer

Making the Most of Voir Dire Prepare for voir dire just as you prepare for the other parts of the case Know your case from a factual and legal standpoint Know the emotional truths in the case

Making the Most of Voir Dire Approach voir dire as a conversation, not a job interview Ask open-ended questions that require answers Consider having the Judge ask the difficult or embarrassing questions Uncover information beyond basic “statistics” Listen carefully to what the prospective jurors have to say

Jury Instructions Review standard jury instructions at the beginning of the case If you want to modify the standard instructions or add to them, look to the law for source materials Request instructions that correctly state the law to be applied with enough factual content so that the jury understands what it is supposed to do

Jury Instructions Consider whether the jury should be instructed as to the substantive law before the trial starts or even before closing arguments Scrutinize the instructions offered by the other side for clues Get your instructions in on time If you object to the final instructions, do so on the record

Handling Juror Challenges You can challenge a juror for cause for any of the following reasons: – If the juror is expected to be called as a witness. (ARS § ) – If the juror has a direct or indirect interest in the matter. (ARS § ) – If the juror is related “by consanguinity or affinity within the fourth degree” to one of the parties. (ARS § ).

Handling Juror Challenges You can challenge a juror for cause for any of the following reasons:  If the juror is biased or prejudiced in favor or against one of the parties. (A.R.S. § ).  If the juror is not 18 years of age. (A.R.S. § ).  If the juror is not a citizen of the United States. (A.R.S. § ).  If the juror is not a resident of the jurisdiction in which he or she is summoned to serve. (A.R.S. § ).  If the juror has been convicted of a felony, unless the juror’s civil rights have been restored. (A.R.S. § ).  If the juror is currently adjudicated mentally incompetent or insane. (A.R.S. § ).  If the juror fails to meet any other statutory qualification.

Handling Juror Challenges Additionally, each side gets at least 4 peremptory challenges The use of peremptory challenges to strike jurors based solely on race or gender violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986);

Part III: Carrying Out Your Strategy and Case theme at Trial

Delivering a Compelling Opening Statement In the Opening Statement, a lawyer has his first chance to: Present his case to the fact finder Present himself and his client as believable and credible sources of information Tell the jury what to expect Tell your story in a compelling way

Delivering a Compelling Opening Statement Many studies show that jurors make up their minds about the whole case based on the opening statement, so begin the case with a bang

Delivering a Compelling Opening Statement Preparation is the key Practice, Practice Use a focus Group

Delivering a Compelling Opening Statement Paint a picture of your case by creating a multimedia presentation. Consider using: PowerPoint Charts Graphs Documents Photographs Physical Evidence

Delivering a Compelling Opening Statement Great litigators are great storytellers Great storytellers don’t read from a script Great storytellers gather the big and small details Great storytellers craft a COMPLETE story Great storytellers choose the right words

Delivering a Compelling Opening Statement  The delivery of the opening statement can be just as important as the content of the opening statement  Don’t talk like a lawyer  Grab the jury’s attention immediately

Presentation of the Evidence Think about your case before trial What are you trying to accomplish with the evidence? What evidence will be presented by the other side? What are the strong and weak points of your case? What are the strong and weak points of the other side’s case? Should you seek an advance ruling?

Presentation of the Evidence Learn to confront the weaknesses in your case and use those weaknesses as strengths

Presentation of the Evidence Learn to be flexible around a disappointing ruling Learn to not be dependent on the admission or exclusion of any particular piece of evidence Any evidence can be turned into positive evidence

Presentation of the Evidence Make the trier of fact understand the importance of their role in your case

Witness Examination Think about what you are trying to accomplish with each witness: What am I trying to prove? What witnesses do I need to prove my case? Who are my best witnesses? How should I order my witnesses in order to tell my story? What can I do to make my examination more interesting to the trier of fact? What are the legal requirements for getting my evidence or testimony introduced? What exhibits should I introduce and when? What demonstrative aides should I use to reach my goals? What objections should I expect? How can I overcome those objections?

Direct Examination of Witnesses Over-prepare your witnesses for trial. Cover potential cross- examination areas Prepare a checklist of what you need to get from each witness and what exhibits will be introduced through that witness

Cross-Examination of Witnesses Before you can prepare for a cross-examination, you must know your cause of action or case theme Decide whether you need to conduct a cross-examination in the first place If you do conduct a cross- examination, do it to develop you own cause of action or case theme

Cross-Examination of Witnesses Conduct cross- examination to either discredit a witness or to corroborate your case Ask leading questions Always know the answer to the question beforehand End on a high point

Rebuttal – Casting Doubt on Assertions Made by the Other Side Rebuttal evidence is evidence to counter a new fact or allegation made by an opponent's case. Rebuttal evidence is not a vehicle for repeating evidence that the party put on in its case-in-chief. However, the mere fact that evidence could have been presented as part of the plaintiff’s case-in-chief does not mean that the rebuttal evidence should be excluded per se.

Delivering a Powerful Closing Argument Consider preparing your closing argument first Rehearse but do not memorize your closing argument Create a separate notebook for you closing argument, and supplement the notebook throughout the trial

Delivering a Powerful Closing Argument Consider mitigating any evidence by placing it into a proper context Consider integrating problematic facts into your own theory of the case Consider using analogies Don’t wait until the closing argument to identify adverse facts Review the jury instructions

Final Points Try to speak with the jury afterwards Consider post-trial motions and appeals