Transcript How to Win a Mock Trial - Seattle University School of Law

In-House Mock Trial Seminar
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
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?
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
Opening Statement
Format
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
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
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.
Objections
How to Object
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
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
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.
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?
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?
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)
Questions
4. Chapter 3 (3rd point)
Questions
Positioning During Direct Examination
Jury Trials
Positioning During Direct Examination
Bench Trials
Cross Examination
Ten Commandments of Cross Examination (Younger, VC-T004):
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
Be brief
Use plain words
Use only leading questions (ER 611(c))
Be prepared
Listen
Do not quarrel with the witness
Avoid repetition
Don’t let the witness explain
Limit questioning
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.
Positioning During Cross Examination
Jury Trial
Positioning During Cross Examination
Bench Trial
Positioning Overview
Jury Trial
Direct
Examination
Cross
Examination
Bench Trial
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.
Positioning During Closing
Jury Trial
Bench Trial
The Closing Dance
Jury Trial
The Closing Dance
Bench Trial