Transcript Trial Basics - Oklahoma Bar Association

Presented by
Nicole Longwell
Prepared by
Jonathon Horton
Nicole Longwell
TRIAL BASICS
Trial Basics
Four Basics applicable to all trials:
• Understanding basic story telling principles
• Preparing a persuasive trial story
• Using the appropriate trial technique tools
in planning your case
• Keeping the proper demeanor in the
courtroom
Preparing a Persuasive Trial Story
• There are two crucial elements to telling a
persuasive trial story
– A Theory- single paragraph which combines
facts and law and leads jury to conclusion
that your client should win. Cake
– A Theme- no longer than one sentence which
appeals to shared values, civic virtues and
common motivations. Frosting
Using Appropriate Trial Technique
Tools
• Tools applicable to all stages of the trial:
– Sequencing
– Repetition and Duration
Keeping the Proper Demeanor in
the Courtroom
• At all times a trial attorney should
maintain the following:
– Integrity- single most important tool an
attorney can bring to the courtroom
– Confidence- best way to be confident is to be
competent. Preparation and organization are
crucial to competence.
Opening Statement
Opening Statement
• “Opening”
• “Statement”
Goals for Opening Statement
• Establish your theme.
• Demonstrate your credibility to the jury.
3 Tips for Establishing Credibility
During Opening Statements
• Tell your client’s story to the jury.
• Tell the whole story
• Keep it “strong and safe.”
DIRECT EXAMINATION
Direct Examination
• Most trials are won based upon strength
of your own case and not the weaknesses
of your opponent’s case.
• Direct examinations must be clear.
• Direct examinations must present the
facts of your case.
• Your theme and theory should run
through every direct examination.
Elements of Effective Direct
Examination
• Keep it simple.
• Use logical organization.
• Proposed logical sequence :
– Personal background
– Scene description
– Action description
– Introduction of exhibits supported by witness
– Damages description (if applicable)
Role of Direct Examination
• Introduce undisputed facts.
• Put forth client’s version of the disputed
facts.
• Lay foundation for exhibits.
• Reflect upon the credibility of the witness.
Rules of Direct Examination
• Witness must be competent.
• Must possess personal knowledge of the
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material issues of the case.
Cannot use leading questions. Most difficult for
inexperienced lawyers.
Exceptions to non-leading questions:
– Preliminary matters
– Issues not in dispute
– Directing witness’ attention to specific issues.
Planning a Direct Examination
• Eleven elements to an effective direct
examination:
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Know what to include.
Know what to exclude.
Use topical organization.
Do not interrupt the action.
Give separate details attention.
Do not scatter circumstantial evidence.
Use defensive direct examination.
Planning a Direct Examination
cont’d
– Good facts before addressing bad facts.
– Get to the point.
– End with a clincher
– Ignore all other ten elements when
necessary.
Cross Examination
Or thoughts about
Perry Mason and Ben
Matlock
Cross v. Direct Examination
• Witness is not friendly.
• Can ask leading questions. Rule 611(c).
• Cross-Examination can be either
constructive or destructive.
Scope of Examination
• Normally, scope of cross-examination is limited
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to the witness’ testimony on direct.
Mock Trial goes further.
– Rule 611(b) allows inquiry into “any relevant facts or
matters contained in the witness’ statement, including
all reasonable inferences that can be drawn from
those facts and matters and may inquire into any
omissions from the witness statement that are
otherwise material and admissible.”
Effective Cross
• Seeks Concessions from the witness by
asking questions where the answer will:
– Strengthen your case with facts known by the
other side’s witness; and
– Weaken the other side’s case by attack the
credibility, i.e. the “believe-ability” of the
other side’s witness.
Tips for Surviving
Cross-Examination
• You are testifying.
• Control the witness.
• Don’t Quibble.
• Have a poker face.
• Save It [the Argument] for later.
• Attack the credibility.
Strengthen Your Case – How?
• List out the core or indisputable facts
about the case
– If those facts are indisputable, the witness
must concede the fact or appear unbelievable
– We use the other side’s witness as your own
witness by getting those facts into evidence
which will support your witnesses
Strengthen Your Case – How?
• Identify the core facts for the other side
– What is the other side’s theory of the case?
– What inferences are they relying on from the
evidence?
– Then develop your case to show the
improbability of those inferences
Now What?
• Organize those concessions and
improbabilities by topic – this will provide
the framework for the cross
• If your question contains too many facts
or assumptions it is too easy for the
witness to avoid or explain – so break
down
Example: Party Store Robbery
• The victim identifies her former boyfriend
as the robber.
• The defense’s theory is the victim is a
“scorned woman” and the indentification
is false.
Analysis
• There are three parts to the defense’s
theory
– Relationship – what is the basis for the
witness’ ID of the robber, since the robber
was wearing a mask?
– Scorned – eye witness disputes, but how do
you prove
– False accusation – if this is true, at what point
and time did she create the scheme?
Evaluate Analysis versus “Core”
Facts
• We know:
•
the next customer arrived two
minutes after the robber
We infer:
Not enough time for eye witness
to plan a revenge scheme
• We know:
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robber had eye witness lie on
floor; fired shotgun inches from her head
We infer:
eye witness must have thought
that she was about to die
Ask: what else must be true?
• Inference: if eye witness thought that
she almost died, why ignore real robber to
get back at ex-boyfriend.
• Inference: with no time to plan, how did
eye witness know where the robber was?
– What if the robber had an alibi?
– She risked a false report of a crime
– Is this probable?
Rules of Evidence
• Mock Trial Rules of Evidence outline the
rules for the introduction of evidence,
including witness testimony.
Objections
Be Prepared to object during your
opponent’s direct examination and to
respond to objections during your crossexamination
• Two types of Objections
• Objections to form
• Objections to substance
Attacking Credibility
• Means of knowledge
• Strength of Memory
• Opportunities for observation
• Reasonableness and
consistency/inconsistency of testimony or
evidence
• Bias-Prejudice or interest
Attacking Credibility is Based on
Witness Type
• Alibi witnesses
– How does that witness recall the details of the day –
look for inconsistencies with the indisputable facts
• Character witness
– Demonstrate bias (good or bad)
• Eye-witness
– Opportunity to hear or see actions
• Expert
– Qualifications; source of information
Character Evidence
• Subject to some exceptions, Rule 404
prohibits introduction of evidence of
character, crimes, and bad acts, if
offered to show a party acted in
conformity with the character or bad
acts.
• E.g. Defendant lied on his employment
application, and would lie again.
Exceptions to General Rule
• Evidence offered for another purpose.
Rule 404(b).
• In criminal cases, where Defendant raises
the issue of character. Rule 404(a)(1&2).
• Evidence of Witness’ Character. Rule
404(a)(3) says see Rules 607 & 608.
Rule 607
• “The credibility of a witness can be
attacked by any party, including the party
calling the witness.”
• You can attack the credibility of any
witness, even your own.
Rule 608
• Addresses bad acts that did not result in a
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criminal conviction.
4 Basic Rules:
– 1. Trial judge may allow questioning, but
has ability to stop inquiry at any time.
– 2. Prior bad act must relate to truthfulness
– 3. You’re stuck with the answer you get.
– 4. Good faith basis required to ask about a
prior bad act.
Rule 609
• Deals with Criminal Convictions
• 3 Basic Rules:
– 1. Prior convictions for offenses involving
dishonesty are always available to impeach.
– 2. Other crimes may be used unless the judge
thinks they are too prejudicial.
– 3. Rule 404 still applies to criminal
defendants.
CLOSING ARGUMENT
BRINGING IT HOME FOR THE
JURY
Closing Argument
• The Role and Function of Closing
Argument.
• Incorporate Themes and Theories.
• Making a Closing Argument Effective.
• Format.
The Role and Function of Closing
Argument
• Opportunity to tell the story of your case
in its entirety, without interruptions and
free from constraining formalities.
• Only as successful as the preceding stages
of trial.
• Opportunity to reflect upon and
encompass the evidence that has been
admitted into your case.
Incorporating Themes and Theories
into the Closing Argument
Theory
• Communicate your theory which you initiated in
your opening and reiterated throughout the trial.
• Your theory and closing argument must be
logical.
• The application of your theory to your argument
must be believable.
• Finally, your theory must be legally sufficient.
Incorporating Themes and Theories
into the Closing Argument
Theme
• Must be a constant presence throughout the
entirety of the trial.
• Should evoke shared beliefs and common
values.
• Must explain to the jury why a verdict in your
client’s favor is morally desirable.
• Must demonstrate evidence admitted supports
your theme.
Making a Closing Argument
Effective
• Use conclusions. Show how your conclusion
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logically flows from evidence.
Use inferences. Show that a desired inference
can be drawn from a known fact.
Explain importance and relevance of details and
circumstantial evidence.
Use analogies and stories.
Comment on and compare the motive and
credibility of each witness.
Making a Closing Argument Effective
cont’d
• Discuss the weight of each relevant piece
of evidence to your case.
• Discuss the demeanor of the witnesses.
• Refute your opponent’s case by pointing
out inconsistencies, implausibilites, errors
and contradictions.
• Apply the law to the evidence presented.
• Elaborate on the moral theme of the case.
Format of Closing Argument
Closing Argument is divided into three parts:
• Plaintiff’s argument in chief- must prove to jury
that burden as to claims have been met and that
verdict in Plaintiff’s favor is appropriate.
• Defendant’s argument in chief-demonstrate
Plaintiff has not met burden and anticipate
rebuttal of Plaintiff.
• Plaintiff’s rebuttal argument-address arguments
raised and relate back to major propositions
raised in argument in chief.
Customary Ending Joke
TELL THE JURY WHAT YOU WANT
• Jury needs to know what you want it to do
(non-bifurcated):
– In Civil Trial• Plaintiff- Tell them what their verdict should be
and how much money your client wants.
• Defendant- Tell them what their verdict should be
and why Plaintiff is entitled to a single red cent.
– In Criminal Trial• Tell them what their verdict should be