Impeachment by omission. Impeachment for inconsistent statement. The Evidence Dance. Opening Statement Tip Twice

Transcription

1 Impeachment by omission Impeachment for inconsistent statement The Evidence Dance Opening Statement Tip Twice Closing Argument The Love Boat Story: A Vicious Tale Top Six Objections Evidence Review Housekeeping Understand, Develop, and Prepare the Case Copyright Allen Perkins 2010 Page 1 of 11

2 Impeachment by omission 1. Counselor to Witness: Mr. Smith is it your testimony today that you saw a red car? [Verify, by repeating what the witness said to ensure that the witness does indeed intend to offer the proffered testimony.] 2. Counselor to Court: Let the record reflect I am showing opposing counsel a copy of Mr. Smith s statement. [show opposing counsel the statement, in competition just hand them a copy] 3. Counselor to Court: May I approach the witness? [walk to the witness] 4. Counselor to Court: Let the record reflect I am handing the witness a copy of his statement. [hand the witness a copy of the statement, keep a copy for yourself to review] 5. Counselor to Witness: This is your statement, correct? [if witness is waffling, then say this is your signature on page two, correct? ] 6. Counselor to Witness: You gave this statement under oath, correct? 7. Counselor to Witness: I was there? 8. Counselor to Witness: Opposing counsel was there? 9. Counselor to Witness: You had an opportunity to review your statement and make any corrections, is that correct? 10. Counselor to Witness: And this is your signature on page two? 11. Counselor to Witness: Mr. Smith, no where in your statement does it say that you saw a red car, does it? In the alternative Mr. Smith, please take this pen and circle in your statement where you said that you saw a red car. [hand the witness the pen and allow him to struggle a bit, then say] You cannot circle it because you did not say it. 12. Counselor: Dramatic, pregnant pause in silence to let the jury take in the effect before moving on. Copyright Allen Perkins 2010 Page 2 of 11

3 Impeachment for inconsistent statement 1. Counselor to Witness: Mr. Smith is it your testimony today that you saw a red car? [Verify, by repeating what the witness said to ensure that the witness does indeed intend to offer the proffered testimony.] 2. Counselor to Court: Let the record reflect I am showing opposing counsel a copy of Mr. Smith s statement. [show opposing counsel the statement, in competition just hand them a copy] 3. Counselor to Court: May I approach the witness? [approach the witness] 4. Counselor to Court: Let the record reflect I am handing the witness a copy of his statement. [hand the witness a copy of the statement, keep a copy for yourself to review] 5. Counselor to Witness: This is your statement, correct? [if witness is waffling, then say this is your signature on page two, correct??] 6. Counselor to Witness: You gave this statement under oath, correct? 7. Counselor to Witness: I was there? 8. Counselor to Witness: Opposing counsel was there? 9. Counselor to Witness: You had an opportunity to review your statement and make any corrections, is that correct? 10. Counselor to Witness: This is your signature on page two, correct? 11. Counselor to Witness: Direct your attention to page two, line six (or the underlined part, or the highlighted part) and please read along silently as I read aloud. 12. Counselor to Witness: Question: What color was the car that you saw? Answer: I saw a blue car. [counselor reads the question out loud and then says] That was the question I asked and that was the answer you gave, correct? 13. Counselor: Dramatic, pregnant pause in silence to let the jury take in the effect before moving on. Copyright Allen Perkins 2010 Page 3 of 11

4 The Evidence Dance 1. Counselor to Court: May I approach to have this marked? [take exhibit from counsel table to clerk] 2. Counselor to Court: Let the record reflect I am showing opposing counsel what has just been marked as Exhibit 1. [show opposing counsel the exhibit, in competition just hand them a copy] 3. Counselor to Court: May I approach the witness? [walk to the witness] 4. Counselor to Court: Let the record reflect I am handing the witness what has just been marked as Exhibit 1. [hand a copy of the exhibit to the witness, retain one for yourself] 5. Counselor to Witness: Do you recognize this? 6. Counselor to Witness: How do you recognize this? 7. Counselor to Witness: What is it (or what does it reflect)? 8. Counselor to Court: You honor at this time I would like to move what has been marked as Exhibit 1 into evidence. Copyright Allen Perkins 2010 Page 4 of 11

5 Opening Statement Tip Twice (A model approach for structuring the opening statement) Theme: The first words you say after saying may it please the court, members of the jury, opposing counsel (brief pause to transition) <theme> Introductions: Good morning/afternoon, my name is <name>, I and my co-counsel <name>, represent <name>, the Plaintiff/Defendant in this case Personalize: Make the party human, give background he/she is not all that different, walk over and touch shoulder Tell the story: Why you are here, what happened, chronological order generally best, not argumentative but a persuasive version of events that support your conclusion Witnesses: You will hear from four (or some #) witnesses today; explain your witnesses first then opposing witnesses; cover who they are, what they will tell you, for the opposing side plant seeds of doubt, pose rhetorical questions, suggest what they will not tell you Issue: The law in this case is blah, state the burden of proof (unless you are the plaintiff), state your claim short and sweet (if the plaintiff); if defendant you have nothing to prove, 100% of the burden lies with the plaintiff, the law and the issues might be framed as complex if you are the defendant Conclusion: At the end of todays case my co-counsel, <name>, will ask you for the only fair and just verdict, a verdict holding the Defendant liable/not-liable. ThemE: Repeat the theme Copyright Allen Perkins 2010 Page 5 of 11

6 Closing Argument The Love Boat Story: A Vicious Tale (A model approach for structuring the closing argument) Theme: The first words you say after saying may it please the court, members of the jury, opposing counsel (brief pause to transition) <theme> Law: Explain the law as it applies in this case. If you are the plaintiff, then characterize the law as simple; if you are the defendant, then characterize the law as more complicated. [e.g. The plaintiff might say: The law in this case is negligence and to prove negligence we must show you three things. First, that Dr. Mann had a duty to exercise the care and skill that a reasonable doctor would ]. Burden: Explain who has the burden and what the burden is. [e.g. If you are the plaintiff and after a transition phrase (something like, Well, that s what the law says negligence is but who has to prove it? We do, as the plaintiff we must prove to you, by the greater weight of the evidence, that Dr. Mann was negligent. ) Story: Tell the story in three parts, each with three parts of their own. o What happened in this case? [The What Facts a quick summary highlighting three facts, the real high points, something you could tell someone in a short elevator ride, the second headline. No spinning these facts because we are building some trust with the jury as a story teller.] o How is it the D s fault or how is it not the D s fault? [The How Facts three of the most substantial facts you can say that everyone agrees with; these are facts that support your conclusion. These facts should have some spin to move the story into your favor but since you show how everyone agrees the jury can still trust you.] o Why did the bad thing happen? [The Why facts three big reasons, told from the perspective that supports your case, to help the jury understand why the other party is liable (or why your party is not liable). These facts will have the most spin, staying within the limits of being argumentative, accusatory, and firm but still truthful and respectful. Apply Apply the story to law. This will guide your selection of the three points you select for each of the parts of the story you tell and how you describe the law. The most time in the closing argument will be spent here. I mapped out the nine facts in one column and matched them to my description of the law in the other column. Verdict: Ask for the verdict. The verdict phrase to use is: that is why I am asking you for the only fair and just verdict, a verdict holding <insert name> liable (or not liable) for <insert claim>. You need a smooth transition in and out of this phrase; something like this going in just after the end of applying the story to the law: So, Dr. Mann failed to meet the standard of care and his negligence caused Cameron s death <insert verdict phrase>. After dramatic pause, the transition out could just be the simple word: because followed by the theme. Theme: Repeat the theme. Copyright Allen Perkins 2010 Page 6 of 11

7 Top Six Objections 1. Leading 611(c) 2. Narrative 3. Relevance under Speculation under Hearsay under Asked and answered 403 Rules for making objections: 1. Always stand when making objections. In fact always stand period when addressing the court! 2. Do not make talking objections. For example say exactly objection, relevance then remain standing and wait for the judge to respond. Do not say objection, this testimony is not relevant because what the defendant ate that morning blah, blah, blah. 3. Listen carefully to opposing counsel s questions and respond quickly on objections, if the witness has already testified you are generally too late. 4. Opposing counsel has the burden to respond to your objection if the court asks for a response; let the other side take that burden and explain why the question or testimony is not objectionable. 5. Be ready to argue the objection when the court asks for your response and if the court does not ask you for a response offer one by saying your honor, may I respond? Include the rule number in your response whenever you can. 6. Exact phrasing for the top six objections: Objection, leading. ; Objection, narrative (when the witness is narrating) or Objection, the question calls for a narrative answer. (when counsel asks a question like So, tell us what happened that day. ). ; Objection, relevance. ; Objection, calls for speculation. ; Objection, hearsay. ; Objection, asked and answered. 7. Other common objections: Objection, improper character ; Objection, answer is not in the scope of the question. Copyright Allen Perkins 2010 Page 7 of 11

8 Evidence Review : Judicial notice of facts that can be readily verified such as days on a calendar (e.g. February 29, 2008 was a Friday); airplanes crashed into the World Trade Center on September 11, : Relevance defined as evidence that tends to make any fact of consequence more or less probable : Exclusion of relevant evidence based on prejudicial value being outweighed by probative value (and confusing, misleading, cumulative, waste of time) (b): Character evidence of prior bad acts is not admissible to show action in conformity therewith but may be used to show motive, preparation, plan, knowledge, absence of mistake : Habit of a person or organization (something done without thinking) can be used to show conduct in conformity with the habit without eyewitness : Subsequent remedial measures cannot be used to prove negligence, culpability, or product defect but can prove ownership, control, and feasibility : Offers to compromise may not be used to prove liability, invalidity, or the amount of a claim or to impeach : Offer or payment of medical expenses is not admissible to prove liability for the injury 's very lightly state law applies; attorney/client; doctor/patient; priest/penitent; counselor/patient : A sufficient foundation must be laid to show that a witness has personal knowledge before they can testify : Character evidence is limited to truthfulness or untruthfulness and is given by opinion or reputation (c): Leading questions are generally not allowed on direct except for the limited purpose of laying foundation but can generally be avoided : Opinion of lay witness is limited to rationally based perceptions and not scientific or technical opinion : Experts may be qualified by knowledge, skill, experience, training, or education and testimony must be based on reliable principals and methods. Copyright Allen Perkins 2010 Page 8 of 11

9 Evidence Review (continued) : Experts can base their opinion on facts known before or learned at trial and may rely on inadmissible evidence to form an opinion : Expert opinion may go to the ultimate issue that is for the trier of fact; except expert may not testify to the mental state which is an element of a crime : Expert can give opinion and reasons therefore without disclosing the underlying facts (a): Statement is a written or oral assertion or nonverbal conduct intended as an assertion (b): Declarant is the person making the assertion (c): Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted (d)(2) Hearsay is not an admission by party opponent and is (A) a party s own statement; (B) a statement adopted as true; (C) a statement by someone authorized; (D) a statement by an agent (1): Hearsay exception present sense impression made during or immediate after the event (2): Hearsay exception excited utterance during a startling event or while still under the stress of the event (3): Hearsay exception then existing mental, emotional, or physical condition but not memory or belief (4): Hearsay exception statements made for medical diagnosis, history, symptoms (6): Hearsay exception business records made at or near the time of the event by a person with knowledge if kept in the course of regular business activity : When a witness is unavailable, as long as not procured by the party, there is a hearsay exception for prior testimony; statement under belief of impending death; statement against interest; statement of personal family history. Copyright Allen Perkins 2010 Page 9 of 11

10 Housekeeping 1. May we have permission to move freely about the well of the court? 2. Shall we ask permission before approaching the witness? 3. We ask that rule 615 be constructively invoked. (witnesses are excluded from hearing testimony) 4. Shall we assume all witnesses are pre sworn? 5. Shall we assume all exhibits are pre marked? 6. Would you like to see all exhibits before publishing them to the jury? 7. May we assume that all objections are constructively conducted at sidebar? 8. Your honor we prepared a notebook with jury instructions, stipulations, and exhibits and we request permission to tender this to the court. 9. Pursuant to the rules in this case there are no written motions or written notice of appearance. (object if offered pursuant to the rules in this case) 10. This is a bifurcated trial and testimony regarding damages is not allowed until liability is established. Copyright Allen Perkins 2010 Page 10 of 11

11 Understand, Develop, and Prepare the Case Understand 1. Study the fact pattern and develop a balanced (not arguing from either party s position) 30 second description of the case. 2. Write out verbatim your 30-second description because the act of committing the words to the page crystallizes your understanding. 3. Progressively elaborate on that description and create a balanced, written, three minute summary. Develop 4. Brainstorm the depositions or statements made by each testifying witness using three different colored cards and place only one idea per card (green for helpful, white for neutral, pink for harmful). 5. Brainstorm the remaining material in the case file (non-testifying witnesses, exhibits, police reports, etc.) using the same method as applied to the witness statements. 6. Steps four and five will be done twice; first from the plaintiff s perspective and then a second time from the defense s perspective. Put the capital Greek letter delta (defense) or pi (plaintiff) on the top left and reverse side of the cards. Prepare 7. Create a list of major points to bring out on directs (include inoculations) and crosses (what can they not say or don t know). 8. Nest the lesser points under each major point. 9. Identify the best sequence that these points should be presented for maximum effectiveness. 10. List the expected challenges in eliciting the desired testimony (objections, witness inconsistencies or frailties) and prepare two levels of arguments needed to overcome those challenges. You are now ready to begin writing potential themes, directs examinations, and cross examinations. Copyright Allen Perkins 2010 Page 11 of 11