Part I Preparing Yourself for Trial

Transcription

1 Part I Preparing Yourself for Trial By: Patrick J. Higgins Couch White, LLP 540 Broadway Albany, NY (518) The Trial Mindset This is law school Your control of process and outcome This is Trial and You Multiple Actor scenario You cannot control Judge, or Jury, or opponent You Opponent Judge Jury Your opponent is actively trying to destroy your case 1

2 As a result.. even if you do everything right Your trial schedule most likely will be significantly altered as soon as the case starts Evidence rulings may unexpectedly go against you Testimony will not go as planned New evidence will appear both good and bad Parts of your case will be dismissed or parts of opponent s case will be dismissed Witnesses will not appear which may help or hurt you Judge will err on the verdict sheet or jury charges Key Mindset Number 1 Key Mindset Number 2? Accept the lack of control and uncertainty Plan for it if A happens, then we will do B. If C happens we will do D. Example Backup routes for evidence Controlling your emotions Loss of emotional control Achilles Heel Jury or Judge will react negatively Can t think clearly and will unnerve client Calm Demeanor Don t get too high or too low Long Haul Recognize and manage fear, anxiety, stress 2

3 Fear Do not exhaust yourself before the trial starts Invite it in and manage it or let it manage you. Key Mindset Number 3 It is not about you. The jury doesn t care about you. You are not important. Jurors are primarily focused on themselves and their job. It is about them. Your perspective of a trial is not the jury s perspective of a trial.. And the jury s perspective is the only one that matters 3

4 The earlier that you recognize and conform to this reality, the better you will be. It is not about your skill, knowledge, talent. You are not the jury s verdict. Good for the young lawyer. Tuning in Channel 2 The Law Channel vs. Channel 1 The Jury/Client Channel What am I talking about? You have been changed by law school and becoming a lawyer You talk a different language and you think a different way You are on Channel 2 The Law Channel You must address this if you want to communicate and relate to the jury and understand their perspective 4

5 Takeaway How do you communicate to them How do you present while in front of them How do you structure your case for them Mr. Jones left his home on Saturday morning to get some groceries for his family. Mr. Jones must prove by a preponderance of the evidence that the Defendant breached a duty of due care to Mr. Jones that was a substantial factor in Mr. Jones losses. Defendant is entitled to a judgment dismissing the Complaint if Mr. Jones does not meet his burden by proving his prima facie case. Jury Selection High risk area for young attorneys state court No judge First contact with jury Methods of Selection vary Multi task 5

6 Good people You may be in for a shock. Often, they do not see you, but a lawyer who they are suspicious of Self important Arrogant Condescending The word voir dire is from the French language and it means.. Remember jury perspective not yours Do not emphasize the differences rather than the similarities between you and the jury 6

7 Legalese Advocating or trying your case in jury selection Attempts to condition them, or change their minds Trying to make them promise you something Do not ask close ended questions Do not reword their answers Do listen to them Do not cut them off and nod curtly and move on Do understand them. What does it feel like to be questioned during jury selection? The Way Forward Respect for the Jury Switch Channels Creditability Competence Professionalism Client trial preparation as a Key Skill 7

8 The trial lawyer Constantly scanning during the trial Focused on the jury Focused on the witnesses Focused on the judge Are you focused on the client? They are. 8

9 Do not treat your most important trial exhibit like this They have nothing else to do. The client preparation process Specifics Educate about trial Address client fears Identify Client fears Start early worry sheet Stop talking Respect their fears Build on relationship of trust. Speaking in public Meeting strangers Fear of the unknown Fear of opponent Biggest client fears Fear of messing up and looking stupid Don t remember things Addressing Client fears Validate and Affirm Provide tools Model and build confidence Focus on client s concern who is cooking dinner for the children? 9

10 Educate They don t understand you or the process. Ask them Correct client s misimpressions The client s perspective may be a bit off as to the people waiting to attend her trial. or to the people who will watch her trial.. 10

11 Explain how client fits into the process. How to act in the courtroom You putting out fires is not the best way to prepare the client for trial The five mile rule Appropriate dress and appearance Take client to the courthouse 5 10 days before trial Mining the client s internal story. Two jobs New lawyers trial prep Develop your trial skills and knowledge of trial processes Trial work learn by doing Look in your office for. Evidence and Trial Practice Texts Look for opportunities it is on you. Small Claims trials Pro b0n0 work, Assigned Counsel work Depositions Fail early and often Ego is the enemy Trial Practice Updates /NYLJ ABA/NYSBA litigation journals Noted authors in Trial Practice Watch Trials or parts of them as possible Get on a jury or show up for jury selection 11

12 Getting the case into trial Specific trial prep for the case The young lawyer thinks that his case will smoothly integrate into the trial part system. Getting the case into the trial part may be more like this The recurring issues The assignment of the trial judge just before or after jury selection Motions in limine Educating the judge Subpoena issues Videotape rulings and cutting of videotape Getting evidence marked and admitted The schedule and order of proof Demonstrative evidence What trial prep is really about don t forget the physical efforts required Trial Preparation 12

13 The Four Horsemen of Trial Evidence CPLR 3122 a Provides certification foundation at trial for documents as business record under CPLR 4518 dispenses with requirement to call a witness to lay the foundation Basics subpoena records and certification Certification by affidavit of four criteria: Affiant duly authorized Accurate records or copies of the records Reasonable search shows no other records, or identification of missing records and explanation for why they are missing Made in the ordinary course of business..(cplr 4518[a]). To use CPLR 3122 a at trial must notify opponent at least 30 days before trial of intent to offer business records certified by Rule. Notice must also specify the place and a reasonable time to inspect records. The opponent must object no later than 10 days before trial to the offer of business records by certification CPLR 3122 a helpful because: If compliance, and no objection, the records shall be deemed business records under CPLR 4518(a) (see CPLR 3122 a[c]). Even with objection, certification is presumed true (see CPLR 3122 a[b]). dispenses foundation witness. Forces opponent to take a position on foundation. One more issue resolved before trial by stipulation or motion. Focuses issues for trial court. Grounds trial exhibit list 13

14 Limitations Only provides foundation Applies only to non party documents Must be produced in compliance with CPLR 3120 Does not apply to out of state records CPLR 4532 a Provides foundation for imaging, pictorial representations, films, EMGs without testimonial foundation. Image must have inserted on it: Name of injured party Date when image taken Such additional identifying information as is customarily inscribed by the facility CPLR 4532 (2)(a) the film, image, etc. has been previously received or examined by parties that you are offering it against. If a defendant reviews an ultrasound during a deposition, is this enough? What about if you send defendant s counsel a copy of the deposition exhibit? Practice pointer send copies of images with notice tracking above language and intent to offer. Second route under CPLR 4532 a(b)(i)(ii) At least ten days before trial, offering party serves notice on opponents of intent to offer images at trial, advises that they are available for inspection; and Notice is accompanied by affidavit or affirmation of such physician identifying image, attesting to inscribed identifying information, and that same is customarily inscribed by facility or practitioner and That if so called, he or she would so testify. Second route may run you in $1500 range. More than one way to skin a cat. Images under CPLR 4532 a can also be business records under CPLR 3120/ 3122 a and business records under CPLR 4518(c) from a hospital. (See Hoffman v. City of New York, 141 Misc.2d 893 [Sup Ct Kings County 1988]). 22 UTR Videotape Recording of Civil Depositions (g) Filing and Objections Subsection (1) if no objections during EBT, the proponent may file the deposition disc with the clerk, and shall file it upon the request of any party. Subsection (2) if objections have been made by any party during the EBT, the disc with the certification, shall be submitted to the Court for a ruling: within 10 days of its recording upon the request of any party, or Within such other period as the parties may stipulate, or as soon thereafter as the objections may be heard by the Court. 14

15 This means that the person taking the video taped deposition can submit the deposition for rulings on objections 10 days after its recording (22 UTR [g][2]). The Court shall rule on the objections prior to the date set for trial (202 UTR [g][3][i]); and shall return the recording to the proponent of the videotape with notice to the parties of its rulings and of its instructions for rulings (id). The editing shall reflect the rulings of the court, and shall remove all references to the objections (id.), or Objectionable material may be marked and the audio suppressed (202 UTR [g][3][ii]). Before such filing, the proponent shall permit the other party to view the edited videotape (22 UTR [g][3][i]). NB This section does not require that the proponent identify at this time the parts to be designated for playing for the jury. Playing or reading in only part of a deposition two different sections CPLR 3117(a)(2) deposition of a party.may be used for any purpose by any party who was adversely interested when the deposition taken, or who is adversely interested when the deposition testimony is offered into evidence. CPLR 3117(b) if only part of a deposition is read at the trial by a party, any other party may read any other part of the deposition which ought in fairness to be considered in connection with the part read. 15

16 Questions for read ins/video If video deposition testimony, when does the opposing party read in or play the CPLR 3117(b) testimony? Can the Court order that the opposing party s CPLR 3117(b) testimony be played as part of the proponent s tape? What about the parts of the deposition that the opponent wants to play or read outside the scope of CPLR 3117(b)? i.e. the CPLR 3117(a)(2) reads? Issue of wide discretion with trial judge. Find out early. CPLR 3123 Notice to Admit Not tied to note of issue service no later than 20 days before trial (CPLR 3123[a]). Best reserved for authenticating documents due to impact of the admission. 20 day response time. Copies of documents or things served with the request unless previously served (id.) Get an admission and your foundation or discover issues with foundation with enough time to cure by subpoena and alternative means. THANK YOU AND GOOD LUCK 16