BENCH TRIAL HANDBOOK

BENCH TRIAL HANDBOOK

GETTING STARTED The hardest part of preparing any case for trial is determining where to begin. The following steps are an outline for preparing your case. The outline is merely a guideline. You may have different techniques or organization skills you may wish to use separately or in conjunction with the following steps. First Things First: 1. Find a partner someone you can meet with regularly; 2. Decide which side of the case you want to represent a. Criminal case = prosecution or defense b. Civil case = plaintiff or defense Developing your Case: 1. Read the case and instructions one time through. 2. Separate the instructions and jury instructions 3. On a piece of paper draw three columns. 4. In the first column, identify the cause of action or crime, and write the elements which make up the cause of action or crime on the lines beneath it. 5. In the second column list all of the facts that establish the elements of the cause of action or crime. 6. In the third column list all of the facts that negate the elements of the cause of action or crime. 7. Determine which facts repeatedly support your position. 8. Develop theme and theory of the case. Preparing for Trial: 1. Who is going to give the opening statement? 2. Who is going to give the closing argument? 3. Divide the task of direct examinations of witnesses equally. 4. Divide the task of cross examinations of witnesses equally. 5. Find your witnesses. Page 1

WITNESSES You will supply the witnesses for your case. A witness may testify only to facts stated in or reasonably inferred from his/her witness statement or the fact pattern (if he/she reasonably would have knowledge of those facts). If you need clarification, or are unsure whether your inference is reasonable or not, speak with your attorney coach, and he/she will help you to fill in any gaps in the official materials. The fact pattern is a set of indisputable facts from which witnesses and attorneys may draw reasonable inferences. If a witness is asked a question calling for an answer which cannot reasonably be inferred from the materials provided, they must reply, I don t know or I can t remember. It is up to the attorney to make the appropriate objections when witnesses are asked to testify about something which is not generally known or cannot be reasonably inferred from the fact pattern or a witness statement. A witness can be impeached if he/she contradicts the material contained in his/her witness statement. THEME/THEORY You and your partner should first develop a theme and theory for your case this will bring your entire case together in a cohesive way, even though each of you are responsible for conducting separate portions of the trial. The theme and theory is how you grab the judge s attention. A theme is important in any case because it gives the judge a sense of direction regarding how you will present your case. When your case revolves around a theme, the judge will remember testimony, case development, and your position. The theme is a short phrase that you use to grab the judge s attention. In composing a theme you should provide your most telling fact with broad encompassing statement of the law. For example in a personal injury and medical malpractice case, a plaintiff may use the theme of Failure to take the time. Notice that the theme incorporates a standard of care, time, and the breach of that standard. The theme is incorporating the elements that must be proven in order for the plaintiff to prevail. For an example in a criminal case, think back to the O.J. Simpson case, and the impossible to forget theme of, If the glove doesn t fit, you must acquit. The theory is how you prove your case, and expands upon your theme. The theory of the case is how you expect to prove your position. How did the defendant s acts demonstrate a failure to take the time? Explain your theory of the case immediately after you state your theme. While the theme is a single catchphrase, explaining your theory of the case will take a few sentences or so, if not more. Page 2

OPENING STATEMENT Purposes of Opening Statement An opening statement is the first chance the attorney has to tell the judge about the case and, more importantly, why the judge should find in your favor. Specific purposes of the opening statement are to: 1. Set forth your theme and theory of the case; 2. Provide the judge with a roadmap of how you expect your case to proceed/develop in trial; 3. Inform the judge, in a general way, of the nature of the case and any defense(s); 4. Advise the judge of the facts relied on by the parties to make up the right of action, crime, or defense; 5. Define the nature of the questions and issues involved; and 6. Explain what you expect the outcome of the case to be at the conclusion of your trial. Structure of Opening Statement The structure of the opening statement can vary based on the facts of each case. An opening statement is a story. The opening statement is when you introduce your theme and the characters involved in the case. You give a short summary of the evidence and briefly explain the applicable law at issue in the case. At the end of your opening statement you need to tell the judge what you want him/her to do (i.e. find the defendant guilty/not guilty of the crime charged; hold the defendant liable/do not hold the defendant liable for the injuries caused, etc.). An opening statement is not the time for argument. Argument is reserved for the Closing Argument which takes place at the end of the trial. One basic rule to keep in mind is if a witness is not going to take the stand and say it, then it is more than likely argument. An opening statement is simply a roadmap of your case, and an outline of what you expect to happen during the course of the trial. Page 3

Helpful phrasing for an opening statement includes: The evidence will indicate that The facts will show Witness (full name) will be called to tell The defendant will testify that You will hear that The most important thing to remember in your opening is that you know the facts better than the judge ever will. It is your job to take all of the facts and the law and present it in a simple story for the judge to understand. Don t get bogged down in the facts. You do not want to articulate every single fact of your case in excruciating detail during your opening statement. Keep things simple, but focused. Anticipate Weaknesses of Your Case If you know that there is evidence which is damaging to your case, you should volunteer this evidence as soon as possible -- opening statements are your first opportunity to present information to the judge. The advantage of introducing damaging evidence in an opening statement is that you have a chance to explain the weakness or unfavorable evidence, and hopefully present it in a more favorable light. Think damage control. Physical Presence in the Courtroom: There is no one court room style and where you stand during your opening statement will depend on the judge s preference and you. However, to be sure, ask permission to move into the well (the center of the courtroom) before doing so, or clear this matter up with the judge before your trial begins. Generally, when the trier of fact is a judge (no jury) opening statements are presented from counsel table or the podium. ` Page 4

DIRECT-EXAMINATION Direct examination is when an attorney asks a witness they called to the witness stand a series of questions. Direct examination is conducted from behind counsel table, or from the podium. When it is time for you to call your witness to the witness stand, ask the judge the following: Your honor, I would like to call (name of witness) to the stand. The witness will then be sworn in before testifying. After the witness swears to tell the truth, you may wish to ask some basic introductory questions to make the witness feel comfortable. Appropriate areas of inquiry include: The witness s name. Length of residence or present employment, if this information helps to establish the witness s credibility. Further questions about professional qualifications are necessary if you wish to qualify the witness as an expert. A direct examination is the judge s opportunity to relive reality from your side s perspective. The witnesses should tell/show what happened so that the event is re-created for the judge s benefit. This must be done while keeping in mind the elements of the crimes, claims, or defenses, and the ever-present requirements of simplicity and efficiency. The purpose of a direct examination is to ask questions that develop a subject in a logical sequence. It is important to listen to both the questions and the answers, so that the next question continues developing the subject in a logical sequence. Direct examination is your time to introduce your witnesses and have them tell the story through a series of questions and answers. On direct examination, counsel should ask open-ended questions. One way to insure that the questions are open-ended is to ask questions that begin with Who, Why, What, Where, and When. This allows the witness to explain the facts and information. Examples of Proper Open-Ended Questions on Direct-Examinations: 1. Why did you go to that address Officer Smith? 2. What were you planning on doing when you arrived on scene? 3. Who did you speak to at the house? 4. Why did you speak to that person? Conclude your direct examination with the following statement: Thank you, Mr./Ms. (name of witness). That will be all, your honor. However, note that the witness needs to remain on the stand for cross-examination. Page 5

CROSS-EXAMINATION Cross examination is where you get to question the other side s witness. Cross examination takes place immediately after direct examination, and is conducted from behind counsel table, or from the podium. There are two basic purposes of crossexaminations: 1. Eliciting Favorable Testimony. This involves getting their witness to agree with those facts that support your case in chief and are consistent with your theory of the case. 2. Conducting a Destructive Cross. This involves asking the kinds of questions that will discredit their witness or his/her testimony so that the judge will minimize or even disregard what they had to say. This can be done by asking questions that elicit internal inconsistencies, lack of certainty, lack of opportunity to observe, an inherent implausibility, inconsistency with the testimony of another more credible witness. Understanding these two basic, broad purposes, and their order of use, is essential to conducting effective cross-examinations. While you may utilize only one of the approaches with some witnesses, you should always consider eliciting favorable testimony from the witness before you attempt a destructive cross-examination. Cross-examination should be structured to begin with your second strongest position, and end with your strongest. Your cross-examination should start out crisp, and clean. You need to know the questions you are going to ask, ask them without notes, and develop a tone that shows you are in control of the examination. Always remember that the most effective crosses have one fact per question. The Ten Commandments of Cross Examination: 1. Be brief; ask short questions 2. Use simple language 3. Ask only leading questions 4. Know the answer before you ask the question 5. Listen to the answer 6. Don t quarrel with the witness 7. Don t repeat the direct examination 8. Never allow the witness to explain anything 9. Avoid the one question to many; don t gild the lily 10. Save the ultimate point for summation Page 6

As noted above, ask only leading questions on cross examination. If you dare ask open-ended questions on cross examination you are giving their witness an opportunity to further explain and sing the praises of their case, potentially to the demise of your own case. What are leading questions? Leading questions are questions that contain the answer within the question. It is a simple statement of fact, and you are asking the witness to either agree or disagree with that statement of fact. Examples of Proper Leading Questions on Cross-Examinations: 1. The car was red, wasn t it? 2. You didn t like her, did you? 3. You picked Mr. Johnson out of the lineup, correct? 4. Isn t it true that you never went to the house that night? 5. You wear glasses, don t you Mr. Bond? Cross-examination should conclude with the following statement: Thank you, Mr./Ms. (name of witness). That will be all, your honor. RE-DIRECT EXAMINATION Following cross-examination, the attorney who called the witness may conduct re-direct examination. Attorneys conduct re-direct examination to clarify new (unexpected) issues or facts brought out in the immediately preceding cross-examination only. Re-direct examination will only be allowed at the discretion of the judge, and if time permits. Page 7

EXHIBITS Exhibits can be anything, other than testimony, that can be perceived by the senses and be presented in the courtroom. Exhibits have a tremendous impact and should be used to help tell the story to the judge. For example, consider using charts, diagrams, photographs, and physical objects such as clothing (or other objects you have on hand) to assist you in creating a more visual case. While visual effects are helpful, keep in mind that they must at all times be relevant to the case, and actually have some bearing on the fact pattern. You cannot introduce irrelevant exhibits into evidence at trial. If you would like to use an exhibit, confirm that it is indeed relevant to the case with your attorneycoach. When using exhibits, you must show the opposing team before trial what exhibits you plan to use during the actual trial. Prior to moving an exhibit into evidence, you must have an exhibit marked as evidence. This typically entails the judge asking you to label the exhibit with a number or letter. The plaintiff/prosecution uses numbers (i.e. 1, 2, 3, 4), and the defense uses letters (A, B, C, D, etc.). To introduce an exhibit into evidence, you must go through the following procedure: 1. Referring court and counsel to what has previously been marked for identification as s Exhibit. 2. May I approach the witness? (Judge will say yes) 3. Mr. Witness, I am showing you what has been marked for identification as s Exhibit. Do you recognize it? (Witness should answer yes). 4. What is it? (Witness will say that what it is photo/diagram/chart/clothing, etc.) 5. How are you familiar with this Exhibit? (Witness will explain that that they took the photo, drew the diagram, saw the clothing, etc.) 6. Does this photo fairly and accurately show how the victim looked when you contacted her on date/time? (Witness answers yes). See a. and b. below for other options. a. Does this diagram fairly and accurately depict the intersection of First St. and Main Street on date/time? (Witness answers yes) b. Does this dress appear to be in substantially the same condition as it was on date/time? (Witness answers yes) 7. At this time the move to have what has been marked as s Exhibit for identification moved into evidence. (The judge will confirm that it is admitted into evidence) You do not have to memorize these seven steps! The judges know that you are students, and most are doing this for the very first time. Either use this page as a guide during your questioning of the witness, or re-write the questions in your list/script of questions. Page 8

Show the Judge the Exhibit You went to the effort of introducing something into evidence. Don t forget to show it to the judge. After all, they are the ones rendering the verdict in your case it is the judge you are trying to persuade to decide the case in your favor. After the Exhibit has been Admitted: Once an exhibit is admitted into evidence it should always be kept with the clerk, and retrieved from the clerk when it is needed for later testimony or argument. While there is no actual clerk in the courtroom, there will be a clerk s table. Always identify where that is, and place your exhibits on that table. Page 9

IMPEACHMENT While testifying, a witness may make a statement that is inconsistent with something he/she said in their witness statement. The attorney questioning the witness may want to point out the inconsistency. This is called impeaching a witness. Generally, you do not want to have to impeach your own witness because it will reflect poorly on his/her credibility. This is why it is a good idea to make sure your witnesses are well prepared to testify, and have their own copy of their witness statement to review before testifying. Typically, you end up impeaching witnesses on cross examination of your opponent s witness. Here are the steps you need to go through in order to successfully impeach a witness: 1. The witness testifies inconsistently with what they said in their witness statement. 2. Confirm the witness testimony It is your testimony that? 3. Ask the witness, a. You remember giving a statement to Officer (name) on (date), don t you? i. You understand that it is important to tell the police the truth because they are there to help you, right? You teach your children (or, you were taught as a child) to always tell the police the truth, don t you? ii. And you did tell Officer (name) the truth, didn t you? b. You remember providing a witness statement in this case don t you? i. When you gave that statement, you signed it under penalty of perjury, right? ii. And you told the truth in that witness statement, didn t you? 4. Ask the judge if you can approach the witness 5. Refer court and counsel to the page/line in the witness statement. 6. Mr. Witness, I m showing you a copy of your witness statement. Please read this silently to yourself (identify page/line for witness), while I read your prior statement aloud. 7. Read the portion of the statement that contains the prior inconsistent statement. 8. Confirm with the witness, I read that correctly, didn t I? 9. Remove the transcript from the witness 10. Do NOT re-ask the question. Move on with the rest of your questions. You do not have to memorize these ten steps! The judges know that you are students, and most are doing this for the very first time. If this issue comes up in your trial, use this page as a guide during your questioning of the witness. Page 10

REFRESHING THE MEMORY OF A WITNESS If your witness is not prepared, they may forget some of the facts of the case. Sometimes, your witness won t remember the answer to a question, or cannot recall one of the facts of the case. It is important to note that anything (ANYTHING) can be used to refresh a witness memory. Also, whatever it is that you are using to refresh the witness memory does not have to be marked as an exhibit. Obviously, the best way to avoid this situation is to make sure your witness is well versed in the facts of this case. But, if such an occasion arises during the course of the trial (i.e. your witness responds to your question with I don t know or, I don t remember ), the following steps should be used to refresh your witness memory: 1. Ask the witness, Would seeing a copy your witness statement refresh your memory? See a. and b. below for other methods of asking this question. a. Would seeing a copy of the diagram refresh your memory? b. Would seeing the knife again refresh your memory as to how long the blade was? 2. Ask to approach the witness & refer court and counsel to the witness statement (page/line) or other item (like the knife or photo, which is probably already an exhibit just reference it by Exhibit #) 3. Mr. Witness, I am showing you a copy of your witness statement in this case. (Or, I am showing you the knife/photo/etc. ). Please read it silently to yourself (or look it over), and look up when you are finished. 4. When witness looks up, ask Has you memory been refreshed? (Witness should answer yes). 5. May the record reflect that I have removed the statement/knife/photo from the witness? (Judge will say yes) 6. Re-ask your first question that triggered the I don t remember response in the first place. Having to refresh a witness memory is time consuming. Try to avoid this situation by working with your witnesses in advance to ensure that they are well prepared to testify. Page 11

OBJECTIONS Objections can be one of the most difficult trial techniques for an attorney to learn. Objections can be made during any phase of the trial. When to make objections, however, involves more than simply having proper situations in which to make them. It also involves an almost instantaneous decision on whether to make the objection at all. It is important to remember that sometimes it is a strategic move not to object to a question. For example, if the question does not really hurt you, you may want to hold off and save objections if you anticipate that there will be more damaging testimony that may become heated later on. Second, sometimes, though a question may be objectionable, it may actually help you, or it may open the door to something you would like to explore on cross examination. There are dozens of objections and it takes years to become educated on when and how to raise them all. For the purposes of this program, we will focus only on the most common objections. How to Make an Objection: 1. Say Objection in a loud and clear voice; 2. Wait for the judge to respond a. Sustained vs. Overruled b. Judge may ask your opponent to respond to your objection c. The judge may then ask you for clarification, or for further comments based upon your opponent s response. 3. If the Judge sustains your objection, ask that the question and/or answer be stricken from the record. How to Respond When You are Objected to: 1. Listen, think about, and understand the objection your opponent is making be prepared to come up with a verbal response. 2. Wait for the judge to respond a. Judge may sustained or overrule objection immediately b. Judge may invite you to comment on your opponent s objection if you have no idea how to respond, just say, submitted. c. Ask to be heard if you do not agree with the Judge s ruling 3. Move on a. If the judge overrules your opponent s objection, ask your question again b. If the judge sustains your opponent s objection, you must move on. You are not allowed to repeat the question, nor is the witness allowed to answer it. Page 12

The most important thing to remember is that somebody will always lose an objection. Do not feel defeated, and do not let this discourage you from making further objections. Also, do not give up on a particular line of questioning simply because you are being objected to. As you prepare your direct and cross examinations you should keep in mind testimony which you believe may elicit an objection. If you are aware of what may be objectionable, you can fashion your questions to avoid the objection. List of Common Objections: 1. Relevance: a. The evidence is not directly material to an issue in the case. b. Example: in a criminal case, something is not relevant if it does not tend to prove/disprove the defendant s guilt. 2. Lack of Personal Knowledge: a. The witness lacks the ability to answer the question because they do not have direct knowledge of the answer. b. Example: asking Witness A about a fact contained in Witness B s statement, and that same fact is nowhere to be found in Witness A s statement. 3. Narrative: a. The question will allow the witness to ramble on and on about extraneous facts/information b. Example: asking a witness, What did you do on January 1 st? This type of question is not focused enough, and the answer could encompass an entire day s worth of irrelevant events. 4. Hearsay: a. The question/answer elicits the statements of someone else (not the witness), spoken out of court, and offered to prove the truth of the matter asserted. b. Example: In the trial of Defendant X running a red light, witness John Doe testifies that Jane Smith told him that she saw Defendant run the red light. Jane Smith s statement about seeing the defendant run the red light is hearsay. c. Caveat: there are many exceptions to the hearsay rule. The most important, and easiest to remember, is that the prosecution can always introduce evidence of the defendant s statements in a criminal trial over a hearsay objection. Your attorney-coach will help you with other potential exceptions to the hearsay rule. 5. Leading: a. The form of the question suggests the answer. b. For examples, refer back to the section dealing with cross examination. Page 13

6. Asked and Answered: a. The question has already been asked by the attorney, and answered by the witness. Asking the same question multiple times will elicit this objection. 7. Beyond Scope: a. Going beyond the subject matter covered on direct or cross examination. b. Example: On direct examination, the scope of questions dealt with what someone did on January 1 st. On cross examination, questions about something that occurred on January 5 th would be beyond the scope of direct examination. 8. Assumes Facts Not in Evidence: a. A fact not testified to previously is contained in the form of the question. b. Example: Upon questioning, Goldilocks testifies that she went into the three bears house, and took a nap in baby bear s bed. The attorney then asked, What was it that you didn t like about papa bear s bed when you tried it out? This last question assumes a fact not yet in evidence specifically, that Goldilocks tried out papa bear s bed first. 9. Vague: a. The question is not specific or focused enough b. Example: asking a witness what they did yesterday. 10. Speculation: a. The question requires the witness who lacks personal knowledge to guess about the answer. b. Example: asking Witness A what Witness B was thinking. 11. Compound: a. More than one question contained in the question posed by an attorney b. Example: Do you like peas and carrots? 12. Argumentative: a. Counsel summarizes facts, draws own conclusion, and demands that the witness agree. b. Counsel s question is really argument in the guise of a question. c. Excessive quibbling with the witness by the attorney. 13. Cumulative: a. Repeated presentation of the same evidence by exhibits or witnesses to the point where it is unfair and wastes time. b. Example: Calling six witnesses to testify to the same thing 14. Non-responsive: a. Witness won t answer, or the answer they do give does not answer the question posed. b. Example: Attorney asks witness what color the car was that ran the stop sign, and the witness testifies that a woman was driving the car. Page 14

CLOSING ARGUMENT The closing argument is argument, not a mere recitation of the facts of your case. This is where you, the attorney, using common sense and logic, draw reasonable inferences from the facts of the case. The inferences you draw should be designed to support your view of the law. Your closing argument takes your theme, theory, along with the supporting evidence and the law, and molds them into a persuasive argument that you hope convinces the judge to rule in your favor. Physical Presence in the Courtroom: Where you stand during your closing argument will depend on the judge s preference and you. However, to be sure, ask permission to move into the well (the center of the courtroom) before doing so, or clear this matter up with the judge before your trial begins. Generally, when the trier of fact is a judge (no jury) closing arguments are presented from counsel table or the podium. Structure of a closing argument Generally, a closing argument follow this outline: 1. Theme & theory 2. Facts 3. Law 4. Burden of proof A. Criminal case = beyond a reasonable doubt B. Civil case = by a preponderance of the evidence 5. Application of law to the facts of your case 6. Call for the verdict (guilty/not guilty or liable/not liable) Theme/Theory Use your theme and theory as roadmaps. This is the time to demonstrate your theory through a logical incorporation of the evidence, utilizing both contested and uncontested facts that were admitted during the trial. Factual Summation As you further develop your theory in closing argument, recount witness testimony that was favorable. Do not state verbatim what the witness said; instead when arguing your theory support it with witness testimony. Page 15

If there was a witness that was damaging to you, consider going into the credibility of that witness, or establish inconsistencies of that witness and point out how the facts are in fact in your favor. Burden of Proof & Application of Law to the Facts At the conclusion of your case, the judge has to make a decision (a.k.a. verdict). Be clear in what the burden of proof is for your case. If you are the plaintiff or prosecution, you must prove your case by preponderance of the evidence or beyond a reasonable doubt. If you are the defense, you must argue that the plaintiff/prosecution has not met their burden of proof. To argue that you have met your burden of proof, articulate which facts of your case prove each element of the charged offense. To argue that the burden of proof has not been met, point out the lack of evidence and deficiency of the plaintiff/prosecution case with respect to each element of the charged offense. Effective aids for this process are charts and diagrams. Calling for the Verdict What You Want the Judge to Do At the conclusion of your argument you must tell the judge what to do. This means you ask them to find your client s favor. For example, tell the judge you want him/her to find the defendant guilty/not guilty, or liable/not liable. This is the most common element missing from any trial don t forget it. Page 16

DIAGRAM OF TYPICAL COURTROOM Page 17