orlando, florida how to present your case at trial by: richard s. dellinger
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How to Present your Case at Trial 2
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“Next to the ministry, I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once, it is because the stream is diverted by selfishness or checked by ignorance. Its principles enable and its practice elevates.”
-William Jennings Bryan
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Presentation Outline
• Opening Statement
• Evidence Presentation
• Direct Examination
• Expert Direct Examination
• Cross Examination
• Expert Cross Examination
• Closing Argument
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• "ON TRIAL: LEE HARVEY OSWALD" (PART 2)(G. SPENCE'S OPENING STATEMENT) - YouTube
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OPENING STATEMENT
The most successful trial lawyers are often master storytellers, making their cases come to life for their jurors. The reason is that stories matter ... stories are the deepest and most obvious way that humans organize, communicate, receive, and digest facts.
G. CHRISTOPHER RITTER, Powerful Deliberations
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OPENING STATEMENT
Preparation, Preparation, Preparation, Preparation Introduce the theme Be a “truth-teller” Be a story teller
Party introductions Conversational Eye Contact
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Opening Statement
Move around courtroom Leave some mystery Don’t over promise Don’t argue or insult
Be positive Be inspirational
Inflection/ Pause for Emphasis
Acknowledge weakness
Colorado
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OPENING STATEMENT RULES
No argument No discussion of the
law No exhibits that are
not admissible Exchange exhibits in
advance
Miami
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EVIDENCE INTRODUCTION
Good trial lawyers are like writers with heavily plotted stories and sharply defined characters. They lay out each detail precisely to create an illusion of seamless inevitability, leaving no room for doubt, no possibility for an alternate ending.
ELYSSA EAST, Dogtown
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EVIDENCE PRESENTATION
Map the elements from jury instructions and tie to direct exam Theory and Theme Primacy and Recency Chronological Foundation First Script Theory – harmonize pieces of evidence into pre-existing
picture Putting the puzzle pieces on the table before putting them together
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DIRECT EXAMINATION
Successful trial lawyers are like heat-seeking missiles carrying payloads of information prejudicial to their opponent's case, constantly looking for the chance to unload their cargo, right up until the final moments of trial.
DAVID BERG, The Trial Lawyer
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DIRECT EXAMINATION PREPARATION
Review the testimony and exhibits once or twice
Show the witness the courtroom, the witness chair and the jury
Explain all the participants Review deposition transcripts Do not give summaries or outlines
Luzerne Co, Pennysylvania
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DIRECT EXAMINATION
Mock direct exams pay off in trial
Slow down, jury’s first time Repetition for Emphasis Pausing for Emphasis Reflective Questioning
(speed to establish intensity)• Headlines and Transitions
Morristown
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ADMISSION OF DEMONSTRATIVE AND DOCUMENTARY EXHIBITS
Demonstrative “Evidence” is not evidence until admitted.
Authentication Recognize the document. What is it? What are the circumstances where you have seen the document before? Is that your signature? Is that an original or a true and accurate copy of the original? Admit into evidence
Still subject to 401/402/403
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401, 402, 403 Analysis
Probative? Unfairly Prejudicial? Relevant?
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DIRECT EXAMINATION QUESTIONS
Introduce the person (name, occupation, relationship to others)
Lay foundation (present and able to observe)
Key observations Short and not compound Chronological if possible Defensive exam by anticipating
cross Look at the jury Nottinghamshire
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DIRECT EXAMINATION PROBLEMS
Forgetfulness and refreshing recollection.
No passion because over prepared.
No eye contact with the jury. Wilting to cross. Explains too much or too
little.
Wisconsin
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EXPERT DIRECT EXAMINATION
Source: http://www.all-about-forensic-science.com/vintage-science.html
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EXPERT WITNESSES
Consulting Experts – Expert who will not testify – Confidential/ Work Product.• Federal Rule 26(b)(4)(D)• Florida Rule 1.280(b)(4)(B)
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CONSULTING EXPERTS-PART OF THE LEGAL TEAM
Jury Consultants Forensic Accountants Construction Defects Doctors/ Psychiatrists
Private Investigators-learn facts, interview witnesses Document Presentation Experts
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TESTIFYING EXPERTS – EXPERTS WHO WILL TESTIFY AT TRIAL
Accountants-Damages, valuations, analyze/ summarize bank records
Construction Defect-Tell where the problem is
Accident Reconstruction Handwriting – signature experts
for comparision, document dating, ink dating
Firearms/Ballistics DNA document testing/ saliva Dog Sniff evidence
Nuremberg
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Expert Testimony Instruct expert by phone or
meeting. No billing contingent on
results. Have Expert sit through all
testimony and testify last. Expert is “closer” and final
summary witnesses. Expert can help you cross
examine the other expert. Expert can deliver your
closing before you deliver it.
London, Old Bailey
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CLASSIC EXPERT DIRECT EXAMINATION
Introduction Occupation
Teaser Background
Tender of Expert/Voir Dire Summary of opinion
Work done to come up with opinion
Final Opinion
Carbon County
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GATEKEEPING/EXPERT STANDARDS
Federal – Daubert/Kumho Tire (Koo-Moe)– Rule 702
Sufficiently based on facts/data
Reliable principles and methods
Methods applied to the case
Old US Supreme Court at US Capitol
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Federal Rule 702—“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Need a basis in sufficient facts and data Need reliable principles and methods Need methods/ principals to be applied reliably
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HISTORY
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – general acceptance within scientific community
Rule 702 adopted in 1975 – general acceptance not mentioned – more relaxed approach
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)– because of 702 – need only be “grounded” in scientific methods and relevant
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History (cont)
General Electric Co. v. Joiner, 522 U.S. 136 (1997) – analyze both the methodology but also the ultimate conclusions to make sure methodology applied appropriately.
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) – 702 analysis applies to all expert testimony – not just scientific.
Burden of Proof – challenging party bears burden of showing that that the evidence is unreliable then the proponent must defend the expert’s opinion.
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“Fit”/”Relevance” Analysis – Controversial Joiner analysis as to whether the Court “applied the principles and methods reliably”—
• Some courts assess the evidence and determine whether the expert can prove what the expert purports to prove (e.g., nicotine expert testify about impact of nicotine on health, toxic tort expert and causation).
• Other courts simply analyze scientific methods and do not make the litigants prove it to court before proving it to jury City of Tuscaloosa v. Horeros Chems Inc., 158 F.3d 548 (11th Cir. 1998).
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FLORIDA EXPERT ADMISSIBILITY
Florida Rule 90.702—“Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”
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FLORIDA EXPERT ADMISSIBILITY
Florida applies the Frye test to new or novel scientific evidence and requires that scientific evidence be generally accepted in the scientific community to be admissible. Stokes v. State, 548 So.2d 188 (Fla. 1989)
Even though Rule 90.702 did not codify the Frye test, the Frye test still applies in Florida because the Courts are not laboratories and they should not be the place to test new scientific theories. Hadden v. State, 690 So.2d 573 (Fla. 1997).
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EXPERT REPORT ADMISSIBILITY
Reports are cumulative pursuant to Rule 403 of the expert’s testimony and are not admissible if the expert testifies.
Federal--Reports are hearsay and cumulative. Sommerfield v. City
of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008).
Blackwood v. State, 777 So.2d 399 (Fla. 2000); McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000).
Can stipulate or admit without objection.
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Inadmissible Evidence Conduit Although an expert can rely
upon technically inadmissible evidence “when the facts and the data are the type reasonably relied on by experts on the subject”, the witness may not be used as a conduit for inadmissible evidence. Gerber v. Ivengar, 725 So.2d 1181, 1185 (Fla. 3d DCA 1998).
Expert can rely on hearsay but cannot be used as a conduit to introduce it. Erwin v. Todd, 699 So.2d 275 (5th DCA 1997).
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OBJECTIONS Questions that assume facts
not in evidence are not admissible.
Lay witnesses cannot provide opinions (Rule 701).
A witness cannot be expected to respond to a compound, confusing or unintelligible question.
Character for truthfulness can only be admitted after impeachment of the same Character (Rule 608).
Jefferson County, Missouri
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OBJECTIONS
Leading is only appropriate for cross examination or hostile witnesses (Rule 611), but preliminary matters are ok.
Cross must be inside the scope of direct examination (Rule 611(b)).
Argumentative questions are not appropriate.
Questions that are asked and answered are unduly repetitive under Rule 403.
Essex County, NJ
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401, 402, 403 Analysis
Probative? Unfairly Prejudicial? Relevant?
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Rules 401, 402, and 403
Prejudicial value outweighs prohibitive value Not relevant Confusing Misleading
Undue delay Waste of time Cumulative
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HEARSAY
Statement or writing?
Prove TOMA
Not Witness’
Own Statement Subject to
Cross
Not Party Opponent’s Admission
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HEARSAY EXCEPTIONS
Present Sense Impression
Excited Utterance State of Mind Business
Record
Learned Treatise for Cross Only
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HEARSAY EXCEPTIONS(Declarant Unavailable)
Party’s Former Testimony
Statement Against Pecuniary Interest
Statement of Personal or
Family History
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http://www.youtube.com/watch?v=_EK9SLLlObk
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CROSS EXAMINATION
Prepare every single question without regard to the answer.
Preparation can be done without a witness.
Highlight and tab exhibits. Highlight and tab deposition transcripts Take exam in small pieces. Be professional and do not attack. Start and end strong. Be nice and sympathetic to witnesses.
Ft. Smith National Park
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ATTACKING COMPETENCE
Everyone is competent under Rule 601.
Even those who lack mental capacity.
Even spouses. Even those who have an
interest in litigation.
Territorial Hawaii
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TESTING PERSONAL KNOWLEDGE
Make sure the witness has personal knowledge of the facts.
No personal knowledge if a failure to see, hear, experience or be involved in the circumstances.
If personal knowledge is not established ask for the predicate.
If the predicate is non-admissible hearsay, object.
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IMPEACHMENT BY DEPOSITION/ STATEMENTS
Rule 613 – prior inconsistent statements.
Extrinsic evidence admissible if given the opportunity to explain or deny.
Monroeville, AL To Kill Mockingbird
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EXPERT CROSS EXAMINATION
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ATTACK CREDENTIALS/VOIR DIRE
Before opinion is admitted, elicit weaknesses in qualifications.
Show limits/non-liability of advocate/training.
Show lack of experience.
Juxtapose against your expert.
Criticize lower certifications.
Osceola County Courtroom
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EXPERT TESTIMONY OUTSIDE EXPERTISE
Expert cannot testify outside their field of expertise – not an expert. “[I]t is not enough that the witness be qualified to propound opinions on a general subject; rather he must be qualified as an expert on the discrete subject on which he is asked to opine.” Goodyear Tire and Rubber Co., Inc. v. Ross, 660 So.2d 1109, 1111 (Fla. 4th DCA 1995).
Learn the letters behind the names; Find out what they mean and how obtained; Do not allow testimony outside of expertise (e.g. Business valuation/ real estate values)
Pioneer Courthouse, Portland, Oregon
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TESTIMONY ULTIMATE ISSUE
Expert can testify about the ultimate issue in the matter. Rule 704 and Florida Rule 90.703.
But long line of Florida cases say an expert can not invade the province of the jury. Schneer v. Allstate Indemnity Co., 767 So.2d 485 (Fla. 3d DCA 2000) (private investigator takes the next step and says there was insurance fraud).
FL Wright, Marin Co, CA, near SF
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LEARNED TREATISE
For Federal, a statement in a learned treatise may be read into evidence, but not introduced as an exhibit.
Rule 803(18)--Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
But note the argument that it is cumulative (Rule 403).
In Florida, A treatise on direct is hearsay and improper bolstering. Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993); Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).
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CROSS WITH LEARNED TREATISE
Can impeach using treatise cannot use on direct Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).
Expert can admit it is authoritative or trial court can determine it is authoritative Farel v. Houghey, 727 So.2d 1033 (Fla. 5th DCA 1999).
Know your material – have book with you. Be careful because expert likely knows more than you.
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VOIR DIRE OF METHODOLOGY
Florida--If no factual basis provided on direct examination, expert can be voir dired and methodology tested before the opinion is given. Rule 90.705 and Myron v. South Broward Hospital District, 703 So.2d 527 (Fla. 4th DCA 1997).
Federal—expert can testify without providing the factual basis for the expert opinion. Rule 705—ample opportunity for discovery/ challenge prior to trial.
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CROSS EXPERT FOR LIMITED ANALYSIS
No site visit. Limited time spend on case. Only looked at what they told you to look at. Missed something important (depo).
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CROSS WITH A FOCUS ON STRENGTHS
Ask if he considered testimony of X that is favorable.
Show him favorable exhibit and make sure reviewed.
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CROSS FINANCIAL INCENTIVES/PRO EXPERT
Amount of time not testifying. Amount of money paid to date/retainer letter. Higher rate for trial. Check for contingency/financial interest in litigation. If delinquent need a win so expert can be paid.
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Cross for Attorney Manipulation
Email correspondence. Initial memo/later memos.
Preliminary opinions? Revisions to preliminary opinions?
Inconsistency with report/prior reports.
Fairfax
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CROSS EXPERT TESTIFYING OUTSIDE EXPERTISE
Break down opinions into cross of expertise and areas where no expertise.
Confirm that no training/not expert in some area.
Bristol, UK
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http://youtu.be/RF3TzsEEZbI
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Closing Arguments
Remember time limits. Save rebuttal time. Permission to move around
the courtroom. Get a break to collect your
thoughts. Use exhibits.
Use jury instructions. Tie in the opening
statement and the witness testimony.
Contrast and Apposition. Verdict form.
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