Trial Ad – PrinciplesHazel, Fall 2001

Outline

Opening StatementI. Hazel’s article

A. Introduction. Jurors should make up their minds about the case after opening statement 100% of the time. The only reason for this not happening is if (a) the opening doesn’t fairly present what the evidence will be, (b) there are unfulfilled promises, and/or (c) if some jurors make up their minds based on things outside the evidence.

B. What is permitted. Parties may give a brief statement of (a) the nature of their claim, (b) what they expect to prove, and (c) the relief sought.

C. What is the purpose. Supplying the jury with a framework in which to consider the evidence and highlighting the positive points of your case. Voir dire is for wart-revealing; opening statement is for positives.

D. How to do it1. Tell a story. 2. Make it easy to remember.3. Put your best foot forward. You revealed your warts during voir dire. Now’s

the time to be positive. 4. Don’t exaggerate. Don’t say things you can’t prove. If the other side does this,

let them do it and don’t object. Instead, nail them with it during jury argument. 5. Avoid argument which will draw objections. Judges are likely to sustain an

objection to argument during voir dire and opening. (See article for different ways of handling the “what the lawyer says is not evidence” objection.)

6. Keep it short and simple. “KISS” principle. You can completely prepare this in advance. Know the theme of your case, the best facts for your side, and be able to state them swiftly and succinctly - without notes. Defense opening may have to tailor slightly, but not much.

E. Don’t waive or reserve opening. No matter how long voir dire was, give an opening. Opening may in fact be more important after a long voir dire. It is essential to get the jury focused on the good aspects of your case. Defense should not reserve opening for two reasons: (a) jury will expect to hear something and (b) if they don’t hear anything, there’s no counter to what the plaintiff’s lawyer just said.

ExhibitsII. Hazel’s Article

A. Real evidence1. Necessary. Rare instances in which P has no case unless some particular exhibit

is in evidence (e.g. b/K case)2. Not necessary but expected. You could possibly convince a jury that a product

is defective w/out actually bringing the product to the courtroom. But it would be very hard to do. If the product is available and a size which permits having it in the courtroom, you should bring it.

3. Not necessary or expected, but very helpful. This is the category into which every other exhibit fits. But note: if not necessary, not expected, and not helpful, then it shouldn’t be introduced into evidence at all.

B. Illustrative evidence1. Summarize the testimony. If a document is huge, the court may permit a

summary. Can be quite beneficial to opponent and quite harmful to opponent.2. Assist jury to understand testimony. Probably the most widely used exhibit

(e.g., a chart of an intersection).3. Purely illustrative. E.g., drawing on a chalkboard; these drawings are rarely

introduced into evidence. But they still have to be supported by the evidence and authenticated. The only real difference b/t this type of exhibit and one

introduced into evidence is that the jury has no right to take these illustrative exhibits to the jury room.

C. Persuasion1. Exhibit itself. Often, an exhibit is persuasive b/c it is accompanied by an

explanation. But some exhibits are persuasive in and of themselves, even apart from what a witness says (e.g., photograph of the victim). a) But be careful: exhibits can be persuasive on a point you intended to

make, and they can be equally (if not more) persuasive on a point you didn’t intend to make (e.g., tramcart).

2. Timing of introduction. If things are getting dull, introduce an exhibit. Puts some life into the trial.

3. Manner of introduction. Can be done simply or with flair. Depends on the exhibit, your style, and the stage of the trial (e.g, are things getting boring?).

D. Basis for introducing any exhibit1. Essential requirements. If you want to introduce an exhibit into evidence that is

relevant (i.e., has bearing on an issue in the case) and authentic (i.e., is what you claim it to be), then it’s probably admissible. If you’re missing either of these requirements, you’re probably hosed. Further, unless the exhibit is self-authenticating, you must have a witness who can testify to its relevance and authenticity.

2. Potential problemsa) Privileged. Can’t get it in if it’s privileged and there’s a proper

objection. But remember: there are other ways to waive privilege than failure to object. Consider this b/f trial.

b) Unfair prejudice. Modern trend is to overrule this objection. Prejudice must substantially outweigh the probative value.

c) Best evidence. Often misapplied and often overruled. d) Hearsay. The most common and usually most correct objection,

especially with written documents. Proponent must carefully consider exceptions. Once a good exception is put forth, the opponent of the evidence is limited to an assertion that the document can’t escape hearsay through any exception, that you picked the wrong exception, or that your have failed to provide proper testimony on all the required elements to meet the exception, i.e., failed to lay the proper predicate/foundation.

3. Practical reminder. Judge decides admissibility, but don’t forget the jury. You’re trying to persuade them, so keep them involved in the process. Where you position yourself when questioning the witness, the way you phrase the questions, etc. are all important in accomplishing this. Never forget the jury.

E. Steps in introducing: MIAO. You may seldom have to use these steps b/c more and more courts are having exhibits pre-introduced in an effort to save time. But there is rarely a trial in which you will never have to introduce an exhibit.1. Mark. “Naming” the exhibit. Know local rules on this - it varies (e.g.,

sometimes it’s done in advance of trial).a) Mother, may I. Ask to approach the court reporter. (In most Texas

courts, the court reporter does the marking; but again, know local rules.)

b) Exhibit stickers. Whether in a Texas court or any other, you should place exhibit stickers on your exhibits. This saves time, keeps the court reporter happy, and makes you look professional.

c) Designation. May be determined by you, the court reporter, or the court. If you have a preference, most courts will let you go with it; you just need to be consistent.

d) Showing opponent. Many lawyers do this immediately after the exhibit is marked/named. The truly required time to show it is right after offering it. But again, most lawyers show it immediately after it’s

marked. Opposing counsel may have objections based on the exhibit itself and/or the foundation you laid for it.

e) Showing jury. DO NOT show jury the exhibit until it is admitted into evidence. There are some exhibits that are virtually impossible to keep hidden. Admissibility of such exhibits should probably be considered outside the presence of the jury.

f) Changing the designation. In many places, an exhibit is initially marked “Plaintiff’s Exhibit A for identification”; if admitted, “for identification” is stricken. It is advisable to change the designation, but it’s not always done.

2. Identify. This is where you ask the witness if he recognizes (don’t say “identify”) the exhibit and then, assuming he does, get him to say generally what it is. Accomplishes two things: (1) connects the exhibit and the witness, showing the competency of the witness to discuss the exhibit; (2) shows the relevance of the exhibit.

3. Authenticate. Laying “predicate” (in Texas) or “foundation” evidence to support that the exhibit really is what you claim it to be. The predicate will vary from exhibit to exhibit. a) Photograph. Ask witness whether the photograph “fairly and

accurately” shows the scene where he was injured.b) Business record. Ask witness KRAP.

(1) Two suggestions w/r/t business records(a) Question the witness first about the practice of the

business w/r/t keeping the records. You are establishing a custom or practice of the business. This avoids the problem of the witness not having been an employee of the business when these records were made or of having no personal knowledge of how the records were made. Neither of these is important for admissibility, but each might be important for the jury in deciding credibility.

(b) Don’t produce the records from your file; have the witness produce them.

c) General comments(1) Some exhibits may require more than one witness b/f they are

fully authenticated. This is especially true when the exhibit is not particularly unique or has been in the hands of more than one person (e.g., cocaine). The “chain of custody” must be adequately established to make the exhibit admissible by the judge and believable by the jury. Every witness in the chain may be required.

(2) The questions are leading. But leading is not a problem when laying predicate for an exhibit.

(3) These questions, although necessary, are also clumsy and likely to be gobbledygook to the jury. For that reason, keep them short and stick to the “magic” words.

4. Offer. Once the exhibit is authenticated, it should be offered (e.g., “Your honor, I offer Plaintiff’s exhibit 1 into evidence”). a) Time to object. It is at this point that the exhibit must be shown to

opposing counsel, even though most will have done it during the “mark” stage. Opposing counsel can now make any objections to the exhibit; it is rare that any objections would have been mature before this point (exceptions: offering party followed improper procedure, showed exhibit to jury b/f admitted). Objecting attorney must be given a reasonable amount of time to examine the exhibit. If it’s complicated, the offering party should probably provide a copy of the

exhibit to opposing counsel b/f trial. (Many lawyers do this as a matter of course.)

b) Ruling. Get a ruling. If it’s admitted, you need to note this somehow (e.g., by striking out “for identification” or renaming the exhibit). In Texas, most often nothing is stricken out and nothing is renamed. The court reporter usually keeps a record of what was and was not admitted, but counsel should keep his own. If something is admitted for a limited purpose, it’s preferable to see if the judge will allow you to write that limitation directly onto the exhibit itself.

c) Showing to jury. Once admitted, the jury has a right to see it. They also have a right (upon request of someone) to take it to the jury room. Best to go ahead and show the exhibit to the jury right after it’s admitted into evidence b/c they’ll be curious. (Say “show,” not “publish.”) If for some tactical reason you want to wait and show the exhibit to the jury later, make sure to let them know that you will in fact show it to them later. If the jury is inspecting an admitted exhibit, do not continue with the examination of the witness while the jury is looking at the document.

III. Class NotesA. Four most common objections to exhibits (BUPH)

1. Best evidence. E.g., asking a witness to testify about the terms of the K in a b/K case when the K itself is available. If the K is available, the contract is the best evidence of the terms, not the witness’s recollection of them.

2. Unfair prejudice. But just b/c something is highly prejudicial doesn’t mean it’s unfairly prejudicial.

3. Privilege. Even if relevant, evidence can be excluded b/c it’s privileged. 4. Hearsay (the most common objection to documents). Every document is

hearsay unless it’s offered for some purpose other than its truth. Must find an exception.

ObjectionsIV. Ratliff’s Article

A. When to object1. If your opponent violates a motion in limine. 2. Right time to object depends as much on jury’s mood as on anything else (10:00

a.m. vs. 4:30 p.m.). 3. Have you been objecting a lot already?4. How important is it to object?5. How has the judge been reacting to objections?6. A great deal depends upon alertness and instinct. Generally speaking, conserve

your ammunition and object only when you need to. B. Don’t object . . .

1. until the question is finished unless the question itself introduces objectionable matter. a) Don’t scream, but don’t mumble either. b) If the witness tries to be clever and answer before you object, get the

judge to instruct the witness. 2. when the answer doesn’t hurt unless it opens a door you need to keep shut.

a) One exception: if the questioning is on a complete irrelevancy which doesn’t affect your case, wait until the jury is sick of it and then object, delivering them from their torture.

3. to leading questions on peripheral matters. 4. to something you will later offer into evidence yourself or stipulate to.5. to a long and boring narrative answer by an expert. Let him put everybody to

sleep. C. Do object . . .

1. every time something you want to keep out comes up. a) The rules on waiver are far from clear. However, it is clear that you

don’t waive an objection which has been properly preserved by an earlier objection simply by cross examining on the subject.

b) If something you want to keep out is coming up a ton, you probably don’t need to object every time. Rather, you can probably object once, object a second (and maybe third) time, and then ask for a running objection. But note: you should object again if the subject is (a) abandoned by your opponent and raised again later with the same witness or (b) raised again later with a different witness.

c) If the answer is blurted out before you can object, do the following: object, move to strike, and request the judge instruct the jury to disregard.

2. to leading questions in critical parts of the testimony. a) If opposing counsel is continually leading, bring a transcript of the DX

to closing argument, read it allowed, then ask the jury whose testimony they really heard.

3. to all subjects contained in the motion in limine. a) Remember: in Texas courts, the ruling itself does not preserve error.

4. to the use of deposition testimony for DX unless the witness is shown to be unavailable under the rules (but only if not in Texas courts).

5. to incomplete predicates (unless you are certain they can be cured). a) Must point out the specific respect in which the predicate is defective.

6. to unfair questioning of your witness (e.g., argumentative, assuming facts which are in controversy, not permitting the witness to qualify an answer).

7. to the absence of the best evidence (unless there’s no dispute about what it says).8. to irrelevancies which are either immediately harmful or tediously extended.9. to counsel’s imposing rules on how the questions are to be answered by your

witness (e.g., insisting on yes/no answers, unfairly summarizing a long answer with “So your answer is ‘yes.’”).

V. Class NotesA. Two types of objections: general and specific

1. Always want specific objections b/c this is the only way to preserve error for appeal.

2. Might initially lodge a general objection after you get that instinctive jab. Then, after you’ve had a few minutes to think, you go specific. If for some reason you can’t be specific, just flat out admit it.

3. Purposes of a specific objectiona) Principle purposes

(1) Prevent an adversary from asking a question(2) Give the trial judge a chance to get it right(3) Preserve error

b) Four other purposes (putting aside questions of PR)(1) Interrupt, rattle, break concentration

(a) Object, then make a speech.(i) If this is done to you, freeze. Stand where

you are, keep your eyes on the jury, and under no circumstances should you respond.

(2) Talk to the judge(a) E.g., the judge is dozing and you think the opposing

attorney is approaching a dangerous subject on which you know you’ll want to object and get a quick ruling. Make some b.s. objection to wake the judge up so that he’ll be alert two questions later when you make a critical objection and want a quick ruling.

(3) Talk to the witness

(a) E.g., “Objection. The witness was looking at the window of the store and couldn’t possibly have seen the cars moving.

(4) Talk to the jury(a) E.g., the other side has his witness on a leash.

You’ve been objecting and getting sustained, but he’s continuing to do it. You object again and make a speech about the lawyer putting words into the witness’s mouth. (This is about the only time it would ever be ethical to talk to the jury through an objection.)

B. How to object1. Stand2. Be positive, i.e., certain you’re right.3. Start off w/ “Objection.”4. Be timely.5. Make sure your objection is understandable to the jury. (Hazel doesn’t agree

with the idea that you should never talk to the jury through an objection.)6. Get a ruling. (If it’s favorable, don’t thank the judge. But do make sure you get

an answer to your question! If it’s adverse, especially don’t thank the judge!! Don’t frown. Do make an offer of proof/bill of exception: must be done outside the presence of the jury, may be done via attorney or via witness, must be done with court reporter taking notes.)

C. If the other side objects while you’re questioning1. Stand2. Don’t say anything unless (a) the judge asks you for a response or (b) you fear

that the judge is going to rule against you.D. Eubanks v. Winn. An otherwise admissible business record. But within the record are

things that are inadmissible. 1. You are the opponent of that record. Approach the bench. Tell the judge that

there are parts of the record that are not admissible. You must be specific about which parts are inadmissible and on what basis.

2. Now you are the proponent. You should have prepared a version of the exhibit in which potentially objectionable stuff is redacted. You could then offer the redacted version into evidence.

E. Huckaby. Running objections. No rule authorizes them, but they are well-recognized. But you have to be careful. Even if you’ve gotten a running objection, if the same evidence comes back but it’s slightly different you’ll need a new objection. Therefore, running objections can get you into trouble.

F. To what do you most often object?1. Question whose form is improper.

a) Leading on DX/re-DXb) Compoundc) Assumes facts not in evidenced) Argumentative

2. Question seeks something inadmissiblea) Hearsayb) Repetitiousc) Calls for a narratived) Calls for a legal conclusion

3. Answer states something inadmissible4. [Behavior of opposing counsel.]

Examination of WitnessesVI. Hazel’s article

A. Bottom line

1. System. Our system is about trying to resolve conflicts in a just manner by bringing out the truth within the parameters of the rules. Truth and justice are essential, and any dispute resolution must be guided by them.

2. Trial. Adversarial dispute resolution. 3. Adversary. In the adversarial trial, it is the attorney, not the judge, who takes the

major role. Sometimes, attorneys eager to represent their clients adopt an “ends justifies the means” principle that is harmful to our system. To counter this, we have rules of professional responsibility, procedure, and evidence.

4. Texas adversary. Texas is approaching the general charge, but we still retain the special verdict. These questions to the jury that make up the special verdict are the best guide to the lawyer regarding what is necessary to prove his case or prevent the other side from proving its case. One should anticipate early on what the charge will likely be and use it as a guide for marshaling evidence, opening statement, closing argument, and voir dire.

B. The role of the judge and the jury1. Judge. Overseer. No independent role to correct errors not properly brought to

his attention unless manifest injustice is occurring. Governs the law of the case by deciding what law applies and then applying it to the jury’s verdict so as to render a judgement.

2. Jury. Texas juries play a large role and have a lot of latitude. Judge is forbidden to comment on the credibility of the witnesses. So long as the evidence is not overwhelmingly against the jury’s answer, they can’t be reversed. So long as there is some evidence on a matter to be decided - even if the contrary evidence is overwhelming - the jury must be given the question to answer. If they answer it incorrectly, the trial court or appellate court can only grant a new trial; neither can take the matter into its own hands.

C. Lawyer’s role1. Adversary. Persuasively present the evidence to get the answer the client needs. 2. Tools available

a) Direct communication. Only three time a lawyer properly communicates directly with the jury, and none of these involves presenting evidence:(1) jury voir dire(2) opening statement(3) jury argument

b) Indirect communication. Bulk of the trial is indirect - e.g., DX and CX. Here beats the very heart of the art of trial advocacy.

D. Self-preparation. Preparation is the key to winning trials. What do you have to do to be prepared?1. Law. Know the law of this case, i.e., what law will be in the court’s charge.

Begin preparation for every trial by trying to decide what the court’s charge is likely to be. It is the blueprint for your trial planning.

2. Evidence a) What is available? Through investigation and discovery, learn what is

available to you. Sift through it to find out what is necessary/helpful to get the answers your client needs. You must analyze and categorize what evidence hurts you and what evidence helps you.

b) Potential witnesses. Unlikely to find evidence neatly packaged. Rather, it usually comes through a witness who can talk about it. Know who can talk about what.

c) Exhibits. Some evidence which helps the jury answer questions comes in the form of exhibits. Some of these exhibits pre-exist the lawsuit. These are critical. Most exhibits, however, are created to help the jury understand the case and answer charge questions.

3. Problems. Once you’ve decided what evidence is available in the form of witnesses and exhibits, you must prepare for the admissibility or non-

admissibility of that evidence. You must prepare for this well in advance of trial to be sure that you get in what helps you and keep out what hurts you.

4. Prepare for both DX and CX. E. Direct examination

1. Rule: no leading questions. This is really the only rule. a) Exceptions.

(1) Hostile witnesses(2) Witnesses identified with an adverse party.

(a) Note: neither of these is self-announcing. The trial judge must be shown facts to demonstrate that a witness is hostile or identified with an adverse party.

(3) Adverse party(4) Background and preliminary matters(5) Predicate for an exhibit(6) Uncontroverted matters(7) Children(8) Mentally incompetent

2. What is a leading question?a) Suggests the answer to the witness. Look for things like “didn’t you?”

and “right?”(1) Hard leading vs. soft leading

b) Non-leading. Look for “who, what, where, why, when, how.”3. Problems with non-leading questions. Tendency to be vague (e.g., “Where were

you hit?” Answer could be “from the rear” or also “in the street”). Solutions to this are witness preparation and better phrasing (e.g. “From which direction were you hit?”)

F. Importance. Ability to ask non-leading questions and get the answers you need are critical. Otherwise, credibility of your case goes down the tubes.

G. Problems and Purpose of DX1. Problems

a) Boring. Tendency for this to be the most boring part of the trial.b) Unbelievable. Witness not believable.c) Incomplete. Lawyer leaves out critical information that only the

witness can supply. This creates a risk of a DV.2. Purpose

a) Legal requirements. Must be damn sure to know what you need to prove and get your witnesses to give you the facts necessary to prove it.

b) Credibility. Even if your witnesses get out all the necessary info, you’re hosed if they’re not believable.

c) Interest and persuasion. Even if you get out all your info through a credible witness, it’s worthless if the jury is asleep. Need to keep DX interesting.

3. Re-DX. Need to plan for this just like you plan for DX.a) Planned. Plan this just like DX. Rules are the same - no leading

questions. However, you probably will be able to lead here a little: (a) opposing counsel is so happy to have survived CX that he’s let down his guard; (b) everybody’s gotten used to leading questions after CX.

b) Clear-up. Clearing-up is not the only purpose of re-DX. First, if the CX was good, a witness might not even know that clearing-up is needed, so he won’t be able to help you much. Second, clearing up mud is negative. Often, it’s better to go back and highlight important stuff the witness said during DX rather than trying to clear up harmful stuff that came out on CX. Refocus the jury on what is important to your case.

c) When to avoid. Don’t re-DX if CX hasn’t hurt you. It just gives the CX attorney another shot.

H. Preparation1. Specific plan for each direct. Want to start out with a summary statement: What

do I need for this witness to say? After you write out the summary statement, consider admissibility problems w/r/t each of those statements. Once you’ve resolved these problems, go on to frame your DX questions. Think of your questions as verbal ques, i.e., directions to the witness to elicit the facts contained in the summary statement. a) Approach. Must be a beginning, middle, and end.

(1) Beginning. Ease the tension for the witness and humanize the witness for the jury (especially important to humanize a defendant). The first questions should not be threatening nor should they strain the witnesses memory. Name (“Would you please introduce yourself to the jury?”), address, and occupation are good starters.

(2) Middle (content). Have the witness give a “big picture” first. E.g., “Did you see the wreck on August 31?” “Please tell us what you saw.” Then you can back up and fill in the details and add to the credibility of the witness. This way, the jury knows what to expect and can follow the witness better. Let the jury know where the witness is going through “sign-posting” or “headlines.” This is especially important if the witness will be talking about several different important things.

(3) End. Good to begin strongly, but most important to end strongly. Save a good answer for the end, i.e., either something that really helps your case or that makes it difficult for the CX to get off to a good start.

b) Questions(1) Outline v. write out. Most young lawyers write out questions.

As they get more experienced, they go to outlines. Whichever you do, don’t read the questions.

(2) Write the answer first. Put down what you need the witness to say, then figure out how to formulate a question that will elicit this response.

2. Witness preparation. Direct relationship b/t this and the success of the direct. Witnesses can be over-prepared, but under-preparation is definitely the greatest danger. The DX attorney should be the preparation attorney; don’t have somebody else do this. Best done in as close to a real courtroom setting as possible. a) Prepare the witness to tell the story in his/her own words . You don’t

want the witness to sound like a lawyer. b) Key matters. Prepare the witness to know what is truly important in her

testimony. Go into these matters thoroughly. It is especially important to let the witness know how you will phrase the questions for these key matters.

c) Tell the witness not to be tentative. Destroys credibility and signals weaknesses to CX attorney.

d) Prepare for CX. Good b/c it helps you recognize some matters that might be good to bring out on DX. Have somebody else do the CX prep.

e) Prepare to introduce exhibits. Don’t want the witness floundering when you’re trying to introduce an exhibit through him.

f) Dress and demeanor.g) Logistics. E.g., where the courthouse is, where to park, where he needs

to be and when, observance of the Rule, etc.

h) Remind witness to tell the truth. Some witnesses aren’t sure that this is all you want. It’s a great relief to find out that this is all you want.

I. Ideal DX. Short and simple. Witness demonstrates credibility. Interesting, believable, convincing, and complete.

J. Things to avoid1. Words and phrases. Lawyer jargon such as “had an occasion,” “prior,”

“subsequent,” “vehicles,” etc.2. Lawyer-like questions. 3. Habits. E.g., shadowing, “alright,” etc.

VII. Class NotesA. Self preparation. Remember: the only person you can completely control is you.

1. Summary statement. What is this witness going to say? What do I want to make sure that I get out of him? A lot of what witnesses say is filler. Cut the crap.

2. Facts to be stated and the order in which they’ll be brought out. You must know the answer b/f the witness gives it. After you write this out, consider whether it’s admissible. Only then do you go on to frame your questions.

3. Questions as verbal ques. Think of your questions to the witness as directions to elicit the facts contained in the summary statement.

B. Witness preparation1. Don’t fail to do it. Direct relationship b/t witness prep. and success fo DX.2. Do it yourself. This is when you become the witness’s friend as well as his

lawyer.3. Do it in a courtroom setting. 4. Let somebody else do CX.5. Tell the witness not to be tentative. 6. Tell the witness that all you want is the truth

C. A DX should be short and to the point. 1. Beginning

a) Comforting. Get witness comfortable with jury and jury comfortable with witness.

b) Interesting. Bring out something (briefly) about the witness that’s unique and interesting.

2. Hearta) Early. Get to the point quickly in a nutshell. Let the jury know why

they’re listening to this guy. b) Fill-in. Provide details.c) Clear transition. Sing-posting.

3. Enda) Strongly. End on a point good for your side. End on a point from

which it is difficult to pick up and begin CX. D. Re-DX

1. Prepare for it.2. Return to something important. 3. Rehabilitation. If you must clear up, use leading questions. You’ll probably get

away with it.

Cross-ExaminationVIII. Ratliff’s Article

A. The Ten Commandments1. Be brief. Usually right, but not always. Sometimes it is the long and carefully-

crafted cross that has a devastatingly cumulative effect. So much depends on the mood of the jury. What is an appropriate length on Monday morning will be far too long on Friday afternoon.

2. Short questions, plain words. Almost no exceptions to this one. One exception: when a technical or scientific word is at the heart of the controversy and has

been explained the first several times it is used, it’s more natural to use that term.

3. Nothing but leading questions. Can look like bullying after awhile. Not critical to ask only leading questions if you have a solid control device. Most questions on CX should be leading, but it’s more important that they be short. Long questions encourage long answers. One fact per question is a good idea.

4. Never ask a question to which you don’t know the answer . Wrong. The rule should be “know the answer or be satisfied that you can handle whatever answer you get.” You should have a good idea about what you’ll do with any answer you get. If the answer is other than one you expect, be satisfied that (a) the answer really doesn’t matter, (b) you can impeach the answer, (c) you can later attack the answer with contrary testimony, or (d) the answer is inherently implausible. A good cross-examiner knows when to take a risk.

5. Listen to the answer. No exceptions. The only caveat is that you should also watch the witness. Body language can signal weakness, dishonesty, etc.

6. Don’t quarrel with the witness. Good rule, but too vague to be useful. Usually results from trying to get too much from the witness. Often results from questions that try to get the witness to characterize his own conduct. Instead of trying to get the killer conclusion from the witness, ask a lot of tiny fact questions that build up to an inescapable conclusion.

7. Never permit the witness to explain. Wrong. Makes you look like a bully. You can usually defer the explanation.

8. Don’t give the witness an opportunity to explain his story. Sometimes wrong. If you have a strong impeachment nailed down which destroys the story, let the witness tell it again and encourage the embroidery. If the witness is about to hang himself, don’t ration the rope. The real problem with an explanation during CX is that it breaks up your momentum. One way to deal with long explanations is to ask, “Which question were you answering?” The witness won’t likely recall, and it will be obvious to all that the testimony wasn’t an answer but a speech. Sometimes, these repeated evasions are even more damaging to witness credibility than a direct impeachment. Stay cool and call attention to a witness’s repeated refusal to answer fair questions.

9. Avoid the one question too many. Perhaps correct but of no help whatsoever. This commandment should read, “When you get a good answer, don’t start waving it around. Leave it alone.” Instead, drive the point home through (a) silence, (b) incorporating the answer into another question (e.g., “After you ran into Martha’s car, you had another beer, didn’t you?”), (c) asking the court reporter to mark his notes at that point and ask for a Q and A transcript for use during argument, and (d) working the admission into appropriate questions of other witnesses.

10. Save the ultimate point for summation. Wrong in most cases. Jurors start to lean early. It’s good to save something for summation, but it’s risky to hold much back. By the time you close, the jury’s preliminary conclusions, even if incorrect, will have become hardened.

B. The Ten Suggestions1. Don’t put on an act. Demeanor on CX should basically be the same as it was on

DX, just slightly more brisk and business-like. Only exception to this is if the witness is being a dick. Remember: the jury doesn’t know what you know. It may seem natural to you to “turn Doberman” on the witness, but this won’t seem natural to the jury. Don’t be hostile with a witness until its obvious to both you and the jury that it’s deserved.

2. Remember that the jury usually identifies with the witness, not the lawyer . Be very careful with sarcasm and ridicule. It may be justified, but you’ve got to be very careful with it. Use is sparingly, and when in doubt don’t use it at all.

3. Don’t let the witness run over you. You lose the jury’s respect. On a related note, don’t let a smart ass witness start asking you questions. (“Mr. Witness,

under the rules of procedure and the rules of this court, I am required to ask the questions and you are required to answer them.”)

4. Take advantage of the rocker effect. Start out with short questions which can only be answered yes. Then work towards a question on which you want an admission that you aren’t sure you’ll get. Once a witness starts agreeing, it’s hard to switch over and start resisting. The law of inertia applies here. Remember that the opposite is also true. Once a witness has disagreed with you, it’s easier to do it again.

5. Leading backwards sometimes works with a dishonest witness. 6. Emphasize a point by asking about things that did not happen. The idea is to

imagine a scene and think of all the usual reactions to the incident. Then develop ways in which the witness behaved implausibly (e.g., the flaming urinal).

7. Don’t interrupt to cut off answers you don’t like. Makes you look like a bully. You can avoid rambling answers by enthusiastically delivering short, rapid-fire questions. But this approach must be used without any hostility or the questioner will appear to be harassing and cutting off the witness. (Object if your opponent cuts off your witnesses’ attempts to qualify a yes or no answer on CX.)

8. Calibrate the CX to the witness. Some witnesses are just confused, frightened, and/or mistaken. You can impeach this witness by a technique that looks like refreshing recollection: ask about his prior deposition testimony (“When you gave your deposition you recounted the facts of this incident to the best of your ability, didn’t you?” “And those facts were fresher in your mind than they were now, right?”) and following up with the “stand by” question (“And you stand by that deposition testimony today, don’t you?”). Other witnesses are crafty and dissembling. Here, you have to put a little mustard on the impeachment.

9. Plan your cross carefully, basing it on your theory of the case. Your theory of the case is critical and should always be kept in mind. Don’t conduct a vigorous CX about lighting conditions if you’re only going to later admit that it was your client leaving the bookie joint. Planning the sequence of the CX can be tough b/c there are a number of considerations, some of which may conflict with others. a) “Piggybacking” or “hitchhiking” is using an opposing witness to

provide parts of your own proof, to narrow the area of dispute by admissions, and to authenticate parts of your case. The areas in which you are seeking admissions should generally be at the beginning of the testimony before your attempts to elicit more difficult issues have aroused hostility. If you are attempting to hitchhike w/out a backup statement or deposition for impeachment, you may fail and must be prepared, in such an event, with your own rebuttal testimony.

b) Good idea to begin and end CX w/ a strong point. Save a zinger - an answer in your favor that the witness has to give you - and use it on re-CX right b/f the witness is about to be excused.

c) It is usually more natural to begin the CX where the DX left off and simply continue the dialogue. Be sure to listen intently to the DX and note things to add to CX.

d) Proceed through CX either chronologically or topically. Skipping around in time is generally a bad idea. If a skip around technique is to be used at all, use it during deposition.

e) Local rules sometimes prohibit a witness talking to counsel during recess while CX proceeds. You may wan to ask for such a ruling from the judge. Whether or not you get it, it is a fair inference that the witness is being coach by someone if the testimony shifts noticeably after a recess. Call attention to the change.

f) Study your CX carefully. You need to know what escape routes a witness might take. Close the escapes early when it’s not obvious what is coming.

10. You may decide not to CX at all. If DX hasn’t hurt you, don’t CX. This is especially true if the testimony has been on formal proof or something routine and not really in controversy. But if the testimony is substantive, there is almost always some point to be made on CX. For example, hitchhiking may permit reinforcement of some contention of you own. Additionally, CX may give you an opportunity to emphasize the limited role of the witness, especially in the case of experts.a) One consideration in deciding not to CX: can the witness be called later

as an adverse witness and re-examined at a more appropriate time? You need to make sure that the witness qualifies as an adverse witness under the rules of evidence (otherwise you may be restricted to non-leading questions) and that the witness will remain available and subject to re-call.

b) Some lawyers fear that waiving CX makes the opponent’s case look good, so they conduct an “apparent” CX (Eastern Airlines). Bad idea.

C. Preparing for CX in the deposition process1. Simplify testimony and tie the witness down to certain points. This is especially

important with experts. If the deposition testimony is complicated and the witness rambles around, stop occasionally and get short answers capsuling what has been revealed in the ramble. Summarize frequently about what’s been said and get the witness’s agreement.

2. Be sure to accurately identify exhibits (by number) and show on the record what the witness is doing with markings.

3. Don’t let the witness slide off with equivocal answers.4. If there’s a chance that the witness will testify by deposition, you must get the

CX then or else risk not having any. This is especially true with experts. Since you learn a lot more about the case as discovery goes on, it might be a good idea to get a protective order so as to avoid taking the opposing expert’s testimony at an early stage in discovery. You could ask for a second deposition. But the judge doesn’t have to give it to you.

5. If you conclude that the witness will be available at trial, it’s a good idea not to give the script for all your CX during the deposition. Otherwise, the witness can prepare for your entire CX just be reviewing the deposition.

6. Don’t be afraid to get a negative answer during a deposition unless the witness is not likely to appear live at trial. Fishing around is usually pretty safe.

IX. Hazel’s ArticleA. Proposes an Eleventh Commandment: Ask a lot of picky fact questions.

1. They encourage short answers.2. They don’t invite explanations b/c they are limited to plain facts.

a) Avoid modifiers b/c they destroy plainness, e.g., “The investigation was extremely important to you, wasn’t it?”

3. They have a build-up effect.4. They let the jury reach the conclusion on their own.

X. Class NotesA. Many of the commandments are equally applicable to DX.

1. Be brief.2. Short questions, plain words.3. Never ask a question to which you don’t know the answer.4. Listen to the answer.5. Don’t quarrel with the witness.

B. Objectives of CX1. Negative CX

a) Attack credibility of witness on the stand.

b) Attack credibility of other witnesses in the case or the other side’s case in general.

2. Positive CXa) Corroborate your witnesses testimony.b) New matters - “piggybacking” or “hitchhiking.” Can take advantage of

Texas’s wide open CX.3. If you’re going to use both positive and negative, use positive first. But if you

get something really positive, you may want to stop there. No sense in destroying somebody who just really helped your case.

4. Don’t be a dick. Picture yourself with a scalpel, not a hatchet. C. Hazel’s suggestions for CX

1. Knowing the answer - variants.a) Know the witness knows the answer. b) Be able to not care what the witness will answer.c) Know how to handle a bad answer. d) It’s worth the risk.

2. Positive first, then negative (unless positive so good . . . .)3. Little Bitty Facts. No conclusions or characterizations. 4. Value of leading questions.

a) Control the witnessb) Forces you to know the answerc) Picks up the pace of the questioningd) Puts what you believe before the jurye) Gives no signal that you trust the witness

5. End strongly.6. Control the weasel.

a) Contract (but not generally a good idea)b) Ask for judges help (pretty weak, too)c) *Embarrass

ImpeachmentXI. Hazel’s Article

A. What is it? The very essence of negative CX. You are attacking the witness’s credibility. 1. Prerequisite for impeachment: the witness has hurt you.

B. Whom can you impeach? Anyone, including your own witnesses. Obviously, nobody wants to impeach his own witness (unless the witness turns on him). What if frequently done under the potential guise of impeaching one’s own witness is to draw the sting. This is more rehabilitation of impeachable matters than actual impeachment.

C. What can be done to impeach? 1. Bias. E.g., “You’re the plaintiff’s mother, aren’t you?”2. Prejudice. 3. Financial interest. Not that good of an impeachment anymore. Both sides have

experts who are highly paid. It could work, however, if the D is Mammoth Corp. and the witness you’re crossing is one of Mammoth’s employees.

4. Reputation/Opinion for untruthfulness. Have to lay background. Can’t go into specific instances.

5. Criminal convictions. But can’t be too remote: 10 years. 6. Prior inconsistent statements. The most popular and frequently the least

effective. Note: in Texas, depos defined as non-hearsay. Therefore, you don’t have to worry about using them as prior inconsistent statements. a) Prior consistent statement. This is not impeachment but is done to

rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

7. Polygraph. A forbidden method of impeachment in most jurisdictions.D. Impeaching with the prior inconsistent statement.

1. Type of statement. So long as the prior inconsistent statement is inconsistent with what the witness has just said on the stand and doesn’t relate to a purely collateral matter, that prior statement may be written, oral, signed, unsigned, etc. - it doesn’t matter. (Problems arise with oral or unsigned statements. Hopefully there is someone other than the attorney conducting the CX to authenticate that kind of statement.) Any prior inconsistent statement which is authenticated as the statement of the witness can be used to impeach. The authentication can come from the witness who made the statement or another witness. If authenticated by another witness, then the witness who made the statement must be available to explain or deny it.

2. Preliminary decisiona) Do you really want/need to impeach? If not, forget it. b) What is the importance of the prior statement? How you proceed with

your impeachment will depend on how you answer this question. If the prior statement contains evidence which is essential to your case, you will proceed one way. If the prior statement is merely inconsistent, you’ll go another way.

3. Steps in Impeaching: SOLDa) Sell the prior statement to the jury. You believe that what the witness

said in that statement was the truth, and you want the jury to believe it as well. Do this early, if not first thing, in your CX. That way, you don’t tip off the witness. You will need to have the witness (or someone else) authenticate the prior statement. If you have to have someone else do it, then you cannot read (or otherwise present) the prior statement to the jury unless the witness is still present to be able to explain or deny it. If you are impeaching with a deposition, you generally don’t have to have it authenticated.

b) Opportunity for the witness to tell the truth to the jury. This is not impeachment. You are simply seeking the truth. If the witness admits the truth at this stage, you’ve got evidence. Forget impeachment.

c) Last chance for the witness to tell the truth. Here, you are not asking the question the same way you did in the previous step. Now you are asking the witness to admit that this is what he said in the statement. At this point, you still haven’t shown the witness the statement; you’re just telling him the contents of it as required by TRE 613(a). You also have to tell the witness the time and place the statement was made as well as to whom it was made. Finally, you must give the witness an opportunity to explain or deny prior statement. The jury has not heard the prior statement (that you want them to hear) for a second time. Since this is part of the impeachment, if the witness admits that you’re right, you may not proceed with further impeachment using the extrinsic evidence. You won’t have evidence, only impeachment (unless it’s a party opponent). More than likely, though, the witness won’t agree with you.

d) Destroy the witness and sell the jury. This is the actual impeachment. You are not only destroying the witness but also selling the jury on the truth of the prior statement. Now they will have heard the prior statement for a third time. It is important to do this with some flair.

4. Typical method of impeaching:a) Commit. Bad b/c you’re repeating the very testimony that you don’t

want the jury to hear. b) Accredit. You’re tipping off the witness. He’ll know something’s up.c) Prove.

(1) Problems(a) Repeats bad testimony(b) Broadcasts to the witness what’s about to happen

(c) Improper to introduce the prior statement into evidence and let it go to the jury room

(d) Refreshes recollection but doesn’t impeach

RehabilitationXII. Prather’s Article

A. Attorney is aware of immaterial but damaging information in advance.1. Motion in limine

B. Attorney is aware of crucial and damaging information in advance.1. Confront the issue head on. If you are up front, the jury will not think you are

hiding anything and will trust you and your witnesses more. a) During voir dire, introduce the issue in the light most favorable to you.

(This has the benefit of enabling you to dismiss people who have a problem with that particular issue.)

b) Perhaps mention it again in your opening statement (but only if it’s central to your case; you don’t want to harp on your weak points).

c) Ask your witness about it on DX so he can give his version and clear up any inconsistencies.

2. CX attorney will likely harp on these things. This is where proper preparation is crucial. Stress to your witness the importance of being honest and explaining exactly why he left out certain things. This will help humanize the witness.

C. Attorney is aware of unimportant matters which the opposing side may or may not mention. 1. Often best to say nothing. Prepare you client that it might come up on CX. If it

does come up on CX, have a pre-planned re-DX to allow the client to explain. D. Attorney first learns of information during CX

1. All you can try to do is lessen the sting with a strong re-DX.

ExpertsXIII. Ratliff’s Article

A. Finding and preparing experts.1. Find the best. Unlike fact witnesses, you can choose your expert. No excuse for

putting on a bad one. 2. Go shopping for a good expert not a good conclusion.

a) The best experts won’t let you tell them what to say. Once a good expert arrives on his own at a conclusion that helps you, you’re set. There’s no risk that on CX it will be exposed that he stretched too far.

b) If you get a bad answer from more than one real expert, you might want to look to settlement.

c) The rules encourage lawyers to seek out good experts by protecting these early contacts as consultants. If the expert’s preliminary response is unfavorable, you don’t have to use him as a witness.

d) It’s a good idea to get the expert’s opinion of the case before you tell him which side you’re on.

3. The most effective experts are truly independent and have both academic and practical experience. You want the best of both worlds. However, as b/t the two worlds, jurors value the practical over the academic.

4. Finding expertsa) Lawyers who have tried cases similar to yours are probably the best

source b/c they know how the expert performed under fire. Plaintiff and defense associations keep registers of experts who have handled certain types of cases and are another good source. Also a good idea to check out nearby universities, trade associations, institutes, etc.

b) Don’t stop looking with the first person you find who seems to fit the bill.

c) Finally, don’t forget that the expert has to appeal to the jury. Better the good ol’ boy from A&M than the mega-nerd from MIT.

5. Screening. Find out things like whether all of the expert’s testimony has been on one side of the docket, whether he’s respected among his peers, whether his real expertise is related to your case, whether he’s independent and objective, etc. The ultimate test is whether the guy is willing to admit that there’s stuff he doesn’t know. When a sharp expert says, “I don’t know,” most jurors assume that (a) it’s not important and/or (b) nobody knows.

6. The expert’s publications can cut both waysa) One of the first things you need to do is review you expert’s prior

publications to make sure they are consistent with his position in your case. You also have to be concerned about prior testimony, speeches, and seminar papers as well. In short, anything your opponent could use to impeach.

b) Once you have reviewed the expert’s writings, it’s very effective to refer to them during trial. Repeated reference to the expert’s writings does two things. First, it reminds the jury that the premises on which the expert’s trial opinion are based weren’t created out of thin air for the trial. (Ratliff’s practice of “footnoting.”) Second, it reminds the jury that the expert is a recognized authority basing his opinions on generally accepted principles.

7. Preparation for DX a) If the expert is experienced, watch out for over-confidence. Make him

do his homework. If the expert is new to the game, don’t assume anything. Take time to explain how a trial works, who sits where, etc. The expert must believe that he is in good hands and that you have already helped him figure out all of the bad stuff that may come out on CX. He needs to feel comfortable and confident in order to testify effectively.

b) Get the expert to drop jargon, and help him to come up with homey but accurate analogies that will help the jury understand complex concepts. Listen for apt descriptions or catchy phrases and tell him to remember to repeat those things at trial.

c) Warn the expert that you’ll be interrupting him to control the flow and direction of DX. Interrupt and get plain language equivalents when he lapses into jargon. Remember that rambling testimony unnecessarily broadens areas for CX.

8. Preparation for CXa) Help the expert think about minefields by asking, “How would you

handle this question?” Good idea to do a mock cross, but have somebody else do it.

b) Tell expert not to be cute or flippant. c) Remind expert that a lot of the testimony may go over the jury’s heads.

They will primarily judge his demeanor. Therefore, it is crucial that the expert stay cool, speak confidently, and look at the CX attorney.

d) Work on demeanor. No arrogance, vacillation, smart-ass responses.e) Be satisfied that the expert’s core conclusion will not change except in

the face of the most extreme hypos. There are points at which even a solid theory will have to give if the hypothetical is structured the right way. Make sure you and the expert both know where those points are. Tell the expert not to evade or quibble. If they’re right, give it to them; but only if they’re right.

B. The DX in trial1. Don’t condescend to the jury. When something is complex, make the expert

give the explanation to you. Asking him to “turn and explain to the jury” sounds like the lawyer is saying “the smart doctor and I know a lot more about this than

you simple folk. We’ll try to explain.” Resist the temptation to show off the knowledge you’ve acquired. Let the expert teach.

2. Use mock cross. You’re anticipating the CX. E.g., “Dr., why didn’t you run a flexion test?”

3. Use a little showmanship. Models, blowups, transparencies, etc. all help. It’s a good idea to let a point be associated with your use of a certain exhibit or demonstration so that reference to it in jury argument will bring back a flood of recollection to the jurors.

4. Listen carefully to the witness. Expert may misspeak. Much better for you to correct it on the spot than to have it come up on CX.

5. Avoid live experiments. Murphy’s law applies. Better to video it. 6. Let the expert come down in front of the jury to explain a chart or exhibit . It

helps to “build” the exhibit by having the expert mark on it as he explains it. 7. Go from the simple to the complex. This does two things: (a) it lets the expert

cover familiar territory while he is getting used to the witness stand, and (b) it permits him to use his teaching expertise to bring the jurors up to speed so that they can follow him when he gets to more complex topics.

8. Bring in the credentials when they really count. Typical practice is to establish credentials with a long litany at the beginning of DX. More effective, however, to insert credentials when opinions related to them are given.

9. Confine the expert to his or her area of expertise. You don’t want a universal expert. (“That’s not my area, and I wouldn’t want to speculate on that.”)

10. Use only one expert per subject. If one expert is good, two are not better. Don’t have overlapping experts if you can help it. The problem is that you’ll get conflict. Expert 1 and expert 2 will agree on the major conclusion, but they’ll disagree about premises.

11. Be sure to bring out on DX that the expert is being paid and how much. 12. Be sure you can get what’s in the deposition or the report. I.e., the expert

should be able to say at trial exactly what he said in his deposition and/or report. Good idea to have him thoroughly review both.

13. The expert can talk about evidence that no one else can. If the expert has relied on information otherwise not admissible and it is of a kind ordinarily relied on by experts in the field in reaching conclusions, the rules permit the evidence to come in (e.g., opponent can’t keep out hearsay under these circumstances).

14. Avoid premature conclusions and reports. Discovery uncovers a lot of information. The bigger the body of information your expert can consider, the less vulnerable his conclusions will be. Thus, it si a good idea to avoid interim drafts or reports and early “final conclusions.”

15. Avoid deposing the adverse expert too early. Resist early depositions of your opponent’s experts. You won’t have the ammo for CX that you’ll have later in discovery. Avoid the early depo or else get an agreement from the other side that you can take a supplementary deposition shortly before trial.

C. CX1. Should you take the adverse expert on voir dire examination? Probably better

not to. It’s not all that hard to qualify as an expert. Better practice is to inform the jury as early as jury voir dire (and try to get the judge to instruct) what it takes to qualify as an expert. One way to do this is to let the jury panel know that probably every one of them is an expert on at least one thing. Later, CX vigorously on qualifications and then compare the experts’ respective qualifications in your closing.

2. Use the legs of the stool approach. Commit the expert to the proposition that if legs X and Y of the stool are knocked out then the stool can’t stand. Then knock out legs X and Y. (Don’t use stool analogy until closing.)

3. Let the adverse expert testify in areas outside his own. This is where the expert is likely to overextend himself.

4. Get the expert to admit that there is room for a good faith difference of opinion in the underlying scientific or technical field and w/r/t the ultimate conclusion. Find as much common ground as you can, isolating the areas in dispute. (Be prepared to impeach if the expert won’t acknowledge legitimate opposing theories.)

5. Review past testimony, publications, speeches, etc. for possible impeachment. Ask your own expert to assist you, both in finding published material and in finding weak points.

6. Investigate the resume. Sometimes it’s padded. This opens up CX possibilities. XIV. Class Notes

A. Concerns about whether one is an expert and can render opinions1. Is the witness qualified? This is for the judge to decide, and there are not magic

credentials. 2. Is the opinion relevant? This is for the judge to decide. However, there must be

an objection for him to be in a position to rule on this. 3. Is the opinion reliable? This is for the judge to decide. Daubert/Robinson.

However, there must be an objection for him to be in a position to rule on this.4. Are this witness and his opinions credible? This is for the jury to decide.

B. DX of experts. You need to do these four things. Not necessarily in this order, but all must be done.1. Qualify the expert and show that his methodology and conclusions are reliable.2. There must be factual bases for the expert’s opinion. But note: the expert need

not have perceived these facts himself. R. 703. Additionally, an expert may rely on facts that are not otherwise admissible.

3. Get the actual opinion. a) See notes for three different ways to go about this.

4. Get the expert to explain the basis of his opinion. a) Note: Don’t let somebody (even the judge) force you into stipulating to

an expert’s qualifications. If the judge insists on a stipulation, make an offer of proof.

C. CX of experts. 1. Positive

a) Use it to corroborate your experts. b) Use it to corroborate your case.c) Generalities.d) Critique of your opponent’s case.

2. Negativea) Credibilityb) Qualificationsc) Facts, i.e., show that the expert has no personal knowledge. d) Opinions, i.e., isn’t it true that PhD’s at Yale . . . .

Trial NotebookXV. Ratliff’s Article

A. General1. Organizes important materials for trial. Jurors punish disorganized lawyers who

delay and fumble. 2. Good checklist: the Standard Federal Pretrial Order. When you’ve done and

indexed everything it calls for, you’re well on your way to being prepared for trial.

3. Other helpful devicesa) trial bag: holds miscellaneous items b) trial handbook: a permanent notebook. Contains short briefs on

common evidentiary points, an outline of standard predicates, and authorities of general use.

B. Trial notebook tabs

1. Control tab. Contains ideas for further preparation, depos to be taken, research needed, assignments, deadlines, discovery schedule, phone numbers. Closer to trial, a Trial Schedule is added, which contains an estimated witness sequence. Good idea to keep “wild card” (unscheduled) witnesses and testimony to act as filler for unexpected moments. Good fillers are deposition excerpts, responses to discovery, and time and billing rate testimony.

2. Elements of proof checklist. List everything you will have to have in evidence to avoid a DV. Under each element, list the witnesses, documents, and discovery products that will establish that element. Then, on each of the individual witness pages, be sure the outline shows which matters will be covered by that witness and which documents are to come in through the witness.

3. Motions in limine. As you prepare, jot down everything you’d like to keep out. Before trial, include objectionable topics in a motion in limine. Present the motion b/f voir dire examination. When the judge rules, mark the motion as a reminder of what is included in the Order on the Motion in Limine. Remember: MILs are simply designed to keep the stink out of the jury box. A ruling in your favor on a MIL doesn’t keep anything out of evidence. It simply means that counsel has to bring it up with the judge outside the presence of the jury before going into it. Nor does a ruling in your favor on a MIL preserve error. If the order is violated, you must object to preserve error. (Contrast with a motion to exclude, rare in civil cases, which is a final ruling.)

4. Motions - general. Include notes for motions and, later, copies of the actual motions.

5. VD/ARG. Contains three pages: voir dire, opening, and closing. Set up your theory of the case midway through discovery. Jot down ideas as they come to you. Write out or make a detailed outline of the closing argument first. It dictates what will be covered in voir dire and opening and what testimony and exhibits you’ll need to include in evidence. Opening statement and voir dire should set up the closing. Preparing your closing argument first will force you to find a theme for your case and a short, pithy way to announce it. It will also force you to look at gaps in your own case as well as those in your opponent’s case.

6. Exhibits a) In a simple case, the actual exhibits can be filed here. More often, this

will be a list of your exhibits. If exhibit lists have been exchanged, make the same kind of list for your opponent’s exhibits.

b) List ROGs, RFAs, and stipulations which you want to be reminded to read into evidence (but, of course, not to introduce into evidence).

c) Keep score on the exhibit lists as to which exhibits are in and which are out. Include on a separate list the exhibits you may use if trial developments require it. Then check your list with each witness to be sure you’ve introduced all the exhibits you intended. Before resting, recheck the list and be certain that the judge and the court reporter’s notes agree with your own regarding which exhibits are in and which are out. Re-offer exhibits if there is any doubt about your having offered them.

d) In early preparation, use this as a place to jot down notes on important documents or physical evidence which you will want to put on the final exhibit list. (Remember the Rule of 10.)

e) Good idea to have all of your exhibits copied with exhibit numbers and given to opposing counsel and to the court.

7. Witnesses. Make four tabs in the most routine cases: Our Witnesses, Their Witnesses, Our Experts, Their Experts.

a) Early stages. Within each section there will be a single sheet with the witnesses name at the top. Jot down things you want from each witness and ideas for CX.

b) Near trial. Refine and type out the outline for each witness (a complete Q and A is too detailed). Be sure to cross check with your elements of proof checklist and your exhibit list so that all elements of proof and all exhibits are on somebody’s witness list. Cross reference your examination outline to the place where the witness is tied to the fact you want to elicit (usually a deposition). This outline is supplemented all through trial as new items are suggested by other testimony.

8. Authorities - evidence. Keep trial briefs on evidence points here. 9. Authorities - charge10. Authorities - miscellaneous11. Charge/trial pleadings. Keep all requested charges here. In addition to the

requests, you should have an overall outline of all jury questions (yours and theirs) which you would expect in a correct charge. This list will largely duplicate your proof checklist and will give you a quick guide to framing the closing argument in terms of the charge. Additionally, it will serve as a checklist for objections to your opponent’s charge questions.

12. Miscellaneous. Every case has some peculiar emphasis which requires a special file. Put that here. E.g., a time-line.

C. Trial bag contents (see article). D. Big equipment and stuff (see article).

XVI. Class NotesA. Organization of the Trial Notebook is fairly arbitrary. But here are some things you

should have in there for sure.1. Incident summary. Short narrative of what happened.2. Chronology. A list of dates. Helps you to see patterns.3. Pretrial matters. Put motions here that have yet to be ruled on. If they’re your

motions, you’d better get them ruled on b/f trial or else you’re likely to have waived them.

4. Pleadings. You only need the “live”pleadings. (The only time you’d ever want the old ones is if (a) the other side says you didn’t plead X originally and (b) the other side subsequently contradicts something that they had previously admitted.

5. Voir dire.6. Opening statement.7. DX - Our witnesses. Preparation for your DX. Write out the answers you have

to have and the questions you’ll need to ask to get them. Anticipate objections to your questions. Consider the order in which you’ll want to call your witnesses.

8. Exhibits. Keep a list of these and references to that you can find them quickly and easily. Put unnumbered stickers on the originals. Make copies of the exhibits for the court and the other side. Keep track of what was offered, who offered it, and whether it was admitted.

9. CX - Their witnesses10. Court’s charge. What know for sure what the court’s charge will be until the

evidence is closed. (Difference b/t resting and rebuttal). But you know what the charge will probably look like.

11. Argument. You should be preparing for this since day one. 12. Law/Trial briefs. Prepared in advance to argue (a) why your evidence should

come in and (b) why the other side’s evidence should not come in. Should be short.

Jury ArgumentXVII. Hazel’s Article

A. Procedure

1. Reading the charge to the jury. In Texas, the jury charge is in writing rather than oral, it is read to the jury before argument rather than after, the charge will be read to the jury again before they begin deliberation, and they are allowed to have a copy of the charge with them during deliberations. This is all very helpful b/c it allows an attorney to argue the charge and to make points that are positive rather than anticipatory.

2. Opening argument.a) Normally, P both opens and closes argument. b) Most common advice w/r/t opening argument is to stick close to the

facts w/out much emotion. The idea is that this will give little opportunity for objection. The other school of thought is to come out with both barrels.

c) Party who opens must do so fully. However, it is the defendant’s burden to force this. If P doesn’t fully open, D must - before beginning argument - object and move that the P be required to open fully. If this motion is not made, D waives the right to force P not to go into new matters during closing argument.

3. Respondent’s argument. This is the only shot you get, so you have to make your complete argument at this time. Most defense counsel explain to the jury that the P has a right to argue twice b/c of the heavy burden of proof placed on P. Further, they often ask the jury to make those responses to the P’s argument that they cannot make.

4. Closing/Rebuttal argument. Supposed to be only in reply to counsel on the other side.

B. Purpose1. Part of a whole. Persuasion doesn’t begin at closing argument; it must saturate

the whole case. Argument is the first thing you prepare and the last thing you do. It is with your prepared argument in mind that you plan for and conduct your DX and CX. Argument is the time you tell the jury those things that you didn’t (and probably shouldn’t have) told during your DX and CX.

2. Immediate action. The purpose of your argument is to inspire immediate action. You want the jury to go into the jury room and come back with the answers your client needs. If it could be compared to anything it should be compared to a revival sermon.

3. Particular jurors. a) You want to pitch your argument to those who are with you so that you

can give them ammo to use in the jury room to persuade those who are either undecided or against you. Real argument takes place in the jury room. But note: if they are to be able to carry it with them, it must be simple and easy to remember.

b) You also want to try to pitch your argument to the leaders. Pick them out during voir dire.

4. Hazel’s nine recommendations. a) Talk to the jury. Don’t read to them and don’t have crap memorized.

Talk to them as if you were trying to persuade a group of skeptical friends in their own living room. Speaking simply doesn’t mean speaking down to them. (Be careful of the often-encountered opposite problem: speaking above them.) Don’t attempt to imitate professional speakers. Just talk to them and tell them why they should answer the charge questions the way you want them answered. Note: this doesn’t mean that a little emotion isn’t a good idea. But any emotion has to be real.

b) Handling the facts. Don’t go over the facts witness by witness. You need to go over the facts, but you should come up with a new way of doing it. Using the charge as a guide is a good idea. Start with the evidence that is the most damaging and then proceed to the evidence

that overcomes the damaging evidence and supports the answer you want. End with the strongest statement from the strongest witness.

c) Sincerity. Must come through from beginning to end. We start with the decked stacked against us - we’re lawyers. More important to appear sincere than to be sincere. But note: if trial longer than half a day, almost impossible to appear sincere without also actually being sincere.

d) Analogies and stories. Connecting the facts to things that are familiar to the jurors is very helpful. Anything can be used here - biblical quotations, poetry, television, quotes, etc.

e) Practical pointers(1) Stand(2) Use visual aids. We do much more learning with our eyes

than with our ears. During jury argument you can use every visual aid (exhibit) that is in evidence or that was used for illustrative purposes. You can use anything during jury argument - even things not in evidence - so long as they don’t inject any new evidence. Good idea here to have a transparency or PowerPoint version of the charge so that you can refer to it and fill in the answers you want them to give. Remember per diem jury argument as well.

(3) Eye contact. Don’t pace. Look them in the eye when you argue.

(4) Voice changes. Monotone bad.(5) Territory. Don’t encroach on the jury box. If for some reason

you feel like you need to get close to them, have a reason for doing it such as showing them a picture.

f) Anticipate questions and problems. Shadow jury, spouse, etc.g) Use arguments made by others. Adapt, adopt. But be careful: some

things which are right for others aren’t right for us. Be sure whatever you do fits your personal style.

h) Texas legal no nos(1) Not allowed to tell jury the effect of its answers(2) Not allowed to argue factual matters which are not in

evidence, unless that matter can be fairly considered common knowledge.

(3) Not allowed to attempt to inject or call upon any sort of prejudice.

(4) Not allowed to ask jurors to step into the shoes of your client, i.e., no Golden Rule argument. However, there is nothing wrong with asking jurors to apply the golden rule.

(5) Not allowed to argue any law except that contained in the court’s charge

i) Challenge. Can be dangerous. But can also be very powerful if there’s not an answer. Extremely dangerous to issue a challenge if you’re the D with only one chance to argue.

XVIII. Class NotesA. Principles

1. Talk to the jury.a) Don’t read, don’t memorize, don’t use notes.

2. Respect the jury’s space.3. Sincerity/trustworthiness4. Analogies5. Visual aids6. Challenge

B. Preserving error in jury argument

1. Object timely and specifically.a) If judge overrules, you’ve preserved error.b) If judge sustains, the error is cured unless you request an instruction to

the jury to disregard.(1) Problem: Requesting such an instruction risks drawing

attention to what you want ignored. But bottom line is that is that if you don’t request an instruction you’ve waived error.

2. Some arguments so bad that they’re incurable. a) Here you must object at some time:

(1) When argument is made(2) During motion for new trial