Deck 1

Question 1

Motion in limine

Answer 1

Asking court to rule on whether or not something can be introduced into evidence before the trial.

Question 2

When is the jury charge conference?

Answer 2

Between defense resting and closing.

Question 3

Pattern jury charge

Answer 3

Put together by a committee of lawyers, law professors, and judges. It carries a lot of force. Likely to get in the charge you want if it is a pattern jury instruction.

Question 4

When are jury charges finalized?

Answer 4

Not until after all the evidence has been admitted.

Question 5

If you think someone did something wrong, but you don’t know what, what can you do?

Answer 5

You can look through the jury instructions. If you know what test at the end of the trial is going to be, then you can base all your actions on what that test is.

Question 6

Cases vs pattern jury intstruction?

Answer 6

When looking at cases, focus especially on cases from after pattern was published to see if anything relevant has changed.

Question 7

What is summary judgment based on?

Answer 7

Only on undisputed admissible facts. There has to be no genuine issue of material facts.

Question 8

Where do you find undisputed facts?

Answer 8

Admissions in pleadings, documentary admissions, deposition admissions, and indisputable facts (unassailable third parties, items opponent has no way of contradicting).

Question 9

What should you do when not arguing at trial?

Answer 9

Listen. Take notes. Figure out what needs to be responded to and how to respond to it.

Question 10

Summary judgment record

Answer 10

Closed record for summary judgment hearing. Attach affidavits when summary judgement motion is filed. Also attached to response. No oral testimony for summary judgment. There can be arguments over what is admissible.

Question 11

If person 1 files saying light is red and person 2 doesn’t file saying light is green, the…

Answer 11

It isn’t in dispute in a civil case. In a criminal case you need a trial to figure out factual disputes.

Question 12

The longer the trial, the more important the…

Answer 12

opening and early evidence. What you introduce weeks later is likely to late. People are never impartial for longer than they have to be.

Question 13

X increases with repetition?

Answer 13

Memorability increases with repetition. No good orator makes a point only once. The able trial lawyer develops many techniques to employ the law of frequency.

Question 14

read vs hear vs see vs see and hear?

Answer 14

We retain 10% of what we read, 20% of what we hear, 30% of what we see, and 50% of what we see and hear.

Question 15

Should illustrative aids be used?

Answer 15

Yes, whenever possible in coordination with verbal exposition.

Question 16

Argument order (H) aka Stance

Answer 16

If facts work in your favor, use them. If they don’t (or you don’t know them), then redefine the terms. If that won’t work, accept your opponent’s facts and terms but argue that your opponent’s argument is less important than it seems. If that doesn’t work, say the discussion is irrelevant.

Question 17

What wins the day most of the time?

Answer 17

how you define the issue.

Question 18

Redefinition

Answer 18

Don’t automatically accept the meaning your opponent attaches to a word. Redefine it in your favor.

Question 19

Definition jujitsu

Answer 19

Accept your opponent’s terms and its connotation, then defend it as a positive thing.

Question 20

What terms should you use?

Answer 20

Ones that favor you while putting your opponent in a bad light. That means using words that already carry a big emotional throw weight with your audience. These are commonplace words. Find the commonplace words that appeal most to your audience.

Question 21

Framing

Answer 21

Find the persuadable audience’s commonplaces and define the issue in the broadest possible context that works for you.

Question 22

Casuistry

Answer 22

When presented with a new case, find a standard case where we’ve alreadyed reached an agreement. The create a taxonomy. Ask how close the standard case comes to the new one. Find the breaking point where it is no longer relevant.
new case: Steroids for healing injuries.
Standard case 1: Tommy John.
Standard case 2: Barry Bonds.
Which case is more similar.

Question 23

How should you be before every argument before a judge?

Answer 23

Prepared, know what your talking about, care what your talking about.

Question 24

How formal is a motion in limine?

Answer 24

Fairly informal due to time pressure. But it is very important. The jury is waiting. This is typically right before trial (voir dire).

Question 25

Impact of successful motion in limine?

Answer 25

It shifts the burden. To bring it up now, the other side has to approach first. If they forget or if it comes out by accident there can be a mistrial.

Question 26

Does a motion in limine presevere error?

Answer 26

No. You still have to object before it comes out if the other side has not been blocked from speaking, and if you have been blocked from speaking you still have to raise the issue at trial.

Question 27

Effect of motion in limine?

Answer 27

Just a preliminary ruling. Granted to the exgtent that you have to ask permission at trial. It is not being excluded or permitted. Just stating that a limiting instruction won’t cure it. Even if blocked initially, it can still come in later.

Question 28

Discovery dispute (motion to compel)

Answer 28

You serve discovery request. You don’t think you’ve gotten everything your entitled to. You file a motion to compel to get it.
You have to develop evidence against the other side (sent emails, made phone calls, etc.).
You have to narrow request to what you really want/need. Anything you can do to convince the judge you are not bringing something frivolous to the court should be done.
Courts tend to hear these as playgrounds, childhood fights.

Question 29

Jury charge conference

Answer 29

Typically not on the record. Discussed at lunch or end of day. Everything is figured out by formal charge conference.

Question 30

Lawyer as a waiter

Answer 30

Two chefs for one patron (judge). ONle one chef (client) gets paid.
You’re doing everything in the patron’s home, with their rules and expectations.
Try to understand the judge’s point of view. If you were them how would you solve the problem?
When the judge starts to talk, immediately stop talking. Give the judge room to interrupt you. Be appreciative during interruptions.
Answer the judges questions. They’re the most important thing.

Question 31

How should you appear to the people you want to persuade (virtue)

Answer 31

You want to appear to hve the “right” values aka your audiences values.
It is indecorous to stand in judgment of the pople you want to ppersuade. You don’t want to stand apart from them. You want the audience to consider you the epitome of the company “us.” Turn the other side into “them.”

Question 32

What is a motion in limine and why would you use one?

Answer 32

Written request, filed before jury selection, argued before jury selection, to require your opponent, to frain from introducing testimony or an exhibit, or referring to evidence in opening or voir dire, without prior consent.
Why? Evidense is so prejudicial that once heard by the jury no limiting instruction by the judge can cure, winning a motion in limine provides a good chance that trial judge will exclude the evidence, other side may forget or decide not to try to introduce it during trial, prevents opponent from using in opening statement

Question 33

Motion in limine vs objection

Answer 33

MiL is written, objection is oral
Mil does not exclude evidence and objection does
MiL is not a final ruling, an objection is
MiL does not preserve error, an objection does

Question 34

When do clients need advocates?

Answer 34

Clients don’t need advocates for easy agreements.
The audience is hostile to the issue
The client shouldn’t be the messenger
Concerns about trust
Higher stakes
Narrow window for persuasion
Leveraging relationships
Leverage integrity for force multiplier

Question 35

Why are you speaking and not the client?

Answer 35

The client has something to hide, the client has previously been usuccesful in persuasion, client has credibility issues, client wnants to bolster credibility through you, this is not client’s area of expertise

Question 36

Cicero’s steps

Answer 36

1) change the mood (stimulate your audience’s emotion)
2) change the mind (you can change an opinion much easier than changing a belief
3) Inspire action (fill the audience with a desire to act)

Question 37

Do people arrive at beliefs on a whim that allows them to be easily persuaded?

Answer 37

No. It’s the product of lfie experiences, independent research, cohort influences, and values and principles

Question 38

How to change the mood of a hostile/unreceptive audience

Answer 38

• 30 minutes early, not 1 minute late
• No lead ups or wind ups
• Never minimize or use analogies that demean the gravity of the issue
• Prolonged eye contact: do not read
• Try to gradually reduce the temperature with slight warm smile, earnest engagement in the issues
• Serious > passionate > pleasant

Question 39

How to change the mood of a neutral audience

Answer 39

• Warmth; you want to be here
• You are here to help
• You want to engage in a Shared Struggle to solve a problem
• Professionally appropriate smiling
• Open gestures
• Light tone
• Inspiration
• Self-depricating humor

Question 40

In order to meld one’s argument to the values and beliefs of the various audiences,

Answer 40

the speaker must understand their concerns and work to meet or at least address their disparate interests.
Creating this psychic connection between the speaker and the audience is the central, unifying theme of Rhetoric

Question 41

Sincerity

Answer 41

Be the lawyer the jury wants to follow, be yourself, be open, be professional, deliver on promises, admit weaknesses, fight for your client’s cause.

Question 42

To persuade…

Answer 42

you must be persuadedto

Question 43

to project sincerity

Answer 43

you must be sincere

Question 44

If you do not believe in your case and what you are donig…

Answer 44

your body and your voice will betray you no matter how you try to mask them.

Question 45

Structure of argument

Answer 45

Set your goals and the argument’s tense: Past, present, or future.
Think of whether you want to emphasize character, logic, or emotion
Make sure the time and medium are ripe for persuasion

Question 46

Framing techniques

Answer 46

First, find audience commonplaces that favor you.
Next, define the issue in the broadest context–one that appeals to the values of the widest audience
Then, deal with the specific problem or choice, making sure you speak in the future tense.

Question 47

Ethos

Answer 47

Caring for your audience, common sense, disinterest

Question 48

Three qualities of ethos

Answer 48

virtue: The audience believes you share their values
Practical wisdom: aka street smarts–you appear to know the right thing to do on every occasion
Selfessness: aka disinterest–the audience’s interests seem to be your sole concern.

Question 49

What does it take to be rhetorically virtues?

Answer 49

That’s because a person who upholds the values of a group is rhetorically virtuous. This kind of persuasive virtue does not require purity of soul and universal goodness. You don’t even have to do what your heart knows is right; you simply must be seen to have the “right” values—your audience’s values, that is.
It is indecorous to stand in judgment of the very people you want to persuade. You don’t want to stand apart from them. You want the audience to consider you the epitome of the company “Us.” So you turn the regulators into “Them”—the judgmental types who’ll screw everything up.

Question 50

How to change the mood for a hostile/unreceptive audience

Answer 50

If it is serious, get their with seriousness “we all agree that this is important”
Prolonged eye contact
Try to grdaually reduce the temeprature with slight warm smile, earnest engagement in the issues

Question 51

How to change mood of neutral audience

Answer 51

For a neutral audience
Warmth; you want to be here
You are here to help
You want to engage in a shared struggle to solve a problem
Professionally appropriate smiling
Open gestures
Light tone, inspiration, self-deprecating humor

Question 52

Three parts of persuasion

Answer 52

Persuasion
Ethos - the emotion
Pathos - that who you are, and your character is important to what you are saying
Logos - the logic

Question 53

Tense for arguments

Answer 53

Prosecutors and plaintiffs lawyers use the PAST tense in their arguments because the D did X and its immutable.
Civil and defense lawyers are thinking about the FUTURE. New start, the future can talk about hope, and the future can change
And then the language of getting people riled up - the PRESENT tense
“We right now ___”

Question 54

Narrative for direct examination?

Answer 54

“Narrative” is forbidden when you are doing direct examination.
The witness must respond to your non-leading questions one at a time.
The witness must speak from personal knowledge.
The witness who strays from the observable “facts” courts a double danger: the opponent’s objection will be sustained, and the opponent gains fuel for cross-examination.

Question 55

Rules of evidence during depositions?

Answer 55

When we take depositions, the rules of relevance are relaxed and we are often permitted to examine using leading questions.

Question 56

What do you want to bring out on direct examination

Answer 56

We must avoid setting up the witness for needless objections and cross-examination. In both aspects, we are doing anticipatory deconstruction, breaking down the witness’s story into testimonial elements while at the same time critically examining each piece of it to determine how it fits with our whole story and how it can be made persuasive and attack-proof.
You want only those parts of the witness’s story that bear upon the case you are trying.

Question 57

How to prepare witness?

Answer 57

You must make the witness comfortable with what they are to do. You must also prepare yourself to serve as an intermediary between the witness and the trial of fact.
Always ask if witness has a religious object to swearing the oath and if they would rather affirm that they will tell the truth. If the answer is yes, work it out with the clerk beforehand.
Learn your witness’s special qualities, and integrate them into the direct examination (ex. Certification, training, etc.).

Question 58

What should direct look like?

Answer 58

Name. Where they’re from. How long they’ve been there. What do you do for work? Do you know why your here? Why is that? Consider asking a question or two that sum up what the witness is going to say. Then get into evidence.

Question 59

Proof by a series of live witnesses is…

Answer 59

Proof by a series of live witnesses is inherently disorderly. Unless you constantly provide guidance, the testimony and exhibits will seem disconnected from each other.

Question 60

How to keep testimony orderly?ing

Answer 60

A loop is a repetition of a part of a previous answer to underscore the answer and to help guide the witness to the next event.

Question 61

Prologue

Answer 61

Sets out themes in advance.

Question 62

Transition

Answer 62

A statement or question that signals a change in the subject matter

Question 63

Loop example

Answer 63

On that day, did you go to a village? What time did you go to the village? Did you see him? Where did you first run into him?

Question 64

Prologue ex.

Answer 64

Ms. Jones, I am going to ask you first to tell us about yourself, then to show us where you were standing at the intersection on December 4, 2000, and finally, to tell us what happened.

Question 65

Transition + quick question ex.

Answer 65

Before you tell us just what happened that day, tell us about yourself; do you live here in Tuscon?

Question 66

Talk and walk?

Answer 66

No. You are throwing away your words in the bustle of movement.

Question 67

Turning back on someone?

Answer 67

Don’t turn your back on the jury-or anybody else–unless you mean to. Backpedal if you have to.

Question 68

Making a list for examination?

Answer 68

Make it if you must. Then get free of them, so that you frame your questions in the context of what is going on and taking account of the answer just received.

Question 69

What should you think in terms of for examination?

Answer 69

Paragrpahs. Have a topic question for each paragraph and use loops when appropriate to tie the ideas together.

Question 70

What is the most difficult problem in direct examination? Solution?

Answer 70

The most difficult problem in direct examination is to divide the action into a series of nonleading questions that do not call for uniterrupted narrative. The secret of doing this is to imagine each paragraph as a picture you want to convey to the jurors. The divide the picture into as many aspects or items of information that are necessary to avoid narrative.

Question 71

Steps of a trial

Answer 71

Motion in limine, voir dire, opening statement, plaintiff/prosecution case in chief, motion for judgement as a matter of law/motion for aquittal, defense case in chief, plaintiff rebuttal case, final jury charge conference, closing arguments, jury deliberations, verdict, judgment.

Question 72

How do you admit most exhibits?

Answer 72

Through your own witnesses

Question 73

Four laws of adocacy

Answer 73

1) primacy, 2) recency, 3) frequency, 4) vividness

Question 74

Primacy

Answer 74

What we hear first is important because it colors our thinking, commits us to positions, and heavily determines the way we will later interpret evidence.

Question 75

Recency

Answer 75

What we hear last is most memorable.
What is easy to recall has a greater impact on our final decision.
Law and psychology recognize importance of the “last word” as party with burden of proof has the final argument

Question 76

Frequency

Answer 76

Memorability increases with repetition, good trial lawyers want the jury to see and hear strong evidence more than once, looping, demonstratives, and opposing objections help highlight strenghts.

Question 77

Vividness

Answer 77

10% of learning comes from hearing; 85% through our sense of sight. 10% of what we read, 20% of what we hear, 30% of what we see, but 50% of what we see and hear.

Question 78

What goes back to jury room?

Answer 78

Testimony usually doesn’t go to jury room with them. Exhibits can be brought back.

Question 79

Evidence

Answer 79

Testimony and exhibits. Part of the record

Question 80

Demonstratives

Answer 80

PowerPoint, video montage, excerpts of admissible evidence, notes on flip chart made during trial.
Only displayed to jurors. Not part of the record.

Question 81

Most evidence in civil trials?

Answer 81

documents

Question 82

Most evidence in criminal trials

Answer 82

tangible items

Question 83

Should you get creative when it comes to foundations?

Answer 83

No.

Question 84

What are exhibits and foundations

Answer 84

They are force mutliplies. They are a great way to ehibit competence to the jury. Exihibits are vivid. They give the jury something to look at and hold. Your gonna better remember what is said just after something like a murder weapon is introduced.

Question 85

What has to be done before admitting something into evidence?

Answer 85

You have to lay the foundation

Question 86

Charm

Answer 86

A charm is a type of spell concerned with giving an object new and unexpected properties. In the courtroom, we call these incantations foundations.

Question 87

How to start laying the foundation

Answer 87

1) do you recognize this? 2) What is it (all without saying what the content is)? How do you know this is what it is?

Question 88

Do you have to do every exhibit individually?

Answer 88

Not if they are all the same type of exhibit with the same foundation.

Question 89

Steps for admitting exhibit?

Answer 89

1) Mark the exhibit with an identification number.
2) Show the exhibit to opposing counsel (giving them opportunity to object, also demonstrating strength and transparency to jury)
3) show it to the witness (“I am showing you what has been marked as State’s exhibit number 1.” “Do you recognize State’s exhibit number 1.”)
4) Lay the foundation (e.g. ask a series of specific questions tailored to the type of exhibit.”
5) Offer the exhibit into evidence. “I offer State’s exhibit number 1).
6) Publish
7) Discuss and use the exhibit with the witness after its admission.

Question 90

MIAOW

Answer 90

Mark, identify, authenticate, offer, witness

Question 91

Do you have to ask permission to approach the witness?

Answer 91

Depends on the jurisdiciton, but often.

Question 92

What to do as oppsoing counsel when other party shows you exhibit they are trying to admit

Answer 92

Make sure it is what you expect it to be (no handwritten notes, etc.)

Question 93

cognitive coping strategy need for protection

Answer 93

Our primal need for protection gives rise to the belief in a just world. This cognitie coping strategy leads us to assume that good things happen to “good” people and bad things happen to “bad” people because that’s how the world out to work.

Question 94

Cognitive dissonance

Answer 94

Psychological discomfort caused by an inability to resolve inconsitencies within our deeply held attitudes and beliefs.

Question 95

What do we we do with life’s ambiguities and injustices

Answer 95

We often choose to eliminate life’s ambiguities and injustices by convincing ourselves they simply don’t exist.

Question 96

What happens when jurors are confronted with evidence that a seemingly “good” defendant has committed a serious crime? Implications?

Answer 96

They experience cognitive dissonace. Since “good” people don’t do “bad’ things in this imaginary just world, jurors find it difficult to reconcile this belief with the facts of the case.
If we represent a criminal defendent the jurors are likely to perceive as a “good” person, we hae a distinct advantage at trial. Not only does the criminal burden of proof work in our favor, jurors may also refuse to believe that our “good” client behaved “badly” enough to merit conviction.
The fact that an innocnet young women could be raped or murdered by seemingly “good” men is incongruous with the notion of a jsut world and the illusion of control. If attractive men who appear too “good” people can commit such awful crimes, how can jurors–particularly female jurors–ever be safe from sexual predators if they’re unable to identify these “bad” men.

Question 97

What do jurors do when they sense a threat to their own safety or well-being

Answer 97

whether real or imagined, they’re often motivated to respond in one of two ways: 1) they may simply disregard the threatening evidence; or 2) they may alter their perceptions of the evidence to make it more consistent with what they believe or want to believe is true.

Question 98

When publishing evidence, what do you need to ask court for permission to do? What do you just do?

Answer 98

Permission: When you need the court’s assistance (lighting, projector), leaving witness stand, displaying physical evidence to the jury.
Just do it: Working with the witness, digital exhibits, connected courtroom.

Question 99

Should you show exhibit immediately or at the end of your witness testimony?

Answer 99

Immediately: Haing witness read/emphasize/explain, evidence explains testimony, evidence corroborates testimony.
Later: Prior to passing the witness to thwart primacy impact of first questions on cross-examination (people will look at exhibit instead of listening to first questions on cross). If done to you (Your honor can I take a minute to let the jury finish looking at the exhibit, or turn off the camera).
Note: If you want them to listen to you and not look at something, don’t give it to them until after you’ve said what you wantthem to hear.

Question 100

Types of exhibits

Answer 100

Can include things that offered, admitted, and not admitted items of evidence. This includes demonstratives.

Question 101

Should you mark and offer exhibits even if you know they won’t get in?

Answer 101

Having a witness darw a diagram in court. You get an exhibit sticker, ask if it is a fair and acurrate diagram, then you mark it as an an exhibit. Opponent objects and sustained. it can go to court of appeals to detemine if it should have been admitted. It doesn’t go to the jury though.
mark it, and offer for admission, but denied. What happens if you don’t do this? The person on cross can physically edit the diagram. It becomes untouchable once marked, even if it doesn’t get in. An exhibit has to stay in its preserved form.

Question 102

Three categories of information

Answer 102

Things, exhibits, and evidence (which includes some exhibits, plus testimony)

Question 103

Things created by lawyers

Answer 103

Things created by lawyers to persuade are not evidence.

Question 104

Things created by witness (or lawyer with witness)

Answer 104

Can be evidence.

Question 105

What do you do if a witness makes a gesture

Answer 105

Narratre it. The gesture can’t be marked as an exhibit

Question 106

What can jury do with demonstratives?

Answer 106

Jury can look but can’t take in for deliberations. Not part of the record. Use of demonstartives are at the discretion of the judge.

Question 107

Regular witness

Answer 107

Can talk about general knowledge. Can’t talk about hearsay or speculate. Can only talk about what is in their personal knowledge.

Question 108

Expert witness

Answer 108

Expert witness: Rules 703-705. Can rely upon facts or data that is inadmissible, can testify about ultimate issue in the case, can testify about opinion without first testifying about underlying facts or data.

Question 109

testifying vs consulting expert

Answer 109

Testifying experts do not keep secrets. Everything you tell them, pay them, etc. is discoverable.
Consulting expert: Use consulting experts to brainstorm. Then sanitize the information that goes to the testifying expert.
We use consulting experts to help with the case, and testifying experts to teach. Their is a line between the two that we typically don’t cross.

Question 110

Benefit of using demonstratives

Answer 110

When an expert uses a demonstrative they seem more credible.
A lawyer who uses demonstratives like a power point seems more prepared.
Experts appear better reasoned when they have a demonstrative.
Witnesses seem more truthful with demonstratives

Question 111

What does testimony need to be?

Answer 111

Credible, invulnerable to cross-examination, and memorable.

Question 112

When you have a witness who has baggage, what should you do?

Answer 112

When you have a witness who has baggage, acknowledge it. Ex. You’re representing a prostitute who’s been raped, talk about them being a prostitute. The other side is going to bring it up anyway.

Question 113

Attributing good vs bad things to ourselves and to others

Answer 113

If something good happens to me, I attribute to hard work or something justifying the good outcome.
If something bad happens to me, it’s not my fault.
But if something good happens to others I am less willing to give them the same credit as I give myself because it makes me insecure.
If something bad happens to someone else, it’s either: their fault, or they’re a bad person and deserved the outcome.

Question 114

Fundamental attribution error

Answer 114

When other people experience bad outcomes, we tend to overemphasize the role of their personal or internal attributes when deciding what caused the outcome. Victim must have done something to deserve their bad outcome.

Question 115

Can jurors in the same trial have different understandings of what the facts are? What do you do about this?

Answer 115

Two jurors in the same trial hearing the same evidence can have an entirely different understanding of “the facts.”
“Facts” are little more than the intensely personal, inevitably subjective, and occasional impaired perceptions of one individual.
In order to meld one’s argument to the values and beliefs of the various audiences, the speaker must understand their concerns.

Question 116

What should you do with gray areas?

Answer 116

Frame gray area: Why are prostitutes more likely to be raped? Because nobody will believe them. Why use the philanthropist to make illegal financial actions? Because everyone trusts them.

Question 117

In order to meld one’s argument to the values and beliefs of the various audiences…

Answer 117

the speaker must understand their concerns.
Does your case theory require the judge or jury to reject a belief in how they have experienced the world their entire lives?
How can you frame the experience of your client to be consistent with your audience’s deeply held belief system?
.

Question 118

You should make things…

Answer 118

simple

Question 119

Cauldron of evidence

Answer 119

Take your witnesses’ testimony, your opponents, all exhibits into one big cauldron. Consider these “facts beyond change” or “indisputable facts.”
The critical thing you must understand is that jurors view a case as a whole–not “your” facts and “your opponent’s” facts.
You must consider this entire cauldron your case.

Question 120

How to make witness comfortable?

Answer 120

Take every opportunity to reassure your witness you will care of them. But don’t look like you are parenting them. One way to do this is by being ready. Show your witness that you are ready and that everything is going to plan.

Question 121

What to do if you physically trip?

Answer 121

Try not to trip. But if you trip, laugh at yourself.

Question 122

Central theme vs indisputable facts?

Answer 122

Your central theme must never contradict even one of these indisputable facts.
Your theme must account for all the indisputable facts (even the ones that are bad for you).

Question 123

Stress the…

Answer 123

Stress the simple. Jurors look for that one explanation that best reconciles the greatest number of discrepancies.

Question 124

Should you make the case bigger tahn the facts?

Answer 124

Make the case bigger than its facts.
Make your case stand for a principle that is important to the jurors. Find an emotion that resonates with your audience.

Question 125

What should be one of the first questions you ask a witness when prepping them?

Answer 125

What questions do you not want to be asked? What are you worried about?

Question 126

What does the jury do when you object?

Answer 126

People pay attention when you object. In responding to objection you have a chance to advocate for importance of what is being objected to.

Question 127

Deliver during objection

Answer 127

An objection is a statement. Not a question. Sound confident. [If not sure, just say improper question/answer]. It is declarative, confident, and definitive.

Question 128

Who do you adress when objecting?

Answer 128

the judge not opposing counsel.

Question 129

Simple and direct objection

Answer 129

1) Simple and direct (objection: leading). The most formal. Use at beginning of trialor in hearings outside the presence of the jury.

Question 130

Politely apologetic objection

Answer 130

2) Politely apologetic (“Your Honor - I’m sorry to interrupt; I just need to ask if we can returnto Question and Answer format?”) The most casual. Experienced lawyers use this so they don’t feel like they are obstructing the jury.

Question 131

Forceful and indignant objection

Answer 131

(Objection! Counsel knows this is improper).

Question 132

Non verbal objection

Answer 132

(before you even say “objection” you are standing up and/or placing your hand in a “stop” sign to the witness to prevent the witness from answering.

Question 133

Steps to making an objection

Answer 133

Step 1: Stand up (be seated on the edge of your seat when you might have to object).
Step 2: Before the witness answers, strongly say: “Objection.”
Step 3: State ground for the objection. Do not elaborate (that is called a “speaking objection”).
Step 4: Wait. Stay standing. Do not say anything else.
Step 5: Obtain a ruling or elaborate if invited by the judge - either by express request or by eye contact.
If you don’t want the jury to hear, ask to approach the bench (“your honor, may I approach the bench”).
Step 6: If sustained, sit. If overruled, do you have another ground?
Use strongest objection first. Say “objection, my first objection is…”

Question 134

Steps to respond to objection

Answer 134

Step 1: Stop talking. An objection stops everything. Respect the process. Make things easier for the court reporter. Model rules of decorum. Sometimes they object to soon, and the judge will give you permission to keep talking. Strategically, don’t look like your trying to cheat by sneaking in a question.
Step 2: Listen to judge. The objection may be overruled without needing your response.
Step 3: Stand up. Do not speak until completely out of your chair.
Step 4: If the objection is sustained, you lost.
Step 5: If overruled, you won.

Question 135

How to resopond to losing after being objected to?

Answer 135

Traditional response: “I’ll move along, your honor.” Don’t do this. It explicitly admits that you knew it was an improper question. If it’s important testimony, fight for it. If not, move on without saying it. Also makes audience think you’re moving to another topic. Tells your opponent you will easily concede if you lose an objection. Witness might become more conservative because they think they did something wrong.
Instead: Rephrase, ask a better question (shorter, simpler, etc.), advise the witness to avoid an objectionable answer.

Question 136

How to respond to winning after being objected to

Answer 136

Step 5: If overruled, you won. Reask the question, slowly, clearly, and with perfect immunity. You have clearance and everyone is paying attention. You punish your opponent if you win an objection on something important.

Question 137

Objection. Form

Answer 137

Objection. Form.: Objections to the form of the question. Your opponent asked an improper question (this is during depositions). It’s a placeholder for later on if someone tries to introduce testimony from the deposition.

Question 138

Do you object to question or answer?

Answer 138

Either depending on what is improper.

Question 139

Can you object to foundations for exhibit?

Answer 139

Yes.f

Question 140

Can you object to the judge’s behavior?

Answer 140

Yes. Can object to the Judge for appellate court review. The Judge’s conduct is improper comment on the weight of the evidence. If you don’t object it can be difficult to bring it up on appeal. Don’t do it in front of the jury. Do it on break and get it on record.

Question 141

Hearsay

Answer 141

The witness’s answers contains statements by another person not subject to cross-examination right now. Dangers of ambiguity, insincerity, incorrect memory, inaccurate perception. “What did they tell you,” “what did you learn after takling with her,” “what was written in the report,” etc.

Question 142

Lack of personal knowledge

Answer 142

The witness’s anser is based upon information received from another person. The question asks this witness to testify about another person’s knowledge. “After you left the scene, what did the Officer do?”

Question 143

Relevance objection

Answer 143

The question or answer involves a collateral matter that does not prerain to the ultimate question the jury is here to resolve.

Question 144

Leading objection

Answer 144

The lawyer is giving the witness the answer during the question and is just asking the witness to agree (often let it go if it isn’t hurting you. Often the witness just says yes or no and that’s a lot less persuasive than them talking about it)

Question 145

Assuming facts not in evidence objection

Answer 145

Questions are powerful. Questions can evoke a presumption of a fact. Object if the question improperly presumes the truth of a fact not yet established. “After the D confessed, what were you asked to do” (if it hasn’t been established yet that there was a confession).

Question 146

403 objection

Answer 146

The probative value of this answer is substantially outweighed by the prejudicial effect it will have on the jury. Handled at the bench. Mini-hearing on probative value.

Question 147

Calls for speculation objection

Answer 147

Witness is being asked to opine on another human’s state of mind, why they acted, or what the other person would have done. “Why did your manager fire Ms. Davis” (fine line between your opinion and speculation. Often times why questions lead to either speculation or hearsay). “What did they believe…”

Question 148

Jinx with examples

Answer 148

Jinx (irritating, causes inconvenience): Ex. leading, asked and answered.

Question 149

Curse with examples

Answer 149

Curse (most powerful type of dark magic): Ex. Foundations objections; privilege objections.

Question 150

Hexes with examples

Answer 150

Hexes (inconveniences): Ex. hearsay, personal knowledge.

Question 151

How often use curses, hexes, and jinxes?

Answer 151

Always uses curses, ask what we think of witness before hexes but often, use jinxes sparingly.

Question 152

Reasons to object

Answer 152

Why object: Prevent inadmissible evidence that could hurt you, to protect your witness, and to preserve error, make a record, argue your case with the objection itself.

Question 153

Steps when introducing evidence

Answer 153

Mark, identify, authenticate, offer, witness.
“I am showing you what is marked as state exhibit number 1.”
Lay foundation.
“I offer state exhibit number 1.”
1. Permission to approach.
2. Show the exhibit to opposing counsel.
3. Show it to the witness. Say: “I’m showing you what has been marked for identification as State’s Exhibit number 1.”
4. Question the witness. Ask: Do you recognize state exhibit number 1, what is it, how do you recognize it…Lay the foundation.
Say state exhibit number 1, not photo, etc.
5. Offer the exhibit into evidence. Say: “I offer State’s Exhibit Number 1.”
The longer your sentence or question is, the more time there is to object.
As responding lawyer see if you can extend the time you have to object.
7. Request permission to publish the exhibit to the jury.
8. Discuss and use the exhibit with the witness after its admission.

Question 154

Business records foundation recipe

Answer 154

1) The events were recorded at or near the time they occurred. 2) The events were recorded by a person with knowledge. 3) The records were made in the course of a regularly conducted business activity. 4) It is the regular practice of the business to make these records.

Question 155

Four hearsay concerns

Answer 155

A witness’s testimony is relevant only if we can make four “testimonial inferences” about the witness, relation to perception, memory, narration, and sincerity.
Everything with words has hearsay (ex. Sticker on med bottle saying this bottle contains X, or a radar gun saying the car went Y).
1) Did the Witness accurately perceive the events in question?
2) Has the witness remembered the events accurately from that day to this?
3) Has the witness accurately narrated what he or she perceived and remebers (i.e., do the witness’s words mean the same to him or her as they do to us)?
4) Is the witness sincerely trying to testify accurately, or is there a reason why the witness might be deliberately lying, or subconsciously shading the truth?

Question 156

Can a person’s own statements be hearsay?

Answer 156

Yes

Question 157

Statement

Answer 157

“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 158

declarant

Answer 158

Declarant is the person who made the statement.

Question 159

Is a company a person

Answer 159

Company can be an individual but not a person.

Question 160

What is hearsay?

Answer 160

1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Question 161

strenght of responding to hearsay objection with ““its not for the truth of the matter asserted”

Answer 161

Saying “its not for the truth of the matter asserted” is a super weak response. Have some other reason for why it isn’t hearsay if they object.

Question 162

What is an assertion?

Answer 162

We apply the everyday meaning because it isn’t defined. An assertion is something someone says or does in order to communicate a fact or opinion in the hope or expectation that it will be accepted as true or accurate.

Question 163

“Did the Nationals win today?” “Have you had dinner yet? Are these assertions?

Answer 163

Such utterances are non-assertive verbal conduct. They are non-assertive and therefore not statements. They are not hearsay. Also true about directions or a command/request. Ex. Make the next left.”
Is there a key fact so implicit in what is said that it should be classified as an assertion?

Question 164

are animals and inanimate objects declarants?

Answer 164

Animals and inanimate objects are not declarants, but assertions written by humans and stored in a computer are statements.

Question 165

Hearsay in business record even if foundation has been laid?

Answer 165

There can be hearsay within a business record even if the foundation has been laid.
Even if the shell is a business record, and certain portions are business records, there can be hearsay within hearsay. You have to identify the specific portions and the court has to make an independent ruling on each portion of the document.
This can become very granular.

Question 166

What should you do if you think part of a business record is hearsay?

Answer 166

Bring a redacted version if you’re saying it’s hearsay. The judge might be afraid it will take too much time and say here I have a copy that’s been redacted.

Question 167

Operative legal fact

Answer 167

Verbal act can be a reason it’s not hearsay (loan; gift, even if there is writing in a card, etc.).
Operative legal fact: Fraud; forming an oral Contract Defamation; taking an oath.

Question 168

Res gestae statement

Answer 168

Res Gestae statement: Broader than excited utterance. Ex. an officer is doing a patdown, and D says “I guess I’m going back to prison.” Not an interrogation because there was no question. It’s just something that you blurt out.
It gets in.

Question 169

Can a photograph be hearsay?

Answer 169

If photographed how it is found, it isn’t hearsay. But grabbing a senate jacket and taking out what is found in it and moving it to a new place and then taking a photo is hearsay.

Question 170

How to put together direct examination questions?

Answer 170

Start with the answer you need and then figure out how you’re going to get them.

Question 171

Cross examination order

Answer 171

Order for cross-examining witness. Do it in this order. 1) Obtain agreement (bring out helpful information), 2) limit testimony (demonstrate testimony doesn’t matter that much and doesn’t contradict your theory), 3) impeach credibility.

Question 172

short or long questions on cross?

Answer 172

Short. On fact per question/statement.

Question 173

Should you attack immediately on cross?

Answer 173

No. Build up the attack.
Ex. (locking an officer into a police report) You were trained to write reports. You wrote a report in this case. You followed your training when writing this report. You wrote the report the day of your investigation. The report you wrote was accurate. The report you wrote included all relevant detail.
Build up to the attack. You can’t just go right after them.
If you are doing an impeachment by missing information, then you have to build up that they are willing to put their name on the report.

Question 174

How to figure out what to ask to build credibility of a police report?

Answer 174

Can google “police report writing training.” Figure out everything they might have done and be thinking.

Question 175

7-1-3

Answer 175

Cross-examination: 7 words or fewer. 1 fact per question. 3 techniques (see above).
Don’t start with “is it true…that your 73 and its not safe for you to drive.” Instead “your 73.” “You still drive.” “You haven’t had a driver’s test in years.” Once you’ve established that they shouldn’t be driving ask a few questions that lead them to answering that they can safely drive.

Question 176

Refreshing recollection

Answer 176

Witness says they can’t remember. Offer to refresh (did you give statement at the crash seen, while events were fresh in your memory, would it be helpful to look at this before you testify, hand them statement [not marked, not offering it], read it to yourself when you’re finished look up, does that help you refresh your recollection of what you saw), without reading from the paper tell me what you saw.
It doesn’t have to be their statement. Ex. You were with your sister and they gave a statement. Would you like to look at it.
You can show a witness anything to refresh their recollection if they say it will help. It isn’t evidence. It is fine as long as they don’t read directly from it.

Question 177

crossing someone who’s memory has been refreshed?

Answer 177

Crossing them: You didn’t have an independent recollection. You needed to review your sisters report. That wasn’t your report, etc.What

Question 178

if asking to refresh recollection and they say no?

Answer 178

If you ask if it refreshes recollection. And they say no. You can offer it into evidence by reading it as a statement (assuming it was recorded at a time their memory was good).

Question 179

Intentionally not laying foundation?

Answer 179

What if you don’t lay the foundation. Benefit: Its a trap. Your opponent objects, which brings all focus to the next question, you lay the foundation, hearsay has greater impact. Risk: You look unprepared plus consistency bias, judge sustains second objection because you didn’t lay the foundation, greater risk that hearsay doesn’t come in.
Top ten hearsay exceptions

Question 180

“Now on direct examination you testified that…”

Answer 180

For some reason we love to start “Now, on direct examination you testified that…” If you ever use that phrase again, you should have your tongue cut out. For one thing, if the witness said something on direct, in all probability it is something your opponent wanted the witness to say. Why repeat it to the jury? Furthermore, the other side’s witnesses do not “testify.” The other side’s witnesses “claim,” or they “give their versions.” Better yet, they “tell their stories,” but they never “testify.” The only witnesses who “testify” are your witnesses. Why? Because “testify” carries the image of a fiery tongue coming down from heaven revealing the truth.

Question 181

Why you should look at jury while examining?

Answer 181

“You should have looked at your jury, Terry. During the first third of the cross-examination, they were really with and for you. They didn’t like the witness; he was obviously deceitful, and he did not know what he was talking about. But he was an older guy, and during the last two-thirds of your cross, every time you hit him, they bled with him. They felt sorry for this man, and you really overdid it. At the end of your cross, it was you they disliked.”

Question 182

short + statements =

Answer 182

control

Question 183

Is control primary objective on cross?

Answer 183

The formula would appear to suggest that control fo the witness is our primrary objective. It is not. Our primrary objective is to “look good,” or, even better, to encourage the witness to “look bad.”
What the formula suggests is that by properly using short statements, you will either get witness control or the witness who decides to deny you control must, of necessity, “look bad.” Either result is to be desired.

Question 184

Question length in relation to answer lenght

Answer 184

The length of the question usually, but not always, determines the length of the anser. If we want the witness to be short and under control, and we do, then we must be short.
The most valuable talent is never using two words when one works.
If it is possible to cut a word, always cut it.

Question 185

How to cut out words?

Answer 185

Eliminate the prefixes (“isn’t it a fact…”)
Eliminate the suffices (“…isn’t that correct.”

Question 186

What do transitions do?

Answer 186

There is no trial advocacy tool more helpful, more necessary, and more communicative than the transition, particularly during direct or cross-examination.
Good transitions are useful to the audience because they make clear the though patterns of the speaker and the relationship of evidence to the conclusion it supports. In the form of internal summaries, good transitions aid memory, recall, and understanding of the speaker’s material.

Question 187

Whihch is better transition on cross?
“Mr. Witness, calling your attention to June 10, 2004, at or about 3:00 P.M., while you were in Murphy’s Bar, what, if anything, unusual occurred?”
“I want to ask you some questions about what you saw when you left Murphy’s Bar around 3 in the afternoon, you understand.”

Answer 187

2

Question 188

How should you speak in courtroom aka what language should you use?

Answer 188

Speak in a courtroom the way you speak in a bar (a nice bar, with carpeting).
Don’t use language that would bore or aggravate someone.
Move your head up and down while making a statement, others will do the same, sending a message of agreement. It is difficult for a person to respond with a negative.

Question 189

What are we doing on cross?

Answer 189

What we are doing, is telling a story. You should remember to start by saying to yourself these magic words: “once upon a time.” This should help launch you into the storytelling mode.

Question 190

blackboard for emphasis?

Answer 190

We already mentioned one acceptable and very effective communication tool–the blackboard. We can and should simply write on the blackboard important terms or themes used or, in cross-examination, adopted or contributed by the witness.

Question 191

How many times should you loop?

Answer 191

Usually we want to do so three times (that’s three loops, not three mentions, so four mentions). (loops canbe delayed until later in the examination too).
Ex. we want to remind the jury the car was green.
Green? Yes. You knew the driver of the green car? Yes. Tom Clancy was driving the green car? Yes. The green car was going west.” Yes.

Question 192

What to do if someone objects to you using statements on cross?

Answer 192

What if someone objects to the form of your statement-questions? Step 1: Look at the judge. Step 2: Nod your head. Step 3: Your honor, followed by a legal reference to the law, preferably a legal citation. (Ex. Ohio v. Roberts, 448 U.S. 56 (1980), H.L. v. Matheson, 450 U.S. 398 (1981)).
Worst case scenario, You saw a car, becomes you saw a car, right? Do this three or fourt times, and then drop the right.

Question 193

Is more questions better on cross?

Answer 193

the more questions the better.
Why?
1) It is your job to train the puppy (the witness). Put them into yes mode. Soon they will stop thinking about content, and, satisfied that you know everything and that this cross-examination is not all bad, will lock into the yes mode.
If everything you say is answered yes, your credibility will be greatly enhanced.
Finally you will be telling a story.

Question 194

extraneous details in cross questions?

Answer 194

Leave extraneous details out. They encourage the witness to deny the statement or offer some sort of narrative option. If important, make it its own statement.

Question 195

facts vs opinions on cross?

Answer 195

Facts. Not opinions.

Question 196

Is yes or no better on cross?

Answer 196

Frame them in positive not negative matters (yes is better than no, although sometimes no is a better fit with the story).
When drawing no, it is best to run a short series of them.

Question 197

when should you prepare cross?

Answer 197

Have cross prepared before direct is made. If you can pick up points based on direct, do it. But don’t really on it.

Question 198

source material for cross

Answer 198

Source material for cross-examination: Witness statements, versimilitude (the truth), and plausibility.

Question 199

versimilitude vs plausibility

Answer 199

Versimilitude is the way things were or are; Plausibility is the way the jury thinks they were or are. Usually these will be the same.

Question 200

plausibility based cross

Answer 200

Give a person the choice between saying the answer you want “yes” or “no” or saying something that sounds completely implausible, even though possibly truthful.

Question 201

What to do when witness on cross silent because they don’t want to answer something

Answer 201

When the witness is in the process of destroying himself, do not interfere. Do not say anything. Let the judge be the one to go after the witness. Relish the silence. Every witness who delays an answer or does not respond loses credibility.