MVP Tips & Final Review

Question 1

True or False:

A witness should simply memorize that witness’ statement and then should recit it verbatim.

Answer 1

False. Each witness should put the content of the written witness statement into his or her own words.

Reference: p. 70 of the materials.

Question 2

True or False:

A witness should know the questions he or she will be asked on direct examination as well as the witness knows his or her statement.

Answer 2

True. On direct examination, when your side’s attorney asks you questions, you should be prepared to tell your story. Knowing what you will be asked on direct examination is part of being prepared to tell your story.

Reference: p. 70 of the materials.

Question 3

True or False:

A witness who contradicts his or her written statement may be impeached by the other side.

Answer 3

True. A witness may be impeached if the witness contradicts what is in that witness’ statement.

Reference: p. 71 of the materials.

Question 4

True or false:

A question calling for information that is outside the scope of the case materials and beyond any reasonable inference from those materials is objectionable.

Answer 4

True.

Competition Rule 4, p. 71 of the materials, allows an attorney for the opposing team to refer to Rule 4 when objecting and refer to the violation as “unfair extrapolation” or “outside the scope of the mock trial material.”

Question 5

True or false:

A witness may, during any examination, choose to look at his or her statement.

Answer 5

False: “Student witnesses may not use notes. * * * Unauthorized use of notes by witnesses may be grounds for disqualification from the competition.” Competition Rule 34, P. 79 - 80 of the case materials.

Question 6

True or false:

A lawyer conducting direct examination may use the witness’ statement to refresh that witness’ recollection of events described in the statement.

Answer 6

True: Rule 612, p. 92

Your witness may need to be reminded. To do that, ask:

1. It sounds like you may have forgotten what you said about this in your statement. Have you forgotten?
2. Would it help you remember if I were to read a part of your statement back to you?
3. At p. __ of your statement you said you were approximately 1 mile from the bulldozers. Now do you remember where you were?

Question 7

True or false:

This is an example of an objectionable argumentative question:

“You aren’t as smart as you think you are, are you?”

Answer 7

True:

“An attorney shall not ask argumentative questions.” Rule 37, p. 80

Question 8

True or false:

This is an example of an objectionable question calling for a narrative answer:

“Tell us everything you did at the demonstration.”

Answer 8

True: Attorneys may not ask questions that are so general that they do not call for a specific answer.

Here’s an example of a proper, but still very open-ended question:

“What did you do next?”

Question 9

True or false:

A witness can freely answer a different question than the question that was actually asked.

Answer 9

False. “A witness’ answer is objectionable if it fails to respond to the question asked.” Rule 37, subpart 5, p. 81

Two ways to deal with a witness who is not answering the question asked:

1. Object and ask the Court to instruct the witness to answer the question that you actually posed. Cite Rule 37, subpart 5, page 81.
2. Politely interrupt the witness, state that the answer he or she was giving wasn’t responsive, and ask your original question again if it hasn’t been answered.

Question 10

True or false:

An exhibit is best offered into evidence before a witness is asked any questions about it.

Answer 10

False. Under Rule 37, subpart 2 (P. 81), a proper foundation must be established prior to offering it into evidence.

Five steps to admitting the exhibit into evidence (page 81):

1. Tell the witness and court which exhibit you wish to screen share.
2. Screen share the exhibit.
3. Ask the witness: “Please identify Exhibit __ for the Court.”
4. [The witness identified the Exhibit]
5. Offer the exhibit into evidence: “Your Honor, we offer Exhibit __ into evidence. Its authenticity has been stipulated.”

Question 11

True or False:

It is important for the Plaintiff to reserve 1 minute for rebuttal closing argument.

Answer 11

True.

“The Plaintiff delivers the first closing argument and should reserve time for rebuttal before beginning.” P. 82

Question 12

True or false:

A good closing argument never varies from the script the lawyer giving that argument prepared before the trial began.

Answer 12

False: “A closing argument should be spontaneous and synthesize what actually happened in the court.” P. 82

Competition rule 42, p. 82: “Closing arguments must be based on the actual evidence and testimony presented at trial.”

Bottom line: Start with a script but Listen to the testimony and adapt your closing to fit.

Question 13

True or false:

A good closing argument is always calm, cool, and restricted to a dry recitation of fact.

Answer 13

False:

Unlike opening arguments, which are predictions of evidence but not the place for explicit argument, closing statements should “be emotionally charged and strongly appealing.” P. 82

Question 14

True or false:

A closing argument should be an appeal to the jury for the jury to award judgment to the client for whom the lawyer is arguing.

Answer 14

True.

A good closing argument should “reiterate your claim for relief (what you’re asking the court to do).” P. 82

Plaintiff is asking the Court and jury to find in plaintiff’s favor and to require defendant to pay money to the plaintiff as compensation for damages the plaintiff suffered. Read the Plaintiff’s Complaint, pages 12 - 13.

Defendant is asking the Court and jury to find in defendant’s favor, and to dismiss the Plaintiff’s Complaint. Read the defendant’s Answer, page 16.

Question 15

True or false:

A good closing argument treats both parties equally.

Answer 15

False.

A good closing argument emphasizes “the supporting points of [that side’s case]” and also emphasizes “the mistakes and weaknesses of the opponent’s case.” Scoring Rubric, p. 114.

In otherwords, emphasize the positive of your own case and the negative of the other party’s case.

Question 16

True or false:

This question is objectionable:

“Ms. Jackson, you have been married eight times so far, haven’t you?”

Answer 16

True:

Objection. A question must call for testimony in response that tends to make a fact of importance in the case more, or less, probably true. Rules of evidence 401, 402. p. 85

In this case, knowning how many times Jackson has been married doesn’t make it more, or less, likely that any fact of consequence to this case is true.

To make the objection: “OBJECTION. Relevance. Rules 401 and 402. The question calls for an answer that doesn’t make any difference to the issues to be decided in this case.”

Question 17

True or false:

Every witness may testify to a fact even if the witness had no personl knowledge of that fact.

Answer 17

False:

Witnesses, other than experts, “may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Rule 602, page 87 - 88.

Question 18

True or false:

An expert may rely on and testify about facts that the expert only learned from reading the statements of other witnesses.

Answer 18

True:

Unlike “lay” witnesses, experts “can base their opinions on what they read in articles, texts” and records (including the writtens statements of any other witness), even if the expert has no personal knowledge of those facts. Rule 703, p. 93.

Question 19

True or false:

The primary objective of cross-examination is to show that the witness’ testimony is unbelievable, or at least unimportant.

Answer 19

True.

“An effective cross-examiner tries to show the jury that a witness should not be believed.” P. 88.

An effective cross-examination could also show that the witness has not provided testimony that is useful to the jury. For example, Navarro’s lawyers may want to show by cross-examination that Trini Redbird’s conclusions are subject to so many uncertainties that the jury should treat those conclusions as unreliable.

Question 20

True or false:

The following are all forms of “impeachment”: (1) The testimony given in court contradicts a statement the same witness made elsewhere; (2) The witness previously engaged in misconduct that tends to show that the witness has been untruthful in the past; and (3) The witness has previously been convicted of a crime.

Answer 20

True: P.88 lists these forms.

Question 21

True or false:

When a witness testifies, the cross-examiner can impeach the witness simply by stating to the Court that the witness previously signed a statement that contradicts the in-court testimony.

Answer 21

False. It isn’t quite that simple.

The brief version of the best procedure is listed below. See p. 88

1. Question: You executed a statement before coming to court, didn’t you? [yes]
2. Share the statement page.
3. “You just testified here in Court that Jackson was not wearing a shirt, didn’t you?”
4. Your sworn statement says otherwise, doesn’t it?
5. Specifically, please read aloud lines X - Y of the statement.

Then stop sharing the screen and go to your next line of questions.

Question 22

True or false:

On cross-examination, it is allowable for the cross-examiner to ask the witness about specific instances of a witness’ untruthful conduct.

Answer 22

True: Rule 608(b), p. 89.

For example, Camden Buchanen knowingly allowed someone to present a misleading report to the City Council.

Question 23

True or False:

A witness could be impeached on cross-examination by asking about a conviction the witness had suffered as a result of a speeding ticket.

Answer 23

False: Under Rule 609 (p. 90), a witness can be impeached by showing that the witness has been convicted of a crime that “was punishable by death or by imprisonment for more than one year.”

You can’t go to jail at all for an ordinary speeding ticket.

Question 24

True or false:

It is just as wrong for a cross-examiner to lead the witness as it is for the direct examiner to lead the witness.

Answer 24

False. Different rules apply to cross examination than apply to direct examinations. Rule 611(c), p. 91.

Direct: “Leading questions should not be used on direct examination except as necessary to advance the witness’ testimony.”

Cross: “Ordinarily, the court should allow leading questions * * * on cross examination.”

Question 25

True or false:

If you disagree with an answer that a witness has given you during cross-examination, it is vitally important that you point out right then to the Court and to the witness that you disagree.

Answer 25

False: “don’t harass or attempt to intimidate the witness; and do not quarrel with the witness.” P. 91

Question 26

True or false:

Re-direct examination is always necessary.

Answer 26

False:

“Attorneys may or may not want to redirect.” P. 92

Question 27

True or false:

Questions on redirect are limited to the subjects covered by the cross-examination that just concluded.

Answer 27

True: “questions must be limited to matters raised” during cross-exmination. Rule 611(d), p. 92.

Question 28

True or false:

You can ask as many questions on redirect as you like.

Answer 28

False:

“For both redirect and recross, attorneys are limited to two questions each.” Rule 611(d), p. 92.

Question 29

True or false:

The purpose of redirect is to enhance the witness’ credibility in the eyes of the Court and jury.

Answer 29

True: “questions should be limited to the damage the attorney thinks was done and should enhance the witness’ truth-telling image in the eyes of the Court.” P. 92.

Example: Suppose your witness was cut off by the cross-examiner before the witness could complete an important answer. You could say on re-direct: “You weren’t allowed to complete your answer to the question about why you are certain that your conclusion is correct. Could you complete that answer now?”

Question 30

True or False:

This question, when asked of a non-expert, is objectionable:

“In your opinion, what caused the water to be deposited on your windshield on the day of the accident?”

Answer 30

False.

Rule 701: “If the witness is not testifying as an expert, testimony in the form of opinion is limited to one that is * * * not based on scientific, technical, or other specialized knowledge * * * .” P. 93.

This witness can’t tesitfy to her opinion of what causes rain. That requires an expert. But the witness can testify that rain caused her windshield to be wet because no special expertise is required to distinguish between rain as the source and other potential sources, such as the car’s windshield fluid or a garden hose squirted at the car.

Question 31

True or False:

This question, when asked of a non-expert, is objectionable:

“In your opinion, what caused the rain on the day of the accident?”

Answer 31

True.

Rule 701: “If the witness is not testifying as an expert, testimony in the form of opinion is limited to one that is * * * not based on scientific, technical, or other specialized knowledge * * * .”

P. 93

Question 32

True or false:

“Hearsay” means a statement that:

1. The declarant does not make while testifying at the current trial; and
2. Is offered to prove the truth of the matter asserted.

Answer 32

True:

Rule 801, p. 94.

Remember our diagram?

“Dogs have wings.”

“I heard Dave Declarant say”

W testifies in court

Question 33

Suppose Jersey testifies that her high school journalism teacher once told Jersey that “a good journalist sometimes has to balance obeying the rules against getting the story.”

True or false:

Jersey’s testimony on this point is objectionable hearsay.

Answer 33

False.

In order for something to be “hearsay,” it must be “offered to prove the truth of the matter asserted.” Rule 801(c)(2), p. 94.

The plaintiff isn’t offering the out of court statement of the teacher to prove that the teacher believed a balance is required. Instead, the purpose of offering that statement is to show that Jersey knew from the start of her career that a balance had to be struck by a good journalist.

Question 34

True or false:

You’d best give up if someone objects to your question on hearsay grounds. Objections for that reason almost always will be sustained.

Answer 34

False:

Statements that appear to fit the pattern of “hearsay” are often admissible despite fitting that pattern.

See pages 94 - 100 for the many, many ways in which statements that appear to fit the pattern nevertheless are admitted into evidence over objections.

Question 35

Trini Redbird is undergoing cross-examination after having testified that there wasn’t a cloud in the sky on the day of the protest.

The cross-examiner asks:

“Isn’t it true, Ms. Redbird, that you previously made an out-of-court statement in which you said that it was raining cats and dogs that day?”

True or False: The question calls for inadmissible hearsay.

Answer 35

False:

If the declarant is testifying (and therefore subject to cross-examination), and the out of court statement was made under oath and is inconsistent with the witness’ in-court testimony, then the prior statement is admissible.

Rule 801(d), p. 94 - 95.

Question 36

Danger Smith is testifying on direct examination.

Question: What did Officer Navarro say after he forced Jersey to the ground?

OBJECTION from Navarro’s lawyer: “Objection. The question calls for inadmissible hearsay.”

Yes or no: Is the objection well-taken?

Answer 36

No, the objection would be overruled.

Under Rule 801(d)(2) [p. 95-96 of the materials], a statement that is offered against the other party and was made by that other party is admissible even though it fits the hearsay pattern.

This is called the “party-opponent rule.”

Question 37

A witness testifies that a declarant who is not in court yelled “The bulldozers are starting up!”

OBJECTION: hearsay.

True or false:

The objection is well-taken.

Answer 37

False. The objection would be overruled and the statement allowed into evidence even though it fits the hearsay pattern.

There are two reasons:

1. “A statement describing or explaining an event or condition made by the declarant while or immediately after the declarant perceived it” is admissible over a hearsay objection. Rule 803(1), materials, p. 96
2. “A statement relating to a startling event or condition made while the declarant was under the stress of excitement that the event or condition caused” is admissible over a hearsay objection, Rule 803(2), materials p. 96 - 97.

Question 38

Officer Navarro is testifying.

Question: Officer Navarro, did any of the protesters tell you that they would refuse to move out of the way of the bulldozers?

OBJECTION: The question calls for hearsay. The unnamed protesters are out of court declarants.

True or false:

The objection will not be sustained.

Answer 38

True, the objection will be overruled.

“A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan)” is admissible even though it fits the hearsay pattern. Rule 803(3), p. 97 of the materials.

Question 39

True or false:

Any lawyer on the team can object to a question asked by any lawyer for the other team.

Answer 39

False.

“Objections during the testimony of a witness will be permitted only by the direct examining and cross-examining attorneys for that witness.”

p. 107

Question 40

True or false:

The following is the goldplate template for making objections:

[“OBJECTION, your honor!”] + [“reason for the objection, such as “hearsay,” “relevance,” or “lack of personal knowledge.”] + [“Rule # is the basis for this objection”].

Answer 40

True. This is the gold standard for objections.

Raising the objection according to this template is respectful to the Court, identifies the basis, and demonstrates that you have superior knowledge of the Rules of Evidence.

90% of the lawyers you face will leave out the citation to the rule. For example, all of the examples of objections on pages 107 - 109 omit the rule number part of the gold standard. That’s just average work. The objection is still in acceptable form if you don’t say the specific rule involved. But you’ll be in the top tier if you add the cherry to the top.

Question 41

True or false:

There is nothing in Final Jury Instructions that the lawyers need to be concerned about.

Answer 41

False:

The Final Jury Instructions are like the ingredient list in a recipe for the trial. In them, you’ll find what Jersey Jackson has to prove and how much evidence she has to introduce to meet that burden of proof. You’ll also find three principles about how to evaluate the testimony of witnesses that lawyers who are doing closing arguments must know about.

Question 42

True or false:

The lawyers don’t really need to read the pleadings (namely, the Complaint and the Answer)

Answer 42

False:

All the lawyers need to be familiar with the Complaint (pages 10 - 13) and Answer (15 - 16).

The Complaint is where Jersey Jackson spells out what her claim is – she was arrested in violation of the First Amendment and is entitled to have the Rowe Police pay her money as a result.

The Answer is where Marlow Navarro states what she wants the court and jury to do – dismiss the Complaint.

Question 43

True or false:

All of the following are examples of proper phrasing in an opening statement:

* The evidence will indicate or show that . . .

* The facts will show that . . .

* Jersey Jackson will be called to tell you what happened to her that fateful day . . .

Answer 43

True. “A good opening statement should explain what the attorneys plan to prove, what evidence they will use to prove it, mention the burden of proof and applicable law, and present the facts of the case in an orderly, easy to understand manner”

See the examples on p. 66 of the materials.

Question 44

True or false:

All of the following are examples of proper phrasing of questions in direct examination:

* Could you please tell us what happened on [date]?

* How long did you stay there?

* What happened while you waited?

Answer 44

True: Attorneys conduct direct examination of their own witnesses by means of open-ended questions that bring out the facts of the case.

See examples on p. 67