My notes 2

Question 1

facts beyond change

Answer 1

physical evidence, forensic testing, video recordings, audio recordings, photographs, documents

Question 2

facts beyond disbelief

Answer 2

admissions, statements against interest, neutral eyewitness testimony, corroborated testimony, multiple witness testimony.

Question 3

Latent facts

Answer 3

facts not found in depositions or statements, but facts assumed to be true based upon personal experience.
Collective agreement about how the world works.

Question 4

goals on cross

Answer 4

1) look good, 2) tell a sotry, 3) use short statements

Question 5

Who is arguing case on cross?

Answer 5

Argue case through witness.

Question 6

most witnesses tell the truth as…

Answer 6

they see it. Find areas where they agree with you, or at least don’t constest your arguments.

Question 7

7-1-3

Answer 7

7 words or fewer.
1 fact per question (no adjectives or adverbs, no compound questions)
3 categories (how can witness help me, how have they hurt me, impeachment)

Question 8

Why shouldn’t you be rude to witness?

Answer 8

The jury can more easily imagine being the witness than the lawyer.

Question 9

You make your best deicsions while…

Answer 9

calm. You also look best while calm.

Question 10

Repeat reverse for something important example?

Answer 10

Your report is accurate? I think so. So your report is accurate? I hope so? Is your testimony that your report is inaccurate? No.

Question 11

Is the witness necessary on cross?

Answer 11

The witness is unnecessary. You are telling the truth and you are simply having the witness confirm the truth (on cross). Direct is the opposite. On direct the witness is the star.

Question 12

How to go beyond established facts in cross?

Answer 12

Take your head out of established facts and think what else might be there (what does a typical day for someone with that job look like, what sort of things do people with that job tend to believe, what do people tend to believe about people with that job, etc.).

Question 13

reading questions on cross?

Answer 13

Don’t read your questions. Look up. Look at the witness (maybe occasionally the jury, but mostly develop a relationship with the witness in which they will be led by you). Listen. Make eye contact. Tell a story.

Question 14

Are why questions ever ok on cross?

Answer 14

Some why questions are ok (when the answer can’t hurt you). Ex. Why isn’t it against the law to be disheveled, or why isn’t it against the law to smell like alcohol.

Question 15

probability cross

Answer 15

Figure out a series of questions that step by step drives the witness to the examiner’s point at the pain of the witness being disbelieved (agree with me even if you don’t want to or dispute it at the loss of your credibility).
Questions must proceed in an order to build the line of probability.
Combines all three categories of agreement, limiting, and impeachment but it feels impeaching.

Question 16

Obtaining witness statements for cross?

Answer 16

Obtain every statement made by witness (formal, written under oath, informal in emails, texts, and social media, all publications made by an expert, hearsay statements, includes by individual, agents, parties, lawyers, co-conspirators, you need direct quotes.

Question 17

Analyzing statements for cross

Answer 17

Look at statements by topic area (what words did they use, why did they make a statement, who did they tell), and keep an eye on the timeline of statements (does it change over time, do they become more definitive, who are they talking to about the case).

Question 18

Witness actions and decisions for cross?

Answer 18

List every action taken by the witness (what did the witness do, why did they do what they did)?
List every decision made by the witness (sometimes we act without thinking; other times we analyze before acting, you can turn actions into decisions).

Question 19

witness delegation for cross

Answer 19

Are there instances where the witness did not make a decision and relied upon others’ judgment or action? (we can agree that if the data was bad, then it will lead to a bad decision, if the person you relied on did a bad job then you will make a bad decision)

Question 20

counterfactual for cross

Answer 20

what are all the actions the witness could have taken - but didn’t? (employ the power of hindsight bias to your advantage).

Question 21

inegrity based reasoning for cross

Answer 21

Why did the witness make one decision over another?
Identify assumptions (assuming a rational, kind, just witness - what are the assumptions that witness relied upon when making a decision or taking an action or deciding not to act? Think broadly).

Question 22

psychodrama for cross

Answer 22

(reverse roles and put yourself in the witness’s shoes, what is the information you want in making a decision, where are your blind spots).

Question 23

paradoxes for cross

Answer 23

(a witness that describes being terrified is also the witness responsible for providing an objective, clear, detached eyewitness description). Ex. Car accident crashes involve trauma, and that lowers the integrity of the testimony, but raises the confidence level. On cross you have to go through why the integrity might not be as good.

Question 24

commonplaces for cross

Answer 24

Identify the commonplace assumptions the public believes to be true (generally, specifically, even if incorrect).

Question 25

save face on cross?

Answer 25

Find ways to allow the witness to save face (it’s not an attack; it’s a shared discovery why our brains are not as accurate as our memory believes them to be, “of course you would remember/believe/testify this way”). Show incentive without being mean (you’ve been in prison for two years? Your sentenced to ten? You miss your kids? Your wife? MIlestones? But if you say something you get out in a year?

Question 26

leading on redirect?

Answer 26

Can do so a little more

Question 27

Apologizing in court?

Answer 27

Don’t apologize for being in court. Don’t apologize for objecting. Don’t apologize for representing your client. Don’t apologize for standing up. Don’t apologize for taking up time.

Question 28

What should opening be?

Answer 28

A good story. In opening you are framing the case and giving the jurors a lens through which they understand the evidence they will be presented with.

Question 29

Waive or defer open?

Answer 29

Never.

Question 30

Objectives of opening

Answer 30

1) Create a lens for the audience to interpret the evidence, 2) create a filter for acceptance and rejection of the evidence (your’s is logical and reasonable, your opponent’s is scrutinized and hopefully rejected), 3) create a framework for understanding (relationships, conflict, resolution, etc.).

Question 31

opening structure

Answer 31

Impact statement, introduction (self and client), narrative, burden of proof, preview witnesses, conclusion.

Question 32

Other tips for oppening?

Answer 32

Ingredients: Theme (elevator pitch, 1 sentence, frame the case).
Narrative (start where the story is interesting, scenes, visual, emotional).
Ask yourself: By the end of the opening I need the jury to feel…And then make them feel this way.
Consider not even starting with ladies and gentlemen. Go right into a powerful sentence.
Words, images, theme, scene, anchors (witsa). These are basic elements of your delivery.
In most good stories nouns and verbs are more powerful than adjectives and adverbs.
You need a visual component (word picture and exhibits in opening). What do you want your audience to see?
You need a theme. Weave it throughout your case. It is short. It is catchy. It is memorable.

Question 33

anchoring opening

Answer 33

Make scenes. Use anchors. Use your scenes to set your anchors so that movement in the courtroom is purposeful and meaningful. Walk around the courtroom with purpose. Where you walk matters. Know how it looks.
Break courtroom up into locations. Tie locations to scenes. Move to those locations with purpose.
Anchoring cements scenes in jurors memory. It gives you something to do (don’t stand still in the same place). It will keep you from pacing (also not good). Random motion is bad. You will have more power by mapping out where you will be at various points in your opening.

Question 34

different structures for opening

Answer 34

Different types (chronological, reverse chronological [start at the end], case of action [starts at the event], neutral observer [describe in third person], relationships, villain as the vehicle [typically openings make the client the protagonist, but you can also make the opponent the bad person and make the jury the hero, this requires that they have to take action to right the wrong]).

Question 35

what does the jury need to save our client? What must thre be?

Answer 35

There cannot be motivation to save our client without giving the jury an antagonist to fight against.
You must give the jury a problem to fix.

Question 36

Arguing in opening?

Answer 36

Your not allowed to argue your case in opening. But you are arguing your case in opening.
Don’t say things that could begin with “so.” Don’t tell them what the inference would be. Make presentation in a way that they know what the inference will be without you telling them.

Question 37

Evidence will show in opening?

Answer 37

“Evidence will show” is a crutch. It is a filler. It takes you out of the story you are trying to tell. If you draw an objection, say the same thing but add in “the evidence will show.”

Question 38

Discussing exhibits in opening

Answer 38

Can discuss any exhibits you believe will be introduced. But don’t make promises you can’t keep.

Question 39

demonstratives and exhibits in opening

Answer 39

u may use demonstratives and exhibits. Can’t show evidence that hasn’t been admitted???

Question 40

names in opening?

Answer 40

Jury will need to know some names. But don’t just throw names at them. Give context. This is the nurse, the doctor, the convenience store clerk. Don’t make them remember names.

Question 41

What happens if wedded to chronology in opening

Answer 41

If wedded to chronology (wait I messed up, I have to go back for a second).

Question 42

Tools available for delivery beyond mere words

Answer 42

Volume, silence (practice pausing, practice speaking slowly), pitch, speed, etc.