Setting the Case for Trial, Trial By Jury, and Trial Before Court Flashcards
Importance of understanding docket system
Need to assure reasonable setting; Need to understand continuance problems; immense variation among different courts; Need to know the importance of local rules, specifically typical provisions
Docket control S.D. TX
Docket control exercised by courts and magistrates; great delay
Harris Co.
Former “request” procedure was replaced by “certification” procedure and now individual judges control; control by judges inefficient in some ways, but creates responsibility on individual judge
Right to trial by jury exists
preserved by rules and 7th amendment, but only in suits at common law or as required by act of congress.
Right to trial by jury does not exists
in equity cases, and other instances where did not exist at common law; habeas corpus; admiralty
Origins of equity
Historical accidents; applicable to those claims/defenses in which there is no equity at common law; gap filler for common-law
Examples of equity
Injunctions; equitable accountings
If common law claimed joined with equity claim
court decides equity claims, jury trial is preserved for common-law claim.
Jury trial in statutory actions?
Court decides if claim or issue is historically analogous to common law claim; i.e. civil rights cause of action
Texas right to trial by jury
Broader; extends to equity cases; but still some questions and cases not for the jury
Demand and waiver of jury trial
Federal- with 14 days of last pleading; if removed, 14 days after removal; demand still effective if made in state court before removal (no request required); judge has discretions to grant or deny jury trial after time limit. Demand is simply a written demand; one sentence is enough; on complaint or answer is OK and easiest way. Plaintiff demands trial by jury on all issues so triable.
Texas demand to trial by jury
within reasonable time, not less than 10 days before trial, by written demand and payment of fee
Summoning jurors constitutional requirements
Method of summoning must avoid “systematic exclusion” of identifiable classes (race; gender)
Summoning jurors in federal system
Each district court to evolve plan for summons using voter registration lists of actual voters, supplemented by other means if necessary (e.g., drivers license). From the list, names to be drawn at random to compose list from which court summons as needed. Each district court to allow certain exemptions (custody of children under 10, aged and infirmed) and evolve rules for others in its discretions. Method of summons includes information form.
Federal method for challenge of array
constitutional or statutory, before jury is selected or after certain number of days of finding defect in jury summoning process
Summoning jurors in state system
Different but analogous. Use of computer system, juror info, forms and exemption certificate.
Jury Selection
Voir Dire, challenges, Batson-Edmonson problem
Challenges
Cause-unlimited number; for bias and prejudice, pecuniary interest, etc. Judge decides, subject to review (also not citizens, illiterate to English)
Preemptory- 3 to a side in a federal civil case; done by striking lists
Voir Dire Purposes
- discovery of facts for making preemptory challenges
- Communications (define legal terms)
- Commitment (to obey law)
- Inoculation (give bad facts)
- Rapport
- Etc.- give inadmissible evidence
Note problem of abuse
Voir Dire Methods
Federal-judge may allow attorneys or do himself, or ask some questions and allow parties to ask others; must allow written questions if judge does it all by himself
State- judge reads form specified by rules. Attorneys given reasonable time to ask questions relevant to selection
Batson-Edmonson Problem
Racially motivated peremptory challenges prohibited, in civil cases or criminal, both sides; paradox: peremptories are always done by instinct, “feel”, or gross characteristics (stereotypes); extended to gender, but other categories usually not
Procedure for Batson-Edmonson challenge
Batson challenge raised by prima facie showing, i.e. statistical. If unrebutted, enough to make challenge; Opponent rebuts inference by credible neutral explanation, i.e. I challenge this person because he has been in a lawsuit before; Judge has to determine if explanation is legitimate
Opening Statements
Attorneys frame case, preview evidence, tell what witness will testify, pairing them up with the major legal issues of the case
“The Rule”
Sequestering of witness; witnesses not testifying remain outside of courtroom not allowed to communicate with anyone but attorneys. i.e. Your honor, the plaintiff/defendant invokes the rule
Intro of evidence; Rules of evidence basic rule
Opening and closing by party with burden of proof. Evidence is admissible if logically relevant and has any tendency of making fact more or less likely; cannot appeal on evidence unless promptly objected to.
Exclusionary principle of evidence
Relevancy, logical relevance of of evidence must not be “substantially outweighed” by prejudice, confusion, etc.
- ) Specific rules
- ) Hearsay
- ) Personal knowledge
- ) Unauthenticated documents or objects
- ) Privilege
Specific rules
Compromise offers, subsequent repairs/investigations, insurance, bad character, withdrawn guilty plea, etc
Hearsay
Statement made by someone other than one testifying at trial, offered to prove truth of matter stated in the statement. You can’t repeat someone else’s versions of facts in court but, if statement is part of fact, it is not hearsay.
Purpose of hearsay exclusion
Declarant can’t cross examined
Hearsay exemptions
business records, excited utterances, public records, etc.
Personal knowledge
Most matters of fact contain some some opinion. Opinion evidence is admissible if it is rationally based on the the perception of the witness. Most matters not based on personal knowledge are excluded. However qualified expert witness may give opinion and is not similarly bound by personal knowledge rule.
Privilege
Privilege is stronger concept than other evidentiary rules; prevents disclosure.
Process to authenticate documents or objects (7 steps)
- Mark and number it
- Have it identified
- Lay predicate for admissibility (show relevancy and authenticate it)
- Show to opposing council
- Offer into evidence
- Get ruling by court
- Publish to jury (display on easel or by passing to jury)
Method of examination and enforcement of rules
- direct examination
- Responsive answers
- Enforcement
- Additional enforcement
Direct examination
use non-leading questions; leading questions suggest answer; attorney can’t testify; general rule only; direct v. indirect example: Leading-It was raining cats and dogs v. indirect-what was the weather outside?
Responsive answers
Responding to the question asked
Enforcement direct examination
by objection; admitted evidence not objected to becomes part of evidence, whether admissible or not
Additional enforcement direct examination
Request instruction to disregard (can be quite effective); move for mistrial; contempt; appeal (appeal is limited as an enforcement device by concepts of harmless error, cured error, and preservation)
Cross examination and impeachment
Can ask leading questions; should try to only ask leading questions on cross; wider admissibility to impeach- certain convictions, bias, psychological condition, prior inconsistent statements
Jurisdictional variations, judgment calls of examination
Trial judge in Dominguez case initially not allowing condition of carts on other days, then allowing it. Either way, judge probably won’t be overruled
JMOL
After resting or won’t be able to raise at end of trial or on appeal
Closing Argument Prohibited subjects
- Distortion of law
- Facts outside of record-can draw inference or attack credibility (great deal of latitude); can’t introduce a new or different fact that wasn’t a part of record
- Appeals of passion or prejudice- can’t make argument that plaintiff will be charge of the public or will need welfare
- Ad hominem- attacking opposing counsel
Organization of closing argument
Plaintiff open, defense, plaintiff closes
Plaintiff first closing argument
- thank jury/praise system
- Define terms in charge
- Go through each of the special interrogatories
- Short unemotional closing
Going through interrogatories with jury
Read it- “The judge asked this question, whose negligence if any was a proximate cause of”
Translate it-“All that mean ladies and gentlemen is who participated in the accident by carelessness”
Marshall the evidence-“Ladies and gentlemen, in this case, a policeman has testified, based on his experience and expertise, that defendant was going 55-65 mph and Mrs. Smith testified to the same thing”
Tell jury how to answer-“There is only one answer you can come up with”
Defendant closing argument
- Answers two or three arguments made by plaintiff briefly-“There are many arguments to answer and I’m goin got have to trust you to sort out the other ones”
- Thanks jurors/praise jury system
- Go through special interrogatories and put analogous defensive spin on them
- Emotional closing for finding in defendants favor (not as effective, because arguments are subject to be answered by plaintiff)
Plaintiff 2nd closing argument
- Answers two or three arguments made by defendant
- “I’m going to talk to you about what this case is really about”
- Go through special interrogatories in summary fashion
- Give jury emotional basis for finding for the plaintiff
Purposes of argument
to put together law & evidence; to answer jury questions; IRAC method; Issue is what judge asked you; Principles are here is what it means; Facts are here is what the evidence is
Form of Verdict General
one long question; given every principle of law needed to solve the question, question is who wins and how much
Form of verdicts
General, Special Interrogatories, Combinations
Special Interrogatory charge or special verdict
questions about ultimate facts of the case; ask ultimate elements of the case; i.e. who was negligent, was there proximate cause, etc.
Federal verdict
judges discretion which to use
Texas verdict
almost always special verdict charges
Usual contents of charge
- Basic Instructions-Don’t draw straws, take bribes, elect foreperson, deliberate and render verdict only on ingredients of the law
- principles of law (and definitions)-negligence would be negligence, proximate causation, ordinary care, preponderance of evidence; contract case would be offer, acceptance, etc.
- Verdict
Federal court charge
Jury instructed orally before and/or after argument; judge can comment, but not without limit
Texas court charge
Must be written; read to jury before argument; then jury takes charge to deliberate
Objections to the charge
before jury retires, parties may make objection to charge, any issue not objected to cannot be appealed
Jury misconduct
can’t impeach verdict through mental processes of jurors
Trial before court
Similar to jury trial, but simpler procedurally. No jury selection or instruction or verdict. But to appeal on factual grounds, must get findings and conclusions. Usually judge receive arguments.
