Setting the Case for Trial, Trial By Jury, and Trial Before Court

Question 1

Importance of understanding docket system

Answer 1

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

Question 2

Docket control S.D. TX

Answer 2

Docket control exercised by courts and magistrates; great delay

Question 3

Harris Co.

Answer 3

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

Question 4

Right to trial by jury exists

Answer 4

preserved by rules and 7th amendment, but only in suits at common law or as required by act of congress.

Question 5

Right to trial by jury does not exists

Answer 5

in equity cases, and other instances where did not exist at common law; habeas corpus; admiralty

Question 6

Origins of equity

Answer 6

Historical accidents; applicable to those claims/defenses in which there is no equity at common law; gap filler for common-law

Question 7

Examples of equity

Answer 7

Injunctions; equitable accountings

Question 8

If common law claimed joined with equity claim

Answer 8

court decides equity claims, jury trial is preserved for common-law claim.

Question 9

Jury trial in statutory actions?

Answer 9

Court decides if claim or issue is historically analogous to common law claim; i.e. civil rights cause of action

Question 10

Texas right to trial by jury

Answer 10

Broader; extends to equity cases; but still some questions and cases not for the jury

Question 11

Demand and waiver of jury trial

Answer 11

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.

Question 12

Texas demand to trial by jury

Answer 12

within reasonable time, not less than 10 days before trial, by written demand and payment of fee

Question 13

Summoning jurors constitutional requirements

Answer 13

Method of summoning must avoid “systematic exclusion” of identifiable classes (race; gender)

Question 14

Summoning jurors in federal system

Answer 14

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.

Question 15

Federal method for challenge of array

Answer 15

constitutional or statutory, before jury is selected or after certain number of days of finding defect in jury summoning process

Question 16

Summoning jurors in state system

Answer 16

Different but analogous. Use of computer system, juror info, forms and exemption certificate.

Question 17

Jury Selection

Answer 17

Voir Dire, challenges, Batson-Edmonson problem

Question 18

Challenges

Answer 18

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

Question 19

Voir Dire Purposes

Answer 19

1. discovery of facts for making preemptory challenges
2. Communications (define legal terms)
3. Commitment (to obey law)
4. Inoculation (give bad facts)
5. Rapport
6. Etc.- give inadmissible evidence
   Note problem of abuse

Question 20

Voir Dire Methods

Answer 20

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

Question 21

Batson-Edmonson Problem

Answer 21

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

Question 22

Procedure for Batson-Edmonson challenge

Answer 22

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

Question 23

Opening Statements

Answer 23

Attorneys frame case, preview evidence, tell what witness will testify, pairing them up with the major legal issues of the case

Question 24

“The Rule”

Answer 24

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

Question 25

Intro of evidence; Rules of evidence basic rule

Answer 25

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.

Question 26

Exclusionary principle of evidence

Answer 26

Relevancy, logical relevance of of evidence must not be “substantially outweighed” by prejudice, confusion, etc.

1. ) Specific rules
2. ) Hearsay
3. ) Personal knowledge
4. ) Unauthenticated documents or objects
5. ) Privilege

Question 27

Specific rules

Answer 27

Compromise offers, subsequent repairs/investigations, insurance, bad character, withdrawn guilty plea, etc

Question 28

Hearsay

Answer 28

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.

Question 29

Purpose of hearsay exclusion

Answer 29

Declarant can’t cross examined

Question 30

Hearsay exemptions

Answer 30

business records, excited utterances, public records, etc.

Question 31

Personal knowledge

Answer 31

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.

Question 32

Privilege

Answer 32

Privilege is stronger concept than other evidentiary rules; prevents disclosure.

Question 33

Process to authenticate documents or objects (7 steps)

Answer 33

1. Mark and number it
2. Have it identified
3. Lay predicate for admissibility (show relevancy and authenticate it)
4. Show to opposing council
5. Offer into evidence
6. Get ruling by court
7. Publish to jury (display on easel or by passing to jury)

Question 34

Method of examination and enforcement of rules

Answer 34

1. direct examination
2. Responsive answers
3. Enforcement
4. Additional enforcement

Question 35

Direct examination

Answer 35

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?

Question 36

Responsive answers

Answer 36

Responding to the question asked

Question 37

Enforcement direct examination

Answer 37

by objection; admitted evidence not objected to becomes part of evidence, whether admissible or not

Question 38

Additional enforcement direct examination

Answer 38

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)

Question 39

Cross examination and impeachment

Answer 39

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

Question 40

Jurisdictional variations, judgment calls of examination

Answer 40

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

Question 41

JMOL

Answer 41

After resting or won’t be able to raise at end of trial or on appeal

Question 42

Closing Argument Prohibited subjects

Answer 42

1. Distortion of law
2. 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
3. Appeals of passion or prejudice- can’t make argument that plaintiff will be charge of the public or will need welfare
4. Ad hominem- attacking opposing counsel

Question 43

Organization of closing argument

Answer 43

Plaintiff open, defense, plaintiff closes

Question 44

Plaintiff first closing argument

Answer 44

1. thank jury/praise system
2. Define terms in charge
3. Go through each of the special interrogatories
4. Short unemotional closing

Question 45

Going through interrogatories with jury

Answer 45

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”

Question 46

Defendant closing argument

Answer 46

1. 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”
2. Thanks jurors/praise jury system
3. Go through special interrogatories and put analogous defensive spin on them
4. Emotional closing for finding in defendants favor (not as effective, because arguments are subject to be answered by plaintiff)

Question 47

Plaintiff 2nd closing argument

Answer 47

1. Answers two or three arguments made by defendant
2. “I’m going to talk to you about what this case is really about”
3. Go through special interrogatories in summary fashion
4. Give jury emotional basis for finding for the plaintiff

Question 48

Purposes of argument

Answer 48

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

Question 49

Form of Verdict General

Answer 49

one long question; given every principle of law needed to solve the question, question is who wins and how much

Question 50

Form of verdicts

Answer 50

General, Special Interrogatories, Combinations

Question 51

Special Interrogatory charge or special verdict

Answer 51

questions about ultimate facts of the case; ask ultimate elements of the case; i.e. who was negligent, was there proximate cause, etc.

Question 52

Federal verdict

Answer 52

judges discretion which to use

Question 53

Texas verdict

Answer 53

almost always special verdict charges

Question 54

Usual contents of charge

Answer 54

1. Basic Instructions-Don’t draw straws, take bribes, elect foreperson, deliberate and render verdict only on ingredients of the law
2. principles of law (and definitions)-negligence would be negligence, proximate causation, ordinary care, preponderance of evidence; contract case would be offer, acceptance, etc.
3. Verdict

Question 55

Federal court charge

Answer 55

Jury instructed orally before and/or after argument; judge can comment, but not without limit

Question 56

Texas court charge

Answer 56

Must be written; read to jury before argument; then jury takes charge to deliberate

Question 57

Objections to the charge

Answer 57

before jury retires, parties may make objection to charge, any issue not objected to cannot be appealed

Question 58

Jury misconduct

Answer 58

can’t impeach verdict through mental processes of jurors

Question 59

Trial before court

Answer 59

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.