Trial Advocacy


Class Info

Law School: Liberty University School of Law

Course ID: LAW 595

Term: Fall 2019

Instructor: Prof. Rost

Books Used
  • Trial Techniques by Thomas Mauet
  • 2019 Federal Rules of Evidence Summary Trial Guide by Erwin Chemerinsky & Laurie L. Levenson

Direct Examination

Direct examination is the questioning of a witness called by the examining party.

When doing direct examination, leading questions are not permitted. You would not want to anyway.

When doing direct examination, you want to ask broad, open questions and let your witness talk so the jury can relate to and sympathize with him.

Good direct examination questions often start with one of these 8 words:

  1. Who
  2. What
  3. Where
  4. When
  5. Why
  6. How
  7. Explain
  8. Describe

You want to avoid simple yes/no questions. (Usually such include forms of "be" such as "were" and "is".)

It's important to end on a good note. Ask background and lead-up questions first, and save the actual event for the end, then end.

  • If your witness starts talking about the event too early, cut him off and say you'll get.

The main ways students lose points on direct are trying to steer and script the witness instead of letting him tell the story naturally, not laying the foundation for evidence, not going through the right steps for admitting evidence, compound questions, and leading questions.

Rost alone will let you give a witness a script to make sure they can do it, but you don't want it to sound scripted.

Just because you can have a witness demonstrate something doesn't mean you should.

Cross-Examination

Cross-examination is the questioning of a witness called by the opposing party.

Cross-examination happens after direct examination.

Leading questions are permitted on cross, and you will want to take advantage of them. You want to control the narrative and not let the witness talk too much, so try to just ask yes-or-no questions that you already know the answer to.

Leading Question

A leading question is one that suggests a certain answer.

Examples:

  • "You're wearing a purple shirt, right?"
  • "Wasn't the light green?"
  • "You were at the bank, weren't you?"

Leading questions are usually formed by adding a tagline to statement.

Tagline

A tagline is a phrase added to the end of an otherwise declaratory statement to turn it into a leading question.

Common taglines include "...correct?", "...isn't that right?", "is that correct?", "weren't you?"

Mix up taglines; don't just repeat the same phrase over and over again.

An otherwise declarative sentence can be turned into a leading question by tone and context. (Just saying a sentence is not a question though, despite what Prof. Rost says.)

Leading questions not permitted on direct examination, only cross-examination.

You can have three, usually contradictory, goals during cross-examination:

  • Destroy the witness
  • Confirm your own preexisting facts
  • [Draw out new facts]

Adverse witnesses are never going to give you the case. Just ask questions that support your theory and let the jury make the inferences.

  • Don't ask "You were speeding?". Ask when work starts and what time it was.
  • Don't ask "Was the sun in your eyes?". Ask the time and the direction heading.

Once you get all you think you can get, stop.

The main ways students lose points on cross-examination are open-ended questions, compound questions, questions that contain too many facts, questions that state the conclusion that you want the jury to reach ("one question too many"), failure to use signposts, reiterating facts from the direct, ending on an objection.

You don't want to just bring out bad facts, you need to make a complete point to lead the jury where you want to go.

Refresh

Refreshing recollection occurs when a witness doesn't remember a fact or when a witness that you don't want to impeach gets a fact wrong.

You want to prepare your witness to know when you need to refresh his recollection and what will help.

  • "Are you sure it was X?" → "No, I'm not sure."
  • "Is there something that would help refresh your recollection?" → "My deposition would."
  • The witness has to say what will help refresh his recollection. If he just says something will, you have to ask "What?" Only if he then doesn't know can you suggest something.

You then show opposing counsel, ask to approach, hand it to the witness, say "I'm handing the witness his deposition", and ask the witness to read it silently. Then, you have to take the document back before asking if his recollection has been refreshed.

Don't script in a refreshing. Just be prepared if it happens.

Impeachment

To impeach, you first get a bad fact that contradicts a prior statement.

You then must credit the prior statement, very thoroughly. Read the litany, don't just ask if

You can then ask for permission to approach, show opposing counsel, approach, credit it to ensure that this is the "sworn statement," ask if he just said the bad fact, read the deposition, and ask if read correctly.

You might have a stipulation that each witness's prior statement is his entire testimony. This allows for impeachment by omission if one says something not in the facts.

  • Crediting is a bit different, as you then have to bring out why such a fact should have been in the prior statement. Focus more on completeness, not accuracy. Then instead of reading it, just say "Nowhere in this sworn statement did you mention X, did you?" Otherwise it is the same though.

Impeachment is usually by deposition but sometimes prior trial testimony.

You can only impeach a witness with his own prior statement.

You don't want to impeach a victim or a likeable witness. Just refresh recollection instead.

Evidence

Even though evidence in the class packets is pre-marked, ignore that. Ask the judge to have the clerk mark it as "Plaintiff's Exhibit 1" or "Defense's Exhibit A".

To admit evidence:

  1. Have it marked for identification.
  2. Ask the witness if they recognize it.
  3. Ask the witness how they recognize it.
  4. Ask the witness what it is.
  5. If it is a diagram, ask the witness if it fairly and accurately represents the thing as it existed on that day.
  6. If it is an original physical object, ask if it is in the same or substantially the same condition as it was on that day.

For class, treat documents as original unless you know that it is a photocopy.

Pre-Trial Motion
Offer of Proof

An offer of proof is explaining why something should be admitted or not. To make an offer of proof, just ask "May we approach?"

Offers of proof are governed by FRE 103.

An offer of proof can be made by narrative or by witness testimony.

By narrative is the most common way and is just making the argument.

By testimony requires the jury to leave the room so the witness can be questioned, so it is often not done.

At sidebar, the jury will still be in the room, so you must be very quiet.

They're often for the record for appellate courts.

Stipulation

Stipulations are to make things admissible at trial without having to call witnesses to testify, which would take a long time.

You can stipulate as to facts and admissibility.

Stipulations can be traded with the opposing side (even for the final trial). Just reduce it to writing so that you can have proof if opposing counsel tries to bring in evidence proving it, and you have to provide it to the judge. (For the pre-made ones here, just have a copy ready to give to Rost.)

The pre-made stipulations in the pack are because each party only has two witnesses.

Stipulations can be introduced at any time in one's case-in-chief (not on cross during the other side's). You just have to find the best place for the fact to be told to the jury.

  • The sole exception is that if a witness contradicts a stipulation on cross, you can impeach him with the stipulation.

You can only read part of a stipulation, but the opposing counsel can invoke the Rule of Completeness and have the rest of the stipulation read.

Sometimes the pre-made stipulations may not be desired to be read, but some are always necessary to prove the case.

Either the attorney or the judge can read a stipulation. Judges reading play better with the jury, but some may not want to. Also, reading it yourself lets you choose how it is emphasized.

Opening

Openings should be interesting stories about the case, and should not be boring stories about the trial.

  • You should not be saying "You will hear..." over and over.

It should begin strong with a theme and some sort of injustice presented in the first 45 seconds.

The theme should be the same as in the rest of your case.

You cannot argue during opening. You are arguing if you are making conclusions, saying facts indicate something, asking rhetorical questions, explaining the law too much, or combining fact and law.

  • Usually this happens because people stop telling a story.

It is a good idea to use signposts in your opening statement to tell the jury where you're going, especially in time.

Your story is familiar to you, but it won't be to the jury.

You must finish your opening well.

Rost won't take off points for saying "thank you" at the end, but it sounds disingenuous and Rost dislikes it.

The main ways students lose points are arguing, not making it clear to the jury, and not finishing strongly.

Close

Your close should start how your opening ended and carry on the theme carried through the trial.

You again want to start strong in the first 40 seconds.

You should say what has been proved and what hasn't been proven.

Just connecting pieces of evidence to an element is not persuasive.

Find a way to be creative and connect the pieces of evidence to tell a story.

The main ways students lose points on closing argument are by not opening strongly, just stating evidence without persuasion, not finishing strongly, and not finishing your rebuttal strongly.

Rebuttal is not just responding to the other side's case. You have to prepare for it. You will already know basically what the defense's closing argument will say.

You should use visuals, but don't use visuals for the sake of visuals. Visuals don't have to be admitted as evidence. Visuals for closing should be argumentative.

  • A criminal defense lawyer should have the steps of proof with beyond-a-reasonable-doubt at the top.
  • Don't use jury instructions.
  • You want minimal amounts of text generally.
  • Be creative with PowerPoint. A popular method is to construct a "wheel of guilt" with text in a circle with arrows pointing towards the defendant in the middle. Sometimes just make it something to consider, sometimes a single phrase from a jury instruction underlined.