February 24th Notes

Litigation Basics
February 24, 2010

NEWS
For your projects due tomorrow:
Please staple all parts and in the following order:
1. Memo
2. Rogs
3. RTP
4. RTA
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Witness Instructions   page 410
-get there early
-dress clean and professional
-do not discuss your testimony with anyone
-talk clearly
-listen clearly
-do not guess at answers
-follow lawyer's advice
-look at the lawyer asking the question
-avoid qualifiers
-do not argue
-be polite
-requests breaks when needed
-if an answer has changed, make it known immediately

Preparation of Exhibits and Briefs
Copies are important
-7 copies of everything
    1. Opposing counsel
    2. Trial Notebook
    3. Judge
    4. Witness
    5. Court Clerk
    6. Spare
    7. Spare

Preparing Trial Exhibits
-require that parties exchange lists of all the trial exhibits before the trial

Enlarged Exhibits and Unusual Graphics
-do several weeks in advance
-80% learning is visual
-keeps the jury entertained
-any key piece of evidence, even if it won't be admitted, help the jury understand
-4X6 on easel, overhead projector, powerpoint on screen
-fill the courtroom with your evidence
-the jury can bring flipbooks and easel into deliberations with them
-make it dramatic and sympathetic

Preparing a Chronology of the Case
-review the litigation files, depositions and documents and construct critical events
-this is not evidence but can help the jury understand the significant theories in the case

Evaluating Documents as Trial Exhibits
-how effective a document will be as a trial exhibit?
-asks friends, coworkers and random people what they think
1. relevant
2. admissible
3. necessary (obvious)
4. support the cause of action
5. confusing (obvious)
6. repetitive information
7. detraction from the witness's testimony
8. increase the effectiveness of the witness's testimony
9. easy to read from the jury box and counsel table
10. accurate (obvious)
11. attractive appearance
12. clear (obvious)
13. make a clear and readable copy
14. procedural foundation be laid for introduction of the document at trial

Researching for the Trial Brief
-trial brief: a document prepared by a lawyer to use at trial, contains lists of witnesses, evidence, and citations, arguments to be presented
-ALWAYS do a trial brief
-freebie on explaining to the judge your case
    -same with summary judgment
        -gets the judge thinking about the case on your terms
-trial brief does not have to be neutral, you can be an advocate for it
    -do not be overly dramatic since this goes to the judge

-cite check: verifying the accuracy and proper form of all the citations in a document
    -very important to do this well
    -never cite a case that is overruled or reversed

Example on page 413
-make it interesting to read
-no strict format to it
-when citing, make sure to quote and make it relevant to your case
-show how it should end to the judge

Coordinating Trial Logistics
Arranging Accommodations
-paralegal may be responsible for travel, hotel and food arrangements
    -for attorney, yourself, witnesses
-make it near the courthouse
-setting up a base of operations at a hotel is a great idea to keep cases going smoother
-client usually pays for it

Visiting the Courthouse
-determine amount of space available for exhibits, briefcases, supplies, easels, charts, chalkboards, projectors, video equipment, audio equipment
-just need to get comfortable with the setting
-helps the client feel at ease, lets your witnesses know where things are
-the more mystery taken out, the better the result
-what services are available in the courthouse

-trial box: consisting of all supplies needed during the trial should be put together after the visit to the courthouse (page 419 list)

-ask the clerk if you can leave exhibits at the court
    -if something is going to go wrong without, safe guard it

Preliminary Steps in the Trial Process
Decisions Regarding Jury Trials
-7th Amendment guarantees the right to trial by jury in certain types of civil cases
-preserves the right to a jury trial in cases involving common law for those litigants who wish to take advantage of this right

Factors in Choosing a Judge or a Jury Trial
-first factor to consider is the complexity of the case
-available time
-condition of the client
-location of the trial can be a factor in the decision to demand a jury trial

***be sure to be able to give 6-15 factors on how to choose a jury***

Requesting a Jury Trial
-Rule 38(b) requires litigants to demand a trial by jury
-made in writing at any time after the lawsuit has begun but not later than 10 days after the last pleading in the case has been filed
-State Rule 38 different

The Jury Process
-includes juror profile, mock jury trial, shadow jury

Preparing a Juror Profile
-purpose of the juror profile is to determine a composite profile of the ideal jurors for a particular case
-looking for the ideal juror
    -all around ideal and most sympathetic to our case
-important to know how these jurors will react to the case
-good to know their profiles on home, education, work, lifestyle

Important Points
-still no guarantees that they will be ideal for your case
    -a young person may be more sympathetic than you realize in an old person's case
-overcome their prejudices that they don't have any prejudices
    -huge divide between rich and poor in this country, more so than racial in law

Holding a Mock Jury Trial
mock trial: practice trial to the date of the actual trial, intended to reveal the strengths and weaknesses of a party's case
mock jury: group of independent individuals chosen to reflect the probable makeup of the actual jury

Using Shadow Juries
shadow jury: group of persons paid by one side in a lawsuit to observe the trial and give their reactions to it