February 25th Notes

Litigation Basics
February 25, 2010

NEWS
3 Handouts
#18 Paralegal Article
#19 Misc. forms and sample jury instructions
#20 Case schedule and Misc. forms


Calendar for remainder of class
2/25   Trial
3/2    Finish Trial/Start Appellate
3/3    Electronic Discovery (on the final)
3/4    Job Placement Night - Required Attendance
          -Bring 2 questions, Bring resumes
         -Free pizza/soda
         -Mediation Brief Due
3/9    Review
3/10  Finish Appellate (if necessary otherwise free night/study group here)
3/11  Final
------------------------------------------------------------------------

Jury Selection
-bring an idea of what you are looking for in a juror
-gathered from local citizenry
-taken from driver's license
-federal court is 12 civil
-many states are 8 for civil
-in the jury demand you must ask for 12, otherwise you get 6 in State Court Rule 28

Two methods
1. 6 pack method
    -prefers this method
    -6 of the jurors sit in the box
    -then lawyers conduct voir dire
    -replace them as needed by challenges
    -addresses small selection of jury pool at one time

2. Phil Donahue method
    -this method is preferred in WA
    -lawyers voir dire the entire pool
    -there is a clock running, usually 40 minutes
    -problem is too many hands go out
        -you have to write everything down so your lawyer can pick the ones he wants later
    -must be careful in your questions without angering your jury
        -submit your questions to the judge for him to ask

Voir Dire Process
-process by which the jurors are questioned to determine any bias that they might have that would affect their ability to be fair and impartial in the case
-each side in the suit has an unlimited number of these challenges for cause
-everyone has bias or knows parties
    -the judge will seek to rehabilitate a juror if he does have a prejudice
    -even if you preconceived ideas the judge will seek to rehabilitate
    -can you still be fair and impartial in your decision
    -usually the party challenge the cause

Two Ways to Challenges a Juror
1. For Cause
    -relation, knows, bias, tainting the system
    -unlimited

2. Peremptory Challenges
    -3 jurors for any reason you like
    -can be based on race, but not in a criminal case
    -it's a personal thing
    -do not have to use them
    -automatic eliminations of potential jurors by one side before trial without needing to state the reason for the elimination
    -each side has the right to certain number of challenges

The Trial
Opening Statement
-first step, introductory statement made at the start of the trial by each side
-there is no evidence, so there is nothing to argue, it is just a statement
-good to start with a roadmap
-tell them where they are going to be in ten days
    -where you want to take the jury
-explains the version of the facts best supporting their side of the case, how these facts are proved, how they think the law applies to the case
-keep it brief, use ordinary language, make it interesting, use good body language
-most jurors only pay attention during the first 15 minutes

Tips
-you can use aids
-things you wish to show with visual aids
    -may not be evidence or every used again
-very important to have these items to keep them interested
-15 minutes tends to be his limit on length

Definitions and Limitations
-presents facts to the jury and introduces the evidence that the attorney intends to use to prove those facts
-not permitted to argue their cases during opening statements

Importance of the Opening Statements
-jurors are very attentive
-"white hat syndrome" - good guy vs. bad guys
    -people having bias

Characteristics of a Good Opening Statement
Delivering a Brief Opening Statement
-difficult to set a minimum length of time
-should be long enough to capture attention
-30 minutes, try to keep it under an hour

Delivering an Interesting Opening Statement
-take advantage of the attention of the jury
-captivating narrative of facts

Delivering an Understandable Opening Statement
-avoids legal jargon and speaks to the jurors

Delivering a Sympathetic Opening Statement
-show the jury that he believes in the righteousness of the client's cause
-do not refer to your client as "the plaintiff"
-use terms like we, our, us
-humor can be good but also can be devastating

Delivering a Tactful Opening Statement
-attorneys should not be overly emotional, too loud, or excessively boastful
-do not talk down to your jury

The Presentation of Evidence
-plaintiff presents his evidence by calling witnesses to testify and placing those witnesses under direct examination
    -if there are requests for admission, the judge reads these before the plaintiff calls the first witness
    -judge will instruct the jury to accept these are fact
-defendant then has the right to conduct a cross-examination of each witness
-plaintiff then has the opportunity to engage in cross-examination

Plaintiff's Case in Chief
Direct Examination
-the plaintiff's attorney calls each witness who will provide facts to verify the validity of the plaintiff's version of the case

Leading Questions by the Plaintiff
-exception to the rule that prohibits these
The Exceptions
1. adverse or hostile
2. child
3. expert
4. foundational information (where you go to school, live)

Rules Regarding the Plaintiff's Direct Examination
-all friendly witnesses should be properly and thoroughly prepared before the day of the trial
    -includes, client, witnesses, experts, characters witnesses
-should not being getting unknown information at trial
    -if it hasn't been covered do not bring it in
-know when to stop asking questions
    -paralegals are essential here, knowing when the issue is covered

Cross-examination by the Defendant
-the scope of cross-examination is limited to the facts covered in direct examination
-if the defendant wants to explore new territory with a witness he will have to call the witness during the defendant's direct examination
-objective cross examination is to discredit the witness to cast doubt on the accuracy of the witness's testimony

Redirect Examination by the Plaintiff
-objective of this part of the trial process is to allow the plaintiff's attorney the change to reestablish the credibility of his witnesses and clear up any factual disputes raised on cross-examination

The Defendant's Case in Chief
Re-Direct Examination by the Defendant
-calls his witnesses and subjects them to direct examination
-may not ask his own witness leading questions

Leading Questions by Defendant
-can ask leading questions on hostile or adverse witnesses

Rules Regarding the Defendant Re-Direct Examination
-should never ask a question to which he does not already know the answer

Re-Cross-Examination by the Plaintiff
-discredit their witnesses to cast doubt on the accuracy of the testimony or to show witnesses are biased

Re-Re-direct Examination by the Defendant
-defendant same chance to reestablish credit to witnesses and clear up factual disputes on cross-examination

Re-Re-Cross

The Presentation of Rebuttal Evidence
-formal contradiction of statements made by an adversary
-each side has a chance to see the entire case in chief and have the chance to present rebuttal evidence
-discredit the other side evidence and reestablish the credibility of the side presenting rebuttal

Closing Argument
Definition and Limitations
-each side in a jury trial is allowed time at the end to present evidence to make this arguments
-not a rehash of the complete trial
-as an opportunity to do something different
-write it at the end of everyday of trial (in case trial ends early, good to remember case as it is ongoing)
    -asking paralegals to write quotes from the trial

The Strategy of the Closing Argument
-explain their theories of the case and will demonstrate how the evidence presented at trial supports that theory
-may point out discrepancies between the witness's testimony in a deposition or interrogatories and his testimony during the actual trial

Characteristics of a Good Closing Argument
-delivering a Well-Planned Closing Argument
-attorney begins the closing arguments with his theory on the case and them moves to an explanation of the burden of proof and the evidence that strengthens his theory

Delivering a Persuasive Closing Argument
-must be persuasive, it is very difficult to manufacture, so it is extremely helpful if the attorney is convinced of the righteousness of her client's cause

Jury Deliberations
Jury Instructions
-the judge may instruct the jury on some things, such as law relating to the procedure of trial, the duties and functions of the jury, the law that pertains to the case, and use of evidence, before the trial begins and whenever needed during the trial
-before closing arguments, the judge will inform the attorneys how she will instruct the jury
-after closing arguments the judge delivers the jury instructions
-you can object to the instructions
-pleadings do not go in with the jury
-evidence goes with them

10 Jury Mistakes that lead to Mistrial
-if they are committed it can end in a mistrial
1. concealing facts or prejudices/lying at voir dire
    -particularly if it due to a personal connection (challenge for cause)
2. consulting unauthorized evidence
    -can only consider the evidence presented in trial
3. conducting experiments
    -can not duplicate conditions
4. private studying of the evidence
5. no viewing the scene without court approval
6. outside communication or consultants
7. arguing facts or experiences that are not in evidence
    -do not talk about similar experiences
8. no private consultations
9. chance and quotient verdicts are mistrials
    chance verdict: jury is deadlocked and flip a coin to decide
    quotient verdict: all agree on plaintiff but different amounts add up then divide
10. early judging of the evidence or reaching a conclusions before all the evidence has been admitted and discussed

Things Jurors can use at Trial
1. use of your knowledge and real world experience
    -do not have to suspend your own experiences
2. allowed to ask for additional review of the deposition and trial transcripts
3. you can send questions out to the court for explanation and answers
4.  jurors taking notes
    -some judges do, some judges don't
    -they are destroyed after trial
    -helps keep track of testimony
    -but can be a distraction, also harder to convince them what they wrote was wrong
    -if there are notebooks they never level the courtroom

Types of Verdicts
-general verdicts: where the jury must simply decide in favor or the plaintiff by specifying an amount of the money damages or decided in favor of the defendant

-general verdicts with interrogatories: requires the jury find for the plaintiff or the defendant and requires that the jury members answer specific fact questions
    -Rule 49

-special verdict: jury answers specific questions about the case and the court them applies the law to the facts found by the jury to determine which party is entitled to judgment

Actual Deliberations
-it considers the evidence in light of the instructions given by the judge and attempts to arrive at a verdict
-in federal court, in a civil case, a unanimous verdict is required unless the parties have agreed on some number less than a majority
-in state courts, a 3/4 majority is sufficient for a verdict in a civil case
-depends on the State 10 of 12 in WA

Rendering a Verdict
-parties and lawyers are not required to wait at the courthouse for a verdict

Polling the Jury
-involves asking each juror if the verdict announced was the verdict that he/she rendered
-if 6-8 answers during the polling process that they agreed with the verdict, the jury members are discharged
-if fewer than 6 concur with the verdict, the jurors are sent back to continue deliberations
-good for affidavits
-and who was on your side and if they might help you later
-ALWAYS poll a jury
-finding out who said what
-but do not tamper with or argue with them

Motions During Trial
motion for judgment as a matter of law(motion for a directed verdict)
-allows the trial judge to remove a case or issues in a case from the jury's consideration when the facts are sufficiently clear that the law mandates a particular results

Two situations that generally result in the court's granting JMOL
1. there is total absence of pleading or proof on an issue that is material to the claim or defense
2. there are no controverted issues of facts on which reasonable persons could differ

-2006 amendment requires the re-urging of the motion only after a verdict has been reached

motion for involuntary dismissal
-move for dismissal upon facts and laws without waiving the right to offer evidence if the motion is not granted
-Rule 41(b)

motion to strike
-a party can move to strike evidence that has been improperly admitted
-include a request that the judge instruct the jurors in ajury trial to disregard the improper evidence during its deliberations

motion for mistrial
-party asks the court to terminate the trial before judgment and set the case for trial at another time on the basis of improprieties
-reserved for impropriety so severe that a party can not receive a fair trial before this particular jury

Motions at the end of Trial
renewed motion for judgment as a matter of law
JNOV
Non Obstante Veredicto
Judgement not-withstanding the verdict
-called jury nullification
-judge reverse the juries verdict
-asks the district court to disregard the jury findings and enter judgment for he movant in spite of the jury's verdict for the nonmovant
-Rule 50(a)(2) permits the consideration of a renewed motion only is the moving party made the motion before the case was submitted to jury
-objections by the nonmovant are permitted under Rule 50 with no deadlines for the filing specified
-they usually grant a new trial or send it to appeals


motion for new trial
-asking the trial court to order a new trial when prejudicial error has occurred or when for any reason a fair trial was prevented
-opposition may file a responsiveness affidavit within 10 days of the date of the motion for a new trial was filed

curative instruction
-mentioned something you should not, harass witness, things of this nature, etc.
-judge instructions jury to disregard this evidence
    -if that instruction can no fix it, it is a mistrial
-can leads to sanctions

Paralegal's Role
Ensuring the Presence of Witnesses
-transportation of witnesses
-keeping witness calm from stress and anxiety

Other Work
-trial brief
-direct and cross examination written
-watching how much the lawyer speaks
-witness preparation
-7 copies of everything
-indexed everything necessary and ready for lawyer use

-always the same layout for jury

J
u          | Juror 1 | Juror 2  | Juror 3 | Juror 4  | Juror 5  | Juror 6  |
d          __________________________________________
g          | Juror 7 | Juror 8 | Juror 9 | Juror 10 | Juror 11| Juror 12 |
e


Keeping Track of Exhibits

Participating in Jury Selection
-take notes while attorney exams jury
-body language, communication to factual issues
-notes of strikes, who struck it, how many strikes each side has used, and potential jurors who have been excused

Taking Notes during Trial
-the attorney is very busy so this helps him out
-helps in preparing your closing
-talk with the lawyer about the case
-need at the end when if you are going to have an appeal
    -notes on all objections for appeal
    -denials, judge's ruling
-good for preparing your witnesses
-timed and dated can assist for appeals


Chapter 15 Review Questions
1. What are the paralegal's duties in trial preparation?
2. What is the purpose of the trial notebook?
3. What are the contents of the trial notebook?
4. What responsibilities does the paralegal have in preparing witness for trial?
5. What are the standards by which a trial exhibit is evaluated?
6. What duties does the paralegal have in preparing the logistics of the trial?
7. What motions might be appropriate during a trial?
8. What are the paralegal's duties in preparing for the jury process?
9. What duties does the paralegal perform during trial?
10. What are the major components of a trial?