In-House Mock Trial SeminarIn-House Mock Trial Seminar

Trial TimelineTrial Timeline

1. Motions in Limine1. Motions in Limine2. Opening Statements2. Opening Statements3. Plaintiff’s Case in Chief3. Plaintiff’s Case in Chief

Plaintiff’s Direct ExaminationsPlaintiff’s Direct ExaminationsDefendant’s Cross ExaminationsDefendant’s Cross Examinations

4. Plaintiff Rests – Defendant Moves to Dismiss4. Plaintiff Rests – Defendant Moves to Dismiss5. Defendant’s Case in Chief5. Defendant’s Case in Chief

Defendant’s Direct ExaminationsDefendant’s Direct ExaminationsPlaintiff’s Cross ExaminationsPlaintiff’s Cross Examinations

6. Defendant Rests6. Defendant Rests7. Closing Arguments (Plaintiff gets rebuttal)7. Closing Arguments (Plaintiff gets rebuttal)8. Judges’ Critique8. Judges’ Critique

Pretrial PreparationPretrial Preparation

Case TheoryCase Theory:: Your version of eventsYour version of eventsE.g.: The defendant opened the door with a E.g.: The defendant opened the door with a

crowbar, hit the maid, and crowbar, hit the maid, and thenthen took the took the lamp.lamp.

Case ThemeCase Theme: The short phrase that helps: The short phrase that helpsthe jury recall what your case is aboutthe jury recall what your case is about

E.g.: This is a case about E.g.: This is a case about choices and choices and responsibilityresponsibility

Evidence ReviewEvidence Review: What are : What are allall the possible the possibleobjections to objections to allall the evidence in the case the evidence in the casepacket?packet?

Preliminary MattersPreliminary Matters

Excluding Witnesses (ER 615)Excluding Witnesses (ER 615)

Moving about the well of the courtMoving about the well of the court

Pre-marking exhibitsPre-marking exhibits

Motions in LimineMotions in Limine3 MIL maximum3 MIL maximum

Clear evidentiary issues onlyClear evidentiary issues only

Format (IRAC)Format (IRAC)

State evidence to exclude and groundsState evidence to exclude and grounds

State the applicable ruleState the applicable rule

Apply the ruleApply the rule

Opening StatementOpening Statement

FormatFormatState theme (“This is a case about…”)State theme (“This is a case about…”)Tell your storyTell your storyTell the jurors which witnesses they will seeTell the jurors which witnesses they will seeConclude (“At the end of the case, my co-counsel Conclude (“At the end of the case, my co-counsel will ask you to find defendant guilty/not guilty.”)will ask you to find defendant guilty/not guilty.”)

Do NOTDo NOTArgueArgueSay “you will hear”Say “you will hear”Make a claim unsupported by the evidenceMake a claim unsupported by the evidence

Examinations GenerallyExaminations Generally

With all examinations, you should knowWith all examinations, you should know

How to loop (“The light was red, but…”)How to loop (“The light was red, but…”)

How to admit evidenceHow to admit evidence

How to objectHow to object

How to impeachHow to impeach

Where to standWhere to stand

What evidence is getting inWhat evidence is getting in

Admitting EvidenceAdmitting Evidence(The “Evidence Dance”)(The “Evidence Dance”)

Say the following in the following order:Say the following in the following order:

May I approach? (Approach clerk)May I approach? (Approach clerk)May I have this marked?May I have this marked?Counsel (Show opposing counsel)Counsel (Show opposing counsel)May I approach? (Approach the witness)May I approach? (Approach the witness)I’m handing you what has been marked as I’m handing you what has been marked as Exhibit 1; do you recognize it?Exhibit 1; do you recognize it?How do you recognize it?How do you recognize it?What is it?What is it?Plaintiff/Defense offers Exhibit 1.Plaintiff/Defense offers Exhibit 1.

ObjectionsObjections

How to ObjectHow to ObjectStand, state the objection Stand, state the objection confidentlyconfidently, and wait, and waitIf judge allows it and looks to you, respond to opposing counselIf judge allows it and looks to you, respond to opposing counselMove to strike if the objection is sustainedMove to strike if the objection is sustainedSit DownSit Down

Sources of ObjectionsSources of ObjectionsThe Rules of Evidence (know them!)The Rules of Evidence (know them!)Motions in limineMotions in limineLook to practice guides for lists of common objectionsLook to practice guides for lists of common objections

Avoid…Avoid…Speaking ObjectionsSpeaking ObjectionsLooking at counsel (always argue to the bench)Looking at counsel (always argue to the bench)Overkill (choose your objections wisely)Overkill (choose your objections wisely)TimidityTimidityThanking the courtThanking the court

Sensitive ObjectionsSensitive Objections

In the following cases, object sparinglyIn the following cases, object sparingly

Opening StatementOpening StatementOnly when opposing counsel is Only when opposing counsel is clearlyclearly being being argumentative or violates MIL.argumentative or violates MIL.

Closing StatementClosing StatementOpposing counsel asks jurors to put themselves in Opposing counsel asks jurors to put themselves in someone’s shoes or asks them what they would someone’s shoes or asks them what they would have done.have done.

Opposing counsel argues a fact not in evidenceOpposing counsel argues a fact not in evidence

Impeachment Impeachment by Prior Inconsistent Statementby Prior Inconsistent Statement

ConfirmConfirmAlways begin impeachment by confirming the witness’s Always begin impeachment by confirming the witness’s inconsistent testimony inconsistent testimony exactlyexactly..Ask, “is it your testimony that [insert exact quote of oral Ask, “is it your testimony that [insert exact quote of oral testimony if possible]?”testimony if possible]?”

CreditCreditEstablish that the witness gave a prior statement and that the Establish that the witness gave a prior statement and that the prior statement was true.prior statement was true.

ConfrontConfrontRead the defendant’s prior statement Read the defendant’s prior statement verbatimverbatim..

Now Now move onmove on!!Do not ask the one question too many.Do not ask the one question too many.

The Impeachment DanceThe Impeachment Dance

Say the following in the following order:Say the following in the following order:Is it your testimony that the light was green?Is it your testimony that the light was green?This isn’t the first time you’ve given a statement in this case?This isn’t the first time you’ve given a statement in this case?You gave a deposition in this case?You gave a deposition in this case?I was there?I was there?Defense/Plaintiff’s Counsel was there?Defense/Plaintiff’s Counsel was there?Before testifying at your deposition, you took an oath?Before testifying at your deposition, you took an oath?It was the same oath you took today?It was the same oath you took today?You swore to tell the truth?You swore to tell the truth?And you did tell the truth?And you did tell the truth?Your deposition was taken at a time when your memory was fresh?Your deposition was taken at a time when your memory was fresh?After you testified at your deposition, you had an opportunity to read After you testified at your deposition, you had an opportunity to read the transcript of the deposition and you signed it?the transcript of the deposition and you signed it?

The Impeachment Dance (cont.)The Impeachment Dance (cont.)

Say the following in the following order:Say the following in the following order:Counsel (show deposition to opposing counsel)Counsel (show deposition to opposing counsel)May I approach? (Approach witness)May I approach? (Approach witness)I’m handing you a copy of your deposition in this case. I’m handing you a copy of your deposition in this case. Please turn to page 1 and read lines 5 and 6 Please turn to page 1 and read lines 5 and 6 silently to silently to yourself yourself and look up at me when you are finished. and look up at me when you are finished. That’s the portion of the deposition where I asked the That’s the portion of the deposition where I asked the following question and you gave the following answer:following question and you gave the following answer:

Question: What color was the light when you entered the Question: What color was the light when you entered the intersection?intersection?Answer: The light was red.Answer: The light was red.

That was the question I asked and the answer you That was the question I asked and the answer you gave?gave?

Direct ExaminationDirect Examination

Questions = open-ended. Questions = open-ended. SeeSee ER 611(c). ER 611(c).Focus = the witness.Focus = the witness.Make no more than Make no more than 3 points per witness3 points per witnessChaptering: Begin each segment of your questioning Chaptering: Begin each segment of your questioning with a phrase like “Now I would like to talk about x…”with a phrase like “Now I would like to talk about x…”Outline of an effective crossOutline of an effective cross

1. Credibility Block1. Credibility Block2. Chapter 1 (12. Chapter 1 (1stst point) point)

QuestionsQuestions

3. Chapter 2 (23. Chapter 2 (2ndnd point) point)QuestionsQuestions

4. Chapter 3 (34. Chapter 3 (3rdrd point) point)QuestionsQuestions

Positioning During Direct ExaminationPositioning During Direct ExaminationJury TrialsJury Trials

Positioning During Direct ExaminationPositioning During Direct ExaminationBench TrialsBench Trials

Cross ExaminationCross Examination

Ten Commandments of Cross ExaminationTen Commandments of Cross Examination (Younger, VC-T004): (Younger, VC-T004):

I.I. Be briefBe briefII.II. Use plain wordsUse plain wordsIII.III. Use only leading questions (ER 611(c))Use only leading questions (ER 611(c))IV.IV. Be preparedBe preparedV.V. ListenListenVI.VI. Do not quarrel with the witnessDo not quarrel with the witnessVII.VII. Avoid repetitionAvoid repetitionVIII.VIII. Don’t let the witness explainDon’t let the witness explainIX.IX. Limit questioning Limit questioning X.X. Save it for closing (do not ask the one question too many)Save it for closing (do not ask the one question too many)

FocusFocus

You want the focus to be on you the You want the focus to be on you the attorneyattorney, not the witness., not the witness.

Positioning During Cross ExaminationPositioning During Cross ExaminationJury TrialJury Trial

Positioning During Cross ExaminationPositioning During Cross ExaminationBench TrialBench Trial

Positioning OverviewPositioning Overview

Direct Examination

Cross Examination

Jury Trial Bench Trial

Closing ArgumentClosing Argument

Remember toRemember toUse your themeUse your themeArgue (infer from the facts)Argue (infer from the facts)Use the Jury Instructions Use the Jury Instructions

Esp. the “to convict” instructionEsp. the “to convict” instruction

Use a visualUse a visual

Outline of effective closingOutline of effective closingState theme argumentativelyState theme argumentativelyRoadmap the three sections of your closingRoadmap the three sections of your closing

Section 1 (move to one location)Section 1 (move to one location)Section 2 (move to next location)Section 2 (move to next location)Section 3 (move to final location)Section 3 (move to final location)

Conclusion: repeat theme and ask for reliefConclusion: repeat theme and ask for relief

Rebuttal (plaintiff only)Rebuttal (plaintiff only)Choose the two major points of contention in the case and argue themChoose the two major points of contention in the case and argue themManipulate opposing counsel’s theme if possible.Manipulate opposing counsel’s theme if possible.

Positioning During ClosingPositioning During Closing

Jury Trial Bench Trial

The Closing DanceThe Closing DanceJury TrialJury Trial

The Closing DanceThe Closing DanceBench TrialBench Trial