unethical or uncivil: the best and worst litigation tactics
TRANSCRIPT
UNETHICAL Or UNCIVIL:
The best and worst litigation tactics
Judge Charles G. Crawford, 18th Judicial Circuit
Kelly A. Swartz, Chief Legal Officer
Brevard Family Partnership
OverviewCross
ExaminationOpening/Closing
argumentsProfessionalism
01 040302
Presentation Overview
Overview
01
Topics of Discussion
INTRODUCTIONThe subject of this presentation is how to succeed in trial.
• We will provide you with tips on:
- advocacy
- presentation of witnesses
- handling exhibits
- general courtroom behavior
• We will use hypothetical and real case examples.
• Each element of trial will be viewed from the perspective
of the Attorney, Judge & GAL.
• At the end of the workshop each participant will better
understand the elements of trial in Dependency Court, and
how to be professional….even when others aren’t..
Learning Objectives
Cross examination
• How to cross examine
effectively.
• Learn critical questions to admit
the most common pieces of
evidence.
• Take home your own Evidentiary
Predicate Questions Manual.
opening/closing Professionalism
• Waive opening and wave your case
goodbye. Bring the drama.
• How to effectively allow the
Judge to hear the facts again in
closing.
• How to open and close without
having to read it verbatim.
• Why you should always be
professional, even when others
aren’t.
• Where to go to find Professionalism
Resources.
• Email and remote hearing
etiquette.
02
01
03
Cross-Examination
02
How to Effectively Question a
Witness
Cross Examination
Title VII: EVIDENCE Chapter 90: EVIDENCE CODE
Mode and Order of Interrogation and Presentation.
(1) The judge shall exercise reasonable control over the
mode and order of the interrogation of witnesses and
the presentation of evidence, so as to:
(a) Facilitate, thorough effective interrogation
and presentation, The discovery of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue
embarrassment.
(2) Cross-examination of a witness is limited to the
subject matter of the direct examination and matters
affecting the credibility of the witness. The court may,
in its discretion, permit inquiry into additional matters.
Fla. Stat. § 90.612 (2019)
Cross Examination
Mode and Order of Interrogation and Presentation.
(3) Leading questions should not be used on the direct
examination of a witness except as may be necessary to
develop the witness’s testimony.
Ordinarily, leading questions should be permitted on
cross-examination.
When a party calls a hostile witness, an adverse party,
or a witness identified with an adverse party,
interrogation may be by leading questions.
The judge shall take special care to protect a witness
under age 14 from questions that are in a form that
cannot reasonably be understood by a person of the age
and understanding of the witness, and shall take special
care to restrict the unnecessary repetition of questions.
Fla. Stat. § 90.612 (2019)
Restating the expert’s answers on direct is not an
effective cross.
• Ask leading questions that only net a yes or no answer.
• You will not win an argument with the expert on their
opinion of the subject matter.
• Point out if an expert witness is a hired gun or has bias.
• Tie your questions to your theory of the case.
• Cross on the other possibilities associated with their
“conclusions”.
- Get whatever concessions or admissions you can.
- Do not ask “why”.
Cross Examining an Expert
• For experts cross on any tests or procedures he or she
did not perform or follow.
• Confront on any lack of information needed to form
their opinion.
- Did they not have certain facts about the case
when they formed their opinion.
• Just do the best you can, do not simply repeat what
was already stated on direct. You are only emphasizing
the expert’s opinion to the Judge.
• You are not going to win this part of the trial, do your
best to minimize the damage.
Cross Examining an Expert
Opening & Closing arguments
03
How to Convincingly Summarize
Your Case
And Justice for all
Closing Arguments
Opening Arguments
• Never, ever, EVER, waive an opening argument.
• It’s Your opportunity to give the judge a synopsis of your case.
• Helps frame your issues
- If you don’t know them by opening, there is a BIG problem.
Closing & Opening ARguments
Closing Arguments
• Your chance to convince the judge of your case.
• Opportunity to sum up and summarize your points.
• Do not read your closing, do not simply repeat, bring the drama.
Effective Closing Arguments
Have a theme
Keep connected talking
points in mind. Know your
closing argument, don’t
simply read it verbatim.
Be Preemptive
Know the facts and tackle
the unfavorable ones head
on. Make inferences that
make sense.
Poke Holes
Discuss the other sides
weaknesses. Be specific
when reciting important
evidence. Don’t attack
opposing counsel but
expose witness credibility.
Use Case Law
Explain how the case law
applies to the facts of the
case. Provide copies to the
Judge before you start your
closing argument.
Highlighting is acceptable.
Use Diagrams
Use Charts and Graphs,
make copies for everyone.
Percentages have a huge
impact.
No Objections
Don’t object, it is closing
argument not evidence.
Unless it is really
objectionable, and you just
can’t help it.
A closing argument should attack the problems in a case and put them in the most favorable light for the judge.
Your closing argument begins during your opening statement.
More than REview
Simply reviewing the
evidence without
attacking, analyzing, or
giving your theory of the
real issues in the case will
not be effective.
Practice
Practice, practice, practice
and never waive the
closing!
Professionalism
04
How to Uphold Court Decorum
— Mark Twain
“Always do right. This will
gratify some people and
astonish the rest.”
Professionalism
Candor
Maintain your
credibility with the
court.
REsponsibility
Be prepared and be on
time.
Deference
Don’t argue your point
after ruling. Ask for a
proffer.
Respect
Ask to approach the
court, witness, or clerk
(Some judges may only have you ask
once - find out their preference).
Timing
Give the judge a
realistic estimate of
how long the case or
witness will take.
How the Bar Investigates Disciplinary Complaints
STEP 1
Initial complaint sent to Bar
for investigation.
STEP 2
If alleged conduct may
constitute a violation, send
it to one of the 5 branches
of the bar.
STEP 3
Once at correct branch, a
Bar counsel reviews facts
and conducts independent
investigation of conduct.
STEP 4
Case closed with closeout
letter, or must appear
before grievance
committee.
STEP 4
If probable cause found,
case sent to court. If minor
infraction, alternative
discipline can be taken.
Possible Sanctions Disbarment: Most severe sanction. Reserved for gross
lapses in integrity. Can usually seek readmission after 5
years.
Disciplinary Revocation: Attorney does not contest
charge and surrenders license. Also called “disbarment
on consent.”
Suspension: For non-rehabilitative, an attorney is
suspended for 90 days or less and immediately
reinstated afterwards. For rehabilitative suspension, an
attorney is suspended for 91 days to 3 years, and must
prove rehabilitation before readmission.
Felony or Emergency: Immediate suspension if
convicted of a felon
Possible Sanctions Public Reprimand: Public reprimands are reported
with other Florida Supreme Court decisions in the
Southern Reporter, and published in the News.
Probation: Can be ordered in connection with
discipline. Can include mandatory meetings, audits by
an accountant, mental health professionals, drug and
alcohol testing, reporting requirements, or more.
Admonishment: Lowest form of discipline.An
admonishment can be contained in a Supreme Court
order, or may be issued by a grievance committee or
the Board of Governors.
Other measures: Any additional sanctions can be
ordered, including but not limited to, ethics school,
stress management workshops, lawyers assistance
referrals, trust and accounting classes, etc.
Lawyer Discipline Statistics
2015-
2016
2016-
2017
2017-
2018
2018-
2019
2019-
2020
Total Bar Population 103,010 104,676 109,095 107,131 108,615
Disbarments 54 46 42 37 42
Suspensions 194 179 129 124 136
Public Reprimands 67 50 37 33 32
Disciplinary Revocation 24 38 29 35 40
Admonishments 48 30 33 23 35
Probations 32 33 42 21 9
Injunctions 0 0 0 0 0
The Florida Bar Creed of Professionalism
I revere the law, the judicial system, and the legal profession
and will at all times in my professional and private lives uphold
the dignity and esteem of each.
I will further my profession’s devotion to public service and to
the public good.
I will strictly adhere to the spirit as well as the letter of my
profession’s code of ethics, to the extent that the law permits
and will at all times be guided by a fundamental sense of
honor, integrity, and fair play.
I will not knowingly misstate, distort, or improperly exaggerate
any fact or opinion and will not improperly permit my silence
or inaction to mislead anyone.
I will conduct myself to assure the just, speedy and
inexpensive determination of every action and resolution of
every controversy.
I will abstain from all rude, disruptive, disrespectful, and
abusive behavior and will at all times act with dignity,
decency, and courtesy.
I will respect the time and commitments of others.
I will be diligent and punctual in communicating with others
and in fulfilling commitments.
I will exercise independent judgment and will not be
governed by a client’s ill will or deceit.
My word is my bond.
Best practices for electronic communication
The Oath of Admission to The Florida Bar includes a pledge of
“fairness, integrity and civility, not only in court, but also in all
written and oral communications.”
This includes electronic communications.
• Keep it short, if they’re longer than 160 words, call or email
instead.
• Be aware that tone is hard to convey.
• Spell out all words to avoid confusion.
• Be sure you have permission to text who you’re texting.
Texting Etiquette
Best practices for electronic communication
• Never leave the Subject Line blank and fill in Recipient last.
• Use a salutation, and make sure sign off is consistent.
• Don’t use ALL CAPS, and appropriately use “cc” and “bcc”
• Evaluate email importance and label accordingly.
Email Etiquette
Social Media
• There is no exception of privacy on the internet.
• Do not disparage or seek to humiliate the judicial system, judges,
opposing counsel, clients, or others via social media (See Rules 4.82
and 4.8-4(d)).
• Do not make dishonest, inappropriate, unprofessional, or
misleading posts.
Additional References
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