Trial Work: The Most Fun You Will Ever Have in a Courtroom!BLST, DECEMBER 2013

MARIE C. BECHTEL, ESQ., LEGAL AID OF WEST VIRGINIA

Select a Theme & Know the Theory

Think of a one-line synopsis of your case: “This case is about X.”

Build a case outline around the theme.

Consider how to utilize the theme to convince your judge/jury.

Use the theme to tie the case together.

The theory is a more in-depth version of the theme – the legal theory, so better for the Court than a jury.

Catchy = good. Cheesy = bad.

Trial Notebook

Organization is the KEY to an effective trial presentation!

A good trial notebook has a Table of Contents and tabs.

Don’t just look prepared, be prepared: the act of preparing the notebook will assist in your preparation.

Include everything: witness examination outlines, copies of evidentiary submissions, opening and closing outlines, etc.

Bring your books! Bring the relevant statutes! BRING THE RULES!

Who are you?

Consider carefully how you are perceived by your judge/jury.

Consider the physicality of trial practice:

Where will you stand?

How close can you get to the jury box?

How close can you get to the witness?

What should you wear?

What should your client wear?

Demonstration: Know Thyself

What worked and what did not work? Why?

How much does physicality matter?

What is the comfort zone of the judge or jury?

Judge or Jury?

The Great Order

Opening Statements (Plaintiff then Defendant, or Defendant reserves until presentation of her case-in-chief)

Plaintiff’s case-in-chief

Defendant’s Motion for Directed Verdict

Defendant’s case-in-chief

Plaintiff’s Motion for Directed Verdict

Rebuttal, Surrebuttal

Closing Arguments (Plaintiff, then Defendant, then Plaintiff)

Voir Dire: Get ‘Em in the Box

Jury selection is never “just going through the motions.”

Consider carefully who will be the most sympathetic to your client, i.e., who will identify with your client.

Use jury selection as an opportunity for the jurors to like your client and you. It is the only time they get to talk to you – make the most of it!

Opening Statement: May it Please the Court

Note that these are opening statements, not opening arguments.

To a judge, an opening should be quick synopsis – no theatrics, no grandstanding.

To a jury, an opening is one of three times you get to talk to them – again, make the most of it! “Ladies and Gentlemen of the jury . . .”

Explain, but do not preach: “The evidence will show . . .”

Use that theme!

Conclude by asking for specific relief, from judge or jury.

Direct Examination: Telling the Story

Prepare, prepare, prepare your client/witness!

The witness is the storyteller – your purpose is to facilitate their telling of the story.

Anticipate objections of the other lawyer and have your response ready.

Do not lead.

Only call witnesses who serve your theme. Consider: how does this witness serve the case? What information will this witness give to the judge/jury that is necessary for a finding in my client’s favor?

Cross Examination: Let the Fun Begin!

The lawyer is the storyteller, NOT the witness.

Ideally, the witness will say one word: “yes.”

Never ever EVER ask the witness a question that begins with “why.”

Keep it rapid.

Keep control!

Be polite, professional, and vigilant.

Prepare your client/witnesses for cross examination.

Teach them to break eye contact and how to politely disagree with opposing counsel.

Objections! Impeachment! Drama!

Anticipate and prepare for objections from opposing counsel.

Anticipate and prepare for objections you foresee.

Know your evidentiary rules!

Walk opposing witnesses down the path to impeachment.

Demonstration

Objections

Thoughts?

Impeachment

Thoughts?

Presentation of Evidence

Lay that foundation!

Practice going through the motions.

Bring extra copies.

Don’t forget to move the admission of the evidence.

Practice, practice, practice!

Thank you, Ms. Foote (& Bruce Perrone!)

In presenting evidence for admission, remember the mnemonic “Ms. Foote:”

M: Mark it.

S: Show it.

F: Foundation (lay it).

O: Offer it as evidence.

O Objection (anticipate the opposing party’s).

T: Testimony (get it in via).

E: Exhibit it to your fact-finder.

Closing Argument: Don’t Forget the Bow

Unlike opening statements, closing is intended to be argument. So Argue! With Exhibits!

Wrap it all up for the judge or jury: Start with your client’s theme

Walk through the evidence tying it together

Utilize the charge

Ask for specific relief.

Ask for Help!

Do not try your first case alone.

Do not forget the stakes for your client; his or her life should not be your learning experience.

Need a Pep Talk?

You can always call your BLST training team, including:

Marie C. Bechtel, Esq. Legal Aid of West Virginia115B S. Kanawha Street

Beckley, WV 25801304.255.0561, ext. 2212

mbechtel@lawv.net