Winning at Trial: Insights from the Bench and Leading Litigators

CHAPTER 1

The Trial Process

§ 1.01 Introduction

§ 1.02 Preparing for Trial from the Outset

§ 1.03 The Final Pretrial Conference and Order

§ 1.04 Trial Briefs

§ 1.05 Request to Charge, “Verdict Forms” and Voir Dire Questions

§ 1.06 Motions in Limine and Daubert Motions

§ 1.07 The Trial Process



CHAPTER 2

Jury Selection

§ 2.01Introduction

§ 2.02Conduct of Voir Dire

§ 2.03Purpose of Voir Dire

[1]Selecting a Fair and Impartial Jury

[2]Arguing Counsel’s Case and Persuading the Panel

[3]Locating Adverse Jurors

[4]All of the Above

§ 2.04Standards for Cause Strikes

[1]Federal Courts

[2]State Courts

§ 2.05Prior to Jury Selection

[1]Determining Ideal and Worst Jurors

[2]Mock Trials and Focus Groups

[3]Defining the Most Important Issues in the Case 

[4]Most Important Instructions in the Charge 

§ 2.06Conducting the Voir Dire

[1]Client Presence and Conduct

[2]Creating an Atmosphere of Openness

[a]Describing the Process

[b]Reinforcing Answers

[3]Conversing with the Panel 

[a]Open-Ended Questions

[b]Simple Language

[c]Looping: Jurors Agreeing with Other Jurors

[4]Exhibits and Power Points

§ 2.07Subjects to Cover and Outline 

[1]Self-Introduction and Introduction of Client and Associates

[2]Starting Strong with the Theme of the Case

[3]Identifying Adverse Jurors

[4]Ending Strong

[5]Hardships

[6]Challenges for Cause

[7]Rehabilitation

§ 2.08Other Ways to Learn About the Panel

[1]Using the Internet

[a]Voting Records

[b]Real Estate Appraisals and Pictures

[c]Social Networks

[2]Questionnaires

[a]When and Why to Use Questionnaires

[b]Model Questionnaire

§ 2.09Batson Challenges

[1]Making the Batson Challenge

[2]Defending Against the Batson Challenge

§ 2.10Model Voir Dire Checklists

[1]Checklist for a Personal Injury Case

[2]Checklist for a Business Dispute Case



CHAPTER 3

Opening Statements

§ 3.01Importance of Opening Statements

§ 3.02Governing Rules

[1]Purpose and Scope of the Rules Governing the Opening Statement

[2]Arguing the Case Not Permitted

[3]Instructing on the Law Not Permitted

[4]Assertions of Personal Opinion Not Permitted

[5]Asserting Facts that Will Not Be Proven Not Permitted

[a]General Rule

[b]Delivering What Is Promised

[c]Possibly Inadmissible Evidence

[6]Objections During Opening

[7]Timing and Order of Opening Statements

[8]Admissions and Dispositive Motions Based on Opening

[9]Other Proscriptions

§ 3.03Themes

§ 3.04Storytelling

[1]Central Importance of Storytelling

[2]Basic Principles

[a]What Happened, Why It Happened, and What Will Make It Right

[b]Literary Devices

[i]Character Development

[ii]Imagery

[iii]Plot Twists

[iv]Other Devices

[c]Avoiding Excessive Detail

[d]Beginning and Concluding Powerfully

[3]Demonstratives and Evidence Previews

§ 3.05Preemption and “Bad Facts”

§ 3.06Establishing and Maintaining Trust

[1]Jurors’ Reliance on Trustworthy Counsel

[2]Dangers of Promises in Opening

[3]Clarity, Organization and Simplicity

[4]Delivery

§ 3.07Conclusion



CHAPTER 4

Direct Examination

§ 4.01Purpose of Direct Examination

[1]Establishing Elements of Claims and Defenses

[2]Presenting Facts Persuasively to the Jury

[3]Types of Questions Allowed

[a]Non-Leading Except as Necessary to Develop Testimony

[b]Leading Generally Permitted to Elicit Certain Testimony

[i]Background Facts

[ii]Undisputed Facts

[iii]Evidentiary Foundations

[iv]Using Testimony in Contradiction of Other Evidence

[c]Leading Allowed of Specific Types of Witnesses

[i]Adverse Party and Adverse Witnesses

[ii]Hostile Witnesses

§ 4.02Content and Organization of Direct Examination

[1]Calling and Introducing the Witness

[2]Using an Easy-to-Follow Interesting Progression

[3]Establishing Background Facts

[4]Establishing Necessary Facts

[5]Establishing Impact Facts

[6]Integrating Exhibits and Demonstrative Aids

[7]Maintaining a Consistent Theme

[8]Anticipating Cross and Deal with Weaknesses

[9]Setting Up Redirect

[10]Finishing Strong

§ 4.03Techniques of Counsel Conducting Direct Examination

[1]Being Conversational with an Interested De-meanor

[2]Using Appropriate Pacing

[3]Focusing Attention on the Witness and Allowing the Witness to Tell the Story

[4]Using Headlines and Emphasizing Key Facts

[5]Enhancing the Testimony Visually

[6]Using Drama and Humor When Appropriate

[7]Addressing Negative Facts Candidly

[8]Anticipating Potential Objections

[9]Finishing Strong

§ 4.04Specific Witnesses

[1]Client

[2]Friendly Witness

[3]Neutral Witness

[4]Adverse Witness

[5]Hostile Witness

[6]Records Custodian

[7]Law Enforcement Witness

[8]Video Deposition Testimony

[9]Child or Disabled Witness

[10]Expert Witness

§ 4.05Redirect Examination

[1]Planned Spontaneity

[2]Working Within the Scope of Cross-Examination

[3]Repairing Damage from Cross

[4]Explaining Key Persuasive Points

[5]Emphasizing Facts that Are Good for the Case



CHAPTER 5

Cross-Examination

§ 5.01 Introduction

§ 5.02 The Scope of Cross-Examination

§ 5.03 The Right to Cross-Examine

§ 5.04 The Goals of Cross-Examination

§ 5.05 The “Nuts and Bolts” of Conducting a Cross-Examination

§ 5.06 Checklist for Preparing for Cross-Examination



CHAPTER 6

Closing Arguments

§ 6.01  Introduction

§ 6.02  Purpose of Closing Argument

§ 6.03  Right and Scope of Closing Argument  

[1]Federal Courts

[2]State Courts

§ 6.04  Structure and Organization of Closing Argument 

[1]Introduction

[2]Stating the Issues

[3]Referring to the Law

[4]Marshalling the Evidence

[5]Anticipating and Responding

[6]Conclusion

§ 6.05  Ten Keys to a Successful Closing Argument 

[1]Stressing the Most Important Parts of the Case

[2]Solidifying Juror Support

[3]Finalizing Case Themes

[4]Addressing Weaknesses in the Case

[5]Personalizing the Client

[6]Reinforcing Known Views of the Jurors

[7]Employing Visual Aids

[8]Using the Verdict Form and the Jury Instructions

[9]Exploiting the Opposition’s Failures

[10]Fighting on Home Turf 

§ 6.06  Delivery

[1]Communicating Effectively

[2]Using Rhetoric Effectively

[3]Showing Appreciation for the Jury

[4]Finding a Suitable Style

§ 6.07  Objections During Opposition’s Closing Argument 

[1]Whether to Object

[2]Appropriate Bases for Objecting

[3]Making the Objection

[4]Responding to the Objection

§ 6.08  Rebuttal Argument

[1]Allocating Substance and Time to Rebuttal

[2]Organization of Rebuttal

§ 6.09  Preparing for Closing Argument

§ 6.10  Checklist



CHAPTER 7

Exhibits

§ 7.01 Definition, Purpose and Presentation

§ 7.02 Pretrial Procedures

§ 7.03 Admitting Exhibits at Trial

§ 7.04 Types of Exhibits

§ 7.05 Displaying Exhibits at Trial



CHAPTER 8

Objections

§ 8.01Introduction

§ 8.02When to Make Objections

[1]Objecting Prior to Trial 

[2]Objecting in Advance of the Offer of Proof

[3]Objecting on the Fly

[4]Continuing Objections

§ 8.03When Not to Make Objections

[1]General Strategy

[2]Adapting to Particular Trials

§ 8.04How to Make Objections

[1]The Timeliness Requirement

[2]The Specificity Requirement

[3]Offers of Proof

[4]War Story: You've Made Your Record, Now I've Made Mine

§ 8.05How to Act When a Ruling is Made

§ 8.06Common Objections

[1]Objections to Form

[a]Argumentative

[b]Asked and Answered

[c]Assumes Facts Not in Evidence

[d]Compound Question

[e]Cumulative

[f]Leading

[2]Objections to Substance

[a]Relevance

[b]More Prejudicial than Probative

[c]Hearsay



CHAPTER 9

Expert Witnesses

§ 9.01Overview of the Role of Expert Witnesses

§ 9.02Expert Witness Selection and Preparation

[1]Whether to Hire an Expert Witness

[a]Testifying Expert Witnesses

[b]Consulting Expert Witnesses

[2]How to Find Expert Witnesses

[3]Selecting an Effective Expert Witness

[a]What Makes a Good Expert Witness

[b]Jurors’ Expert Witness Preference

[c]Whether to Hire a Professional Expert Witness

[d]Conducting Due Diligence on Potential Expert Witnesses

[e]Interviewing Potential Expert Witnesses

[4]Engaging an Expert Witness

[5]Expert Witnesses and Work Product Discovery

[a]Rules of Expert Witness Discovery: Testifying Experts

[b]Rules of Expert Witness Discovery: Consulting Experts

[c]Protecting Work Product from Discovery

[6]Preparing an Expert Report

§ 9.03Experts at Trial

[1]Expert Witness Depositions

[a]Preparing an Expert to Be Deposed

[b]Deposing an Opposing Party’s Expert

[2]Admissibility of Expert Testimony

[a]Rules of Expert Testimony Admissibility

[b]Making and Defending a Daubert Challenge

[i]Expert Qualifications

[ii]Methodology and Daubert

[iii]Helping the Trier of Fact

[3]Court-Appointed Expert Witnesses

[4]Direct Examination of an Expert

[a]Knowing the Audience

[b]Crafting Questions: The Introduction

[c]Crafting Questions: The Expert’s Credentials

[d]Crafting Questions: Bases for Opinions

[e]Crafting Questions: Opinions

[5]Voir Dire on an Expert’s Qualifications

[6]Cross-Examination of an Expert

[a]Preparing an Expert for Cross-Examination

[b]Goals of Cross-Examination

[c]Constructive Versus Destructive Cross-Examination

[i]Constructive Cross-Examination Goals

[ii]Destructive Cross-Examination Goals

[d]Crafting Questions

[e]Case Studies of Destructive Cross-Examinations

[i]Procter & Gamble v. Teva Pharma-ceuticals, Inc.

[ii]General Electric Company v. Wilkins



CHAPTER 10

Trial Ethics

§ 10.01Introduction

§ 10.02Formal Ethical Rules Applicable to the Trial Context

[1]Model Code of Professional Responsibility

[2]Model Rules of Professional Conduct

[3]Additional Sources of Ethical Rules

[4]Potential Consequences

§ 10.03Attorney-Client Relationship

[1]Discussions with Clients

[2]Decision-Making on Behalf of the Client

[3]Taking the Stand

§ 10.04Ex Parte Communications

[1]Communications with Potential Witnesses

[2]Communications with the Judge or Jury

§ 10.05Witnesses

[1]Selecting Witnesses to Take the Stand

[2]Witness Preparation

[3]Direct Examination

[4]Cross-Examination

§ 10.06Presenting the Evidence

[1]Selecting Evidence to Introduce and Handling Misleading Evidence

[2]Objections

[a]Choosing Whether to Object

[b]Opponent’s Failure to Object

[c]Proper Purposes for Objecting

[d]Speaking Objections

§ 10.07Arguing the Case

[1]Personal Beliefs or Opinions

[2]Opening Statements and Closing Arguments