CHAPTER 2 "CASE PREPARATION"
Later in this chapter you will learn a thorough method of preparing a mock trial case for trial. Your ability to use this method effectively (or any other method, for that matter) relies completely on your understanding of the substantive rules of evidence that govern mock trials.
I. EVIDENCE MADE SIMPLE
Like real trials, mock trial competitions adhere to rules of evidence. These rules, usually a simplified form of the Federal Rules of Evidence, control the testimony and exhibits allowed at trial. If a piece of evidence is allowed under the rules, it is “admissible”; evidence that is not allowed under the rules is said to be “inadmissible.”
The presiding judge determines the admissibility of the evidence at trial; she hears objections from counsel and rules upon them. If an objection is “sustained,” that means the judge believes it was appropriately raised and that either the form of the question asked, or the content of the answer sought or given, violates the rules of evidence. If an objection is “overruled” by the judge, she has determined that it was either inappropriately raised or that the evidence is allowed under the rules.
There are two main types of objections: substantive and nonsubstantive. Substantive objections bring into question the admissibility of the content of the testimony or exhibit at issue. Nonsubstantive objections raise the appropriateness of the manner in which the information is being sought or delivered to the court.
Understanding and knowing the rules of evidence used in your mock trial is crucial. Of a portion of a witness’s testimony or an exhibit is clearly not allowed under the rules of evidence, you must disregard it when you are preparing for trial. Likewise, if you believe one of your opponent’s witnesses will offer testimony or an exhibit that is not allowed under the rules of evidence, you should be prepared to object if it is offered at trial.
We will return to the nonsubstantive evidentiary rules in Chapter 10 (“Objections”) but for now we focus on the substantive rules, since they will play the largest role as you prepare your case. The following is a short explanation of the most common substantive rules of evidence your mock trial is likely to follow. Because the rules of evidence used in mock trials vary, the explanations below are based on the Federal Rules of Evidence.
“Irrelevant” evidence is not permitted at trial. Evidence is irrelevant if it does not make any fact of consequence to the case more or less probable. For example, the astrological sign of the defendant in a criminal case would not make any fact of consequence more or less probable – the fact that the defendant is a Leo does not make it any more likely that he killed is wife in the heat of passion. Of course, whether or nota piece of evidence is relevant depends on your theory of the case. The prosecution could conceivably argue that the defendant was enraged by reading his daily horoscope and acted accordingly. The presiding judge makes the final determination of relevance.
B. Unfair Prejudice
By definition, all relevant evidence is prejudicial to some party – that is why it is offered in the first place. Consequently, evidence cannot be excluded merely because it is prejudicial. Even so, relevant evidence may be excluded if its “probative value” is substantially outweighed by danger of “unfair prejudice.” The probative value of evidence refers to its helpfulness to the trier of fact in deciding the case. When the helpfulness of evidence is outweighed by the possibility that it will have an unfair impact on the fact-finder, it is considered unduly or unfairly prejudicial.
For example, consider a murder case involving a shooting where the defendant is a member of the National Rifle Association. The prosecution wants to use this evidence to show that the defendant knows about guns and is likely to be trained in the use of guns. Thus, the prosecution argues that the defendant’s NRA membership is probative of his exposure to and skill in using guns – it shows that he had the ability to commit the crime.
The defense argues, however, that the defendant’s membership in the NRA may also cause a juror who opposes that organization’s political views to form a negative opinion of the defendant. The defense points out that the defendant has never taken any training courses from the NRA and that, at the time of the murder, he had only been an NRA member for two months. Thus, the defense argues that the probative value of the defendant’s NRA membership is substantially outweighed by its potentially unfair impact.
As always, the presiding judge makes the final determination.
C. Lack of Personal Knowledge and Speculation
Witnesses (other than experts) must testify form their own knowledge and they may not “speculate” about things they do not know firsthand. This means that witnesses can only testify about their sensory perceptions: what they saw, heard, smelled, touched, or tasted (subject to other evidentiary limitations). Witnesses may not testify to what they think might have happened, no matter how firmly they believe it.
For instance, the neighbor of the defendant in a murder trial may testify to seeing the defendant enter his apartment two hours before the murder took place. He may also testify that he did not see the defendant leave his apartment again that night. However, he may testify that the defendant was definitely in his apartment at the time of the murder, unless he saw the defendant there at the time that the crime was committed.
“Hearsay” describes any out-of-court statement (even one made by the testifying witness) that is used in court to prove the truth of the matter asserted. Under this definition, a “statement” is any verbal, nonverbal, or written assertion of fact. A statement is “offered for its truth” only when it is being used to show that its content is true.
For example, assume that witness Georgia testifies that “Bob told me he saw a wild elephant walking down the street.” On the surface, it appears that Georgia is asserting that Bob actually did see a wild elephant walking down the street. If so, it would be hearsay. But what if counsel is merely trying to use Bob’s statement to show that, at age 94, his health is fading and dementia is setting in? In that case, the testimony is not asserting the truth of the statement; it is being offered to show that Bob is becoming senile. Thus, the testimony would not be hearsay.
In addition to statements that are not offered for their truth, two other types of statements are recognized as nonhearsay. The first type is a prior sworn statement by the witness that is inconsistent with his testimony at trial. The second are statements made by a party (the defendant in a criminal case; either the plaintiff or defendant in a civil case) or by an agent of that party (for example, an employee or a co-conspirator) if used against that party at trial. These statements are called “party admissions” or “admission by a party-opponent.” In a criminal trial for example, the prosecution can use any statements made by the defendant or one of his co-conspirators as admissions of a party opponent.
There are also many exceptions to the hearsay rule. A witness is allowed to repeat an out-of-court statement offered for its truth if it fits into any of the following categories:
· It is a description of an event made while the speaker observed that event or immediately thereafter (called a “present sense impression”);
· It is a statement relating to a startling event made while the speaker was under the stress of excitement caused by that event (called an “excited utterance”);
· It illustrates the declarant’s mental state, as in the elephant example above, or it is being used to show the effect of the statement on the listener (called the “state of mind” exception);
· It is a record of a regularly conducted activity (called a “business record”); or
· It is a statement by a dying person about the cause or circumstances of what he believed to be impending death (called a “dying declaration”).
Other exceptions exist, though these are the most common. Hearsay is discussed further in Chapter 10 (“Objections”).
Note that there is also such a thing as “double hearsay” or “hearsay within hearsay,” which describes the possibility of hearsay statements being made within other hearsay statements, such as the statement by the testifying witness as follows:
Julie says to Bob: “I am the one who got that necklace.”
Bob says to the testifying witness: “Julie told me she took that necklace.”
Testifying witness says: “Bob told me that Julie admitted to him she stole the necklace.”
In this example, the first level of potential hearsay is Julie’s statement to Bob that “I am the one who got that necklace.” The second layer of potential hearsay is Bob’s statement to the testifying witness that “Julie told me she took that necklace.” To pass the test of admissibility, each layer of double hearsay must be independently allowable under the rules of evidence. So, you must answer the question “Is this inadmissible hearsay?” (as outlined above) for each of these statements. The reason for this rule is obvious from the example: the more a statement is repeated, the more likely it is that its content will change.
E. Improper Character Evidence Generally
Character evidence is generally not admissible to prove that because a person did something in the past, he is more likely to have done it (or “acted in conformity” with that character) again. For example, a driver’s past involvement in a hit-and-run accident cannot be offered as proof that he was negligent in a later collision.
There are exceptions to this rule. First, a criminal defendant may offer proof of his good character, which the prosecution may then (and only then) rebut with proof of his bad character. Also, past crimes and bad acts may be offered to prove a person’s motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake.
1. Conviction of crime
The commission, and even the conviction, of past crimes is not admissible to prove guilt in the current matter. This follows logically from the principle that all defendants, even those with criminal records, are presumed innocent until proven guilty at trial.
The credibility of a witness who takes the stand and testifies, however, may be impeached on the basis of a prior criminal conviction, but only if the crime was either a felony or one that involved dishonesty or false statement.
With felonies, the evidence is generally not admissible unless the convictions occurred within the last ten years (juvenile adjudications, regardless of how long ago they occurred, are almost never admissible). Some convictions that are more than ten years old may still be admissible if the court determines that their probative value, supported by specific facts and circumstances in the case, substantially outweighs their prejudicial effect.
If the crime was not a felony, the conviction may still be admissible if it involved dishonesty. For example, if a witness was found guilty of committing fraud (making false representations that were reasonably relied upon by others) two years before testifying, that conviction is admissible even if the crime was only a misdemeanor.
Note that conviction evidence is generally limited to the fact of conviction, the name of the crime, and the sentence received. The details and events that constituted the crime are generally inadmissible.
The past acts of a person may not be offered as proof that she subsequently committed similar acts. These acts, called “specific instances of conduct,” are only admissible for the limited purpose of attacking or supporting the witness’s credibility. Thus, a witness may be cross examined concerning past acts when they reflect upon her truthfulness or untruthfulness.
Evidence of a witness’s reputation is admissible only if it is probative of her character for truthfulness or untruthfulness. Thus, a witness’s reputation as a “dirty rotten scoundrel” is only admissible if it shows she was well known as untruthful. A witness’s reputation as “loud, obnoxious, and contemptuous” is clearly inadmissible.
II. PREPARING YOUR CASE
You are now ready to take the first steps in preparing your case. The following sections explain how to organize your trial binder, read and outline your case, and prepare your theme and theory. Although these steps are time-consuming, your preparation will be rewarded at trial.
A. Organize Your Trial Binder
The very first thing you should do after receiving a mock trial case is… place [it] in a three-ring binder.
Next, insert tabs to separate each witness’s affidavit, each item of evidence, and the statute or relevant case law included in your case file. Also, decide where you will keep copies of your opening statement, direct examinations, cross examinations, and closing argument. You may want to also include twenty-five to fifty sheets of blank paper in the back of your binder in a section titled “Notes.”
Other useful things to keep in your binder include an enlarged list of objections you can refer to during the trial and a copy of the rules of evidence, procedure, and ethics you will be following at trial.
B. Read and Outline the Case
Using the method we suggest below will take time. We guarantee, however, that your efforts will be rewarded in the end.
1. Grasp the applicable statutes and case law
To be able to read and outline your case intelligently, you must begin with strong understanding of the causes of action or crimes that are alleged against the defendant. Thus, start by reading and rereading the civil complaint or criminal indictment included in your case file. Next, read the law that applies to your case.
In addition to understanding the statutes, be sure to read the applicable case law (if it is included) to see how courts have interpreted the applicable statutes. Then, make a list of the elements that each side will attempt to prove in order to prevail at trial. Knowing these elements will help you determine which facts in the case file are favorable to your case and which facts are favorable to your opponent’s case. Keep your summary of the applicable law next to you and refer to it often as you continue.
2. Determine which witnesses are helpful to each side
Now that you know the legal elements of the case, you can begin reading the witnesses’ affidavits to determine the witnesses that will be help you prove the legal elements in your case. Many mock trials complete this next step for you by listing the witnesses for each side. If the witnesses for each side are not delineated, however, you must give careful consideration to which witnesses you will call to testify during your case in chief.
To begin, ask yourself these questions about each witness: How does this witness help me (or my opposing counsel) prove the legal elements of the case? What facts does she establish that I (or my opponent) can build upon with other witnesses? Are there inconsistencies in her testimony that need to be explained (or can be exploited)? What facts strengthen (or weaken) her character? The answers to these questions should direct you to the witnesses that will best enable you to succeed at trial.
Some mock trial competitions are designed so that participants remain unsure of which witnesses will be called until virtually the last minute. While teams can rank the witnesses they would most like to call, they can never be sure of the exact combination of witnesses they will have at trial. This factor complicates every stage of trial preparation – it will make determining the final content of everything you say and do at trial difficult indeed. There are no magical words of advice we can give you for solving this problem; the best we can do is encourage you to be flexible, prepare vigorously, practice as many witness combinations as possible, and learn the facts of your case inside and out to demonstrate your superior skill at trial.
3. For each witness, identify the favorable and unfavorable facts
Once you have identified the witnesses you intend to call (or the most likely witnesses you will call, if a definitive determination cannot be made), separate their statements from those of the remaining witnesses. Then, beginning with the statements of the witnesses you are likely to call, distinguish between the favorable and unfavorable facts included in each witness’s statement. You may want to use highlighters of different colors to indicate the favorable facts and the unfavorable facts. Be aware that some facts may be favorable to both sides or neither side.
Advanced students will also read between the lines and identify favorable and unfavorable facts that are omitted from the witness statements. Sometimes what is left unsaid is even more powerful than what is said. To identify these facts, ask yourself if there is anything you would still like to know after reading through a witness’s statement. Are important details absent? Is an explanation mysteriously missing for a curious action taken by the witness or another person? Did the witness refer to something early in the statement but then never explain it in depth? Can these missing facts be explained through reasonable inferences? As you will learn in Chapter 4 (“Direct Examination”), most mock trial rules allow you to have your witnesses testify to reasonable inferences from their statements. You can also point out omissions in the witnesses’ statements during cross examination, as we will discuss in Chapter 7 (“Impeachment”).
Once you have identified the favorable and unfavorable facts in (or missing from) each witness’s statement, make a list of both on a separate piece of paper or in a new computer document. (Using a computer or other word processing device to complete this step and the ones that follow could save you valuable time.) the best way to do this is to write each witness’s name on a page and draw a line down the center. Use one side of the page to list the favorable facts for the plaintiff/prosecution, with the favorable facts for the defendant/defense on the other side. Be sure to “index” each fact by noting the line number where it can be found in the witness’s statement.
4. Determine the admissibility of all facts
The next step is tricky. You must now go through your list of facts for each witness to determine which facts are likely to be admissible at trial. As explained above, the admissibility of each fact is determined by the applicable substantive evidentiary rules; if a rule of evidence bars a fact, it cannot be used at trial. Each witness’s testimony must be evaluated for possible evidentiary problems. You cannot assume that any fact is automatically admissible; you must be able to state a positive theory of relevance (and be able to overcome any possible objection) for each fact that you intend to offer during your case in chief. When examining the facts in your witnesses’ statements, you may find it helpful to place yourself in the mindset of your opponent and ask “What can I attempt to exclude under the rules of evidence?” Likewise, with each adverse witness, consider whether any part of the testimony might be excludable. For every statement that the witness might make, imagine all reasonable evidentiary objections.
Here is a general checklist you can use when considering the admissibility of each fact in a witness’s statement:
· Is the evidence irrelevant? Does this information fail to make at least one fact of consequence to the case more or less probable. If so, it is irrelevant.
· Is this evidence more prejudicial than probative? Does the unfairly prejudicial nature of this evidence outweigh its probative value? If so, it is unduly prejudicial.
· Is this an opinion only an expert could reach? Is this that requires special training, education, or knowledge? If so, the witness is giving an improper lay opinion.
· Is this inadmissible hearsay? Is this an assertion that is being used to prove its truth? If so, does a hearsay exception apply? If not, the statement is hearsay.
· Is this improper character evidence? Can this prior act be used to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake? Does this information go to the witness’s truthfulness? Is this a felony that occurred within the past ten years? Unless the answer to at least one of these questions is “yes” the information is improper character evidence.
As you go through your list of favorable and unfavorable facts for each witness, indicate those that are likely to be barred by the rules of evidence and make a note explaining why.
Be aware that rules of evidence are seldom clear-cut and that you and your adversary will often disagree as to their applicability to a particular fact. That is why lawyers spend so much time arguing over objections. The test you must use to determine the admissibility of facts at this stage is whether you can state a reasonable theory of admissibility. If a fact is arguably admissible, you may attempt to use it during trial – but be prepared to state your grounds if you meet an objection.
Next, go through this same process with the exhibits in your case file; determine what facts each exhibit establishes, outlining them as you did the facts in the witness statements, and then determine the admissibility of each fact.
1. Compile a summary of all facts that will likely be established at trial
You are now ready to compile a summary of the facts you and your opposing counsel may be able to establish at trial. Taking only the definitely or arguably admissible facts from each witness outline and each exhibit outline, use a separate document to compile a full list of the facts you and your opposing counsel may attempt to establish. (If you use a computer, this step is accomplished with ease through the use of copying and pasting.) Remember to cite the witness statement or exhibit where each fact is found. If more than one witness or exhibit establishes the same fact, write the fact once on your summary sheet but cite each of the separate sources.
The final step to outlining your case is so important it is worth double-checking. Look over your summary of the admissible facts in the case file and compare it carefully to the summary of the applicable law you created earlier. Every fact in your summary should be relevant to an element that you or your opponent will attempt to prove at trial. Otherwise, it is not an important fact and you should cross it off your summary (and be prepared to object if it is offered by the opposition). The only exceptions to this rule are fats that bolster or detract from the credibility of a witness, since a witness’s credibility is always at issue during trials.
Congratulations! You are now ready to begin putting together the story you will tell at trial.
A. Analyze the Case and Devise a Story
The function of a trial is to resolve factual disputes. These disagreements commonly involve the existence or occurrence of events or actions, but they may also turn upon questions of sequence, interpretation, characterization, or intent. Thus, trials may be held to answer questions such as these: What happened? What happened first? Why did it happen? Who made it happen? Did it happen on purpose? Was it justified or fair?
Each party to a trial has the opportunity to tell a story, albeit through the fairly stilted devices of opening and closing statements, direct and cross examination, and the introduction of evidence. The party who succeeds in telling the most persuasive story should win.
A persuasive trial story has all, or most, of these characteristics: (1) it is told about people who have reasons for the way they act; (2) it accounts for or explains all of the known or undeniable facts; (3) it is told by credible witnesses; (4) it is supported by details; (5) it accords with common sense and contains no implausible elements; and (6) it is organized in a way that makes each succeeding fact increasingly more likely. Depending on the trial story told by the plaintiff/prosecution, defense counsel must often tell ”counterstories” that negate the above aspects of the other side’s case.
Devising the story you will use at trial is a creative process since the facts in the case file will almost always be subject to several interpretations. To imagine the most persuasive trial story, imagine a series of alternative scenarios and assess each for its clarity, simplicity, and believability, as well as for its legal consequences.
If you have followed the steps above, you already have the ingredients for your story laid out. Your case summary is a list of the most important facts that may be admitted at trial. From these facts, you can now put together the story each side is likely to tell at trial.
1. Consider the possibilities
Assume that you are an attorney in a mock trial, representing a plaintiff who was injured in an automobile accident. Your client knows only that when traffic slowed to allow a fire truck to pass, her car was hit from behind by another car. You are suing the driver of that automobile for his negligence in failing to take due acre while operating his car. You now must determine why the other driver failed to slow and stop with the rest of the traffic.
While it is not legally essential to determine a reason why the defendant failed to stop, consider what the absence of a reason implies. The plaintiff claims that traffic slowed for a fire truck, but the defendant – also part of traffic – did not slow. Could it be that there was no fire truck? Perhaps there was a fire truck, but it was not sounding its siren or alerting traffic to stop. Is it possible that your client did not slow, but rather slammed on her brakes? As you can see, the very absence of a reason for the other driver’s actions may make your client’s testimony less believable.
The skilled advocate will therefore look for a reason or cause for the defendant’s actions. Was the defendant drunk? In a hurry? Distracted? You can begin to choose from among these potential reasons by considering each one in the context of your story. Imagine how a story will be told if you claim that the defendant was drunk. Does such a story account for all of the known admissible facts? When the police came to the scene, was the defendant arrested? Did any credible, disinterested witnesses see the defendant drinking or smell liquor on his breath? If not, drunkenness does not provide a persuasive reason for the defendant’s actions.
Assume that your case file shows that at 8:20 in the morning the defendant was driving south on Craycroft Road on his way to work downtown. Rush hour was in full swing and he had an important meeting that was to begin at 8:30 AM sharp. You also learn that after he parked his car near work, the defendant would have to walk two more blocks to get to his office. From the point at which the accident occurred, it would likely take the defendant another twenty to thirty-five minutes to drive to his parking lot, park, and then walk to his office. Furthermore, your case file reveals that immediately following the collision the defendant used a cellular phone to call his office.
How can these basic facts be assembled into a persuasive trial story? A strong trial story would paint the defendant as being in such a hurry that he did not notice the fire truck until it was too late. This story accounts for the known facts, since it explains why traffic might slow while the defendant did not. This story is also plausible and believable; it is in complete harmony with everyone’s everyday observations. Furthermore, you already have the details on hand that support this story.
2. Be sure your story is ethical
Always remember that lawyers are bound by the truth – you are not free to pick stories simply on the basis of their persuasive value. Within this parameter, exactly how much room is there for creative theory choice?
a. Assuming that you “know” the truth
Let us assume, in this example only, that the plaintiff is certain that the fire truck was flashing its lights but not sounding its siren or bell. Given this, you absolutely cannot attempt to have her testify that the siren and bell were sounding, as that testimony would be false and your use of it would be unethical.
On the other hand, there is no requirement that the absence of the fire truck’s bell and siren be made the centerpiece of your client’s testimony. Sequencing and emphasis may be used to minimize the adverse impact of this information. For example, the direct examination could be developed as follows: “The fire truck was the largest vehicle on the road. It was the standard fire-engine red. All of its lights were flashing brightly – headlights, taillights, and red dome lights. It could been seen easily from all direction. All of the traffic, save the defendant, slowed down for the fire truck. It was not necessary to hear a siren in order to notice the fire truck.” Here, the lawyer has held closely to the truth while also establishing the unimportance of the potentially damaging information.
b. Assuming that you do not know the truth
A different situation arises when the advocate is not able to identify the truth so closely, as in the example above concerning the defendant’s reasons for failing to notice the fire truck in time. Recall that we considered a few possible reasons, including hurriedness and drunkenness, to explain the defendant’s actions. Some reasons have clear persuasive advantage over others. What are the ethical limitations on the attorney’s ability to choose the best one?
First, it should be clear that, as the plaintiff’s attorney, you are not bound to accept the defendant’s story in the same way that you must give credence to your own client. Your duty as a lawyer to zealously represent your client requires that you resolve doubts in your client’s favor. When your client gives damaging testimony (such as the absence of the fire truck’s siren), it is even more likely to be true, since she obviously has no incentive to inject such information falsely. Conversely, the defendant’s statements cannot necessarily be seen as reliable and you are entitled to mistrust them.
The key to determining the ethical value of any trial theory is whether it is supported by facts that we know, believe, or have a good faith basis to believe, are true. In other words, the story has to be based on facts that are not false.
Returning to our fire truck case, assume that the defendant has denied that he was in a hurry. He has the right to make this denial, but as the plaintiff’s lawyer, you have no duty to accept it. Assume also no witness will testify that the defendant was in a hurry. Despite this, your case file includes numerous facts about the defendant’s home, automobile, occupation, and place of employment that support a belief that he was in a hurry on the morning of the accident. The following story emerges, based strictly on facts that you have no reason to doubt.
The defendant lives sixteen miles from his office. He usually takes a commuter train to work, but on the day of the accident he drove. The accident occurred on a major thoroughfare approximately eleven miles from the defendant’s office. The time of the accident was 8:20 AM, and the defendant had scheduled an important, and potentially lucrative, meeting with a new client for 8:30 AM that day. The parking lot nearest to the defendant’s office is over two blocks away. The first thing that the defendant did following the accident was call his office to say that he would be late for his meeting.
Your conclusion is that the defendant was in a hurry. Driving on a familiar stretch of road, he was thinking about his appointment, maybe even starting to count the money, and he failed to pay attention to the traffic. You are entitled to ask the fact-finder to draw this inference because you reasonably believe its entire basis to be true. As long as the story you tell the fact-finder is not built on a false foundation, you have met your ethical obligations.
Using the above example as a guide, put together the stories for each side of your case, making sure to differentiate between when you can assume you know the truth and when you cannot --- to be sure your story is ethical.
B. Prepare your Case Theory and Theme
You are now ready to turn your story into your case theory and theme – the very heart of your case. Your case theory and theme will pervade every aspect of your case, form your opening statement all the way through to your closing argument. When choosing what facts to accentuate throughout the trial, you will rely on your theory and theme for direction.
1. Develop a theory
Your theory is the adaptation of your story to the legal issues in the case; it explains why your client must win based on the combined facts and law. A successful case theory is expressed in a short paragraph (at most) and contains these elements:
It is logical. A winning theory had internal logical force. It is based upon a foundation of undisputed or otherwise provable facts, all of which lead in a single direction. The facts upon which your theory is based should reinforce (and never contradict) each other. Indeed, they should support each other, each fact or premise making the next one more likely to be true, in an orderly and inevitable fashion.
It speaks to the legal elements of your case. All of your trial persuasion must lead to a “legal” conclusion. Your theory must not only establish that your client is good or worthy (or that the other side is bad and unworthy) but also that the law entitles her to relief. Your theory therefore must be directed to prove every legal element that is necessary to justify a verdict on your client’s behalf.
It is simple. A good theory makes maximum use of undisputed facts. It relies as little as possible on evidence that may be hotly controverted, implausible, inadmissible, or otherwise difficult to prove.
It is easy to believe. Even “”true” theories may be difficult to believe because they contradict everyday experience, or because they require harsh judgments. You must strive to eliminate all implausible elements from your theory. Similarly, you should attempt to avoid arguments that depend upon proof of deception, falsification, ill motive, or personal attack. An airtight theory is able to encompass the entirety of the other side’s case and still result in your victory by sheer logical force.
To develop your story into your case theory, include the answers to these three questions: What happened? Why did it happen? Why does that mean that my client should win? If your answer is longer than one paragraph, your theory may be logical and true, but it is probably too complicated.
An example theory for the fire truck case outlined above is: “The defendant was in a hurry to get to work because he was late for an important meeting. Because he was preoccupied, he didn’t notice the fire truck until it was too late to stop. As a result, he rear-ended my client, causing her serious injuries.”
2. Develop a theme
Whereas a case theory gives the logical and legal bases for a particular verdict, a case theme provides the oral justification for it. A theme is a rhetorical or forensic device with no independent legal weight; it adds persuasive force to your case theory. The most compelling themes appeal to shared values, civic virtues, or common motivations. Themes should be succinctly expressed, preferably in a short sentence or phrase, and they should be repeated at virtually every phase of the trial.
Suing the fire truck case once again, examples of strong themes are “too busy to be careful” or “too late to be safe.”
3. Return to your story
Going back to the story you devised earlier, be sure that each detail you included supports the theory and theme you have selected for trial. Also, be sure that your organization is persuasive. For instance, it is important that each fact make every succeeding element increasingly more likely. Considering the fire truck case, ask yourself which aspect should come first: the presence of the fire truck or the fact that the defendant was in a hurry? Since the presence of the fire truck does not make it more likely that the defendant was in a hurry, that probably is not the most effective starting point. On the other hand, the defendant’s haste does not make it more likely that he would fail to notice the fire truck.
III. GET THE MOST FROM YOUR WORK
Now that you have invested the time and energy preparing the foundation of your case, you might as well benefit from your work.
Your goal at trial is to persuade the trier of fact that your theory is correct and to constantly invoke the moral leverage of your theme. To accomplish this, you have four basic tools: (1) jury address, which consists of opening statement and final argument; (2) testimony on direct examination, and to a lesser extent on cross examination; (3) introduction of exhibits, including real and documentary evidence; and (4) absolutely everything else that you do in the courtroom.
The skills involved in each of these aspects of a trial will be discussed at length in later chapters. What follows here is an outline of the general steps you should take to get the most from your case preparation. With each of these areas, you should read the applicable chapter that follows for more detailed instruction of what to include and how to organize your work.
A. Planning Closing Argument and Opening Statement
Good trial preparation begins at the end. It makes great sense to plan your final argument first, because that aspect of the trial is the most similar to storytelling. Closing argument are the single element of the trial where it is permissible for you to suggest conclusions, articulate inferences, and otherwise present your theory to the trier of fat as an uninterrupted whole.
In other words, during final argument you are most freely allowed to say what you want to say, so long as what you say was at least arguably supported by the evidence adduced during the trial. By determining the content of your final argument first, you will know what you must bring out during the rest of your case. Remember, if it does not come out at trial, you cannot argue it during your summation.
When outlining your closing argument, ask yourself these two questions: What do I want to say at the end of the case? What evidence must I introduce or elicit in order to be able to say it? The answers to these questions will focus the content of your case summary even further. If you can effectively present, emphasize, and repeat these facts throughout your trial using your theory and theme often, you will succeed in telling a persuasive story.
Similarly, to outline your opening statement you should link together the absolutely admissible facts that you listed in your closing argument outline and weave them into a descriptive story that the trier of fact will care about; grabbing their attention with the most important facts while using your theory and theme to explain why your client should prevail.
A. Planning Direct Examinations
Direct examinations should include only the admissible facts each witness may offer. If you followed our method, you already have this information mapped out. The favorable facts should be elicited in an order that effectively tells the witness’s story. Remember than once you have assembled all of the positive information for each of your witnesses, you must also consider all possible problems and weaknesses. Are there likely to be inconsistencies or gaps in a witness’s testimony? Does the witness have damaging information that is likely to be probed on cross examination? Your list of unfavorable facts for each witness should provide answers to these questions.
Try to structure your direct examination to avoid or minimize these problems. Perhaps you can resolve the inconsistencies in the witness’s testimony by reevaluating your theory. Perhaps a different witness can fill in the gaps of the witness’s testimony. Perhaps you can defuse the potentially damaging facts by burying them in the middle of your direct examination.
Once you have outlined all of your direct examinations, arrange your witnesses in the order that will be most helpful to your case. While there are no hard and fast rules for determining witness order, the following three principles should help you decide:
Retention. You want your evidence not only to be heard, but also to be retained. Following the principles of primacy and recency discussed in Chapter 3 (“Communication Techniques”) call your most important witness first and your next most important witness last. Your goal should be to start and end strong, as long as doing so results in a logical progression of testimony.
Progression. The “first and last” principle must occasionally give way to the need for logical progression. Some witnesses provide the foundation for the testimony of others. Thus, it may be necessary to call a “predicate” witness early in the trial as a matter of both logical development an dlegal admissibility. To the extent possible, you may also wish to arrange your witnesses so that accounts of key events are given in chronological order.
Impact. You may also order your witnesses to maximize their dramatic impact. For example, you might wish to begin a wrongful death case by calling one of the grieving parents of the deceased child. Conversely, a necessary witness who is also somewhat unsavory or impeachable should probably be buried in the middle of your case in chief. A common exception to the impact principle in real trials is the practice of calling a criminal defendant as the last witness for the defense.
B. Planning Cross Examinations
It is inherently more difficult to plan a cross examination than it is to prepare for direct. Although it is impossible to safeguard yourself against every surprise that may arise at trial, the following steps will help keep them to a minimum.
First, use those facts you have already identified as favorable to your side for each witness you will cross examine. From those, catalog the facts with which the witness will be most likely to agree. You will want to elicit this information early on in your cross examination, while the witness is most cooperative. Next, list the missing information – those facts that hurt the other side, and which will likely be left out of your opponent’s direct examination. Finally, list your “attack facts”, the ones that challenge the witness’s credibility or directly contradict him.
C. Planning Objections and Responses
You can also use your preparation to identify the objections that may be raised at trial. If you followed our method, all you need to do now is to decide the objections you will raise and how you will respond to every possible objection raised by your opposing counsel.
Go through a process of elimination to choose your battles wisely. You will not want to make every possible objection, but you will want to be prepared. The decision to object must be made in reference to your theory of the case. The principal contribution that an objection can make to your theory of the case is to prevent the admission of truly damaging evidence. Hence, the maxim “Do not object to anything that doesn’t hurt you.” Unless the exclusion of the evidence advances your theory, there is probably no need to raise an objection. It should go without saying that you should never object to information that you intend to elicit from the same or another witness.
For each objection you decide to make, plan and practice your argument and prepare for every likely counterargument.