Trial

Opening Statement An opening statement is the first opportunity to introduce the jury to your case. Your statement should be well rehearsed and not read, as first impressions will give credibility of your arguments later. You can also use this time to discredit the opposing party, as long as it is done with taste and a little tact. A juries attention is normally very high at the beginning of a case, so important elements of your case is most important to present correctly here. It may be prudent to give a brief background on yourself to create an identity that the juror can connect with. It is also important to point out the holes in your opponents case and ask the jury to look for these, such as missing evidence, no witnesses, or a mysterious lack of cooperation that may indicate they have something to hide. It may also be helpful to paint a picture or tell a story to the jury so that they can come up to speed with the pattern of events that started the case. The ending statement or conclusion of your opening statement should be very direct to the point and spoken with great certainty, as you are already convinced and believe you are in the right. Jurors are more likely to remember what was said last that at the middle of your statement. Some simple guidelines to construct an opening statement are: 1. 2. 3. 4. 5. 6. Does the opening statement tell the jury what happened? Does the opening statement tell the jury why to find for you? Does the opening statement make the jury want to find for you? Does the opening statement tell the jury how to find for you? Does the statement have structure that is clear and easy to follow? Is the statement consistent with what will be proved and with the contents of your closing argument?

Keep track of the opposing parties opening statements. If they state in their opening remarks that they intend to prove something during the course of the trial, and then fail, you would be wise to mention this in your closing arguments Here are some additional tactics that can be relevant to your success beyond your opening remarks and throughout you trial. Remember this please; your not getting brownie points because you played fair in court. It is not how you played, its whether you win or lose. Winning IS everything in this game. A. Confidence You should not be meek. Keep your chin up. Fake it if you have to. Appear Forceful yet tactful, candid yet not condescending, positive yet realistic. B. Sincerity If you appear unconcerned, then you can be so will the jury. You need to show that this is serious business to you, and you absolutely believe in your cause. If you are facing an attorney, the attorney already has the disadvantage, as everyone likes to hates attorneys.

C. Honesty & Integrity Your credibility has everything to do with your success. IF you overstate or oversell your case in your opening statement, you may lose credibility. D. Stance Do not stand behind the table. Get your butt out in front of the audience. Walk slowly in front of the bar, and look each juror in the eye as you pass by. Pretend you know these folks, and talk directly to them. Make them feel bad if they are even thinking about ruling against you. You can use your distance from the jury to bring a point to what you are saying. Move in closer when speaking about something you want to make sure they are to understand. E. Dress It is a fact that attractive people get more benefits, attention, preferential treatment and the whole nine yards. Look your best and dress in business attire. If you are involved in a case over money, do not dress to flashy , such as heavy gold necklace, excessive rings, watches, and the like, folks use some common sense and scrutinize yourself, just like women do. See, women criticize themselves, while men criticize each other. Have your wife give you the once over, before going to trial. F. Gestures Dont be rigid as a rock. Use hand motions to give emotion to your speech. Did you folks ever have a teacher who put you to sleep? Did you ever have a teacher who was fascinating to listen to? Now ask yourself why, and take that as a lesson. G. Speech Dont be a dull monotone speaker, and dont talk so low that no one can hear you. Let your presentation be vibrant and full of emotion and meaning. H. Personalizing and depersonalizing characters is a good way of using subliminal character assassination without saying anything that can be objectionable. Example of this would be to refer to you opponent as The banker over there believes . . . or, The persecutor want to . . , Mr. Banker, is it true that. . ., or Mr. Jones while referring to the folks on your team by their first names. Examination There are 3 phases to examination, these are direct examination, cross examination, and then redirect examination. Direct examination is calling a witness for your side to testify, by asking them questions. Cross examination is the opportunity you have, to ask the opposing side witness questions, and re-direct, is after the opposing side has questioned your witness, you get the last questions for them. The only way a witness can speak is by being asked a question. So the types of questions you ask are very important to how and what kind of information a witness can reveal. 1. Open Ended questions these allow the witness to speak in a narrative and give a lot of information without you being required to keep asking questions. An example would be, Joe, would you please tell the court what happened at the closing of your mortgage? This allows Joe to do more than answer yes or no, and allows him to paint a vivid picture for the jurors.

2. Direct questions - When questioning opposing witnesses, you tend to ask yes or no questions. That minimizes the amount of narrative then can get out to influence the jury. If you ask a yes or no question of an opposing witness, and they try to give more than that, interrupt them and remind them that a simple yes or no will suffice. And got to the next question. Keep track of their answers as you made need these statements to change your closing arguments. 3. Double direct questioning - is where you repeat the answer a witness just gave as the beginning of the next question. By doing this, the jury gets to hear the answer twice, and drives home the point. An example of this would be, Mr. Banker, did the bank loan any of their assets to purchase the note from Joe? If they answer no, the beginning the next question. Since you have stated you didnt loan any of your assets, then how has the bank been damaged? OR How about, Officer, have you been trained in the law? Answers Yes, If you have been trained in the law, then please tell the court what specific law have I broken by crossing the fog line? 4. Memory lapse If a witness suddenly cannot answer a question, it is very appropriate to refer to previous statements made. Example: Officer you stated earlier that you where trained in the law, how can you be unsure if there is or is not a law regarding crossing the fog line? 5. Weakness while your opponent is direct examining their witness, study the answers and look for weakness. During cross-examination, this will give you an area to concentrate on. 6. Last witness the strongest witness should be saved for last. That way the very best evidence will be fresh in the jurors minds. Cross Examination 1. Cross-examination is normally limited to the scope and topics of the direct. If the opposing witness states that they have full knowledge of a topic, then this is your bingo card to ask them anything under the sun relating to that topic. 2. Knowing the principle that once a witness confesses knowledge of something, it may be prudent to practice your questions and answers with your witness before trial. Be attentive during cross-examination, and object to the opposing party if they leave the scope of testimony. Redirect Examination The scope of redirect examination is to cover any new topics that where opened by crossexamination. Sometimes evidence is reserved to be brought forth during redirect, as the opposing party will not have an opportunity to cross examine and ask damaging questions. However, you may also run the risk of loosing the opportunity of even entering the evidence, if the cross-examination did not cover the scope of this evidence area. Again its absolutely proper to refresh a witnesss memory, by reciting previous answers.

Expert witnesses In order for an expert witness to be allowed to testify at a trial they must be qualified by the judge. The witnesses credentials must be given in open court for the jury to hear, and it is important that an expert do a good job at giving himself credibility, without seeming to be boastful or prideful. For the opposing party you may stipulate to the witnesses credentials, which may stop the other sides witness from giving the jury a pretty picture about how qualified he is. Expert witnesses should be prepared before trial of relevant law and case holding, so their testimony can be tailored to your needs. Expert witnesses have a high degree of latitude regarding admissibility of statements. They can offer opinions based on little more than hearsay, if the hearsay is typical of something the expert relies on in his field. You need to know as much about the field a the expert, so that you can formulate the correct questions to get the very best testimony from them. Closing Arguments Prior to the closing arguments the judge will instruct the jury of what their duty is. You may submit proposed jury instruction for the judge, and the judge will evaluate whether you have correctly defined the law. It is always important to submit a brief of authorities to your proposed jury instructions, so the judge will not have to look up the law himself. The closing argument is the very last thing you will say to the jury before they go and decide your fate. It is very important to recap all the important facts and opinions of the case. You can draw any conclusion from the case you want as long as it relates to the testimony. 1. 2. 3. 4. 5. Draw reasonable conclusions from direct or circumstantial evidence Suggest that certain evidence implies a reasonable conclusion Present a conclusion base on the evidence Use analogies to explain the importance of certain elements Suggest that the juror apply their common sense and life experiences in determining the facts 6. Comment on or attack the credibility of the witnesses. 7. Explain the evidence and restate comments made by witnesses and point out weakness in the opposing side case. 8. Explain the law, so long as it is an expansion of what the judge has already told the jury. Sometimes it is helpful to clarify what the judge meant. Depending on jurisdiction, it may even be permissible to read to the jurors relevant case law. 9. Point out any broken promises made by the opposing party in the opening statement. 10. Point out an obvious lack of evidence from you opponent 11. Appeal to the emotions of the jurors.

12. Ask the jurors questions, but never answer for them. Let them answer in their mind. Let the juror believe that it was their thought, not yours. 13. Tell them how to find for you and then sincerely ask from them the verdict that you want.

Objections Two weeks ago we talked about general objections and there are several things that cannot be done during opening and closing statements that you need to be made aware of. Opening statements Explanation of law - Opening statements are generally to allow each party to present its version of the case and what they expect to prove. Explain the law may be premature and could result in an objection. Typically legal explanations are reserved for closing arguments. Inadmissible evidence trying to refer to evidence that has been excluded by pretrial motion such as a motion in limine, or is excluded by your states rules of evidence. Mentioning un-provable facts - This basically amounts to using fiction to try your case. Try to stick with elements that are tangible and pass the good faith test. Personal Opinions Phrases such as I think and I believe are objectionable. Closing Statements Misstating evidence If your restatement is not in the same context are the testimony heard during the trial. Personal Opinions Phrases such as I think and I believe are objectionable. Trying to appeal to the jurys bias, prejudice or personal interests Example would be suggesting to the jurors that if they dont stop this banking thing, we are all going to end up slaves. Prejudicial Arguments Comments that have little or nothing to do with the facts. Example, you cant ask the jury If the banker stole $100,000 from you and tried to call it a loan, would you be mad?