Unit 9- Trial Simulations
Unit Introduction
The ninth unit of this course material is designed to help students in their efforts
to participate in trial court simulations. Each student is expected to do trial court
watching and then participate in simulations of direct examination, cross-
examination and re-examination of witnesses. The instructor facilitates the mock
trials in which students produce evidence based on pleadings they have submitted
during the preceding sessions. For each mock trial session, three judges will be
assigned (among students) by the instructor based on nominations from students,
and one student will serve as bailiff. The mock trial is expected to be conducted in
the law school’s moot court room.
There are basic readings that have been incorporated in Unit 9 because they are
crucial during mock trials. Section 1 has a reading on fundamental tasks during
the final phases of preparation for trial. The counsel is required to devise a
coherent and clear theory of the case, and prepare outline for direct examination.
Other pertinent issues of concern include witness list, exhibit selection and
preparation, the order in which proof can be produced and preparation for cross-
examination.
Section 2 of this Unit highlights opening statements and closing statements
which mark the beginning and culminating points of trial lawyering. Moreover,
this section includes a reading on objections because prompt and valid objections
in the course of the trial are crucial. And finally, Section 3 requires hands-on
practice in trial lawyering, and adequate time ought to be allocated for the trial
simulations required to be conducted. As students are preparing for these mock
trials, they are expected to revise the readings and notes in all the units of this
course material
__________
Unit 9- The Trial: Preparation and Litigation 191
Section 1- Reading on the final phases of trial preparation
(Source: Thomas A. Mauet (2002) Trial Techniques, 6th Edition (New
York: Aspen Publishers), pp. 507- 526 with omissions)
Theory of the case
What is a “theory of the case”? Your theory of the case is simply a logical, persuasive
story of “what really happened.” It must be consistent with the credible evidence and
with the (court’s)1 perception of how life works. Your theory of the case must combine
your undisputed evidence and your version of the disputed evidence. …
How do you go about developing a theory of the case? This requires several steps.
First, review the elements of each claim (or defense) in the case … Second, analyze how
you intend to prove (or disprove) each of those elements through admissible testimony
and exhibits. Third, analyze the contradictory facts that your opponent has available to
determine the key issues that will be disputed at trial, and what witnesses and exhibits
your opponent will probably use to prove his side of those issues at trial. These steps
should already have been completed by preparing your trial chart. Fourth, research all
possible evidentiary issues that may arise to all of the likely proof so that your can
realistically determine what will be admissible at trial. Finally, review all the admissible
evidence you and your opponent have on the key disputed issues to identify each side’s
strengths and weaknesses. This is where the critical contests during the trial will be. You
must then plan how you can bolster any weaknesses you have and how your can
persuasively attack your opponent’s weaknesses.
… (The) process of developing logical, consistent positions on disputed facts and
integrating them harmoniously with the undisputed facts to create a persuasive story of
what actually happened is what trial lawyers call developing theory of the case.
Consider the following:
Example:
In an automobile negligence case, the plaintiff pedestrian was struck by defendant’s
car at an intersection. Some evidence will place the plaintiff within the crosswalk with the
walk light green. Other testimony will place the plaintiff outside the crosswalk,
jaywalking across the intersection.
As plaintiff, your theory could be one of the following:
a. Plaintiff was in the crosswalk and had the right of way (ordinary negligence)
b. Plaintiff may have been outside the crosswalk but was injured because the
defendant could have stopped his car but didn’t (last clear chance)
c. Both plaintiff and defendant may have been negligent, but defendant bears most
of the fault (comparative negligence)
Example:
In a murder case, the prosecution’s evidence will show that after a violent argument
the victim was shot by a man some witnesses will identify as the defendant.
1 The Original reads “jury’s perception”
192 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
As defendant, your theory could be one of the following:
a. Defendant did not do any shooting (identification)
b. Defendant did the shooting, but was justified in defending himself (self-defense)
c. Defendant did the shooting, but the circumstances do not make the shooting a
(intentional homicide)2 but (negligent homicide)3or lesser charge
As you see, your position on the facts, both disputed and undisputed, must be
developed well in advance of trial. Each disputed fact must be analyzed and a position
taken on it that is consistent with your theory of the case. Only then can you move on to
the next stages of your trial preparation.
Most trials, where the issues are close, are usually decided on a few pivotal points. It
may be an admissibility issue on a critical exhibit of a key witness testimony. It may be
the impression a crucial witness makes … Whatever the issues, thorough trial preparation
must include determining what those issues will be at trial. In short, you must find out
what the crucial issues will be, how you want to articulate those issues …, and how to
prepare for the critical issues more thoroughly and convincingly than your opponent …
All these considerations must come together in deciding on your theory of the case.
…
Direct Examination Outline
How do you create an outline of your planned direct examination in your trial notebook?
There are two common methods.
a) The Q & A method.
Under this approach, every question you intend to ask the witness (and a summary of the
expected answer) is written out. This is the method frequently employed by
inexperienced lawyers during their first new trials. Its advantage is that you can draft
your questions in proper form in advance. The disadvantages are that, unless you are a
good actor, your questions will invariably sound as though they are being read from a
script – hardly the impression you want to convey. This approach also weds you to the
script and hiders your flexibility in asking logical follow-up questions. …
b) The witness summary method
Under this approach, used by most experienced trial lawyers, you outline the key things
the witness will testify about on direct. You then simply follow the outline, asking the
questions that elicit the desired answers. The advantages are that your questions will
sound fresh and spontaneous, and you retain flexibility to ask follow-up and clarifying
questions. A convenient way to organize the direct under this approach is to note at the
top of the outline the exhibits the witness will work with or qualify the witness’s prior
statements (which will be in the witness’ file folder). The rest of the page is then split into
three columns: dates and times, witness testimony, and exhibits. This makes it visually
simple to know where you are and what you should do next. As the examination
progresses, you simply check off what has been done as it occurs.
2 “murder” in the original
3 “manslaughter” in the original
Unit 9- The Trial: Preparation and Litigation 193
Example: (John Doe – direct examination)
Exhibits:
1. wallet (P#2)
2. building photo (P#1)
3. line up photo (P#6)
Statements :
1. …
2. statement to police in report, p. 7
3. line up photo (P#6)
(Question outline)
1. Background
name, age, address
how long there
work and school
residence – neighborhood
family
2. 5/20/00
where living
describe building
describe apartment layout
doors, locks, lights ID photo – P# 1
3. 2:00 A.M.
in apt.
TV, beer, lights
4. What happened
two men broke in door
describe men ID. def
guns, describe
took wallet, describe
men searched apt.
took things, describe
threats, ran out
5. Aftermath
called police, arrived
spoke to them
6. Lineup
9:00 A.M. call
to station
talked to police
viewed lineup, ID def ID photo- P#6
shown wallet ID wallet- P#2
194 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
All the direct examination outlines should be put in your trial notebook (under plaintiff or
defendant, depending on whom you represent) in the order you plan to call them in your
case in chief.
…
Witness list
… (Y)ou neen to keep a list of witnesses I the charts section of your trial notebook. The
witness list will show each witness’ name, home address and telephone, work address
and telephone, any other information useful for locating and scheduling him during the
trial, and a one-sentence synopsis of the witness’ role at trial. Some sawyers put the list in
alphabetical order. Others put the list in the order in which the witnesses are expected to
testify at trial The witness list is critical for keeping in touch with the witnesses as the trial
date approaches and during the trial. …
Exhibit selection and preparation
If you have prepared your witness examinations, you already know what exhibits you
intend to use during trial. You need a strategy that incorporates both ‘exhibits’ that will
be formally admitted in evidence, and ‘visual aids’ that are not formally admitted in
evidence but can supplement opening statements, closing arguments, and expert
testimony. …
… (Y)ou need to keep a list of exhibits in the charts section of your trial notebook. The
exhibits list will show, for each party, the exhibit number, without description, and boxes
to check showing the evidentiary status of the exhibit – if offered, admitted, refused,
reserved, or withdrawn. The exhibits list is essential for you to keep track of the
admissibility status of your, and your opponent’s exhibits during trial. …
Example (exhibits list – plaintiff):
Offered
Admitted
Refused
Reserved
Withdrawn
# Exhibits marked for identification
1 Construction contract x x
2 Final payment check x x
3 a-g Monthly progress reports x x
Order of proof
The last step in preparing your case in chief is deciding the order in which you will
present your evidence. Your proof will come from four possible sources: witnesses,
exhibits, stipulations, and judicial notice. You have total control over the order in which
you will present your evidence, and you are limited only by the availability of your
witnesses. Hence the principal question is: what order of proof will present my case more
efficiently?
Unit 9- The Trial: Preparation and Litigation 195
There are various considerations you should keep in mind in deciding on the order of
proof. These include the following:
a. Present your case in chronological order or some other logical progression, as viewed
from the (court’s) 4 perspective. …
b. Start with a strong, important witness to give the (court) a good initial impression of
your case.
c. Finish with a strong witness. … There are psychological principles of primacy and
recency. Use them to your advantage.
d. Begin each morning or afternoon session with a strong and interesting witness
whenever possible. …
e. If you must call your opposing party or another adverse witness during your case in
chief, it is usually safer to call him during the middle of your case in chief. If the
witness does more damage than he helps, he will not have started your case in chief
on a bad note, and you can immediately follow him with favorable testimony. On the
other hand, lawyers sometimes prefer to take the risk and begin their case in chief by
calling the opposing party as an adverse witness. This can work well if the witness is
unprepared or will make bad impression on the (court).
f. Call important corroboration witnesses immediately after primary witness has
testified. … Avoid calling several corroboration witnesses to the same point. Overkill
adds nothing, and boring the (court) is costly. Sometimes a corroboration witness can
be called later so that the (court) does not repeatedly hear the same evidence.
g. Several witnesses are sometimes necessary to establish technical elements of proof.
These can be boring witnesses. Unless doing so will interrupt the logical progression
of your case, these witnesses can sometimes be interspersed with more interesting
witnesses. In any event, these technical witnesses should be efficiently presented.
Keep in mind, however, that technical witnesses may be necessary both to provide
foundation for critical exhibits you want to introduce at certain time and as predicate
witnesses for other witnesses, unless the court will allow you to call witnesses out of
turn on your representation that you will ‘connect it up.’ …
h. Reading depositions, stipulations and documentary evidence is inherently less
interesting and usually boring. See how you can make this come alive. … Intersperse
this kind of evidence with more interesting proof, unless it will disrupt the orderly
presentation of your case.
i. Get your exhibits in evidence and show them … as son as possible. …
j. Alternate lay witnesses and expert witnesses to keep the (court’s) attention.
k. An expert often is a good final witness because he can effectively summarize the
evidence in your case. This will capsulize your case just before you rest.
l. Finally, remember that your planned order of proof must remain flexible. Witnesses,
particularly experts, have busy schedules and can be available only at certain times.
Last-minute problems invariable arise, requiring you to adjust your expected order.
… Remember that the above considerations can and often will compete with each
other so that there is no one way in which your proof should be ordered. As usual,
there is no simple solution to these conflicts. Each case must be analyzed, and the
4 The Original reads “jury’s perspective”
196 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
advantages and disadvantages of each order considered, to arrive at an order that
appears reasonable, one that presents your case in a logical, progressive way that is
easy … to follow and understand.
The following examples give simple illustrations of one way in which the proof could be
organized in … civil and criminal cases.
Example (plaintiff in pedestrian collision case):
1. plaintiff
2. eyewitness
3. police officer at scene
4. ambulance driver
5. doctor at emergency room
6. treating physician
7. former employer on damages
8. spouse on damages
Example (prosecutor in murder case):
1. eyewitness in shooting
2. first police officer at scene
3. ambulance driver
4. doctor at emergency room
5. pathologist on cause of death
6. second eyewitness
7. arresting police officer
8. detective on defendant’s admissions
Cross-examination preparation
Your final trial preparation task is to prepare the cross examination of your opponent’s
witnesses. This has been saved for last for a reason. Cross-examination preparation
cannot be focused until you know exactly what your theory of the case is, what themes
and labels you will use, and what the key factual disputes will be during the trial.
Effective cross-examinations require preparation. … A common problem of
inexperienced trial lawyers … is lack of organization. During the direct examination they
feverishly take notes, and this rarely does anything worthwhile. The better approach is to
take only those notes that will help your cross-examination. If necessary, have someone
else take full notes of your opponent’s direct examination. This is easily accomplished if
you organize your case notes so that you can integrate anything useful the witness says
on direct on your notes.
A common system is to outline the planned cross-examination on one side of a sheet of
paper, by specific topics. The other half of the sheet is blank; this is where you will note
anything specific the witness says on direct that you can use on cross. This will limit your
note-taking during the direct, giving you more time to watch the witness testify, which is
usually more useful anyway. Some lawyers put a short synopsis of the witness’ expected
direct testimony, and a list of prior statements, at the top of the page. …
Unit 9- The Trial: Preparation and Litigation 197
Example (John Smith – cross examination):
Direct: Witness sill probable testify he was walking down the street late at night, was
accosted by a man he claims was the defendant, who claimed he had a gun, and
was robbed of $35, and later identified defendant in lineup.
Statements: statement to police (pp. 6-8 of reports)
…
Cross examination Direct examination
1. late at night 1.
dark, no lights near
2. happened suddenly , not 2.
expecting trouble
3. worried about being hurt, 3.
looking for gun
4. never saw gun 4.
(GJ transcript, p.7)
5. description to police, general 5.
never noted scar on face
Under this system, the only notes you will make during the direct examination are on any
specific facts the witness makes that help you on the points you have planned to make on
cross. These notes can be made on your cross outline next to the topic involved. In this
way your direct examination notes are useful because they are immediately correlated to
your planned cross examination.
All the cross-examination outlines should be put in your trial notebook (under plaintiff
or defendant, depending on whom you represent) in either alphabetical order or in the
order you anticipate your opponent will call these witnesses at trial.
__________
198 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
Section 2- Opening statements, objections and closing statements
In criminal cases, “the public prosecutor shall open his case explaining shortly the
charges he proposes to prove and the nature of the evidence he will lead.”5 The
opening statement should not be argumentative and it is required to be made in
an “impartial and objective manner.”6 In most cases opening statements are not
formally pursued in Ethiopia. The public prosecutor usually states the core
elements that are expected to be proved by the witnesses and other evidence in the
course of the trial after which witnesses will be called to testify. In certain cases,
however, formal opening statements are made by way stating what is intended to
be proved and the nature of the evidence before the public prosecutor starts
calling witnesses.
Opening of hearing in civil cases are made “on the day fixed for the hearing of
the suit” and the plaintiff is entitled to begin unless the defendant admits the
allegations and forwards an affirmative defence, in which case the court can allow
the defendant to begin in accordance with Article 258 of the Civil Procedure Code.
The opening statement in civil cases is very brief and it merely involves statement
of the case. “The party entitled to begin shall state his case and produce his evidence
in support of the issues which he is bound to prove.”7 The same opportunity will
be given for the other party8 when it produces its evidence to the court. The
statement of the case and production of evidence pursues the issues that have
been framed 9 prior to the opening of the hearing.
As evidence (witnesses, exhibits, etc.) is produced to the court, the adverse
party my object the various elements of the evidence. Objections may be made to
questions or answers during witness testimony or to the introduction of exhibits
(documents, real evidence, etc.). If objections relating to substance (content) are
5 Crim. Pro. C., Art. 136(1)
6 Ibid
7 Civ. Pro. C., Art. 259(1)
8 Civ. Pro. C., Art. 259(2)
9 Civ. Proc. C., Arts. 246-252
Unit 9- The Trial: Preparation and Litigation 199
sustained by court, the evidence becomes inadmissible or would be struck our,
while objections to form of questioning might bring about rephrasing questions of
the other party. According to Article 270 of the Civil Procedure Code objection
made against any question made to a witness is recorded “together with the
decision of the court thereon.” With regard to criminal cases, Article 146 of the
Criminal Procedure Code provides that the court shall decide forthwith on the
admissibility of evidence where “the public prosecutor or the accused objects the
admission of any evidence.”
Closing statements constitute the last opportunity to succinctly forward one’s
points of law, points of fact and relief so that the logical and forceful presentation
of your client’s side of the case can bring about a favourable decision of the court.
The Civil Procedure Code does not envisage formal closing arguments while
Article 148 of the Criminal Procedure Code enables the public prosecutor and the
accused to make final addresses (closing statements) to the court after the
conclusion of evidence. The accused is entitled to make the last statement.10 The
final address shall be on questions of law and questions of fact.
Reading on Objections
(Source: Thomas A. Mauet (2002) Trial Techniques, 6th Edition (New
York: Aspen Publishers), pp. 463- 472 with omissions)
Introduction
In some ways making proper, timely objections is the most difficult skill for the
inexperienced trial lawyer to master. This is difficult for two reasons. First, evidence is
usually taught in law schools at a theoretical level, which, while important, has little to do
with the contexts in which evidentiary and procedural problems routinely arise during
trials. Trial lawyers learn to associate “buzz words” with appropriate objections until the
association is automatic. A buzz word is simply a word or phrase that an experienced
trial lawyer is conditioned to know is objectionable. For instance, when a lawyer starts a
question with ‘Isn’t is conceivable that …” a trial lawyer will instantly react because the
question necessarily calls for a speculative answer. Second, timeliness is essential when
making objections, since making a late objection is often worse than not objecting at all.
…
10 Crim. Pro. C., Art. 148(2)
200 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
When to make objections during trial
1. (Judges)11 dislike (constant) objections
(Judges) see lawyers who make constant objections as lawyers who are trying to keep the
real truth from them. Since your credibility as a lawyer has a critical influence on the
outcome of the trial, minimize your interference while evidence is being introduced
before the (court). … Raise them before the trial whenever possible. …
2. Will the answer hurt your case
Unless you are reasonably sure that the answer to a question will hurt your case, it is
usually better not to object. …
On the other hand, you must keep the judge in mind. Repeatedly failing to make a
proper objecton (because the answer won’t hurt your case) can result later on in the judge
overruling a proper objection (where the answer will hurt your case), since you have
through your conduct conditioned the judge to assume that what was repeatedly asked
earlier was proper. Object enough to let the judge know that you know when to make
proper objections.
3. Does your objection have a solid legal basis?
If you do make an objection, be reasonably sure you will be sustained. Have statutory …
authority ready to support the major objections you anticipate during the trial. Making
an objection and having it overruled is often worse than not making it at all, since the
objection merely draws the (court’s) attention to the question and eventual answer.
4. Protect the record
Evidentiary objections must be made with two purposes in mind. First, to keep the
(court) from hearing improper evidence; second, to preserve any error on appeal.
You must make and protect your record. Errors in admitting evidence at trial are
usually waived on appeal unless a proper, timely, specific objection was made during the
trial.
5. Can you use objection as a tactical device?
Making an objection necessarily has the effect of breaking the flow and pace of the
opponent’s examination or argument. While it is unethical to make an unfounded
objection solely to disrupt your opponent (or coach your witness), it is proper to make an
objection whenever there is a legitimate evidentiary basis for it, even if the inevitable
effect is to disrupt your opponent’s presentation.
How to make objections during trial
1. Timeliness
Evidentiary objections must be made timely. If a question is improper, an objection must
be made before an answer to the question is given. Ordinarily, you should object to a
11 ‘Jurors’ in the original
Unit 9- The Trial: Preparation and Litigation 201
question only when it is completed. If, however, the question itself is directly prejudicial
as well as improper, you must object promptly when this first becomes apparent. …
2. Legal basis
Objections should state the legal basis for the objection. This should be done succinctly,
without excessive argument.
Example: The question calls for hearsay answer. …
Objections, your Honour, to the hearsay answer
…
Offers for proof
When your opponent’s objection has succeeded in excluding important evidence, you
must make an offer of proof. The offer is necessary for two reasons. First, it may
convince the trial judge to reverse his ruling. Second, the offer will create a record so that
the reviewing court will know what the excluded evidence was and be able to determine
if the exclusion was improper, and, if so, whether the improper exclusion constituted
reversible error. …
Example:
Counsel: Your Honor, if we were allowed to pursue this line of questioning, the
witness would testify that one week after the robbery, the defendant
tried to sell her watch which we can prove was taken during the
robbery.
…
Evidentiary objections
… The following evidentiary objections are commonly encountered at trial. Note that the
objections can be classified into two broad categories, objections directed to form and
those directed to substantive evidence. Objections to form can usually be cured by
rephrasing the question or answer. On the other hand, objections to substantive evidence,
if sustained, will actually result in excluding evidence.
Example (form):
Q. Mr. Jones, is it possible that the driver of the other car didn’t come to a
complete stop at the stop sign?
Counsel: Objection, your Honor. Counsel is asking the witness to speculate.
Court: Sustained.
Q. Mr. Jones, did you see the other car as it approached the sign?
A. Yes
Q. Describe what the car did.
A. It came to the corner, slowed down to around 10 mph, then kept going
through the intersection without ever stopping.
202 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
In this example, the examining lawyer overcame the objection simply by rephrasing his
questions in proper form to elicit the desired information. The objection only forced the
examining lawyer to ask better phrased questions and ultimately obtain a better answer
that he would probably have gotten to his original question. For this reason, it is often
better not to object to question that are improper in form only.
Example (Substance):
Q. Mr. Jones, tell the jury what you heard the bystander, Shirley Smith, say about how this
accident happened.
Counsel: Objection, hearsay.
Court: Sustained.
In this example, the objection has succeded in excluding from evidence any statements by
Shirley Smith. If there are no applicable exceptions to the hearsay rule, the statement
simply cannot get into evidence. …
The following objections are commonly encountered at trial during the presentation of
evidence through witnesses and exhibits:
Objections to questions
a. calls for irrelevant answer
b. calls for immaterial answer
c. witness in incompetent
d. …
e. calls for privileged information
f. calls for a conclusion
g. calls for an opinion (by an incompetent witness)
h. calls for narrow answer
i. calls for hearsay answer
j. leading
k. repetitive (asked and answered)
l. beyond the scope (of the direct, cross, or redirect)
m. assumes facts not in evidence
n. confusing/misleading/ambiguous/vague/unintelligible
o. speculative
p. compound question
q. argumentative
r. improper characterization
s. misstates evidence/misquotes the witness
t. cumulative
u. improper impeachment.
Objections to answers
b. irrelevant
c. immaterial
d. privileged
e. conclusion
Unit 9- The Trial: Preparation and Litigation 203
f. opinion
g. hearsay
h. narrative
i. improper characterization
j. violates parole evidence rule
k. unresponsive/volunteered
Objections to exhibits
a. irrelevant
b. immaterial
c. no foundation
d. no authentication
e. violates original documents (best evidence) rule
f. contains hearsay/double hearsay
g. prejudice outweighs its probative value
h. contains inadmissible matter (mentions insurance, prior convictions, etc.)
__________
204 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
Section 3- Trial court simulations: Exercises and Activities
A team of two students will select a case for mock trial. If the case is the one
submitted as assignment for writing pleadings, the student who has done the
assignment will be public prosecutor (in criminal cases) or counsel for the plaintiff
(in civil cases). Mock trials are not expected to handle civil and criminal cased
during the same session. However, mock trials may simulate a different bench
after recess.
Students are expected to determine theory of the case, identify witnesses and
other evidence, open their case and produce evidence in court. Another student
will cross-examine witnesses.
Trial Simulation Exercises
Source: Thomas A. Mauet and Warren D. Wolfson, (1987) Materials in Trial
Advocacy: Problems and Cases, 2nd Edition, Boston, Little, Brown & Co.
(pp. 39, 41, 43, 44, 55, 65
(Adjustments are made to types of offences, and students can give
names to witnesses)
1. Homicide Victim’s widow
This is a prosecution of negligent homicide. The charge arises out of a quarrel in a bar
which turned into a brawl, during which the victim was killed. The defense is self-
defense.
The case is now on trial. To prove the identity of the victim and to show that the victim
had no pre-existing medical condition that could have caused his death, the prosecution
calls the victims widow. She testifies on direct examination that she last saw her husband
the morning he was killed, May 15 of last year. At that time he was in perfect health. She
next saw him late that evening in the Menilik II Hospital Morgue. At that time he was
dead.
1. For the defense, cross-examine wife of the deceased.
2. For the prosecution, conduct any necessary redirect examination.
Unit 9- The Trial: Preparation and Litigation 205
2. Alibi witness
This is a criminal case. The defendant is charged with robbery. The defense is alibi. The
defendant claims that the time of the robbery, June 15 of last year at 10:00 p.m., he was at
home, about one-half mile from the scene of the robbery. He claims he didn’t feel well
that evening and had gone to bed around 9:30 p.m. The defendant, age 17, has not
brothers and sisters. His father is deceased.
The case is now on trial. To support his alibi defense the defense counsel calls the
defendant’s mother. She testifies that on the night in question, she was home all evening.
Her son came home around 7:00 p.m. She went to bed a few minutes after he did.
The witness has not previously told this to anyone other than the defense attorney.
Police investigators attempted to interview her shortly before trial, but she told them she
did not wish to talk to them.
1. For the prosecution, cross-examine the witness
2. For the defense, conduct any necessary redirect examination.
3. Driver in car collision
This is a personal injury case arising out of an automobile intersection collision. The
plaintiff claims that he was driving eastbound, entered the intersection, and was struck by
a car driven by the defendant, that was going northbound. Plaintiff claims that the
defendant ran the red light and was speeding.
The case is now on trial. Plaintiff calls a witness, who testifies on direct as follows:
“I was driving eastbound on Main Street toward the intersection on June 15 [-1], at
8:30 A.M. I was on my way to work, about three miles away. It was the morning
rush hour. The car and the pedestrian traffic was normal for that time of day.
Main street is a commercial street with four lanes of traffic, tow in each direction.
…”
The witness stated that as she was driving on the Main Street, in the outside lane, there
was another car ahead of her, perhaps half a block away. Both she and the other car were
going perhaps 20 M.P.H. As the car in front of her, a tan Ford sedan, and plaintiff’s car,
entered the intersection, the light turned yellow. As the Ford reached the far side of the
intersection, another car, a beige Plymouth, the defendant’s car, going from right to left,
suddenly entered the intersection and slammed into the right rear side of the Ford. The
light was still yellow for Main Street at the moment of impact. The defendant’s car was
speeding as it went into the intersection.
The witness stated that she worked for her present employer for five years, and that
her expected work hours were 8:30 to 5:00 P.M.
1. For the plaintiff, conduct a direct examination
2. For the defense, cross-examine the witness.
206 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
4. Defendant’s murder case
This is a murder case brought against the defendant. The defendant is charged with
murder on January 1 of last year.
The case is now on trial. A police officer has testified in his prosecution’s case-in-chief.
His testimony was in all respects consistent with his (preliminary inquiry)12 testimony.
The accused’s defense is that both victims had knives in their hands before she pulled
her gun out of her purse and that they were moving toward her and pointing the knives
at her before she fired. She claims that she told the same thing to the police officer when
he interviewed her.
1. For the defense, conduct a direct examination of the (defendant’s witness who is
her friend who claims to be present during the incident).13
2. For the prosecution, cross-examine (the witness).
4. Robbery victim
(The branch manager of a bank) was at his desk in his office in the rear of the bank when
he heard a gunshot.
He jumped up, ran out the door of his office and five feet to his left into the hallway. He
saw a man with a handgun, whom he now identifies as the defendant. The defendant
was standing about 20 feet away, at one of the tellers’ windows.
The manager says that the defendant turned his head, looked momentarily right at him,
then turned around, and ran through the lobby and out to the bank’s front door.
1. For the prosecution, conduct a direct examination of the witness.
2. For the prosecution, conduct a direct examination of the witness, using a diagram
to illustrate his testimony.
3. For the defense, conduct cross-examination.
__________
12 The original reads “grand jury testimony.”
13 The defendant is the witness in the original.
Unit 9- The Trial: Preparation and Litigation 207
Pair work
The following is an excerpt from page 197. It gives you an illustrative
sample of the range of witnesses one can have in a case. Work in pair:
a) Each student will prepare a statement of claim or a charge
b) The pair will choose one of the two cases for trial. The case can
be hypothetical or predominantly based on facts of a real case,
with names of the parties changed.
c) For Student “A”: Produce witnesses and conduct direct
examination.
d) For Student “B”: Conduct cross-examination
e) For Student “A”: Conduct redirect examination.
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The following examples give simple illustrations of one way in which the proof
could be organized in … civil and criminal cases.
Example (plaintiff in pedestrian collision case):
1. plaintiff
2. eyewitness
3. police officer at scene
4. ambulance driver
5. doctor at emergency room
6. treating physician
7. former employer on damages
8. spouse on damages
Example (prosecutor in murder case):
1. eyewitness in shooting
2. first police officer at scene
3. ambulance driver
4. doctor at emergency room
5. pathologist on cause of death
6. second eyewitness
7. arresting police officer
8. detective on defendant’s admissions
208 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009
Annex I
Trial Lawyer’s Self-evaluation Guide
Source : Mauet, Trial Techniques: 339-340
When a trial is over, trial lawyers are only human. They bask in the warm glow of victory
or sink into the despair of defeat. Once the trial is over, however, every trial lawyer
should ultimately ask: What did I learn from this trial, what did I do well? and how can I
get better?
Good trial lawyers get better because they learn from their experiences. They don’t
avoid critical self-analysis (through) … defensive attitudes. Good trial lawyers review
their performances dispassionately and learn from their mistakes.
The following self-evaluation guide may help your review your trial performances in
the future.
1. Strategy
Did I develop a persuasive theory of the case?
Did I develop persuasive themes?
Did I develop persuasive labels for … places, events?
Did I develop people stories?
Did I identify the key disputed issues?
Did I develop my important facts on the disputed issues?
Did I pursue only what I could realistically accomplish?
Did I anticipate my opponent’s strategy?
Did I anticipate problems and weaknesses?
2. Execution
a) Openings
Did I present the theory of the case?
Did I present my themes? …
Did I use storytelling to present facts and my case?
Did I use persuasive exhibits?
Did I realistically deal with my weaknesses?
Did I accomplish my purposes efficiently?
b) Witnesses
Did my examination serve my overall strategy?
Did I use simple, factual, non-leading questions on direct?
Did I illicit “word pictures” on direct?
Unit 9- The Trial: Preparation and Litigation 209
Did I use simple, factual questions on cross?
Did I ‘save’ my conclusions during cross for closings?
Did I accomplish my purposes efficiently?
c) Exhibits
Did I make and use persuasive exhibits and visual aids? …
Did I provide legally sufficient and persuasive foundations?
Did I effectively manage my own and my opponent’s exhibits throughout the trial?
d) Closings
Did I argue my theory of the case?
Did I consistently use my themes? …
Did I develop the important facts and logical inferences to support my version of
the key disputed issues?
Did I use exhibits, instructions, analogies and theoretical questions?
Did I use both logic and emotion?
Did I accomplish my purposes efficiently?
3. Delivery
a) Verbal
Did I (enable) my witnesses to create “word pictures”?
Did I and my witnesses use “plain (language)”?
Did I effectively modulate my voice to maintain the (court’s) interest and
emphasize key points?
Did I use … pauses?
Did I have any distracting verbal mannerisms?
b) Nonverbal
Did I avoid overusing notes during my opening and closing?
Did I maintain eye contact with witnesses and (judges)?
Did I use reinforcing … gestures?
Did I project appropriate attitudes?
Did I have any distracting nonverbal mannerisms?
__________
210 Pretrial Skills and Trial Advocacy: Brief Notes and Materials, February 2009