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Quote of the Day - A trial is like a jig-saw puzzle and closing argument is when the lawyers put the pieces together. - Dean Erwin Chemerinsky
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How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 6

It's the last day of a whirlwind, six-day, eight-hours-a-day class on how a lawsuit goes to trial, and the students are understandably worn down.  Once they get done in class, they go home to read a hundred or so pages of Mauet's Trial Techniques as well as the fictional case files and then prepare outlines of examination and exercises for the next day.  They're putting in 10-16 hour days, if they're doing it right.

Just like a real trial.

Expert Witnesses

Today we cover how to qualify a witness as an expert and have the judge accept the witness as an expert to testify and educate the jury.  There are many variations to the technique, but here's a slightly edited one from Forensic Magazine that demonstrates the technique appropriately:

QUALIFYING QUESTIONS FOR THE EXPERT WITNESS
(SAMPLE EXPERT WITNESS VOIR DIRE)

  1. Name.
  2. Occupation.
  3. Place of employment.
  4. Title.
  5. Position.
  6. Describe briefly the subject matter of specialty.
  7. Subspecializations within that field.
  8. What academic degrees are held and from where and when obtained.
  9. Specialized degrees and training.
  10. Licensing in field, and in which state(s).
  11. Length of time licensed.
  12. Length of time practicing in this field.
  13. Board certified as a specialist in this field.
  14. Length of time otherwise certified as a specialist.
  15. Positions held since completion of formal education, and length of time in each position.
  16. Duties and function of current position.
  17. Length of time at current position.
  18. Specific employment, duties, and experiences (optional).
  19. Whether conducted personal examination or testing of (subject matter/ person/instrumentality).
  20. Number of these tests or examinations conducted by you and when and where were they conducted.
  21. Teaching or lecturing in the field.
  22. When and where you lecture or teach.
  23. Publications in this field and titles.
  24. Membership in professional societies/associations/organizations, and special positions in them.
  25. Requirements for membership and advancement within each of these organizations.
  26. Honors, acknowledgments, and awards received in the field.
  27. Number of times testimony has been given in court as an expert witness in this field.
  28. Availability for consulting to any party, state agencies, law enforcement agencies, defense attorneys.
  29. Put curriculum vitae or resume into evidence.
  30. Your Honor, pursuant to (applicable rule on expert witness), I tender(name) as a qualified expert witness in the field of ______.

Like most other aspects of trial work, it's not a matter of rocket science to qualify an expert.  There are, however, other issues that may trip you up, such as whether the subject matter of the witness's testimony is a proper subject for expert testimony, and whether the science is generally relied upon by those in the same field.  But those are substantive subjects, not techniques, and beyond the scope of this course.

That's it for testimony, exhibits, witnesses and the like.  As I laid out in the beginning when you "told 'em what you're going to tell them," you've wrapped up the second section of your sermon:  you "told 'em." 

Closing Argument

Now it's time to present closing arguments.  How?  That's a subject of great debate.  Generally, you continue to follow the sermon format, recognizing that you're in the third phase:  "tell 'em what you told 'em."

But it's not that easy.  It's likely there are events and new facts that came up during the trial that you didn't anticipate in the beginning, and you've got to make sure what happened fits into your theory of the case.  You must also deal with any evidence you told the jury about in your opening that didn't get in.  It all has to make sense to the jury, or your case may go down the tubes. 

You also have to persuade.  It's time to pull out those adjectives and adverbs you weren't allowed to put into your opening statement.

You must also discredit the opposing side's theory of the case, and explain it away in your closing argument.  Some lawyers make rhetorical challenges to the other side, and "dare" opposing counsel to answer the question left hanging.   It's a dangerous tactic that sometimes backfires.  Sometimes it wins cases.

There's no right or wrong way to make a closing argument.  Most of all, it has to fit your style.  You can't get up and be indignant about the other side unless you truly are.  You have to be yourself.  But it's not really about the lawyer (unless the lawyer gets in the way). 

It's about the facts, credibility, the evidence and the law in the jury instructions.  You weave it together to match your theory of the case.  Then you ask for the remedy sought by your client. 

You're in sales, remember?  You have to close the deal. 

Wrap up

There are several technical procedural elements present in any trial, such as Motions in Limine and Judgment on the Pleadings before trial, objections, hearsay and best evidence rule, interlocutory writs, motion to exclude witnesses and media gag orders during trial and Motion for Nonsuit, a Directed Verdict and a JNOV, or Judgment Notwithstanding the Verdict.  They're an entire set of classes in themselves, and more than I have time to cover here.  But if you're going to trial, study up. 

There you go.  Around the courtroom in six days.  Ready to do it on your own?

Posted by J. Craig Williams on Friday, January 11, 2008 at 20:48 Comments (2)


Comments

Comments by J. Craig Williams from United States on Wednesday, January 23, 2008 at 02:35 - IP Logged
Yes, some litigators are born and not made, but there''s a school of thought that litigators can also be made. To be a good litigator, you should just be yourself. You don''t have to be "showy" or have a "pit bull" attitude to be a good litigator. Jurors can see right through lawyers who are trying to be something other than they are.
Typically, good litigators have confidence to spare and are more than willing to take on just about anyting that comes their way.
If you ask yourself the question whether you want to be a litigator, may I invite you to give it a try? Since you''re in-house counsel, sit second chair on a trial from start to finish. You could also monitor outside litigation counsel in the pleading, discovery and motion phases of a case, and then go though a trial, just like the one described here.
You''ll never know until you try. Give a shot - at a minimum you''ll learn something.

Comments by Litigator Wannabe from United States on Thursday, January 17, 2008 at 14:17 - IP Logged
Your "How To Try A Case" series is very informative. I am currently working as an in-house corporate attorney but have had the urge off and on to switch to litigation. One of the fears that is holding me back is that good litigators are born and not made -- i.e., I do not have a showy or "pit bull" personality. What attributes do you think are necessary to become a good litigator?


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