HOW TO PRESENT YOUR CASE AT TRIAL By: Richard S. Dellinger

Orlando, Floridawww.lowndes-law.com

HOW TO PRESENT YOUR CASE AT TRIALBy: Richard S. Dellinger

How to Present your Case at Trial 2

Orlando, Florida | www.lowndes-law.com

“Next to the ministry, I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once, it is because the stream is diverted by selfishness or checked by ignorance. Its principles enable and its practice elevates.”

-William Jennings Bryan



Presentation Outline

• Opening Statement

• Evidence Presentation

• Direct Examination

• Expert Direct Examination

• Cross Examination

• Expert Cross Examination

• Closing Argument



• "ON TRIAL: LEE HARVEY OSWALD" (PART 2)(G. SPENCE'S OPENING STATEMENT) - YouTube

http://www.youtube.com/watch?v=FCPmQqkD2EI





OPENING STATEMENT

The most successful trial lawyers are often master storytellers, making their cases come to life for their jurors. The reason is that stories matter ... stories are the deepest and most obvious way that humans organize, communicate, receive, and digest facts.

G. CHRISTOPHER RITTER, Powerful Deliberations



OPENING STATEMENT

Preparation, Preparation, Preparation, Preparation Introduce the theme Be a “truth-teller” Be a story teller

Party introductions Conversational Eye Contact



Opening Statement Move around courtroom Leave some mystery Don’t over promise Don’t argue or insult

Be positive Be inspirational

Inflection/ Pause for Emphasis

Acknowledge weakness

Colorado



OPENING STATEMENT RULES

No argument No discussion of the

law No exhibits that are

not admissible Exchange exhibits in

advance

Miami



EVIDENCE INTRODUCTION

Good trial lawyers are like writers with heavily plotted stories and sharply defined characters. They lay out each detail precisely to create an illusion of seamless inevitability, leaving no room for doubt, no possibility for an alternate ending.

ELYSSA EAST, Dogtown



EVIDENCE PRESENTATION

Map the elements from jury instructions and tie to direct exam Theory and Theme Primacy and Recency Chronological Foundation First Script Theory – harmonize pieces of evidence into pre-existing

picture Putting the puzzle pieces on the table before putting them together



DIRECT EXAMINATION

Successful trial lawyers are like heat-seeking missiles carrying payloads of information prejudicial to their opponent's case, constantly looking for the chance to unload their cargo, right up until the final moments of trial.

DAVID BERG, The Trial Lawyer



DIRECT EXAMINATION PREPARATION

Review the testimony and exhibits once or twice

Show the witness the courtroom, the witness chair and the jury

Explain all the participants Review deposition transcripts Do not give summaries or outlines

Luzerne Co, Pennysylvania



DIRECT EXAMINATION

Mock direct exams pay off in trial

Slow down, jury’s first time Repetition for Emphasis Pausing for Emphasis Reflective Questioning

(speed to establish intensity)• Headlines and Transitions

Morristown



ADMISSION OF DEMONSTRATIVE AND DOCUMENTARY EXHIBITS

Demonstrative “Evidence” is not evidence until admitted.

Authentication Recognize the document. What is it? What are the circumstances where you have seen the document before? Is that your signature? Is that an original or a true and accurate copy of the original? Admit into evidence

Still subject to 401/402/403



401, 402, 403 Analysis

Probative?Unfairly

Prejudicial?

Relevant?



DIRECT EXAMINATION QUESTIONS

Introduce the person (name, occupation, relationship to others)

Lay foundation (present and able to observe)

Key observations Short and not compound Chronological if possible Defensive exam by anticipating

cross Look at the jury Nottinghamshire



DIRECT EXAMINATION PROBLEMS

Forgetfulness and refreshing recollection.

No passion because over prepared.

No eye contact with the jury. Wilting to cross. Explains too much or too

little.

Wisconsin



EXPERT DIRECT EXAMINATION

Source: http://www.all-about-forensic-science.com/vintage-science.html



EXPERT WITNESSES

Consulting Experts – Expert who will not testify – Confidential/ Work Product.• Federal Rule 26(b)(4)(D)• Florida Rule 1.280(b)(4)(B)



CONSULTING EXPERTS-PART OF THE LEGAL TEAM

Jury Consultants Forensic Accountants Construction Defects Doctors/ Psychiatrists

Private Investigators-learn facts, interview witnesses Document Presentation Experts



TESTIFYING EXPERTS – EXPERTS WHO WILL TESTIFY AT TRIAL

Accountants-Damages, valuations, analyze/ summarize bank records

Construction Defect-Tell where the problem is

Accident Reconstruction Handwriting – signature experts

for comparision, document dating, ink dating

Firearms/Ballistics DNA document testing/ saliva Dog Sniff evidence

Nuremberg



Expert Testimony Instruct expert by phone or

meeting. No billing contingent on

results. Have Expert sit through all

testimony and testify last. Expert is “closer” and final

summary witnesses. Expert can help you cross

examine the other expert. Expert can deliver your

closing before you deliver it.

London, Old Bailey



CLASSIC EXPERT DIRECT EXAMINATION

Introduction Occupation

Teaser Background

Tender of Expert/Voir Dire Summary of opinion

Work done to come up with opinion

Final Opinion

Carbon County



GATEKEEPING/EXPERT STANDARDS

Federal – Daubert/Kumho Tire (Koo-Moe)– Rule 702

Sufficiently based on facts/data

Reliable principles and methods

Methods applied to the case

Old US Supreme Court at US Capitol



Federal Rule 702—“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Need a basis in sufficient facts and data Need reliable principles and methods Need methods/ principals to be applied reliably



HISTORY

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – general acceptance within scientific community

Rule 702 adopted in 1975 – general acceptance not mentioned – more relaxed approach

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)– because of 702 – need only be “grounded” in scientific methods and relevant



History (cont) General Electric Co. v. Joiner, 522 U.S. 136 (1997) – analyze both

the methodology but also the ultimate conclusions to make sure methodology applied appropriately.

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) – 702 analysis applies to all expert testimony – not just scientific.

Burden of Proof – challenging party bears burden of showing that that the evidence is unreliable then the proponent must defend the expert’s opinion.



“Fit”/”Relevance” Analysis – Controversial Joiner analysis as to whether the Court “applied the principles and methods reliably”—

• Some courts assess the evidence and determine whether the expert can prove what the expert purports to prove (e.g., nicotine expert testify about impact of nicotine on health, toxic tort expert and causation).

• Other courts simply analyze scientific methods and do not make the litigants prove it to court before proving it to jury City of Tuscaloosa v. Horeros Chems Inc., 158 F.3d 548 (11th Cir. 1998).



FLORIDA EXPERT ADMISSIBILITY

Florida Rule 90.702—“Testimony by experts.--If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”



FLORIDA EXPERT ADMISSIBILITY

Florida applies the Frye test to new or novel scientific evidence and requires that scientific evidence be generally accepted in the scientific community to be admissible. Stokes v. State, 548 So.2d 188 (Fla. 1989)

Even though Rule 90.702 did not codify the Frye test, the Frye test still applies in Florida because the Courts are not laboratories and they should not be the place to test new scientific theories. Hadden v. State, 690 So.2d 573 (Fla. 1997).



EXPERT REPORT ADMISSIBILITY

Reports are cumulative pursuant to Rule 403 of the expert’s testimony and are not admissible if the expert testifies.

Federal--Reports are hearsay and cumulative. Sommerfield v. City

of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008).

Blackwood v. State, 777 So.2d 399 (Fla. 2000); McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000).

Can stipulate or admit without objection.



Inadmissible Evidence Conduit Although an expert can rely

upon technically inadmissible evidence “when the facts and the data are the type reasonably relied on by experts on the subject”, the witness may not be used as a conduit for inadmissible evidence. Gerber v. Ivengar, 725 So.2d 1181, 1185 (Fla. 3d DCA 1998).

Expert can rely on hearsay but cannot be used as a conduit to introduce it. Erwin v. Todd, 699 So.2d 275 (5th DCA 1997).



CROSS EXAMINATION



OBJECTIONS Questions that assume facts

not in evidence are not admissible.

Lay witnesses cannot provide opinions (Rule 701).

A witness cannot be expected to respond to a compound, confusing or unintelligible question.

Character for truthfulness can only be admitted after impeachment of the same Character (Rule 608).

Jefferson County, Missouri



OBJECTIONS Leading is only appropriate for cross

examination or hostile witnesses (Rule 611), but preliminary matters are ok.

Cross must be inside the scope of direct examination (Rule 611(b)).

Argumentative questions are not appropriate.

Questions that are asked and answered are unduly repetitive under Rule 403.

Essex County, NJ



401, 402, 403 Analysis

Probative?Unfairly

Prejudicial?

Relevant?



Rules 401, 402, and 403

Prejudicial value outweighs prohibitive value Not relevant Confusing Misleading

Undue delay Waste of time Cumulative



HEARSAY

Statement or writing?

Prove TOMA

Not Witness’

Own Statement Subject to

Cross

Not Party Opponent’

s Admission



HEARSAY EXCEPTIONS

Present Sense Impression

Excited Utterance State of Mind Business

Record

Learned Treatise for Cross Only



HEARSAY EXCEPTIONS(Declarant Unavailable)

Party’s Former Testimony

Statement Against Pecuniary Interest

Statement of Personal or

Family History



http://www.youtube.com/watch?v=_EK9SLLlObk






CROSS EXAMINATION Prepare every single question without

regard to the answer. Preparation can be done without a

witness. Highlight and tab exhibits. Highlight and tab deposition transcripts Take exam in small pieces. Be professional and do not attack. Start and end strong. Be nice and sympathetic to witnesses.

Ft. Smith National Park



ATTACKING COMPETENCE

Everyone is competent under Rule 601.

Even those who lack mental capacity.

Even spouses. Even those who have an

interest in litigation.

Territorial Hawaii



TESTING PERSONAL KNOWLEDGE

Make sure the witness has personal knowledge of the facts.

No personal knowledge if a failure to see, hear, experience or be involved in the circumstances.

If personal knowledge is not established ask for the predicate.

If the predicate is non-admissible hearsay, object.



IMPEACHMENT BY DEPOSITION/ STATEMENTS

Rule 613 – prior inconsistent statements.

Extrinsic evidence admissible if given the opportunity to explain or deny.

Monroeville, AL To Kill Mockingbird



EXPERT CROSS EXAMINATION



ATTACK CREDENTIALS/VOIR DIRE

Before opinion is admitted, elicit weaknesses in qualifications.

Show limits/non-liability of advocate/training.

Show lack of experience.

Juxtapose against your expert.

Criticize lower certifications.

Osceola County Courtroom



EXPERT TESTIMONY OUTSIDE EXPERTISE

Expert cannot testify outside their field of expertise – not an expert. “[I]t is not enough that the witness be qualified to propound opinions on a general subject; rather he must be qualified as an expert on the discrete subject on which he is asked to opine.” Goodyear Tire and Rubber Co., Inc. v. Ross, 660 So.2d 1109, 1111 (Fla. 4th DCA 1995).

Learn the letters behind the names; Find out what they mean and how obtained; Do not allow testimony outside of expertise (e.g. Business valuation/ real estate values)

Pioneer Courthouse, Portland, Oregon



TESTIMONY ULTIMATE ISSUE

Expert can testify about the ultimate issue in the matter. Rule 704 and Florida Rule 90.703.

But long line of Florida cases say an expert can not invade the province of the jury. Schneer v. Allstate Indemnity Co., 767 So.2d 485 (Fla. 3d DCA 2000) (private investigator takes the next step and says there was insurance fraud).

FL Wright, Marin Co, CA, near SF



LEARNED TREATISE For Federal, a statement in a learned treatise may be read into evidence, but not

introduced as an exhibit.

Rule 803(18)--Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

But note the argument that it is cumulative (Rule 403).

In Florida, A treatise on direct is hearsay and improper bolstering. Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993); Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).



CROSS WITH LEARNED TREATISE

Can impeach using treatise cannot use on direct Bolberg Costano v. Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).

Expert can admit it is authoritative or trial court can determine it is authoritative Farel v. Houghey, 727 So.2d 1033 (Fla. 5th DCA 1999).

Know your material – have book with you. Be careful because expert likely knows more than you.



VOIR DIRE OF METHODOLOGY

Florida--If no factual basis provided on direct examination, expert can be voir dired and methodology tested before the opinion is given. Rule 90.705 and Myron v. South Broward Hospital District, 703 So.2d 527 (Fla. 4th DCA 1997).

Federal—expert can testify without providing the factual basis for the expert opinion. Rule 705—ample opportunity for discovery/ challenge prior to trial.



CROSS EXPERT FOR LIMITED ANALYSIS

No site visit. Limited time spend on case. Only looked at what they told you to look at. Missed something important (depo).



CROSS WITH A FOCUS ON STRENGTHS

Ask if he considered testimony of X that is favorable.

Show him favorable exhibit and make sure reviewed.



CROSS FINANCIAL INCENTIVES/PRO EXPERT

Amount of time not testifying. Amount of money paid to date/retainer letter. Higher rate for trial. Check for contingency/financial interest in litigation. If delinquent need a win so expert can be paid.



Cross for Attorney Manipulation

Email correspondence. Initial memo/later memos.

Preliminary opinions? Revisions to preliminary opinions?

Inconsistency with report/prior reports.

Fairfax



CROSS EXPERT TESTIFYING OUTSIDE EXPERTISE

Break down opinions into cross of expertise and areas where no expertise.

Confirm that no training/not expert in some area.

Bristol, UK



CLOSING STATEMENT



http://youtu.be/RF3TzsEEZbI

http://youtu.be/RF3TzsEEZbI



Closing Arguments

Remember time limits. Save rebuttal time. Permission to move around

the courtroom. Get a break to collect your

thoughts. Use exhibits.

Use jury instructions. Tie in the opening

statement and the witness testimony.

Contrast and Apposition. Verdict form.



Documents

HOW TO PRESENT YOUR CASE AT TRIAL By: Richard S. Dellinger