INTRODUCTION TO TRIAL PRESENTATION
FOR MOCK TRIAL PARTICIPANTS
Matthew S. Block
TABLE OF CONTENTS
Chapter 1: Case Conduct ..................................................................................................................................3
A. Case Conduct 3
1. Whither the trial? 3
2. Prima Facie (pronounced “Pry mah fay shuh”) case ..................................................................
3. Defenses 4
4. Putting it together: basic conduct of trial .....................................................................................
B. CASE ORDER .................................................................................................................................... 5
1. Openings 5
2. Plaintiff's case in chief 5
3. Defendant's case in chief.................................................................................................................
4. Closing Arguments 6
C. ROLES 6
1. Judge 6
2. Jury 6
3. Counsel 7
4. Parties 7
5. Witnesses 7
D. OPENING STATEMENTS ............................................................................................................. 7
1. Language 7
2. What it should contain 7
Chapter II: Case in Chief ............................................................................................................................... 11
E. “Direct examination” ........................................................................................................................ 11
1. Leading questions 11
2. Content 11
F. Practice notes 12
G. Introducing physical and documentary evidence .......................................................................... 13
H. Introducing demonstrative evidence............................................................................................... 16
Chapter 3: Cross-Examination ...................................................................................................................... 21
I. Mechanics of Cross-Examination - ................................................................................................. 21
J. Structuring the Cross Examination - .............................................................................................. 23
1. Know your points 23
2. Be gradual 24
3. Plan the end and the crescendo. ....................................................................................................
4. Always ask leading questions. .........................................................................................................
5. Stay within your designed scope. ...................................................................................................
K. Tips and Tricks - ................................................................................................................................ 28
Chapter 4: Closing Argument .................................................................................................. 36
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CHAPTER 1: CASE CONDUCT
For our purposes, we will confine ourselves to civil cases and, where necessary, to
wrongful termination cases.
A. Case Conduct
1. Whither the trial?
When someone gets injured due to the fault of another, the law recognizes that the injured
party should be “made whole.” That is, the person who caused the injury should be made
to pay an amount equal to the size of the injury, so the injured person is wholly
compensated for their injury. The body of laws that makes sure that happens is called
“torts.” When two parties have a contract and one or both breach the contract, one of the
parties might be wronged (or damaged) by the breach. When that happens, the law
makes sure the damaged party is compensated for the damage. The body of law that
makes sure that will happen is “contracts.” Sometimes, the law will treat two parties as if
they had or have a contract even though they don't. When one of the parties “breaches”
this non-contract, the law will find some kind of remedy (again, some way of
compensating the damaged party). These remedies are known as “off-contract
remedies.” They have other names as well.
The law says that the remedy will happen. But sometimes the parties disagree that there
should be a remedy, or the amount of the remedy, or even whether there is any injury or
damage. When that happens, sometimes one party (usually the allegedly injured party)
will petition the Court to decide the issue. They do this by “filing suit.”1 Actually, what
they do is file a Complaint, which is a list of facts that they allege are true and that, if
proven, will prove that they are entitled to some kind of compensation. Whomever files
the Complaint is called the Plaintiff. The Plaintiff is the party invoking the power and
jurisdiction of the Court to decide the issue. The party against whom the Complaint is
filed is called the Defendant.
The Complaint may include several separate and distinct “claims” or “causes of action.”
These are different legal theories arising from the same or similar facts, or at least events
related to the same parties. For instance, let's say the Plaintiff allegedly was driving her
car when the Defendant, allegedly operating another car, deliberately steered his car into
the Plaintiff's car. Let's say the Plaintiff was allegedly seriously injured in the resulting
crash. Let's say that the same Defendant also allegedly left their car and, waiving a gun,
allegedly yelled obscenities at the Plaintiff. This action allegedly caused severe mental
anguish in the Plaintiff. The Plaintiff then filed a Complaint alleging two causes of
action. The first cause of action is an action in tort for the injuries arising from the
accident. The second cause of action is a separate action in tort for the mental anguish
caused by the assault (brandishing a weapon, etc.)
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Filing a suit would be just plain silly. Lawyers wear suits, but I‟ve never heard
of anyone actually filing one.
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In the simplest case, the Defendant now files an Answer, which either admits or denies
the facts of the Complaint as well as the legal conclusions. If the fight continues, the
parties will eventually have to go to trial. At trial, the Plaintiff will try to prove the
causes of action asserted in the Complaint. The Defendant will try to prove that the
Plaintiff is wrong, and might also try to prove some defenses of his own.
2. Prima Facie (pronounced “Pry mah fay shuh”) case
The Plaintiff must prove the facts that she has asserted. She must also prove the elements
of the causes of action alleged. For instance, the Plaintiff's first cause of action alleges
that the Defendant negligently caused a personal injury. The easiest personal injury
cause of action to prove is probably negligence, and that is probably what would be
alleged here. The elements of a negligence cause of action are duty, breach, causation,
and damages. Thus, the Plaintiff will have to prove that the Defendant had a duty to
drive his car in a manner that exhibits an ordinary level of care, that the Defendant failed
to drive his car in that manner, that as a result of that failure the Plaintiff was injured, and
that the injury was sufficiently definite and substantial to amount to provable damages. If
the Plaintiff cannot prove the elements of her cause of action, then she recovers nothing -
she loses, and the Defendant wins. It is said that the Plaintiff has the “burden of proof”
on the elements of her claim. If she doesn't carry her burden, she loses her case.
3. Defenses
If the Plaintiff proves her prima facie case, then she has proved just enough to
demonstrate that there is reason for her to recover. But that doesn't mean she should
recover, just that there is a reason for her to. There may also be reasons that she should
not recover. Thus, the Defendant is permitted to prove either of two different things,
either of which will win the case (or partially win the case) for him. First, the Defendant
may attempt to prove that the Plaintiff cannot actually carry the prima facie case. For
instance, the Defendant may be able to prove that he wasn't actually the driver of the car
that collided with the Plaintiff's car. Thus, even though the Plaintiff could prove that the
driver of that car was negligent and caused her injury, the Defendant will not be made to
pay anything.
The Defendant is also permitted to try to prove defenses - affirmative allegations that, if
proved, offer reasons that the Defendant should not have to pay even though the elements
of the prima facie case have been adequately proved. For instance, the Defendant might
assert that, although he was negligent and his negligence caused the Plaintiff's injuries, he
paid the Defendant's medical bills already, and paid the Defendant an extra $2.5 million,
and that after having paid all of this he received a contract from the Plaintiff that said that
she would release all of her claims against him and forever hold him harmless (which is a
fancy way of saying she agreed to never, ever take anything by suing him). The
Defendant shouldn't have to pay if he can prove that he has already fully compensated the
Plaintiff, and, in any event, the Plaintiff is not allowed to sue in the first instance if she
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has already released her claims. Just like the Plaintiff has the burden of proof on the
prima facie case, the Defendant has the burden of proof on any affirmative defenses.
4. Putting it together: basic conduct of trial
This makes the basic conduct of trial pretty clear. The Plaintiff is allowed to assert
claims, and to attempt to prove them. The Defendant is allowed to undermine the
Plaintiff's proof, and to offer affirmative proof of defenses. Someone decides who has
the better of the proof - who is right about the facts of the case and about how the law
applies to those facts. That dictates who the winner of the case will be and, if the
Plaintiff is the winner, how much they win.
B. CASE ORDER
In order to conduct the trial in this way, the system has set up a particular order for
different things to happen. The effect of this order is that the evidence is presented so
that the Plaintiff has the opportunity to prove the prima facie case, and the Defendant has
the opportunity to poke holes in it. If the prima facie case is proved, then the Defendant
has the opportunity to prove any defenses. Then the case concludes. (Note that the order
is set up so that the Defendant does not have to present any defenses if the Plaintiff fails
to prove the prima facie case. In real trials, very occasionally the Defendant waits until
the close of the Plaintiff's “case in chief” before deciding whether or not to present a case
of their own. In mock trials, this strategy is not allowed, and would be a losing strategy if
it were allowed.)
1. Openings
First, the parties are allowed to present their view of the case to the finder-of-fact (this is
a term of art, and will be explained below). In keeping with the basic conduct of the
case, the Plaintiff goes first. The Plaintiff presents an opening statement that summarizes
the facts of the case as the Plaintiff will prove them to be, but without any argument
whatsoever. After the Plaintiff opens, the Defendant is provided the opportunity to do so.
(Note - in real trials, the Defendant can often elect to reserve the opening until the close
of the Plaintiff's case in chief. That is, the Defendant does not give an opening statement
at the same time as the Plaintiff, but gives one after the Plaintiff “rests its case”. In mock
trials, this is not permitted.)
2. Plaintiff's case in chief
After the openings, the Plaintiff is permitted to present evidence. Because of the way the
rules of evidence work, this is done through the vehicle of witness testimony. All of the
evidence will come in through witness testimony, even things that are not themselves
witness testimony. For instance, say the Plaintiff has a video tape of the accident scene,
taken by a bystander at the time of the accident, that clearly shows the cars colliding.
This is probably very useful evidence, but it cannot come in without help. Probably the
Plaintiff will have to call the videographer to the stand and take their testimony about the
tape before being allowed to show the tape to the jury.
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While the Plaintiff is presenting the first case in chief, the Defendant is permitted the
opportunity to question the value of the evidence offered. This takes the form of cross-
examination of the Plaintiff's witnesses.
3. Defendant's case in chief
After the Plaintiff has presented all of her evidence, she tells the Court that she is done.
In the most dramatic fashion, she can “rest her case.” In modern courtrooms, he'll
probably just say something like, “I have no further evidence,” or “Plaintiff rests.” Then
the Defendant is permitted to present his case in chief. The Defendant may either
produce substantive evidence that the evidence offered by the Plaintiff was bad or did not
prove what was asserted (for instance, that the Defendant was not the driver of the car,)
or some affirmative defenses (for instance, that the parties already reached an accord and
satisfaction) or some combination of both. As in the Plaintiff's case in chief, during the
Defendant's case in chief the opposing party is permitted to cross-examine all of the
evidence offered.
4. Closing Arguments
After the Defendant concludes his case in chief, both sides are permitted to argue. This is
where the obvious lawyering takes place, although the real work is everything that leads
up to the closing. In general, the Plaintiff closes first and may keep some time for
rebuttal. Then the Defendant offers argument. This is not an opportunity to offer
opinions about the evidence, or the case, or the facts - in fact, lawyers are not permitted to
do that at any time during trial - but an opportunity to demonstrate how the law applies to
the facts that have been proven, to argue that the facts have been proven, and to
demonstrate that one's client should, under the law, be victorious.
C. ROLES
1. Judge
Judges do not judge the facts of the case, as a rule. They adjudicate legal disputes, but
not factual ones. By the time you get to trial, the legal disputes are mostly decided (or
else they will be decided after trial concludes), with the exception of disputes concerning
the evidence itself. To be blunt, judges decide on the conduct of trial (when to take
breaks and suchlike) and rule on evidentiary objections. That's about it. They do not
decide who wins or loses, or by how much.
2. Jury
Instead, in most cases that would ever become mock trial fact patterns, a jury is the
“finder of fact.” That is to say, the jury decides who has proved what, and therefore who
should win and how much. The jury is instructed on the law by the Judge, and learns the
facts from the evidence that comes in at trial. How it meshes those two things is upon it,
and it alone. For the most part, jury decisions are not reviewed or even reviewable - if
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the jury says that the Plaintiff proved her case and the Defendant failed to prove his, then
that is the truth.
3. Counsel
The attorneys, then, are there to elicit the best evidence and to persuade the jury that their
client's view of the facts is correct. This is done through careful questioning and clear
reasoning, not through rhetorical flourishes and hyperbole. Juries always see through
rhetorical flourishes and hyperbole (which is not to say that juries always reach the
correct conclusion, merely that they don't fail to because of clever or witty turns of
phrase).
4. Parties
The parties sit and look interested.
5. Witnesses
The witnesses are the key to the whole persuasive show. They answer the questions that
are asked, but do so in such a way as to offer the most compelling evidence of one side of
the case or the other. They never act to hide the truth, but they definitely present the truth
clearly and in a manner that assists their counsel's persuasive effort.
D. OPENING STATEMENTS
All of this should suggest to you the basics of your opening statement. The opening
statement is counsel's first opportunity to preview the case to the finder of fact (the jury),
and to tell the jury what to look out for. It is where counsel can first introduce the key
themes of the case, and it is counsel's opportunity to tell the jury what to look out for.
1. Language
The opening is NOT an argument. Counsel is not permitted to argue in the opening, and
shouldn't try to do so. Instead, the opening is just an opportunity to preview the case.
Thus, counsel should resist the urge to use argumentative language, or to express
opinions. The language of the opening must be neutral in tone, unless the parties agree
that one fact cuts one way or the other (and they never do). For instance, if the only
witness for the Plaintiff is an eye-witness to the car crash, “Mrs. Johnson will testify that
she saw a red Plymouth, like the one owned by the Defendant, hit the Plaintiff's car” is
good. “The Defendant was probably drunk when his car hit the Plaintiff's” is probably
impermissible, unless the parties both agree that the Defendant was probably drunk.
2. What it should contain
1. The opening must contain a theme, or tag line. For mock trial, this will take the
form of a short, repeated phrase that encapsulates the case. It is a slogan, a bumper-
sticker-ism, that puts the case in perspective. For our car crash example, the Plaintiff
might start out - “Before March 18, 2005, my client was a fan of classic rock. But one
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song bothered her growing up - she never understood the lyrics to the Door's classic
'Roadhouse Blues.' Perhaps she still does not understand what Jim Morrison meant to say
with his poem, but his words have echoed in her head every day since March 18. 'Keep
your eyes on the road and your hands upon the wheel. Keep your eyes on the road and
your hands upon the wheel.' On March 18, 2005, the Defendant, while talking on his
mobile phone and driving his red Plymouth sedan, allowed his eyes to get distracted. He
entered an intersection, running a red light, and struck my client's car on its broadside.
As a result of the accident, my client will never eat solid food again.” The theme then
becomes, “keep your eyes on the road and your hands upon the wheel.” Throughout the
case, the attorneys can return to this theme. “So isn't it true, Mr. Johnson, that for a
moment your eyes left the road? And isn't it also true that at that moment, your hands
were occupied?” Then, in the closing, the attorneys can wrap the case up by returning to
the theme. “Ladies and gentlemen, we are here because, for one fateful moment on
March 18, 2005, the Defendant didn't heed the words that Jim Morrison penned in 1970.
The Defendant's failure to „keep [his] eyes on the road and [his] hands upon the wheel‟
cost my client her jaw, her ability to work, and her dignity. It is time for you to do the
right thing, and to make him compensate her for her loss.” 2
2. The opening must preview the facts as the witnesses will give them. By the time
you get to trial, you should know what all of the witnesses will say. Not just your own,
but you will know what evidence the opposing witnesses will give, as well. This is
because you will control what evidence comes out, to a large degree. You must talk
about this in your opening. So, for instance, you should preview every witness of your
own case in chief, including the weak points of their testimony that will come out on
cross. Then you need to talk about the other side's witnesses. It might look like this:
“You will hear from Mrs. Johnson, an eye witness to the entire accident. She will testify
that she saw a red Plymouth exactly like the Defendant's strike the car my client was
driving. Now Mrs. Johnson will testify that she did not see the driver of the red
Plymouth. but you will hear testimony from a technician from the auto body shop at the
Plymouth dealership who will testify that the Defendant's car was brought in immediately
after the accident with damage matching the damage caused by the accident, and the
technician will testify that the Defendant himself told him that he was driving. Now the
Defendant is going to testify that he loaned his car to a friend that day, and that he was
not driving at the time of the accident. But on cross-examination the Defendant will also
testify that he gave a statement to police on the day of the accident in which he said he
was driving that day.”
3. The opening should include persuasive techniques, including anticipation,
inoculation, buffing, and rhetoric. Anticipation is just previewing unfriendly testimony.
Just getting it out there, acknowledging it, and then indicating that it is not a problem
2
It turns out that Morrison actually wrote this line on a drive with his girlfriend,
Pamela Courson. They were headed out of LA to a little bungalo they kept outside of
town, and she was driving. But she was swerving all around and behaving erratically.
Morrison kept telling her to keep her eyes on the road and her hands upon the wheel. It
stuck. So using it in the way I've proposed is not as outlandish as one might think.
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does a lot to persuade a finder of fact that it is not, in fact, a problem. It also boosts
credibility. For instance, “you will hear from the Defendant that he was not driving his
car. In fact, the bulk of the Defendant's evidence will be directed to this issue.” Just
saying it makes it less of a problem. Anticipation is also called 'defanging' or 'disarming'
or 'stealing the thunder.' Inoculation is refuting a weakened version of your opposing
counsel's arguments in order to provide the jury with some arguments to think about
during exposition of the evidence, and to take the edge off to some degree. For instance,
“Defendant will put on some evidence that he was not driving the car at the time of the
accident. You will also hear that Defendant complained of neck strain after the accident.
Where did the neck strain come from if not from the accident? How did the Defendant
get neck strain from the accident if the Defendant was not driving at the time? I will ask
the Defendant these questions, but you will not hear satisfactory answers.” This puts the
neck strain argument in the juror's heads before any testimony even starts. It may be that
the neck strain comment was totally unrelated, but try convincing the jurors of that once
they are inoculated against the “I wasn't driving!” argument. Buffing is the act of
reinforcing the credibility of your theory of the case and the quality of the evidence you
will present prior to the presentation. For instance, “you will hear from Jack Walters,
M.D., about the causes of neck strain. He will testify that neck strain can be caused by an
accident like this, but only if the subject is in the driver's seat of the colliding car. He will
testify about studies he has conducted proving this fact. He will testify that even slight
variation in position will lead to a different type of strain. He will testify that the strain
that the Defendant complained of is consistent with being in the driver's seat of a car that
strikes another on its broad side without slowing down, the way one might expect a car to
strike another if it enters an intersection while running a red light. He will testify that he
has reviewed the facts of this case, and that in his judgment the Defendant's neck strain is
consistent with the Defendant being the driver of the red Plymouth that caused my
client's injuries.” The jury will hear this and conclude that Walters is an expert in car
crash neck strain causation. He may be, but despite having created that impression
counsel has guaranteed no such thing. Instead, Walters' testimony has been buffed by
repetition, and by dividing information into tiny discrete nuggets (that entire hunk of
description could have been written in a single simple sentence, but it would not have
appeared as impressive). Finally, rhetoric includes such trite techniques as the well-
placed rhetorical question (see the questions related to neck strain, above? Note how
they do not begin either the opening, nor even the particular thought they highlight).
4. The opening should tell a complete and compelling story, with confidence. It
should be powerful. The goal of the opening is to set the jury up so that they believe you
and your client are telling the truth, and that you and your client are correct about the
actual facts of the case. It must be presented in such a way that it is very easy to follow
and understand, and the best way to do that is by telling a story. It must be told with
confidence - you must believe with absolute conviction that you are saying, or you will
never persuade a jury to do so.
5. The opening should be extremely well-organized. Most juries do not take careful
notes during openings. Thus, your opening must be so well organized and easy to follow
(not to mention short) that the jury gets the whole point of it and retains the whole point
of it, despite not seeing it written.
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ASSIGNMENT # 1
1) Come up with a slogan or theme for the Plaintiff in your mock trial case.
2) Come up with a slogan or theme for the Defendant.
3) Pick which side of this case you believe has the better of the argument.
That is, knowing what you know about the law of this case, who should win? Why? Be
prepared to defend your position.
4) For whichever side you chose in response to question 3, layout in outline
form the story of the case as they see it. I understand this is a little weird, unfamiliar, and
vague. Do your best. If I offered you an example here, you wouldn't learn anything.
5) Come up with a list of questions about the material covered in this
Chapter.
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CHAPTER II: CASE IN CHIEF
First, let me set the scene. Say you are the Plaintiff. You have given the opening
statement, and the Defense has, as well. The room is warmed up. The arguments are
previewed. Now what? Now you must prove your case. As you recall, that means you
must demonstrate the facts that prove the elements of your prima facie case. In general,
in the civil context, you must prove them more likely true than not true. So how do you
prove anything? You must use evidence, and in court “evidence” generally means
“witness testimony.” You have to present a bunch of witnesses whose testimony will
tend to prove the facts at issue more likely true than not true. And the facts at issue are
whatever facts it will take to prove your prima facie case.
E. “Direct examination”
The mechanism for taking testimony from witnesses in the case in chief is called “direct
examination.” The other kind of examination is called “cross examination.” We'll get
into that more in the next Chapter. The important things about a direct examination are
that it is not the home to argument, and it is not the opportunity for the lawyer to give
evidence. You'll recall that an attorney is never permitted to give testimony during trial.
That is for the witnesses to do, not the lawyers.
1. Leading questions
In order to avoid argument or testimony, the lawyers in a direct examination are not
permitted to ask any “leading” questions. A question “leads” if it suggests its answer.
For instance, “you were out fishing that night, weren't you?” is a leading question,
because it suggests that the answer is “yes.” “What were you doing that night?” is a non-
leading, “open-ended” question. (An open-ended question is one that does not even
restrict the range of possible answers - not only does an open-ended question not lead you
to choose “yes” or “no,” but it doesn't even confine your answers to “yes” or “no.”) Not
all non-leading questions are necessarily open-ended - you can have non-leading
questions that require a yes or no answer. For instance, “Were you out fishing that
night?” is non-leading, even though the only possible answers are “yes” or “no.”
2. Content
The content of the direct examination is whatever you need to prove in order to prove the
elements of your case. If you are the plaintiff, what you have to prove are the elements of
the prima facie case for whatever legal theory under which you are claiming, plus that the
defendant's affirmative defenses don't apply. If you are the defendant, you have to prove
that the plaintiff has not shown the elements of the prima facie case, and that your
affirmative defenses defeat the plaintiff's case. In order to do this, you need to ask
whatever non-leading questions are necessary in order to get out the evidence you want.
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F. Practice notes
Direct examination, like a lot of trial techniques, is difficult to learn in theory and easier
to learn from practical advice. Thus, here's an ordered HOWTO that you should follow
in preparing for and conducting a direct exam:
1. Figure out the elements that you need to prove (this will require reviewing the law
and the jury instructions)
2. Figure out which of those elements the particular witness you are directing will be
used to prove
3. Figure out if this witness must lay foundation for any later testimony (more on
foundation later)
4. Figure out the story that this witness will tell that will contribute to the story that
you introduced with your opening
5. Write an outline of the direct examination. The outline should be clearly
organized, and should be made up of the facts to which your witness will testify. There's
a sample at the end of this Chapter, for your reference and to make that last point more
clear. The outline is an outline of the facts you intend to adduce, not an outline of
questions. The outline should include anything needed for introduction of exhibits (see
below), and should also have your theme in it somewhere. Finally, your outline should
have some notation that describes to you any “gotchas” in the witness's testimony. In
order to figure out what needs to be proved to the jury, remember this: the jury knows
absolutely nothing about the case until you prove it to them. Thus, pretend like you know
nothing about the case when you construct your outline, or you are sure to leave
something out. Also, remember that juries remember the first and last statements, and
not so much the stuff in the middle - lead and end with your strongest, best evidence.
Keep anything that is difficult in the middle.
6. Put your outline in the front of a notebook (for mock trial, you'll be doing the
same trial up to 3 times - you should have 3 copies of your outline, so you can write on
each one during the trial, if you like). Also in the notebook should be any exhibits that
will come in during that witness's testimony (one copy in one sheet protector, several
copies in another sheet protector), copies of any statement or deposition of that witness
(again, one for you and several to hand out).
7. Now go back through your outline and figure out where any evidentiary
objections are hiding.
8. You're ready for trial. When you call the witness, be comfortable. Use easy,
conversational language. Do not read your questions - they aren't written on the outline,
and in any event you'll bore the jury to tears. Also, structure your questions so that they
are short, and invite the jury to really focus on the witness. The witness is the centerpiece
of the action - don't do anything to distract the jury from the witness. Do not use “umm,”
“ah,” or any other sort of pedal words (habit words - words that you say because your
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mind is on hold and you like the sound of your voice). Do not tap or twirl your pen, or
tap a foot. Stand straight, confident, and without much movement and ask straight,
confident questions that allow your witness to steal the show. Look at the witness (your
eyes will help focus the attention), even though the witness will often be looking into the
jury box.
G. Introducing physical and documentary evidence
Not all of the evidence in any case will be witness testimony (just most of it). In
particular, you may have actual physical evidence, or documents, or photographs, or
other things that the finder-of-fact should see before making a decision as to what the
facts are. A couple of examples will help: first, imagine the case is a products liability
case involving a case of smoked salmon. The plaintiff alleges that the smoked salmon
was unreasonably dangerous, because there were hidden bones in it that caused him
serious dental injury. He is suing in products liability, which is a flavor of tort.3 It turns
out he has the actual plate of injurious salmon still in his possession, adequately
preserved. He also has a stack of memos from the seafood company, discussing the risk
of dental injury arising from bones in the salmon.
The elements of the prima facie case for products liability are:
1. Damages - Injury to the plaintiff or his property;
2. Causation - The injury must have been caused by the allegedly faulty product;
3. Control - The product must have been sold or entered into the stream of
commerce by the defendant, who is in the business of selling the product;
4. Defect - The product was in an unreasonably dangerous condition due to either its
design or a manufacturing defect;
5. Actual consumer - Plaintiff must have been the actual ultimate user or consumer
of the product (not a bystander);
6. No substantial change - The product was expected to, and did, reach the plaintiff
without substantial change in condition.
The plaintiff has witnesses who have testified that he was injured - the emergency room
doctor will talk about pulling the bones out of the plaintiff's gums. There is no doubt that
the bones came from the salmon, and causation is fixed. The plaintiff was the undeniable
ultimate user of the salmon. The sticking points are elements (3), (4) and (6). To prove
these things, the plaintiff would like to use the plate of salmon and the memos.
Before these things can do any good, the jury needs to believe that they are what they
purport to be. If the plaintiff just hands smoked salmon to the jury box, how will they
3
Not “torte,” which is something completely different.
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know if it is the particular smoked salmon he was chewing on when he got hurt? It could
be just any smoked salmon. He needs some way of communicating that this is the
authentic smoked salmon that caused his injury. He will use a witness (in this case,
probably himself,) to prove the point.
To authenticate a piece of evidence, the plaintiff will ask a series of questions that
demonstrate: first, that the witness has some reason to know what they're talking about;
second, that the evidence is what it purports to be. This latter question amounts to two
parts - identification (what does it purport to be?) and authentication (is it that thing?).
With the salmon, the questions might look like this:
Q: I am showing you what appears to be a hunk of
smoked salmon on a plastic plate. Do you recognize this?
A: Yes, that is the smoked salmon I bought from the
defendant, and that I served at my dinner party.
Q: How do you know this is that salmon?
A: Well, when I was injured I was hauled away in an
ambulance. I was the first person to take a bite of the
salmon, so no one touched it after I bit into it. As the
paramedics were strapping me to a gurney, my wife took
the bloody hunk of salmon and wrapped it in Cling-Wrap,
and put it in the freezer. It hasn't been touched since then,
until this morning when I took it out of the freezer and
brought it here to the courtroom. I have been watching it
since I brought it, and it has never left my possession or
sight.
The first question (or, what's more important, the first answer) establishes what this
purports to be - it purports to be the self-same salmon that wreaked havoc on the
plaintiff's dentition. The second answer establishes that this particular piece of salmon is
what it purports to be. We know that this is the actual injury-inducing salmon, and not
some imposter smoked meat product, because the witness can testify that he has good
reason to believe that this is the salmon at issue.
The second question exhibits one excellent technique for ensuring identification -
establishing a “chain of custody.” A chain of custody is an unbroken list of everyone
who holds or has held possession of the evidence, together with the reasonably believable
assertion that each of those individuals can attest that the item that left their possession
was the same item as the item that first came into their possession.
Another technique for demonstrating identity is marking, or unique conditions. For
instance:
Q: How do you know this is that salmon?
14
A: Well, I bled a lot when I bit into it. My blood was
spraying out, and it coated the particular piece of salmon.
I'm a hemophiliac, so it's a big deal when I bleed.
Consequently, I haven't been out of this bubble and haven't
bled since I was 7-years-old. At work, as a professional
DNA tester, I have a lot of equipment that allows me to
identify blood. A couple of minutes before we came into
court, I went ahead and sampled some of the blood on that
salmon, and compared the DNA in it to my own. It was a
perfect match. The odds are 4.7 billion to one that that is
not my blood on the salmon, and the only way for blood to
have gotten on the salmon is by me bleeding on the salmon.
This salmon is unique - it is the only one in the world that could possibly have any of the
plaintiff's blood on it, and we are pretty certain that it does have the plaintiff's blood on it.
Thus, this must be the salmon at issue in this case. Even though the plaintiff doesn't
know where it has been for the last six months, he knows that this must be the right stuff
because it has been marked, and has a unique, bloody, condition.
Note that there may be other and additional problems getting your evidence introduced.
For instance, the memos are hearsay – prior out of court statements offered for the truth
of the matters asserted therein. Hearsay is generally inadmissible at trial. It turns out that
these memos are admissible hearsay if they are records kept in the ordinary course of
business. (Actually, the memos probably aren't even hearsay, but this gets into a pretty
tricky evidence issue). Thus, the questions to introduce them might run like this:
Q: I'm handing you a document. It is three pages long
and has a date at the top of November 9, 2001. It has large
letters across the top that say “MEMORANDUM”. It says
“To Frank Enfurter, From M. T. Beerstein.” Do you
recognize this document?
A: Yes, that's a memorandum that was delivered to Mr.
Enfurter in November of 2001.
Q: How do you know this is that memorandum and not
some other one?
A: Well, I've read this and its content is the same as the
content of that memo. The memo was pretty well-known
around the office – we all called it the “this salmon is really
dangerous, but let's market it anyway” memo. I can recite
most of it by heart.
Q: Before you do, I need to know some more about the
memo. How was this memo generated?
15
A: Well, ordinarily in the meat business the executives
and the managers have no way to meet face-to-face. The
plants are really loud, so we don't meet over the telephone,
either. So whenever we want to communicate with one
another, we draft a memo. Mr. Enfurter drafts all of his
memos on an old IBM Selectric typewriter, using a form
that his secretary made for him on the computer. I
recognize the typeface – that typewriter was used to
generate this memo. You can tell, because the 'F' key on
his typewriter is worn way down from his frequent use of
certain words, and it has a distinctive pattern.
Q: What happened to this memo after Mr. Enfurter
finished typing it?
A: He gave it to his secretary, and she made copies of
it. Then she delivered one of the copies to Mr. Beerstein,
and put other copies in the file. This is one of the copies
from the file.
Q: Is this how Mr. Enfurter's secretary normally
handles such memos?
A: Oh, it's how all of the secretaries do it. It's a very
strict policy.
Q: Ms. Hooper, what do you do for a living?
A: I'm Mr. Enfurter's secretary.
In order to get this one into evidence, the attorney had to do more than just authenticating
it. The attorney had to “lay a foundation” for its admissibility. That is, the attorney had
to get all of the facts into evidence that were necessary in order for the court to know that
this evidence was admissible.
H. Introducing demonstrative evidence
What about evidence that isn't what it purports to be? Sometimes it will be useful to
provide the jury with an explanation or visual representation of something, even though it
is not possible or advisable to produce the thing itself. Say our salmon plaintiff also
states a claim for emotional upset. In particular, the bones in his gums made his gums
bleed profusely, and as a consequence the walls of the emergency room were virtually
painted in gore. When the last bone was withdrawn from his palate, the plaintiff looked
around, saw all of the blood, and fainted. He required months of therapy and counseling
as a result of the trauma.
A central question at trial is whether the plaintiff was just being overly sensitive, or
whether the scene was so horrific that any reasonable person would be horrified by it.
16
The jury will certainly hear the plaintiff's testimony, and maybe a nurse's testimony (“I've
been in the ER for 12 years, and I've never seen so much blood!”), but that may not bring
home to the jury how revolting the whole situation actually was. There are photographs
of each of the individual walls, but separately they do not communicate the feeling of the
scene.
To recreate the situation, the plaintiff's counsel has a model of the emergency room built.
The model is carefully built to scale, ands large enough that details can be made out
clearly. Then he takes the deposition testimony of all of the witnesses, and, based on that
testimony, he has a forensic artist paint the model. The artist paints, as accurately as
possible, every single drop of blood described by the witnesses. Also, each wall is made
to look exactly as it looks in the photographs. Plaintiff would like to use the model at
trial, to try to communicate to the jury the scope and reasonableness of the injury.
The trouble is, this exhibit cannot be authenticated, because its not authentic. This is not
the room itself, it is a model. No witness can testify that this is the room. The solution is
that a witness must testify that this is an authentic model of the room, and further that the
model accurately represents the actual room in any relevant particular. Also, in order to
be admissible a demonstrative exhibit must be helpful to the jury's understanding of the
witness testimony, so the witness must testify about that. The testimony might go like
this:
Q: I am showing you what appears to be a model of a
room. Do you recognize this?
A: Yes, I do. This is a model that you hired me to
make of the operating theater in the emergency room at
Carie Memorial Hospital.
Q: And what is your experience with this model?
A: I built it, based on the descriptions of events that
were provided to me by each of the witnesses in this case,
and the photographs that were provided to me.
Q: Which witnesses did you talk to?
A: I spoke with the plaintiff. I also spoke with the ER
doctors who treated the plaintiff, the ER nurse who was
present at the time, and two orderlies. I also spoke with the
defendant's expert witness on hospital affairs, Dr. Killmore.
I also spoke with the forensic photographer, It Adamms.
Q: Did you review any other materials prior to making
the model?
A: Yes, I reviewed the photographs that It took of the
scene.
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Q: Is the model to scale?
A: Yes, it is to 1::10 scale - every foot on the model
represents 10 feet in the real ER. I took a laser measuring
device with me to the ER and measured and recorded all of
the dimensions. Then I checked them against the hospital
blue-prints to confirm them. I also measured every scalpel
and instrument used in the ER, every tray, and the heights
and dimensions of all of the employees.
Q: Is this model an accurate representation of the scene
in that ER on the night in question?
A: Well, not the whole night - before the plaintiff came
in the ER it didn't have so much blood. This is an accurate
representation of what the scene would have looked like at
around 11:54:32 PM, right when the plaintiff says that he
looked around at the walls.
Then, of the nurse who will testify:
Q: I am going to ask you some questions about how the
room looked at 11:54. Will it be helpful to the jury to use
the model that the prior witness built?
A: Oh yes, very helpful.
Now the model may be used.
ASSIGNMENT #2
1. First, pretend you are the attorney representing the plaintiff in your mock trial
case. Draft the outline of a direct examination of any one of the plaintiff's witnesses.
Remember to follow the practice notes in I.C. Then do the same as if you are the
defendant for one of the defendant's witnesses.
2. You want to submit a document into evidence in your mock trial case. Draft the
portion of one of the mock trial witness‟s direct exam in which you identify and
authenticate that exhibit. Don't outline it, but draft each question and each answer,
exactly as I've done in the text. Anticipate that there will be an objection because the
document is hearsay. How will you defend against the objection?
3. Read and understand the rules of evidence dealing with relevance, witness
competency and impeachment, hearsay, and opinion testimony. Those are the 400-series,
the 600-series, the 800-series, and the 700-series, respectively. Now:
18
a. Rules 401, 402, and 403 are probably the most important rules out of all of
the rules of evidence. Paraphrase what they say, and what that means.
b. Rules 601 and 602 follow closely on the heels of 402 in terms of
importance. What do they say and mean?
c. You absolutely need to understand rules 801, 802, 803(1) - (7), 804, and
805. What do each of these say and mean?
d. Ditto 701-705.
4. Think of good, reasoned questions on this material.
Direct exam outline:
In this direct exam, the character being examined was taken from the 2006-07 Alaska
Mock Trial case. The point of this direct is to get out evidence that tends to show that
“Chris,” the plaintiff and an epileptic who works in child care, is qualified to continue
caring for kids.
I. Name is Karim Hamadi, Director of Summer Program at Sprucewood
Community School.
a. Sprucewood does enrichment programs.
b. Knows Chris because Chris worked for him in the summer program.
II. Chris was able to manage kids throughout the program.
a. Managed kids even on field trips
b. Managed older and younger kids, including kids on jungle gyms
c. Until the last day, never had any issue with epilepsy.
III. No kids were ever injured because of Chris's epilepsy
a. Chris refused to drive or do anything else that might put the kids at risk
b. The only seizure Chris had only lasted a few minutes
c. The kids were curious about it, and stood around watching. They
probably learned a lot.
d. The seizure probably happened because Chris hadn't been able to take
medicine. If Chris is in an environment that makes reasonable accommodation for the
19
need to take medicine, like scheduling time to do it and sending reminders, then seizures
would be very infrequent.
IV. Bottom line, Chris is absolutely safe around kids despite epilepsy.
20
CHAPTER 3: CROSS-EXAMINATION
Now, the fun stuff. You recall that during the presentation of the case-in-chief, the
opposing side is permitted to try to poke holes in the proof that is being given. You also
recall that all of the evidence at trial comes in through witness testimony. Cross-
examination is how the opposing counsel is allowed to poke holes in the case-in-chief as
it is being presented. This is usually the most dramatic part of the trial, and it is the time
when the jury can see most clearly the adversarial, confrontational nature of the
American trial justice system. Other than the jury, cross-examination is the only part of
the trial that is actually guaranteed by the Constitution (cross-examination is what
“confront” means in the Sixth Amendment). To put this in perspective, if it could find a
way to do it and not vitiate due process (don't worry, it probably isn't clever enough to do
so), Congress could make a law outlawing opening statements. It could make rules that
make it hard to put on witnesses, or a case-in-chief. It could outlaw the closing
argument. But it cannot do away with the right to cross-examine any witness that is
submitted against a person (at least in criminal cases). According to the United States
Supreme Court, cross-examination is the “greatest legal engine ever invented for the
discovery of truth”. Cross-examination is an art, but it is an art that can be learned.
Thus, most of what you see below is not high-theory: it is hand's on technical information
about how to plan a cross-ex, and how to conduct one.
(As an aside, you must know that I am listening to Zamfir and his pan flute, slaying
Christmas hits. If I come across as a little tense, blame it on the faun-wannabe).
I. Mechanics of Cross-Examination -
The biggest mechanical difference between cross examination and direct is that in
the cross, you use leading questions. While it is not technically required by the rules that
you use only leading questions, in practice it is almost always better to use a leading
question in cross examination, if you can, for reasons that will be further explained
below. Thus, all of the questions on cross examination will suggest their answer.
Usually they will suggest a “yes” answer to a “yes” or “no” question. Thus, a cross-exam
might look like:
Q: Mr. Jones, you testified that you ate the fish. That
was before you started choking, wasn't it?
A: Yes.
Q: Isn't it true that you were choking on a cherry pit?
A: Yes, that's right.
Q: You've testified that the cherry pit came from a
cherry on your ice cream sundae. So the cherry was cold,
wasn't it?
A: Yes.
21
Q: Mr. Jones, isn't it true that cold cherries make you
break out in hives?
A: Yes, that's right. I get itchy and swell up all over.
Q: And it's fair to say, isn't it, that you usually eat
something to calm you down after you get hives?
A: Not usually - I always do it. If I can find it, I'll eat
some cod or something of that nature.
Q: It's true, isn't it Mr. Jones, that you ate the fish
AFTER eating the cherry pit?
A: I... well... Yes, yes I guess it must have been after.
Every question there suggested a yes answer. That doesn't mean the witness must give a
“yes” answer to each question - you can lead a witness to a “yes,” but you can't make
them drink. Or whatever. (Will someone turn off the @#@%#@ flute?!)
But the good leading question will do more than just suggest the answer - it will demand
the answer. When you're starting out, the best way to accomplish this is to not ask
questions at all - just make statements with question marks at the end (which,
incidentally, you may not even bother voicing):
Q: You ate the fish before you started choking?
A: Yes.
Q: You choked on a cherry pit?
A: Yes.
Q: The cherry was cold?
A: No. No it wasn't.
Q: Really? It came from the cherry on your ice cream
sundae?
A: Oh. Yes.
Q: So it was cold?
A: Yes. I guess it was.
...
22
Note, too, that your sentences can not just demand an answer, but they can force the
answer to convey way, way more information than the witness would like. They can do
this by the clever use of inflection and word choice. Check the difference between:
Q: You chose not to put that in your report?
A: Right.
and
Q: Rather than tell the jury about that fact you choose
to completely ignore it in your report and analysis?
A: Umm... Yes.
J. Structuring the Cross Examination -
As with all of the other parts of the trial, your goal with cross-examination is to tell a
story. So you want your cross-examination to tell stories - stories about how much of a
liar the witness is, or how difficult it was for them to see what they thought they saw, or
about their motivation to see the facts in only one way. As will be discussed below in the
section on tips for cross examination, you do not want to tell the jury what they should
conclude about the witness's veracity. Instead, you should show the jury, lead the jury to
the answer, and then let the jury find the answer that you've led it to.
1. Know your points
This means that before you get started asking questions, you need to know what points
you will need to get out on cross examination. What are the stories you need to tell?
Generally, there shouldn't be very many - 3 or 4. A great trial advocate once said of
cross-examination, “make three points and sit down.” This isn't bad advice. Since you
aren't making many, the points should be the most critically important things that this
witness can say to improve your proof of your theory of the case. (See below - the goal
of your cross-examination is NOT to ruin the witness. That may be one of the points you
want to make, but it isn't the goal of cross examination. The goal of cross examination is
to prove your theory of the case, and to poke holes in the other side's theory. More
particularly, in a civil case your goal is to prove that your view of the facts is the more
likely than not the correct view, and in a criminal case you are trying to prove that there
is (or isn‟t) a reasonable doubt as to whether the defendant committed the crime.)
Let's say you are cross-examining an expert. The expert is an M.D. and a Ph.D., and has
testified that the cause of the plaintiff's particular form of cancer was the paint
manufactured by your client, the defendant paint company. This is damning evidence, if
it is right. But you know its not right - it is down right cockamamy. No other scientists
believe that paint causes this form of cancer, and even this expert has said that no one
knows what causes this kind of cancer. The expert also testifies that he likes red paint,
but you know that he repainted his red house to be blue, and that he told his psychiatrist
that the color red makes him break out in hives.
23
If you were arguing to someone about whether they should believe this expert, you would
make two points: first, you would argue, this guy shouldn't be believed because his
theory is so unbelievable to other experts. Second, he shouldn't be believed because even
he has said, elsewhere, that no one knows what causes this kind of cancer. If those are
the arguments you would make, then those are your points for cross-examination - nail
the guy by asking questions that demonstrate that his theory isn't widely respected, and
then hit him with his prior statements. (Note that you wouldn‟t mention red paint or blue
houses at all. They just do not contribute to the discussion. Sure, you could probably
demonstrate to a jury that the guy was lying, but it is such a minor and tangential issue
that the jury probably wouldn‟t lose trust in the expert because of it, and you would look
silly for wasting the jury‟s time with a trivial matter. Worse, you would look desperate.
Better to stick with your points.)
2. Be gradual
Your CROSS EXAMINATION should be designed to gradually bring the jury to the
answer. One of the tips below tells you a way to do this -only add one fact at a time.
Structurally, you do it by going from the very general to the very specific. You can't
jump right to the end - if you ask the question that demonstrates your point, you'll get the
wrong answer. Instead, lay a good foundation by asking innocuous questions first. Take
your expert. You could ask:
Q: Your theory is not widely held by experts in the
industry?
But the expert is likely to give some kind of qualified answer that makes the question
useless.4 Instead, ask a series of questions that lead inexorably to the conclusion that the
theory is not widely held:
Q: It is common for scientific journals to be peer-
reviewed?
Q: By peer-reviewed, we mean that the articles in those
journals are read by other respected scientists before they
are published?
Q: The scientists who read the papers before they are
published are called “readers”?
4
Imagine the response if you came out and asked “Isn't it true that you are a
liar?” Your expert is likely to say something insipid like, “There is a small subset of my
field which has not yet accepted my theory. Unfortunately, that subset has exerted an
inordinate control over the journals.” This may be stupid, but it will take you longer to
reconnect it to reality than it would have taken to just go through the testimony gradually
and effectively in the first instance.
24
Q: And it is considered an honor to be made a reader of
a well-regarded journal?
Q: Only those scientists whose views are well-
respected are made readers?
Q: Peer-reviewed journals are considered to be
respected journals?
Q: Generally, when a professor at a school authors a
paper, he will submit it first to peer-reviewed journals?
Q: And the professor will only submit to non-peer-
reviewed journals if the peer-reviewed journals reject it?
Q: Peer-reviewed journals reject articles because the
readers regard the science in the papers as being bad
science?
Q: So submission to a peer-review allows scientists to
learn something about what the readers think of one's
scientific opinions?
Q: Peer-review allows scientists to comment on the
strength of a scientist's opinions?
Q: You have been involved in this litigation for five
years?
Q: During that time, you have written articles
regarding the type of cancer at issue in this litigation?
Q: In fact, you have written an article that expresses
your view about the causes of this type of cancer?
Q: That article has never been published in a peer-
reviewed journal?
Q: In fact, you submitted it to several peer-reviewed
journals?
Q: And all of those journals rejected it?
Q: You submitted it to the peer-reviewed journal
'Science'?
Q: And 'Science' rejected the article?
25
Q: One of the readers for 'Science' specifically
commented on the quality of the science behind your
article?
Q: In fact, that reader stated that your article was, in his
words, “the poorest of science”?
Q: Of your opinion on causation, that reader stated,
“the amazing audacity of Dr. Flippenjammer, to assert that
he has isolated the cause of this particularly devastating
form of cancer without ever conducting a repeatable study,
is galling. It is an example of everything that is wrong in
science today. ”?
Q: In fact, that reader called your article “claptrap,”
and said it wasn't fit to be published in the Sunday funnies?
Q: So you have been involved in this litigation for five
years, and in that time your views as to the causes of this
form of cancer have been called “claptrap” by the most
respected scientists in your field?
See? You go from the very general and apparently innocuous, talking about what it
means for a journal to be peer-reviewed, to being very pointed and specific - a particular
article that was called “claptrap”.
3. Plan the end and the crescendo.
Your cross examination should conclude on a resoundingly positive note. You'll recall
that the jury will remember best the first and last things elicited in an examination. We
can talk about why, but the moral of the story is that they do. For that reason, have a very
effective point for the end of cross-examination. If possible, it should be a point that
actually sets up or propels your theory of the case (and doesn't just undermine the
opposing theory or the witness).
Also, many cross-examinations (although not all) will have a crescendo. That is, they'll
have a point where the examination is at its effective peak - the energy is high, and the
jury is sitting on pins and needles waiting for your next question. Plan that question well.
For example, if you get a very good impeachment of a witness (see below), so that the
witness is caught in a lie, after you have proved it take some time to just pause. This will
signal to the jury that you GOTCHA'd the witness. Then, while the jury basically thinks
you've won the case, change the topic completely and toss out a new line of cross-
examination that will bring it all home.
4. Always ask leading questions.
26
Set up your examination so that you can always ask leading questions. Never lead
yourself into a hole, where the only way out is to ask something open-ended. The result
will almost always be bad. On the other hand, you can plan to ask an open-ended
question now and again. There are good reasons to do this – for instance, it breaks up the
examination, making it slightly less dull for the jury. And if you are certain you know
what the open-ended response will be, you can actually use it to break a witness down. It
works like this: say you know the witness will give a highly technical explanation of
something. but you know that they will leave some details out. You might want to let
them have a go at it - try to give the explanation. Then you can follow-up with some
pointed questions about the things they left out - like the differences between the general
case and the facts of this case:
Q: So, professor, how does one tell the oxygen tank
from the other tanks?
A: Well, the oxygen tank is generally labelled or
colored white, while the other tanks may be silver colored,
or yellow, or another color, depending upon their contents.
Also, the oxygen tank will have a large MOD label with 3
inch letters that say '20', meaning it cannot be used below
20 feet.
Q: But the tank in this case was blue?
A: Well... Yes, yes it was.
Q: It had no MOD label?
A: That's right.
Q: But it was filled with pure oxygen?
A: Yes.
Gotcha. Either the professor is an idiot or the blue bottle was mis-labeled. You must be
incredibly careful with this technique, and you may not use it unless you are sure it will
work. For that reason, do not EVER decide on the spot to utilize this technique.
Carefully plan it, and use it only if it cannot backfire:
Q: So, professor, how does one tell the oxygen tank
from the other tanks?
A: It depends on the situation. In the general case, the
oxygen tank is white and has a large MOD label. On the
other hand, in cases like this one, where the other gases are
not breathable, you can tell by the shape of the valve.
Breathable gas valves must have a handle that is situated in
such a way to permit an intermediate pressure regulator.
27
The other tanks have covered safety valves, with a steel or
thick aluminum cover that will not permit a person to fit an
intermediate pressure regulator. Also, those valves can be
opened partially, whereas a breathable gas valve is either
opened or closed - there are no intermediate positions.
Indeed, the existence of a breathable gas valve on the blue
tank would have made any reasonable person aware that
the blue bottle held oxygen, and not some other gas, in this
case.
Oops.
5. Stay within your designed scope.
In general, the cross-examination is limited to the topics and subjects that were covered
in the direct examination. The cross may not go “beyond the scope of the direct”.
Technically, the way the limitation is raised is in a rule of evidence: 611(b) says that the
scope of cross-examination is limited to matters raised on direct examination and to
matters affecting the credibility of the witness. In cross examination planning, this means
that you must plan a lot more than you will actually get to use. The way to do it is to set
up certain lines of cross-examination that you will follow depending upon what evidence
comes out on direct.
This is one of the areas where mock trial differs from the real world. Under many mock
trial evidence systems, the cross is allowed to go beyond the scope of direct. You may
take advantage of this for purposes of competition, but you should know about the limit
in general - it will make you more effective and pointed in your cross examination.
K. Tips and Tricks -
1. NEVER ASK THE LAST QUESTION. Never. Don't do it. What do I
mean? Watch:
Q: You knew about the fish?
A: Yes.
Q: Rather than tell the jury about the fish you
completely ignored it in your report?
A: Yes.
So far so good:
Q: You wanted the jury to ignore the fish, didn't you?
A: Umm... No.
28
Q: Then why didn't you mention it in the report?!
(Haha! Gotcha!)
A: Well, because it wasn't relevant to the only question
I was asked, which had to do with cherries. Now that I
have been asked about the fish, however, I can tell the jury
that your client is absolutely wrong about it causing his
injuries. There is absolutely no way that the fish could
have caused his throat injury. In fact, I have a new, second
report right here ...
Q: UMM... OBJECTION! OBJECTION!
Judge: Counselor, you asked the question. He is just
answering it. I'm going to overrule your objection. Mr.
Jones, you may continue to answer the question.
A: Thank you, your honor. As I was saying, in this
new report...
You can imagine how bad this can get. The witness can completely eviscerate your case,
because you have invited him to do so. Don't do it. Resist the temptation. (HINT - you
can often tell that you are getting close to the last question because it is almost always not
just open ended, but horribly open ended. Horribly open ended questions begin with
words like “explain” or “what” or “why” or “how” or “where” or “when.” These words
give the witness complete control over the examination).
2. Add only one new fact in each question. This will make your examination
a bit slow and plodding, but it will avoid objections and will make the outcome seem
inevitable. Compound questions (questions that call for the verification of more than one
fact) should always draw an objection, and in any event may or may not (usually will not)
give you the information you need. Slow it down - ask one question at a time. (HINT -
this is a good objection to disrupt opposing counsel's cross examination. When they ask
a question like “So you went to the store and saw the plaintiff?”, object. “Objection, your
honor, as to the form of the question.” If the judge asks you for more, object to the
compound nature of the question).
3. There are only two good questions in cross examination. The first is the
question to which you know the answer. Cross-examination is not the time to be
surprised. The second good question is the question to which you don't care what answer
is given. You'll need to think about and practice this a few times before you get the hang
of it. I don't mean questions like:
Q: Do your parents know you always lie?
True, if you asked that one you wouldn't care what answer was given – if they
answer “no” then it looks like they hide things from their parents. If they answer “yes”
then they have confirmed that they are liars. The trouble, of course, is that that question
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is content-less, and many judges will disallow it (as well they should). Worse, many
juries will see through it and disregard the answer – your clever ruse becomes useless.
Finally, and worst of all, the best juries will recognize it for what it is – a slick trick – and
you will lose credibility and raise in the jury the question of why you have to use slick
tricks to win a case.
But imagine a situation where someone is in the business of buying eggs. That's
all they do - buy eggs for restaurants. They are suing your client, saying that they and
your client had a contract to buy and sell eggs at a certain price, and your client was
charging more than the contract price. Your theory of the case is that no contract was
ever formed, so your client wasn't bound to the contract price. You argue that any
reasonable person would have known that the contract price was commercially
unreasonable - thus, they were behaving unreasonably by trying to hold your client to the
low contract price. Look at this line of questioning (I'll only include the questions):
Q: You knew the generally available, market price of eggs
on the first day of negotiations?
Q: You get egg price reports?
Q: You got egg price reports during the contract
negotiations?
Q: You subscribe to EPIR, the Egg Price Index
Reporter?
Q: You knew how egg prices were changing?
Q: You knew that egg prices had gone up 60% from the
first day of negotiations until my client left the negotiations
on day 4?
Q: And yet, your testimony is that you and my client had
a contract, after four days of negotiation, for you to buy eggs
for 60% less than the prevailing market price of eggs?
See? You don't care what they answer. Say they answer that they knew absolutely
nothing about price fluctuations during the negotiation. Then they were absolutely
unreasonable! They buy and sell eggs for a living – they are absolute imbeciles if they
don't track egg prices! Say instead that they answer that they knew all about the huge
price fluctuations. Then they look totally unreasonable for assuming that there was a
contract at the low price - they should have known there was no way that your client
intended to agree to sell at that price - the current market price was already 60% higher.
4. Don't get so caught up in the cross examination that you forget to prove
your theory of the case. A common mistake is to try to “score points” or “land body-
blows” on cross examination. You may want to do that, but it isn't the goal of cross
examination. The one and only goal of cross examination is to prove your theory of the
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case (in part, by proving the other side's theory is wrong). Do not get so enthusiastic
about making the witness look stupid that you lose sight of your goals for the
examination. This is, far and away, the most common mistake in mock trial cross-
examinations.
5. Don't be mean, rude, haughty, conceited, egotistical, arrogant, or
domineering. Be aggressive and control the examination, but be casual and friendly. No
one likes a jerk, including the jury. You should come off as professional. You should
never lose your temper. That is not okay. If you are getting flustered or angry, the
witness is winning (probably because you didn't prepare enough). Stop. Take a breath.
Change the topic, change the pace, or change your technique. If all else fails, sit down.
Better to get no evidence out of the witness but to retain your dignity and your credibility
with the jury then to come off as a histrionic cry-baby.
6. Turn it around if it is falling down. If the witness is winning, there may
still be hope. The secret is to get the witness to start agreeing with you about non-
controversial things that look controversial to the jury. Think of your egg-trader. You're
cross-examining, and they are not helping at all - they are deftly parrying your every
advance. You cannot get them to budge from the notion that any egg-trader familiar with
the industry would have assumed that there was a contract. Time to change tacks - turn it
around. Ask them about their typical egg-buy-sell negotiations. Don't they usually like
to get contracts in writing? Only when they have a long history with someone or a good
reason to trust them do they conclude without a writing? It's industry practice to include
special shipping language in each contract? But the specific language to be used varies
from deal to deal? So if you are unfamiliar with an egg-seller, its particularly important
to get the shipping language? Because otherwise the seller has no idea where or how to
ship the eggs? But you had not settled on shipping language by day 4?
This makes it look like the argument you intend to run is that the contract is
unenforceable because it is not written, or that it wasn‟t reasonable to assume a contract
because the shipping terms were not set. In fact, this might not be your main argument -
it is a backup argument that you do not intend to rely upon. Nonetheless, you can get a
little bit of evidence out of this witness that helps you, and it looks to the jury like you are
scoring good points. Remember, the jury does not know your cross examination plan
until you start asking questions.
7. Quit while you're ahead, or before you fall further behind. This is the
flipside to tip 6. When even turning it around is impossible, give up. There's no shame
in it, or at least a lot less than standing around and continuing to flounder. Ask a throw-
away question that the witness cannot help but agree to and sit down. End the pain.
Every fiber of your being will want to keep the witness up there - you know full well you
can make them say the right thing if you just have one more minute! The trouble is, you
are wrong - if the witness is winning and you can't figure out how to turn it around, the
situation will quickly become hopeless... and you'll lose more and more credibility with
the jury.
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The opposite is equally true - this ties into the first tip - if you have won, don't rub it in.
If you have made your point, even if it only took you four questions to do it, put your butt
in your seat. The more questions you ask, the more likely it is that the witness will find a
way to miraculously rebound and shove the cross examination down your throat. In any
event, the shorter your cross examination the more powerful.
8. Don't let the witness explain. Anything. Ever. This essentially reinforces
that you should use leading questions - if your questions can only be answered with a
“yes” or “no” then no further explanation will be permissible. Sometimes, though,
witnesses will seek to explain some more. If a witness does this to you, just repeat the
question:
Q: You dropped out of Hastings in your second year?
A: Well, I was getting pretty sick of the atmosphere
there, and I didn't think my professors knew anything.
Besides, I didn't have any money to keep going to school.
Q: So you dropped out in your second year?
A: Yes.
Do this a few times in a row and the witness will take your point. If he doesn't, the jury
will - “Ah ha! The witness is being evasive. I wonder why he won't just answer the
question?”
9. Don't let the witness read. Anything. Ever. If you have the opportunity
to impeach a witness with prior testimony, DO NOT LET THE WITNESS READ IT.
Instead, YOU read it, and ask leading questions about it:
Q: On direct examination, you testified that the shirt was
blue?
A: Yes.
Q: The shirt was blue, and not some other color?
A: Right.
Q: You gave a sworn affidavit in this case?
A: Yes.
Q: And you understood that if you lied in that affidavit
something bad would happen?
A: Yes. It would have been perjury.
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Q: It would be perjury for you to lie on the stand today,
too?
A: Yes.
Q: In your affidavit, you discussed the shirt?
A: I don't remember.
Q: I am handing you a copy of your affidavit. You
recognize it?
A: Yes.
Q: This is, in fact, your sworn affidavit?
A: Yes.
Q: And this is your signature on the last page?
A: Yes.
Q: Underneath where it says that you attest that the
statements contained therein are true and correct?
A: Yes.
Q: Turn to page 2, line 17. You see that line?
A: Yes.
Q: Read silently with me while I read aloud: “I was
wearing a green shirt. I remember distinctly that it was green,
because when the goo fell on me I didn't know, at first.”
That's what your sworn affidavit says?
A: Yes.
Get it? You read. Make the witness follow along. This is exactly the opposite of how
you work it on direct. On direct, the focus is on the witness. On cross examination, the
focus is on the attorney - the witness is just there to answer yes or no.
10. Keep perfect and complete control of the focus. Unlike direct
examination, which is all about the witness, cross-examination is usually an effort to
minimize the witness. Thus, you want to distract the jury from the witness - keep
attention on the lawyer. You do this by asking short questions that only allow for a “yes”
or “no” response, so the jury doesn't have time to turn away from you and look at the
witness. You do it by mixing up the pace, so the jury can't “ping pong” back and forth,
turning its head to look at the witness and then at you, because it cannot fix on a
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particular rhythm. You do it by positioning yourself away from the jury box, so the
witness can't look simultaneously at you and at the jury, and so that the jury finds it
comfortable to look at you and needn't crane. Occasionally, however, cross-examination
becomes about the witness. For instance, in the impeachment exchange, above, you want
the jury staring at the witness, making them feel very small. You want the jury to focus
on the lying liar in the witness box. Do not take your eyes off of the witness - your
attention will focus the juries attention. Go slowly - let the jury focus. When you get to
the good part, walk up to the witness and hand them the pages... Then stand next to them,
so that the jury is looking at both of you as you read. After they confirm that they said in
their affidavit something other than what they just said on the stand, just look at them for
a beat, two beats. Then, and only then, return to the podium and move to the next line of
questioning.
The point is that, unlike a direct examination, in which the focus is always set on the
witness, in a cross-examination you will have to mix it up. Be aware of everything that is
going on, and put focus where it goes. You should make focus a part of your cross
examination plan from the beginning.
ASSIGNMENT # 3
1. Pretend that you are going to cross-examine a member of the coaching staff (me,
Ms. Brogan, or Mr. Conroy) on some topic. Come up with more than 2 but less than 5
points you will make on the cross examination. How will these points contribute to the
proof of some fact.
2. You are the defense counsel in this year‟s mock trial case. Write 25 leading
questions for the plaintiff. They don't need to be connected to each other in any way -
just 25 separate questions that are all leading.
3. Come up with points (more than 1, less than 10) for a cross-examination of any
one defense witness in this case. These are points that you would like to use this witness
to prove if you were the plaintiff.
4. Pick one of the points you came up with in 3 and draft 5 or more leading
questions that start very general and funnel down to specific questions that make your
point.
5. Make flashcards of the rules of evidence I mentioned in Assignment #2. One side
of the card should have the rule number. The other should have the text of the rule. Start
testing each other with the flashcards - you do not need to perfectly memorize the text of
the rules, but you need to know what they are about. For instance, if I say “Rule 801”
you need to know that it defines “hearsay.” You need to know that 802 says that hearsay
is generally inadmissible. You need to know that 803 provides around 22 different
situations where hearsay will be admissible even if the declarant is available. You need
to know that 804 provides some very limited situations when hearsay will be admissible,
but only if the declarant is unavailable. You will need to be able to provide definitions of
things like “declarant” and “available”. Make all of the flashcards this weekend, but you
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only need to know the 400 rules and the 800 rules for our meeting next week (if you
know more, that'll be great!).
6. Think of some thoughtful questions about the material on cross-examination.
7. TURN OFF THE PAN FLUTE MUSIC!
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CHAPTER 4: CLOSING ARGUMENT
The stage was set with an opening statement. The opening made promises of what
evidence would come, but did not argue - instead, it told a story so that the jury would
invent its own argument as the evidence appeared. The evidence is in, and has been
tested in the crucible of cross-examination. It fulfilled the promises of the opening, and
fleshed out and proved the details of the story. But it did not argue - instead, it presented
the story in an organized and clear way, each piece of evidence building on the others to
demonstrate and prove that the facts were as one of the sides or the other believed them
to be.
Now it is time for argument. The closing argument must glue all of the evidence
together. In fact, the closing is sometimes called the “summation,” because it sums up all
of the evidence presented. It must explain the bad evidence, and highlight the good
evidence.
The closing argument is always extemporaneous. There is no way to write one ahead of
time, because up until the end of trial you cannot predict what evidence will be
submitted. On the other hand, the points of the closing can be planned before-hand. In
other words, you always know what you need to say for your closing, you just can't know
how you will say it until it is time to deliver. I will clarify this more below.
First off, every closing must begin with an introduction and greeting. The closing is a
persuasive argument, and it is easier to persuade people who like you. Thus, you must be
precise, polite, and simple in the closing. This starts with a good greeting.
Second, every closing in a civil trial for the plaintiff has a short statement about the
standard of proof. A lot of civil juries get confused and think that the “reasonable doubt”
standard applies. It doesn't, and you need to explain that a lesser standard obtains. On
the defense, you do not discuss the standard of proof, but you make sure to discuss the
burden of proof: ie - “Remember - the plaintiff must prove every single element of his
case, or else you cannot find for him. Even if he proves that my client had a duty and
breached that duty, he is not entitled to any recovery if he cannot prove damages.”
Emphasize the elements that you think the plaintiff cannot prove.
Quickly summarize your theory of the case, next. If it is a dog bite case and you are the
defendant, you might be defending by saying that this is the first injurious dog bite from
your dog and you simply didn't know the pit-bull was dangerous. So your theory of the
case would be, “ladies and gentlemen, it's true that the law is not about „fair‟ and „unfair.‟
Still, the law does not make a person pay if it was not their fault that someone got hurt, or
if they could not foresee the injury. In this case, the plaintiff shouldn't get any money
from Mr. Jones unless Mr. Jones knew his dog was a danger. But you've all heard the
evidence - Mr. Jones had no way of knowing that Fido would ever hurt anybody! And
Mr. Jones proved it by having Fido put down the same day that the plaintiff got hurt.”
Basically, you restate your opening story in very short form - spend no more than a
minute, and preferably less.
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Then discuss the elements of the case, and focus on the ones that win the case for you. If
you are the plaintiff, you focus on the elements of the prima facie case. If you are the
defendant, you focus on those prima facie elements that the plaintiff has not proven, as
well as any affirmative defenses.
Fifth, you lay out the evidence that has been presented and is favorable, minimizing and
explaining the unhelpful evidence as you go. Stick to the very high points - this is the
summation portion of the argument, and you don't want it to get too long and swamp the
rest.
If you are the plaintiff, at this point you should turn your attention to damages. You need
to discuss for about 1/3 of your closing argument how much your client is entitled to
recover and why. If you are the defendant, you spend only a bit of time on damages.
Plaintiffs discuss damages in terms of fairness and entitlement. “My client suffered
immensely. He deserves something to repay him for that pain.” Defendants discuss
damages in purely logical terms. “The law does not permit you to reward the plaintiff for
having gotten hurt. Instead, even if damages were appropriate here they would be limited
to whatever is necessary to reimburse the plaintiff. Here, the plaintiff has claimed some
medical bills, and has claimed that my client is 80% liable for his damages. As the
evidence has shown, the plaintiff is wrong about that - his injuries were not my client's
fault at all. But even if he were right about liability, the plaintiff's damage calculation
does not make sense. He does not „deserve‟ $2 million, he is entitled only to a maximum
of 80% of his $40,000 worth of medical bills, which is just $32,000.”
Finally, you close strong. The last statement in the closing is a reiteration of your theme.
After you get that out, thank the jury and sit down. Immediately after you do, you will
remember the things you forgot to say. Keep your seat - the jury didn't know you were
going to say them and won't miss them, but you'll look like a fool if you try to get them in
after you said you were done.
** TIPS **
1. Keep your language simple. Do not use legalese or jargon, unless you
define it, and unless there is a great reason to do so. It always backfires.
2. Do not use notes. If you must use notes, use only a few, preferably on a
single 3x5” index card in print that is large enough to be clearly read from 5 feet and that
fills no more than 10 lines.
3. It is against the law to express your personal opinion as to the credibility
of any witness. Do not do it. You are also not allowed to testify - you cannot present any
new evidence in closing. Confine yourself to the facts that actually came out. Also, be
honest and forthright. If you look like you are dissembling or lying, the jury will pick up
on it and crucify you. All you have at trial is your own credibility, so do not squander it.
4. Do not ever express any opinion as to the opposing party, opposing
counsel, or opposing witnesses.
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5. It is technically against the law in those jurisdictions to have considered
the question to ask the jury to put themselves in the position of the plaintiff when
calculating damages. This is called the “Golden Rule,” and a violation looks like this:
“Ladies and gentlemen, you've heard my client testify how painful his leg is to him. He
deserves to be compensated for that pain. How much? Well, how much would I have to
pay you, to make you endure excruciating pain every time you stood or sat? How much
would it be worth to you to never be able to lift your grandchild again, to never be able to
give them a hug?” etc. etc. For those of you that care, this is both a 401 and a 403
violation, among other things.
6. Be incredibly well-organized in your closing. Walk through the six steps
I've given you. When making your points in summation, walk through the story in an
order that makes sense and is easy to remember.
** HOWTO **
Putting together a closing argument is simple. First, you draft the outlines. You have the
6 major headings already - they are given to you above. You can sketch out long before
trial most of the 6 parts, except for the summation portion. As for the summation, you
can outline it - you'll know what points you need to make.
During trial, you can fill in your outline. As you ask questions of your witnesses for the
case-in-chief, for instance, you can put their names in under key points, along with
specific quotes that are helpful. If your co-counsel strikes a particularly clever blow on
cross-ex, drop that in where it goes. If the opposing witness admits something they
shouldn't, get it down on paper.
I'll give a simple example. At the start, your outline may look like this:
I. Thank jury
II. Plaintiff must prove elements. If he leaves something
undone, he loses.
III. Summation:
A. Plaintiff ran red light
B. Defendant couldn't stop in time
C. Crash was avoidable but for Plaintiff's
deliberate act
D. Plaintiff wasn't injured
IV. Elements:
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A. Duty, Breach - duty is clear, arguably a breach
b/c defendant shouldn't have been going 78 mph in a 35
mph zone.
B. Causation - but no causation: Plaintiff's
injuries, if any, were caused by his running the red light, not
by Defendant's speed
C. Damages - no damages: car was already
totaled before it was hit, and jury need not credit Plaintiff's
pain testimony
V. Evidence:
A. Causation
1. Plaintiff ran red light
2. Defendant was already at edge of
intersection
3. No way to stop
4. Plaintiff had last clear chance to avoid
accident
5. If Plaintiff had not entered
intersection, no accident
B. Damages
1. Plaintiff's car was worthless
2. Plaintiff had no medically-
recognizable injuries
3. Plaintiff complained of pain, but
complaints started 1 month after accident, after talking to a
lawyer
4. Plaintiff lost no work time due to pain
5. Plaintiff went on a ski vacation during
lawsuit, and played tennis within days of accident
VI. Damages & Theme - Even if Plaintiff's damages were
enough to prove case, wouldn't be compensable. Car would
be worth $0 recovery, and no medical expenses to
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compensate. Pain and suffering is not compensable without
economic or direct injury.
This is a pretty good framework. It lays out a good story, and a clear theory of the case.
If you follow this outline, you will make a good closing. All that is left to do is to fill in
the evidence and helpful analogies. So, if Mr. Brown testifies that he was going to buy
Plaintiff's car but, when he saw it, told Plaintiff that he would only take the car if Plaintiff
paid him $75, then you might tuck that in under V.B.1. If Mrs. Smith testified that she
saw the Plaintiff's car enter the intersection and noted that the light was red, you'd put that
in under V.A.1. And so on, until everything under V. has at least one, and hopefully
more, pieces of evidence supporting it.
ASSIGNMENT #4:
1. Take a look at a closing argument in action. In particular, read the
arguments at: http://www.talkorigins.org/faqs/dover/day21pm2.html. Mr. Gillen's
argument is excellent. You may disagree with the content of it, but the presentation is
nearly flawless. You must read the Plaintiffs' closing first to see why the Defense is so
good. I apologize about the length - I tried to find a shorter one, but the shorter ones I
found stank.
2. Draft an outline of a closing argument for each side of our mock trial case.
Just the structural outline - you needn't fill in any details about who testifies to what.
3. Do you see, now, how the theme, the opening, the direct examinations,
and the cross-examinations all play together to make your closing powerful? Draft a
paragraph-long portion of an opening discussing the evidence that a key defense witness
will give, assuming you are the Defendant. Then draft a brief section of direct exam for
the witness that establishes a key point for the defense. Then draft a brief section of
closing argument discussing the testimony you adduced from the witness on direct, and
explaining how it fits in to your theory of the case.
4. Now pretend you are the Plaintiff. Draft a brief section of cross-
examination of the witness from question 3 that helps you prove something important to
the Plaintiff. Draft a brief section of a closing argument where you use the point made on
cross to make a point for the Plaintiff.
5. I mentioned 401 and 403 problems in the text. These are dealing with the
rules of evidence, and particularly those dealing with relevance. Assume for a moment
that you are the Defendant. Is there anything in the affidavit of the witness from question
3 that would be considered “irrelevant” under the rules of evidence? What evidence will
the Plaintiff object to if you try to get it in? How will you argue against the objection?
Now pretend you are the Plaintiff - what evidence will you try to get in on cross-
examination of the witness that will be objected to under 402 or 404 - 406? What about
under other rules of evidence? How will you overcome the objections?
6. Think of some good questions on the material presented in this Chapter.
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