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Theory of the Case Pre Trial Motions and Writing Brief

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					 Theory of the Case,
Pre-Trial Motions and
   Writing a Brief


Tom Zaccaro, thomaszaccaro@paulhastings.com
    Joanne Caruso, carusoj@howrey.com

                                        1
  Review of Criminal
Court System and Trial




                         2
              Court System

   In the United States, there are two
    separate court systems – state system and
    federal system

   The federal judicial system and most state
    systems, including California, have three
    levels of courts


                                                 3
          Criminal Court System
        CALIFORNIA                    FEDERAL

   California Supreme        U.S. Supreme Court
           Court
                                   Circuit Court of
       Courts of Appeal                Appeals

       Superior Courts            District Court


                                                       4
                            Trial
   Sequence of Trial and Steps in Each Sequence

   Evidence: Facts – Testimony or Physical or
    Documentary Evidence

   Layout of Courtroom

   Participants
       Judge, Baliff, Clerk, Prosecutors, Defense Attorneys,
        Witnesses (Fact and Expert), Jury

                                                                5
    THEORY/THEME OF THE CASE
   Every case needs a theory

       Something judge and jury will remember
       Simple
       Coherent and plausible
       Must explain why you should win and be
        supported by the facts and law



                                                 6
    THEORY/THEME OF THE CASE
   Sometimes will have more than one theme, but be
    careful, generally at most three

   Your themes and theory should be repeated over and over during
    everything you do at trial

       In a criminal case where you are representing the accused, one theme
        may be the conduct is simply not unlawful conduct.

       Another theme may be that the government is completely overreaching
        in its attempt to prosecute the conduct.

       The third theme may be that the government failed to prove its case
        beyond a reasonable doubt or someone else committed the crime.




                                                                               7
Pre-Trial Motions



                    8
   PREPARATION

          PREPARATION

                 PREPARATION


                                9
Your preparation should
  begin long before
    oral argument



                          10
      Argument is the final step of
    a multi-step preparation process


•   Purpose of Motion: what result do you want
•   Identification of Legal Issues
•   Identification of Relevant Facts
•   Preparation of Briefs: Motion/opposition/reply
•   Preparation for Argument
•   Hearing




                                                     11
Know The Rules and
  Abide by Them




                     12
Writing The Brief




                    13
           Tone of the Briefing
   Be concise
   Be reasonable
   Minimize rhetoric
   Take the high road
   Make it persuasive
   Do not make it personal




                                  14
                    Remember

   Judges want to hear what the dispute is, what is at
    issue, why it is important and why your side should
    win

   Point is to persuade

   Judges want to understand the facts of the case,
    the legal standard that applies, and why the facts
    of your case mean you should win under the law




                                                          15
           Basic structure of a legal brief
   Introduction: Includes at least, what party the brief is
    being submitted on behalf of and what you want the
    Court to do.

   Summary of Argument - May not be a separate section.
    If not, main points of argument included in the
    Introduction.

   Facts and/or Background – With citations to evidence.

   Legal Standard – With citations to law.

   Argument: With citations to facts and law. In the
    Argument section each key point is typically its own
    section with appropriate subsections as needed.

   Conclusion
                                                               16
                         Remember
   Judges have wide discretion over evidentiary disputes.
       When writing brief, be clear, don’t overreach, put
        best points first
       Deal with law that may hurt you: distinguish it or tell
        judge why it doesn’t apply
       Deal with bad facts and tell court why you should still
        win
       Be careful not to misstate either the law or the facts as
        opponent will likely point this out (“The defense is
        misleading the Court”).
       Respond to other side’s arguments
       Your credibility with the Court is everything.

                                                                    17
 Argument
Preparation



              18
       Preparation Particulars
Anticipate:

   Issues the Court may raise

   What the opposing side will argue

   Written Outline: how and what to prepare

   Cases: Determine which are your best and worst
    cases and figure out how best to use them (the best
    cases) and distinguish them (the worst cases)

                                                          19
Argument to the Court




                        20
                       Demeanor
   Dress

   How to address the court, refer to the parties and opposing
    counsel

   Use of the podium

   Be professional and courteous to opposing counsel and the
    Court

   Keep your cool

   Get to the point

   Be specific about the relief sought


                                                                  21
Answering the Court’s Questions

   Make certain that you understand the
    question before you answer it.

   Answer the question directly.

   Refer to specific cases or evidence to
    support your answer.

   Transition back to your argument.
                                             22

				
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posted:6/5/2012
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