Pre Trial Order by pca13870

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									The Mock Trial
Daniel P. Costello
costellolegal.com
                Introduction
 A Mock Trial Can Deliver Realistic Assessment of
 Case Value And Take Surprise Out Of Litigation
 Risk
      Reduce/Manage Verdict Exposure
      Reduce/Manage Litigation Expenses
      Reduce/Manage Settlement Costs
        • Avoid overpayment on frivolous cases
        • Avoid making low ball offers that could backfire on
          legitimate potential high verdict value cases
       Examples of Unseen Issues
 “Did the [defendant] always do it that way or just
  sometimes?”

 “If they’re not saying it, it must be horrible.”

 “How can they prove they didn’t cause it?”

 “Why are they debating how much money if they say
  they didn’t do anything wrong?”
                    Overview
 Mock Trial Illustrates The Stages Of A Trial
    Voir Dire/Jury Selection
    Pre-Trial Motions/Motions In Limine
    Opening Statements
    Testimony By Fact and Expert Witnesses
      • Direct, Cross and Rebuttal Examinations
    Closing Arguments
    Jury Deliberations and Verdict
              Online Mock Trials
 Less costly (1/10th or less relative to mock trials)

 Evidence and juror feedback conducted via internet

 Highly Flexible (e.g. compare success of different
  defense approaches)

 Quick turnaround (few days as opposed to weeks)
                 Focus Groups
 Discrete trial issues

 Qualitative reactions to case story/evidence

 More discussion/less structure
                 Shadow Jury
 Demographically matched citizens

 Daily feedback interviews/reports

 Daily risk assessment/adjustments

 Complex fact patterns

 High exposure cases
        Pre-Trial Activities
     Other Options Exhausted

   Dispositive Motion Practice
     Pending motion for summary judgment
     Motion to stay trial
   Mediation
   Arbitration
           Pre-Trial Activities
           Things To Consider
 Joint Trial/Bifurcation
 Jury Trial v. Bench Trial – Which is better?
     Did the plaintiff demand a jury?
     Venue – liberal or conservative jurisdiction
     Trial judge
     Will jurors relate to the plaintiff or defendant?
     Time and cost considerations
     Complexity of the case
           Pre-Trial Activities
               Trial Briefs
 Motions In Limine
     Often the first time the Judge introduced to case
     Preclude/Limit/Make Sure admission of
      testimonial/documentary/expert evidence
 Considerations
     Hearsay evidence
     Inflammatory evidence
     Overly broad or not disclosed expert testimony
     Daubert/Frye challenges to “bogus” science
     Do not assume the Court knows the law - briefing
                  Pre-Trial Activities
                   Pre-Trial Order

   Stipulated Facts
   Pre-Marked Exhibits
   Witness List
   Expert List
        Pre-Trial Activities
   Technology In The Courtroom
 Effectively Communicate Complex Information
     Educate and illustrate
     Organize and control
     Reinforce and emphasize
 Visual Evidence – Why Use It?
     People respond to visuals
     Pictures are worth a thousand words
     Simply, amplify and promote the message or
      theme you are trying to get across
              Pre-Trial Activities
             Demonstrative Tools

 Assist the witness explain something to a jury
 Used for the limited purpose of illustrating the
  witness’ opinion
 It is not proof and does not go into evidence
         Examples
      •     Drawings
      •     Models
      •     Chalkboards


                     Presented to Swiss Re/Westport Insurance
                            Corporation April 16, 2009
              Pre-Trial Activities
                  Evidence

 Evidence is proof that passes all of the traditional
  evidentiary tests i.e. relevant, probative, reliable, not
  hearsay, not cumulative


 The Judge is the Gatekeeper
    It is always within the sound discretion of the Court to
     decide what goes into evidence and what does not



                   Presented to Swiss Re/Westport Insurance
                          Corporation April 16, 2009
           Pre-Trial Activities
              Preparation

 Personally Meet And Prepare All Witnesses For
  Direct And Anticipated Cross Examination
 Review Proposed Exhibits With Witnesses
 Personally Visit Accident Site/Damage
 Go Over Courtroom Layout With Witnesses
 Go Over Dress Code/Appearance With Witnesses
 Be Ready With Deposition Testimony
             Voir Dire/Jury Selection
 Mock Trial
    Provides blueprint for jury selection
    Reveals connections between a juror’s pre-existing
     attitudes and case
 Purpose At Trial
      Evaluate jurors
      Introduce your case
      Builds rapport with potential jurors
      Provide glimpse of client position
      Develop trial theme
     Voir Dire/Jury Selection
         Considerations
 Education
 Employment
 Ethnicity
 Economic Situation
 Homeowner/Business owner
 Experience With Civil Jury System
 Victim Of Crime
 Views On Monetary Compensation
       Voir Dire/Jury Selection
             Challenges

 For Cause
 Peremptory
    Excusal of a witness for any reason
    Not an illegal reason (i.e., race)
 Consent
 Exemplar Voir Dire
         Opening Statement
 Explain Client Position
   Make it clear that client denies claims
 Further Develop Trial Theme
   Be consistent
 Provide Road Map/Overview What You Expect
Evidence To Show
   Do not make promises that you cannot keep
 Exemplar Opening Statement
                Case-In-Chief
 Mock Trial
   Assist in determining most effective order of
    witnesses and use of demonstrative evidence
   Evaluate strength and weakness of potential
    witnesses
   Allows witness’ recollection of facts that place years
    before trial be refreshed
   Provides witnesses with “ real life experience”
   Enables insurer/client to view counsel in action
                Case-In-Chief
                   Goals
 Continue With Theme Of Case
 Make Sure “Promises Made” Are Kept
 Choose The Right Expert
 Do Not Oversell Case
 Meet Burden Of Proof
   Liability
   Damages
          Case-In-Chief
Direct Examination-Fact Witnesses
 Considerations
   Availability and memory
   Reading in deposition testimony
   Plaintiff will often use defense witness to prove case
     • Impact ability to use defense witnesses as part of
       defense case
   Present in organized and straightforward manner
     • Counsel must listen to testimony
          Case-In-Chief
Direct Examination-Fact Witnesses
 Potential Pitfalls
      Testimony beyond area of knowledge or competence
      Lack of memory
      Saying too much
      Attorney asking one too many questions
      Problem background
        • Criminal or disciplinary
 Exemplar Direct Examination – Fact Witness
          Case-In-Chief
Direct Examination-Expert Witness
 Choosing The Appropriate Expert
   Liability (duty and breach)
   Damages (proximate cause and harm)
 Expert Disclosure v. Expert Depositions
   Federal or state court
 Approach
   Attorney is the “conductor” – no leading questions
   Expert is the “orchestra”
          Case-In-Chief
Direct Examination-Expert Witness
 Testimony
   Background and education
   Experience and expertise
   Why was the expert retained as an expert witness?
   What was the expert retained to do as an expert
    witness?
   What did the expert do as part of his/her expert
    witness function?
      • Inspect and/or review
      • Examine and/or visit
          Case-In-Chief
Direct Examination-Expert Witness
  Critical Components Of Testimony
  Do you have an opinion to a reasonable degree of
   expert certainty?
  What is the foundation for the expert opinion?
  Explain the formulation of the expert opinion
  Conclusion based on a reasonable degree of expert
   certain as to:
    • Standard of care and/or breach
    • Damage and/or harm or lack thereof
  Exemplar Direct Examination – Expert Witness
           Case-In-Chief
       Demonstrative Evidence

 Documents
 Photos
 Charts
 Videos
 Accident Reconstruction
 Exemplar Demonstrative Evidence
          Case-In-Chief
 Cross-Examination-Fact Witness
 Focus On Facts That Will Help Case
    Irrelevant cross counterproductive
 Discredit Witness Credibility
    Witness does not have an accurate recollection of
     facts
      • Vague or inconsistent prior testimony
    Witness is not trustworthy
 Exemplar Cross-Examination - Fact Witness
          Case-In-Chief
Cross-Examination-Expert Witness
 Cannot Be An Expert At Everything
   Focus on shortcomings in alleged area of expertise
     • Lack of real life experience
     • Education
     • Expertise not relevant to area opined on
 Demonstrate Bias
 Expert Is A “Hired Gun”
 Exemplar Cross-Examination – Expert Witness
Motion After Plaintiff/Defendant
             Rests

 Motion For Judgment As A Matter Of Law (a/k/a
  Motion For A Directed Verdict)
   Plaintiff failed to make out prima facie case
     • Negligence Case – Duty, Breach, Causation, Harm
   Failure to produce expert testimony as case against
    professional not within the “ken” of the lay juror
   Rarely granted
   Protect appellate remedies
            Charge Conference
 Typically Takes Place Near End Of Trial
 Jury Instructions/Charge
   • Explain the law in layperson’s terms so that a juror
     can apply the law to the facts to reach a verdict
   • Decided by judge
   • Protect appellate remedies
 Verdict Forms/Interrogatories
   • General Verdict
   • Special Verdict
           Closing Arguments
 Mock Trial
  Assist in identifying whether theory of case has been
   developed and presented
 Goals
  Remind jury of “promises” made during opening
  Continue with theme by reviewing claims/defenses
  Refer to testimonial and demonstrative evidence
 Exemplar Closing Argument
               Jury Deliberations

 Mock Trial
   Offer insight into sequestered jury room
     • Credibility of witnesses
     • Effectiveness of counsel
     • Use of demonstrative tools and evidence
     • Impact of theme of case
     • What did the jury focus on
                     Verdict

 Mock Trial
   Helpful to Determine monetary value of case
   Advantages/Disadvantages of settling
   Exemplar Mock Trial Questionnaires to Jurors


 Exemplar Verdict Sheets
            Post Trial Motions

 Judgment Notwithstanding The Verdict (JNOV)
   Time set by statute or court after verdict but before
    entry of judgment
   Protect appellate remedies
     • Request briefing
   Basis
   Verdict was against the weight of the evidence

								
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