Trial Work: The Most Fun You Will Ever Have in a Courtroom!

1. Trial Work: The Most Fun You Will Ever Have in a Courtroom! blST, DECEMBER 2013 Marie c. Bechtel, esq., Legal aid of west virginia

2. Select a Theme & Know the Theory • Think of a one-line synopsis of your case: “This case is about X.” • Build a case outline around the theme. • Consider how to utilize the theme to convince your judge/jury. • Use the theme to tie the case together. • The theory is a more in-depth version of the theme – the legal theory, so better for the Court than a jury. • Catchy = good. Cheesy = bad.

3. Trial Notebook • Organization is the KEY to an effective trial presentation! • A good trial notebook has a Table of Contents and tabs. • Don’t just look prepared, be prepared: the act of preparing the notebook will assist in your preparation. • Include everything: witness examination outlines, copies of evidentiary submissions, opening and closing outlines, etc. • Bring your books! Bring the relevant statutes! BRING THE RULES!

4. Who are you? • Consider carefully how you are perceived by your judge/jury. • Consider the physicality of trial practice: • Where will you stand? • How close can you get to the jury box? • How close can you get to the witness? • What should you wear? • What should your client wear?

5. Demonstration: Know Thyself • What worked and what did not work? Why? • How much does physicality matter? • What is the comfort zone of the judge or jury?

6. Judge or Jury?

7. The Great Order • Opening Statements (Plaintiff then Defendant, or Defendant reserves until presentation of her case-in-chief) • Plaintiff’s case-in-chief • Defendant’s Motion for Directed Verdict • Defendant’s case-in-chief • Plaintiff’s Motion for Directed Verdict • Rebuttal, Surrebuttal • Closing Arguments (Plaintiff, then Defendant, then Plaintiff)

8. Voir Dire: Get ‘Em in the Box • Jury selection is never “just going through the motions.” • Consider carefully who will be the most sympathetic to your client, i.e., who will identify with your client. • Use jury selection as an opportunity for the jurors to like your client and you. It is the only time they get to talk to you – make the most of it!

9. Opening Statement: May it Please the Court • Note that these are opening statements, not opening arguments. • To a judge, an opening should be quick synopsis – no theatrics, no grandstanding. • To a jury, an opening is one of three times you get to talk to them – again, make the most of it! “Ladies and Gentlemen of the jury . . .” • Explain, but do not preach: “The evidence will show . . .” • Use that theme! • Conclude by asking for specific relief, from judge or jury.

10. Direct Examination: Telling the Story • Prepare, prepare, prepare your client/witness! • The witness is the storyteller – your purpose is to facilitate their telling of the story. • Anticipate objections of the other lawyer and have your response ready. • Do not lead. • Only call witnesses who serve your theme. Consider: how does this witness serve the case? What information will this witness give to the judge/jury that is necessary for a finding in my client’s favor?

11. Cross Examination: Let the Fun Begin! • The lawyer is the storyteller, NOT the witness. • Ideally, the witness will say one word: “yes.” • Never ever EVER ask the witness a question that begins with “why.” • Keep it rapid. • Keep control! • Be polite, professional, and vigilant. • Prepare your client/witnesses for cross examination. • Teach them to break eye contact and how to politely disagree with opposing counsel.

12. Objections! Impeachment! Drama! • Anticipate and prepare for objections from opposing counsel. • Anticipate and prepare for objections you foresee. • Know your evidentiary rules! • Walk opposing witnesses down the path to impeachment.

13. Demonstration • Objections • Thoughts? • Impeachment • Thoughts?

14. Presentation of Evidence • Lay that foundation! • Practice going through the motions. • Bring extra copies. • Don’t forget to move the admission of the evidence. • Practice, practice, practice!

15. Thank you, Ms. Foote (& Bruce Perrone!) • In presenting evidence for admission, remember the mnemonic “Ms. Foote:” • M: Mark it. • S: Show it. • F: Foundation (lay it). • O: Offer it as evidence. • O Objection (anticipate the opposing party’s). • T: Testimony (get it in via). • E: Exhibit it to your fact-finder.

16. Closing Argument: Don’t Forget the Bow • Unlike opening statements, closing is intended to be argument. So Argue! With Exhibits! • Wrap it all up for the judge or jury: • Start with your client’s theme • Walk through the evidence tying it together • Utilize the charge • Ask for specific relief.

17. Ask for Help! • Do not try your first case alone. • Do not forget the stakes for your client; his or her life should not be your learning experience.

19. Need a Pep Talk? • You can always call your BLST training team, including: Marie C. Bechtel, Esq. Legal Aid of West Virginia 115B S. Kanawha Street Beckley, WV 25801 304.255.0561, ext. 2212 mbechtel@lawv.net