LITIGATION ESSENTIALS

LITIGATION ESSENTIALS JOHN BO NICHOLS KOONSFULLER, PC. 109 North Post Oak Lane, Suite 425, Houston, TX 77024 bo@koonsfuller.com (713) 789-5112 2019 National Family Law Trial Institute

THE PLAYERS Parties Attorneys Judge Have a clear understanding of who you represent and where you are

Attorney - Style • Aggressive – it’s ok to get angry • Conversational – it’s ok to be nice • Sarcastic (be careful here) • All should be “to the point” • All should be good listeners and observers

Attorney -Body Language • Everyone communicates with nonverbal signals • Judges perceive through sight (85%), hearing (8%) and other senses (7%) • Palms up • Let it be natural unless it is annoying

Judges - Things That Bug Them • Time wasters • Failure to get to the point • Not being able to ask questions • Non-legal Objections • Beating a Dead Horse

Judges - Golden Rules of the Courtroom • Be prepared • Be brief • Be professional • Be seated

3 Stages of Trial • Pre-demonstration pitch – opening statement • Presentation of the product (show and tell) – present evidence • Call for action – closing argument

Presentation - Selling Your Case • You are a salesperson • Every trial is selling, ABC (always be closing) • Every sale has 3 components • Sellers (you) • Of products (client) • To buyers (judge/jury)

Presentation to Judge • Decide on a story model/theme • Make opening statements a road map • Who you are • Why are you there • What you want • What you expect to prove • Why it should be given to you • Anchor to your theme or story model

Presentation - Opening Statement • Emphasize your strengths 1st • Attack other side cautiously • Use simple words • Use words that describe your case like: “crushed,” “shamed,” and “mangled.” • Use headlines; • Describe your “solid” witnesses; • Don’t make promises you cant keep • Jason Naimi (Tuesday)

Great Taglines The Social Network - "You don't get to 500 million friends without making a few enemies“ The Royal Tenenbaums - "Family isn't a word. It's a sentence“ Platoon - "The first casualty of war is innocence“ Lost In Translation - "Everyone wants to be found“ The Shawshank Redemption - "Fear can hold you prisoner. Hope can set you free" The Graduate - "This is Benjamin. He's a little worried about his future" Jaws 2 - "Just when you thought it was safe to go back in the water" Taxi Driver - "On every street in every city, there's a nobody who dreams of being a somebody" True Lies - "When he said I do, he never said what he did" The Godfather Part III - "All the power on earth can't change destiny" Tommy Boy - "If at first you don't succeed, lower your standards"

EVIDENCE PREDICATES, FOUNDATIONS, AND MAKING AND MEETING OBJECTIONS

Evidence – Before Stepping Foot in Court BOTH SIDES!!!!!!!! The opportunity to secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself. Know thy self, know thy enemy. A thousand battles, a thousand victories. The art of war teaches us to rely not on the likelihood of the enemy's not coming, but on our own readiness to receive him; not on the chance of his not attacking, but rather on the fact that we have made our position unassailable. Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win. To fight and conquer in all our battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting.

Evidence – Before Stepping Foot in Court • Know what you/they are trying to get in to evidence • Know who you/they will need to put in the “hot-seat” in order to lay the foundation • Know the foundation/predicate • Authenticity • Admissibility • Your Exceptions

Types of Evidence 1. Testimony 2. Physical Evidence 3. Documentary Evidence 4. Digital Evidence 5. Demonstrative Evidence

Types of Evidence 1. Testimony: spoken evidence given by a witness under oath in court or at a deposition, or written evidence given under oath through an affidavit. 2. Physical Evidence: Any proof introduced in the form of a physical object, whether whole or in part.

Types of Evidence 3. Documentary Evidence: Any proof that can be presented in writing (contracts, wills, invoices, etc.). However, term can technically include any number of media upon which such documentation can be recorded and stored (photographs, recordings, films, printed emails, etc.). 4. Digital Evidence: In recent years, the use of digital evidence in trials has greatly increased. Simply put, it is any type of proof that can be obtained from an electronic source, such as emails, hard drives, word processing documents, instant message logs, ATM transactions, cell phone logs, and so forth.

Types of Evidence 5. Demonstrative Evidence: This is a common form of proof, generally having the form of the representation of an object. Examples include: photographs, videos, sound recordings, x-rays, maps, drawings, graphs, charts, simulations, sculptures, and models, among others.

Evidence – Evidentiary Tree 1. Preliminary questions – Rule 104 2. Relevance – Rule 401 3. Authenticity – Rule 901 4. Self authentication – Rule 902 5. Hearsay & exceptions – Rule 801, 803 6. Best evidence rule – Rule 1001-1008 7. Probative value vs unfair prejudice – Rule 403

Evidence - Rule 104 Preliminary Questions For Admissibility 1. Qualifications to be a witness – Personal Knowledge 2. Existence of privilege. 3. Admissibility of evidence determined by the court. 4. Relevancy conditioned on fact – “connecting it up.”

Evidence - Rule 401 - Relevance 1. Does it have the tendency to make the existence of any fact “more or less probable?” 2. Relevance does not have to carry any particular weight. 3. The question is: “Does it have any tendency to prove or disprove a consequential fact in the litigation?”

Evidence - Rule 901 - Authenticity 1. Testimony of witness with knowledge: Rule 901(b)(1). 2. Comparison by the trier of fact, or by expert witnesses, with a specimen which has been authenticated: Rule 901(b)(3). 3. Circumstantial proof of the evidence itself: Rule 901(b)(4).

Evidence - Rule 901 - Authenticity 4. Public records. Rule 901(b)(1). 5. Evidence produced as a result of an accurate process or system. Rule 901(b)(9).

Evidence - Rule 902 Self Authentication 1. Official publications: Rule 902(5). 2. Self authentication by inscriptions, signs, tags or labels: Rule 902(7). 3. Authentication of regularly conducted business: Rule 902(11).

Evidence - Rule 801 & 803– Hearsay & Exceptions Rule 801 – Hearsay – Electronic Evidence 1. Is an electronic writing a statement by a declarant within the meaning of 801(a)? 2. A computer generated printout does not involve a person, so it cannot be hearsay. 3. The “header” on a fax is not hearsay. 4. Email offered to prove that a relationship existed between two parties to the conversation is not hearsay, it is an “operative fact.”

Evidence - Rule 801 & 803 – Hearsay & Exceptions 5. E-mails between parties to a contract that define the terms of a contract, or prove it’s content are not hearsay they are operative facts. 6. A failure to raise a hearsay objection means that the evidence may be considered for whatever probative value the finder-of-fact chooses to give it.

Evidence - Rule 801 & 803 – Hearsay & Exceptions Rule 803 – Hearsay Exceptions and Electronically Stored Information. 1. Rule 803(1) – Present sense impression. 2. Rule 802(2) – Excited utterance. 3. Rule 803(3) – Then existing state of mind or condition. 4. Rule 803(6) – Business records.

Evidence - Rule 801 & 803 – Hearsay & Exceptions 5. Rule 803(8) – Public records. 6. Rule 803(17) – Market reports, commercial publications.

Evidence - Rule 1001-1008 – Best Evidence Rule 1. Printout of e-mails shown to reflect the data accurately, is an original (and not the screen). 2. The question is: Does it accurately reflect the data?

Conclusion of Foundations • Always have your predicate printed and ready • During your Direct • During your Cross • During their Direct • During their Cross • Use your proof chart

YOUR EXHIBITS Prescription Pill Bottle Prescription Pill Bottle Photograph of Mary Sam’s Facebook Page Note from Sam to his attorney Email from Mary to her expert (Chris Norton) Joint Tax Returns Text Message (Screenshot) Text Message (Imazing software) AT&T Cellular Phone Records (not altered) AT&T Cellular Phone Records (altered) Deposition of Parties Police Report MMPI-2 Clinical Scales Expert Reports

Evidence – Basics of Tendering M - Mark I - Identify A - Authenticate O - Offer Once In Evidence Don’t forget to refer back to Ex-# and Page - # during trial

Testimonial Evidence - DIRECT Who, if anyone….? What, if anything….? When, if ever….? Where, if any place….? Why, if for any reason….? How, if at all….? AVOID – “ASSUMES FACTS NOT IN EVIDENCE”

Testimonial Evidence - CROSS DO NOT ASK OPEN ENDED QUESTIONS Try to restrict witness answers to “Yes” or “No” Cross – you are the focus of attention Suggest the answer with the way you ask your question Remember – on CROSS any matter relevant to any issue in the case, including credibility is fair game

OBJECTIONS Common Objections 1. Asked and answered • Argumentative • Assumes facts not in evidence • Best evidence • Compound • Foundation (be ready to give missing element ) • Hearsay • No personal knowledge • Nonresponsive • Irrelevant

OBJECTIONS • Leading and suggestive • Misstates former testimony • Calls for opinion / conclusion which witness is not qualified • Call for general narrative • Speculation / conjecture • Assumes facts not in evidence • Improper Hypothetical assumes fact / not in evid • Misleading as phrased

Rulings • Always get a ruling on your objection • Do not settle for a “Move along” response from the court. • If denied evidence: • Make substance of excluded evidence known • Make offer of proof: • What • When • Testimonial • Documentary

FINAL ARGUMENT • Track the promises made in opening • Yours – That you delivered as promised • Theirs – that they failed to deliver as promised • Don’t forget to weave your theme • Refer to witness testimony • Refer to exhibits (# and page) • Call to action • Shut up and sit down – they get it ALREADY!!!

LITIGATION ESSENTIALS