Trial and Lawyering Skills in a Nutshell
Author:
Hegland, Kenney F.
Edition:
5th
Copyright Date:
2016
30 chapters
have results for hegland's trial
Chapter 9. Taking Depositions 15 results (showing 5 best matches)
- you can tell the witness, “Go ahead and answer.” If you are interested in using the answer at trial, If you don’t rephrase and make it a proper question, your opponent can object at trial, and, if sustained, the answer won’t come in. On the other hand, if you don’t care about using the answer at trial, tell the witness to answer the question.
- pursuing the bad news is where the witness might not show up at trial. If the witness does not appear at trial, then the transcript will, like the ghost of Christmas Past. If it’s full of bad stuff, you won’t have a ghost of a chance.
- If you confront the witness, even if he or she can’t think of an explanation just then, by the time trial rolls around, you can expect a very fine one. On the other hand, if you save the confrontation for trial, there is always the chance that the witness has a good explanation, and you will look rather silly. Further, by waiting, you will not have time to check the truth of the explanation. And of course a substantial attack on the testimony during the deposition may cause your opponent to rethink the case and settle. That said, most advise to save impeachment for trial, even if you believe the case will probably settle.
- Most depositions are taken of adverse parties and of witnesses aligned with them. They are “hostile” in a strategic sense, not, necessarily, in the nasty stare sense. The other kind of deposition is the “friendly” deposition, geared towards preserving the testimony. I won’t spend any time on these as they are rare and can be treated as one-witness trials.
- Assume the matter will go to trial: What do you want to argue to the jury? What evidence will you need to support those arguments? What will your opponent’s theory be and how will you meet it?
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Chapter 24. Opening Statement 8 results (showing 5 best matches)
- Well, maybe not. In one of my trials the prosecutor told the jurors, “I am a pretty unpleasant fellow. At the end of the trial, you won’t like me. However, don’t hold this against the State.” Unfortunately, he was, and they didn’t.
- Trials are about the witnesses, exhibits, or jury instructions. Trials are about
- Closing Arguments? Preparing for trial you begin by figuring out what you will want to say in your closing. Once you have, then figure out what you want to tell the jury from the get-go. And remember you only have one chance to make a good first impression.
- In the trial advocacy literature, this is knows as a “theme” and litigators are advised never to leave home without one. Professor Tom Mauet tells us:
- The opening statement that tells all robs the trial itself of drama and surprise. Consider
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Chapter 25. Jury Selection 1 result
Chapter 19. Mad Dogs and Englishmen 6 results (showing 5 best matches)
- Why is it that there are so seldom discussions of morality in trial advocacy courses? Why is it that we just laugh at the nose story without pausing to consider its ethical implications? A student in a trial advocacy program told me, “In the breakout session, one of the lawyers said it is okay to dress up your witnesses so there is nothing wrong with dressing up their testimony. I thought that was sleazy.”
- Student, Trial Advocacy Workshop, Yesterday
- Never learn your ethics in trial advocacy courses. There are no real people. Arrows bloody no one: no real girl staggers from the stand, destroyed in front of friends and family. In practice, there are
- The critique trial advocacy courses is generally tactical:
- their clients how much they should attack opposing witnesses. (In trial advocacy courses, there is no one to ask.)
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Chapter 16. Trials 8 results (showing 5 best matches)
- Trial advocacy courses are wonderful but send the wrong message—trials are won or lost in the preparation, not in the techniques.
- trial notebook
- . Dan Cooper, a leading criminal defense lawyer, had just finished a four week trial.
- “After every witness, things changed. Every night I reread parts of the disclosures, witness statements, police reports. I must have read them all seven or eight times during the trial. There were several hundred pages. Every time I found something new and important.”
- Trial advocacy literature stresses the need to begin and end strong; we remember most what we hear first and last. My contribution to the literature, modest as it may seem, is: put the plumber in the middle.
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Chapter 15. Oral Argument 1 result
- . Do you want the court to remand the case to the trial court and order a new trial? Do you want an order for some particular relief? It is surprising how often lawyers, about to conclude their argument, cannot answer, “Assuming we agree with your position on the law, what do you want us to do? Let’s assume
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- about litigating, frolic), you’ll finish with your trial preparation a day or two ahead. In editing briefs or memos, a couple of days between drafts does wonders. (Stephen King, before editing a longer book, polishes off a couple of shorter ones—but he doesn’t have a day job.) Finish your trial preparation early, knock off for a couple of days, and then go back and see what you have. You’ll get a good sense of the forest, and you’ll spot some troubling trees. This checklist will help.
- that do not call for a narrative (“So, Dude, talk to me”) by setting parameters (“After you got the tattoo, but before the nose ring, what did your parents say?”)? Are you familiar with the importance of silence in focusing attention? Are you familiar with the common trial objections and know not to make them simply because they’re there? Conducting examinations, will you
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Chapter 1. Coming Attractions 5 results
- To prepare “General Trial Material,” get the Evidence Code online and cut and paste what you think you’ll need in the future. If your cases will involve specific statutes, cut and paste. Also have files on things you might need in trial: “Preparing Witnesses,” “Objections,” “Prior Inconsistent Statements,” “Crossing Experts,” and so forth. The material you file in “Cases” is self-evident.
- TRIAL SKILLS
- trial objections
- I would use my chapter names and title the file “Lawyering Skills”. You’ll need two other sections, “General Trial Material” and “Cases”.
- , and see how it effectively makes use of details, physical actions and surprise endings. Then we’ll look at issues concerning the overall structure of your case and consider whether you should draw the sting. The overlooked strategic choice: preparation. Alas, trying lawsuits in real life is far more difficult than in trial advocacy courses.
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Chapter 7. Planning Investigations 2 results
- Another time frame: the trial itself.
- To admit photos at trial you will need someone to testify that the photo is a “fair and accurate” representation (as opposed to, say, one that is “fair and balanced”). Since, as the lawyer, you can’t testify, as that would put your credibility at issue, you will need someone else to do so. If the size of the photographed object may be unclear, include something of known size, a pencil, or a dinosaur.
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Chapter 3. Telling Stories 1 result
Chapter 22. Closing Argument 3 results
- “Ladies and Gentlemen of the Jury, I would first like to thank you for your attention during the trial.”
- As to the mechanics of making the argument, trial lawyers advise you to address your argument to jurors at the back in order to maintain proper voice level (unless you are trying the whisper route), move around (unless you have to stay put), and make use of your charts and exhibits.
- Before trial make a list of the evidence you want in. As you go along, check off.
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Chapter 18. Direct: Credibility 4 results
- Most trials come down to this. We believe:
- you; they think that their testimony is key. Deal with this before trial.
- the witness to the courtroom before the trial and have the witness sit in the witness chair.)
- than you think. In Moot Court or Trial Advocacy courses, we have all been assigned the “clear loser,” only to find, after our hard work, that we were lucky because we drew the clear winner. The adversary stance distorts.
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Chapter 8. Interviewing Witnesses 6 results (showing 5 best matches)
- The danger is that Pinocchio might lie. You can impeach him at trial with his prior statement (“You never mentioned in your statement seeing Humpty stand and jump, did you?”), but, if you confronted him in the interview, he’ll have had time to think of a plausible explanation (“I couldn’t work it into the rhyme scheme”).
- This is one of the most difficult problems in trial: if you don’t know the answer, should you ask a question where one answer will do you great good while the other will inflict great harm?
- Our profession puts us in awkward positions. One is where you are to interview hostile witnesses. Your goal will be to find holes in their stories and ways to possibly impeach them at trial. But you won’t get very far with:
- “Before we begin, let me tell you I won’t believe a word you tell me and I’ll be looking for ways to destroy you at trial. Now, tell me your story.”
- None of what you get has any evidentiary worth in the sense that if the witness changes their story at trial they cannot be impeached with their prior inconsistent statement unless you had someone with you to testify to prove it up. (As the lawyer, you can’t be a witness.) But most witnesses do not change their stories so loosen up. Of course it is
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Chapter 29. Questions 1 result
Preface 2 results
- There are many wonderful books on trial practice, negotiation, discovery, interviewing and counseling, but if you, like me, suffer from (or blessed with) a short attention span, you need quicker, not thicker.
- You’ll eventually master trial and lawyering skills but there is so much more at stake.
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Chapter 5. Interviewing Clients 1 result
Chapter 20. Friendly Cross 3 results
- Of course, there are no guarantees in trial work (and that’s why writing about it, as opposed to doing it, is so much fun). When I was a public defender, a colleague was defending a burglary and the victim, an elderly woman, had testified on direct that no one was in her apartment when she returned to find it torn apart.
- In trial manuals clever questioning always works; standing before live witness, not so much. The best advice remains the same:
- With that condescending pomposity of professionals, the expert testifies, “I did test ‘X’ and my scientific conclusion is ‘Y’.” The jury will hate her but probably will believe her. And she will probably destroy you if you attack the core of her testimony by attempting to show test ‘X’ is invalid or that she performed test ‘X’ improperly. Her very pomposity attests to her competence. A better strategy is to develop the negatives. Before trial, find out what other kinds of tests can be used to reach the conclusion ‘Y’. Your cross will look something like this:
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Chapter 26. Preparing Your Witnesses 1 result
Chapter 10. Defending Depositions 4 results
- want “I don’t know.” Remember that “I don’t know” is a legitimate response to a deposition question (unlike that in an interrogatory where there is a duty to investigate). Will “I don’t know” hurt you at trial? If not, no need to educate, and this might be the best route.
- Tell witnesses that they will get the chance to tell their side at trial. Tell them it is fine to admit, if asked, “inconvenient facts,” and warn them that
- . While long pauses look bad at trial, they will not show on a written transcript. You may also want to warn them, by way of illustration, of leading questions and rapid fire questioning which can confuse the honest as well as the dishonest.
- Lawyers never allow their clients to testify at trial unprepared yet many have their witnesses simply
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Chapter 21. Hostile Cross 2 results
Index 5 results
Epilogue: Thanks 1 result
- Another approach to avoid the march through the irrelevancies is to advise the witness before trial that when you ask, “What happened after the crash?” she should relate the arrival of the ambulance and skip the intervening events. The problem is that the witness will come off coached and partisan, jumping for the jugular without prompting.
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Outline 3 results
Chapter 6. Counseling Clients 1 result
- Self-interest may affect your advice: your desire to go to trial, to hang tough with the other lawyer, or to impress a supervisor. When I was a poverty lawyer, I filed several class actions; thinking back I realize I was so anxious to further the interests of the class (and punish the bad guys) that I may have overlooked the interest of the named clients.
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- Publication Date: October 20th, 2015
- ISBN: 9781634597456
- Subject: Trial Practice
- Series: Nutshells
- Type: Overviews
- Description: A short, funny, insightful, and occasionally philosophical guide to what you’ll need to know, planning and conducting trials, interviewing and counseling clients, negotiating cases and drafting deals, writing briefs and making oral arguments, solving problems and telling stories and using your computer to make you a better lawyer. And some good poems and bad jokes.