Civil Procedure I

10 November

• Trial demonstration stuffs.
• Voir Dire: selecting a jury. 50% of the people don't want to be there, and hate you. 25% are interested and paying attention. 25% are crazy. The crazy ones will decide the case. The 6 or 7 who don't care won't influence things: you want the people who will enter the jury room and say "That guy is so guilty" or not. You can use evidence in your opening statement. Eleven things to think about.
  1. The good things and the bad things in your case.
  2. The themes in the case: training, pressure, etc.
  3. Who do you want? People with certain backgrounds? Who don't you want?
  4. What about the other side: who does the other side want and not want.
  5. You want the jurors' beliefs and feelings, not thir demographics and stereotypes. Ask them "why" a lot. Ask about their experiences and feelings.
  6. Be kind, gentle, and supportive of the jurors: reinforce them with positive feedback.
  7. Think about strikes for cause: what types of jurors can we strike for cause (not just ones who know someone, or can't be impartial). What other connections might there be?
  8. Elective strikes: people you don't want.
  9. Think about Batson challenges: if you strike the last person of a protected class, be prepared for a challenge, and be able to deal with it.
  10. This is a great place to foreshadow what you're going to do in your case. Set yourself up to be able to say "remember the first day, when we talked about..." Technically you can't really talk about this (it's not part of the case), but it never gets objected. You can use the good things that happen in voir dire to your advantage.
  11. You can't ask hypothetical questions, but you can ask specific fact questions that relate to your case (e.g., "do you think it's OK for the police to use chokeholds on unarmed suspects?").
  12. Be organized. You'll be talking to 100 jurors, and they will all be watching what you do. Do things quickly, no obvious flags, etc..
• Fascinating use of "monday morning quarterback" and "hindsight is 20/20." Concern about amount of taxes, insurance. Also, let jurors testify to one another: if they have viewpoints that help you, let them keep talking-- they are going to get struck by the other side, but they will infect the jury pool for you.
• Should he bring up Rodney King? We want to find people who remember it and are angry about it, but we don't want people to be polarized by it.
• Usually the whole panel hears everything, incidentally.
• The opening statement: case is often won or lost here. Closing is less important; the case is long gone by then. Things to think about
  1. Develop a theory of the case
  2. Develop a theme of the case (soundbite)
  3. Hunks of information come in threes
  4. Preview the evidence, witnesses, and exhibits
  5. Keep your promises: if you promise a witness who says X, you must deliver.
  6. Never say "the evidence will show." People will mock you.
  7. Primacy and recency: start strong, finish strong. Don't waste time.

  "Thirty seconds," "that's enough," "what happened to Raheem when he was down on the ground." Wonderful subtlety: "I have the honor of representing Lewis Jackson, and honoring the memory of his slain son Raheem." The story is told in the most sympathetic way possible. The last thing Raheem heard, felt, etc.

  Talks about the burden of proof.

  Hold the officers responsible, compensate his dad, help us keep this from happening again.

• The "this is bad for my case" objection: put your head down, take some notes, act like it doesn't matter. Don't call extra attention to it.
• Re-watch video: did Raheem break away from officers briefly?
• Cross-examination: picks a phrase, and is argumentative at first. Wow-- he makes the fact that the police report says Raheem is African-American seem sinister.
• On direct: focus should be on the witness, not the attorney. Ash short and directed questions and let the witness talk. Don't object too much: the jury will think you are keeping information from them.
• On cross: don't ask why. Don't ask anything you don't know the answer to. Instead, think about what you need from this witness. Cross becomes your material for closing. You are either impeaching with bias or impeaching their ability to know. Don't always ask the ultimate question (i.e., was the amount of force reasonable?)-- if the jury can reach the conclusion on its own without spoon-feeding, you'll be better off. On cross, the attorney is testifying, and the witness is just saying yes or no. It's better to end a question early than to go on too long. Work in some of the theme soundbites.
• On re-direct, you can probably slip in one or two leading questions before anyone will catch on and object.
• Juries don't like it when a witness is picked on-- they identify with witnesses. Also, jurors watch you all the time: let them know whether what they're hearing is important at all.
• How to close:
  1. Keep it short.
  2. Talk about the evidence, exhibits, testimony.
  3. You can not use the golden rule argument ("what if this had been your son"). Instant mistrial. Much trouble. This is too inflaming to their passions.
  4. Can't make a "per diem" argument (i.e., $100/day for loss of son).
  5. Don't object unless there's a horrible misstatement of evidence. Plaintiff's lawyer especially: you get a chance to rebut.
  6. Empower the jury: make them feel important.
  7. Reiterate theme/theory.
  8. Talk about the law. Review/memorize the credibility jury instruction: it will turn up in every case.
  9. Show how the evidence fulfilled your argument
  10. Finish strong: soundbite/encapsulation of the case.
• ASA: Assertion, support, application.

13 October

• Papers will be graded on Monday.
• The mock trial: it will be part of class participation, but will not be graded per se.
• 75 minutes on Wednesday: settlement exercise. Interesting psychological point-- an attorney's attitude about going to trial (excited about it, dreading it) might influence the willingness to settle. Of course, being ready to try the case makes you less likely to give stuff away, and frees you from the obligation to want to settle merely because you're unprepared and trial could be a disaster.
• One of the ways that lawyers add value to the settlement process is to cut through some of the irrational rules of thumb, etc., that tend to govern lay persons (e.g., assigning too much meaning to an initial offer/demand). "Respect the ritual:" it's hard to start at your bottom line. It's easier to make an offer with the expectation that you can work a little bit-- kind of a saving face thing. Everyone knows it's partially a game, but it's important nevertheless to making sure that people are satisfied.
• Expert witnesses
  The plaintiffs might need some kind of expert. Daubert tells us that experts need certain qualities: education, training, experience, or a special skill that sets them apart from ordinary folks. Jurors are able to resolve things that are a matter of common sense, but not all things are.

  For example, if a settlement is supposed to cover many years of loss, a dollar today is worth more than a dollar five years from now. So this concept of "present value" in a money damages case needs to take this into account.

  You can imagine a spectrum of cases. There are times when you don't need an expert, or times when you don't need an expert to rebut the other side's expert, or times when expert testimony could just blow up in your face.

  A fair amount of the time, it's not clear whether you need an expert or not. But note: if you want to introduce opinions or facts that are not common knowledge (e.g., alternative chokehold techniques), you might need an expert to get that point across. You need witnesses to put facts in: you can't introduce facts not in the evidentiary record.

  This is why there are in-depth disclosure rules for experts (Rule 26): you turn this stuff over the other side well in advance without being asked. There are specific pieces of information you have to give: CV, other cases worked, hourly rate, a written report regarding conclusions, etc. And then the deposition.

  Judges screen expert witness testimony, as well. See Daubert, for example: the lower courts excluded the expert witnesses. FRE 702 lays this out in detail.

• "Percipient witnesses:" like eyewitnesses but not confined merely to visual perceptions.
• Writing the facts section in our Brief:
  We need to tell a factual story based on all the evidence: most of it is stuff we don't need. We need a reference for every fact. The one affidavit that truly helps the plaintiff is the Mike Scott one.
• So now we are arguing that as a matter of law, the use of force was not excessive. Plaintiffs are going to say that their expert's testimony raises a material issue of fact: if a qualified expert could come to this conclusion, then so could a jury. So we need that evidence not to be admissible-- we need to attack it on evidentiary grounds.

  Summary judgment (see Celotex, and also the rule): summary judgment is based on admissible evidence. So we need that opinion to be inadmissible. So take Rule 702 and Daubert (on which 702 is based), and go for it.

  We can use information from discovery to which there were objections. Don't assume those obejctions were valid.

• Every topic sentence should state a legal rule, identify an issue (i.e., a significant disagreement between the sides), or it should make an argument. Anything else is not a good one. A topic sentence that merely offers a transition is the weakest possible thing.

  Also, look at them in reverse: impose paragraph discipline. Make sure that the key point of each paragraph is in the first sentence. That also means that the scope of the paragraph is defined in the topic sentence-- this means that you'll ever broaden topic sentences or chop paragraphs up.

  If writing is unclear, these reasons are more often than not the cause.

• The trial. For motions in limine, see supplement on rule 404. Also, probably, see rule 404. There will be rebuttal. These will be 2-3 minutes each.
• Common rookie mistake: on direct examination, asking too many leading questions; on cross, asking too many open-ended ones.
• Good open-ended question techique: who, what, where, how, when, why, or explain? And sometimes "did you?"
• Never ask why on cross: you don't want to give the witness a chance to explain. You want *your* witnesses to have a chance to explain, though.
• JMOL: Rule 50 (formerly "directed verdict"). Pretty much the summary judgment motion. Facts come from the testimony of the witnesses and the exhibits that have been admitted into the evidence, but the legal tests are the same as summary judgment.
• Jury instructions are based on legal research-- someone tries to distill the legal standards down into bullet-point form. Note that there is a danger in being too successful here-- you set yourself up for reversal on appeal.
• Closing argument is the only time you get to talk directly to the jury about your interpretation of the facts. Don't re-hash the opening statement; talk about what the evidence means. Argue ingerences.
• Post-trial motions either revisit JMOL or motions in limine. Bascially, you're arguing that the jury did something unreasonable. We want a do-over.