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A. Using Jury Questionnaires
In very few cases will you be able to convince a judge to allow the use of written juror questionnaires. First, they take extra time. Second, in Maricopa County, the jury selection process is just not very conducive to jurors preparing written answers to a series of probing questions. Juror questionnaires, however, can be quite valuable in the right case. Although the judge orders the questionnaire submitted to the jurors, it is the attorneys who are responsible for drafting the questionnaire. Preparing juror questionnaires requires that both sides cooperate. Chances are, the judge will allow only one questionnaire and, of course, both sides will get to see all of the answers.
Questionnaires allow you to obtain information quickly, but they should be followed by at least some oral voir dire. If you have a case that is going to be complex, or if you have a high profile case that has had considerable pretrial publicity, then you may be able to convince the judge that juror questionnaires will be worth the extra effort they take. If pretrial publicity is a possible problem, questions about the jurors’ knowledge of the case are appropriate. While questionnaires are best used to obtain sociological data about the jurors, they are being used more and more to address specific facts of the case. For example, in the Rodney King civil case, question #109 asked: “What was your personal reaction to the verdicts in the state court trial?” Levenson, The Future of State and Federal Civil Rights Prosecutions: The Lessons of the Rodney King Trial, 41 U.C.L.A.L.Rev. 509, 530 n. 115 (1994). Clearly, this is a powerful question; questions such as this could play a pivotal role in selecting a juror, and in turn the outcome of a case.
Another advantage to using a juror questionnaire is the increased chance of receiving an honest and candid response from the juror. Some jurors may feel nervous about speaking in open court. The use of juror questionnaires serve to alleviate this added pressure on a juror, and there are indications that absent this pressure, some jurors give more candid answers in their questionnaire responses than in oral voir dire. Green, Juror Anxiety Can Be a Wild Card During Trial, NAT’L L.J., Sept. 26, 1994, at p. A22.
Juror questionnaires for many high profile cases are available online. The Kobe Bryant and O.J. Simpson questionnaires are very extensive. For the Kobe Bryant trial, the questionnaire had 82 questions. Some of the questions were basic questions about marital status, date of birth, place of birth, gender, employment, etc. However, most of the questions were designed to obtain specific information about the prospective juror. For example, one of the questions asked, “do you think that when a person is accused of a crime, he is probably guilty?” Another question asked, “do you think that people who make a lot of money are treated better by our court system than other people?” In most cases, prospective jurors were asked to explain their answers. If you are curious about the Kobe Bryant juror questionnaire, you should be able to find it at http://courttv.com/trials/bryant/docs/juryquestions.html.
Obviously, you will need to tailor your questionnaire somewhat to the specific facts of the case. And, the Court will provide you with some information pursuant to Ariz.R.Civ.P. 47(a)(4). Below is a general outline of questions to consider if you prepare a jury questionnaire:
1. (a) Do you have a job that requires regular or periodic travel away from your
usual home base? Yes ___ No ___
(b) If yes, briefly explain the job requirements.
2. Do you have any difficulty reading or understanding English? Yes ___ No ___
3. (a) Do you have any physical problem (for example with your sight or hearing)
that would interfere with your ability to serve? Yes ___ No ___
(b) If yes, please describe: __________________________________________
4. (a) Are you regularly taking any medication that could affect your ability to
serve? Yes ___ No ___
(b) If yes, please describe: _________________________________________
5. (a) What is your age? ______________
(b) Are you: Male __________ Female __________
6. What is your place of birth? (Please provide the town, city or county and state
or, if outside the United States, the country.) ___________________________________
7. What is your ethnic background, e.g., Irish-American, Italian-American,
African-American, etc.? ___________________________________________________
8. Are you:
Single, Never Married? __________________
Widow, Widower? _____________________
9. (a) Have you any children? Yes ___ No ___
(b) If yes, please fill out the chart below:
Type of employment ___
10. (a) What is your county of residence? ______________________________
11. How long have you lived at your present residence? ___________________
12. Do you:
Own your own home? ____________
Neither own nor rent, but live with family/friends? ______________________________
13. Are you: (Check any and all that apply)
Employed Full-time? __________________
Working Part-time? _________________
Working in the Home? _________________
Unemployed/laid off? ________________
Disabled and unable to work? ____________________
14. (a) If you are employed, what type of work do you do? (If retired or
unemployed, what type of work did you last perform?) ___________________________
(b) Do you (or did you) supervise employees in your work? Yes ___ No ___
If yes, how many? ________________________________
15. Do you belong to a union?
16. Please state who else in your household works outside the home and the
type of work performed. ___________________________________________________
17. (a) Have you ever served in the military?
(b) If yes, when? _____________________________________________
(c)In what branch? ______________________________________________
(d) What was your highest rank? ___________________________________
(e) Any combat duty? Yes ___ No ___
(f) Did you ever participate in any capacity in a court martial? Yes ___ No ___
If yes, describe your participation. ____________________________________________
18. (a) What was your highest level of education?
0-8 grade ____________
Some high school ____________
High school graduate ____________
Some college ____________
College graduate ____________
Some graduate school ____________
Post-graduate degree ____________
(b) If you are presently a student, please describe briefly your area of study.
(c) Name any degrees you have earned and your major areas of
________________________________________________________________________ (d) Even if you have never earned a law degree, please describe any law
courses you have had (for example business law courses in college, paralegal programs).
19. What newspapers and magazines do you read regularly?
20. What television news shows do you watch regularly?
21. Do you belong to any clubs, associations or civic groups such as, but not
limited to, Kiwanis, Rotary Club, Exchange Club, Knights of Columbus, Veterans of
Foreign Wars, American Legion, American Civil Liberties Union, National Rifle
Association, League of Women Voters or any other organization?
Yes____ No ____
If yes, please list those to which you belong. ___________________________________
22. Do you have any relatives or close friends who are lawyers or who have
attended law school?
Yes ____ No ____
If yes, please describe your relationship with the person and, if you know, the type of law
he or she practices (e.g., uncle – real estate law; neighbor – criminal law). _____________
23. Have you ever sued anyone or been sued by anyone?
Yes ____ No ____
24. Have you or any family member ever appeared or testified as a witness in any
investigation or legal proceeding?
Yes ____ No ____
25. Are you a member (or affiliated in any way) of a religious denomination
(e.g., Baptist, Pentecostal, Catholic, etc.)?
Yes ____ No ____
If yes, describe the denomination. ____________________________________________
26. Do you attend church:
27. (a)Do you suffer from any chronic illness or disease (e.g. insulin dependent
diabetic, degenerative disc disease)? Yes ___ No ___
(b) If yes, explain. _______________________________________________
28. (a) Have you been hospitalized for any physical, mental or emotional problem
within the last 3 years? Yes ___ No ___
(b) If yes, please describe the circumstances. __________________________
- Making the Most of Voir Dire
There are certain pieces of information that you need in uncover in each case. Pursuant to Ariz.R.Civ.P. 47(a)(4), “[t]he court shall furnish counsel with the name, zip code, employment status, occupation, employer, residency status, education level, prior jury duty experience, and felony conviction status.” However, you will need to engage in some probing in order to determine whether a prospective juror may help or hurt your case. Discover the basics of a juror’s life; what they read, what television shows they watch, what social organizations they belong to- these are areas you want to explore. Conlin, Effective Voir Dire in Sex Discrimination Cases, 29 Trial 22, at 24 (July 1993). Additionally, find out whether the potential juror has ever been a party to a lawsuit, prior occupations, prior injuries, damages, and other information as it may relate to your case.
The goal of voir dire is to get honest information from the jury. This can only be done by asking open-ended questions. Asking closed-ended questions will only hamper your ability to get meaningful answers. Put some thought into your questions and prepare at least some of them in advance. Remember that your questions should be designed to get the jury to talk, even if they ramble. Try questions that start with “how” or “why.” Avoid asking whether a juror can be fair or impartial because you likely will not receive any meaningful type of response.
Most people refer to voir dire as a jury de-selection process. It has been said, “At most you can ‘unpick’ some of the worst jurors,” however voir dire is helpful for several reasons. McElhaney, Picking a Jury, 18 Litigation 43, 44 (Wint. 1992). First, you have an opportunity to learn information about the prospective jurors so that you can use a peremptory challenge or a challenge for cause. Second, you get to introduce the basic theme and facts of the case through your questions. Third, you get to learn about the prospective jury, which could help you to decide how to present your case, including what areas to emphasize. Fourth, you get an opportunity to establish a bond with the jury.
Voir dire is the first opportunity to speak with the jury, so it is important to make a good first impression. During voir dire, you want to start establishing your credibility in front of the jury and start developing a rapport with the jurors. As a result, you do not want to unduly embarrass them or make it appear as if you are putting them on the spot. If there are certain questions that you think might be embarrassing, but need to be asked, try to get the judge to be the one who asks those difficult or embarrassing questions. Most judges will do so if you ask. Jurors are poorly paid as it is. There is no reason to embarrass them.
Listen to and observe the responses of the prospective jurors. This cannot be over-emphasized. Many attorneys don’t listen. Instead of thinking about what the next question should be, listen to the prospective jurors. You must also watch the jury panel. Pay attention to the appearance and reactions of the prospective jurors, as well as the body language of the prospective jurors. See generally Fahringer, “Mirror, Mirror on the Wall….”: Body Language, Intuition, and the Art of Jury Selection, 17 AM.J.TRIAL ADVOC. 197 (1993).
When conducting voir dire, aim for a conversational tone, and project friendliness. Smith, Challenges of Jury Selection, 88 A.B.A.J. 35, at 36, 39 (Apr. 2002). Don’t talk like a lawyer. You want to connect with the jury, and you will not be able to do this by using terms that are unfamiliar to normal people. Even during the course of the trial, it is best to use normal objections. The jury does not know what constitutes a Rule 403 objection. It is unlikely that an average juror would be able to explain the term “product liability.” If you talk like a lawyer, you are only going to confuse the jury or lead them to a misguided decision. Therefore, it is important to talk like a normal human being from the beginning.
Use a little common courtesy when dealing with a prospective jury. Always be prepared, don’t interrupt a juror, use eye contact, act like a professional, and don’t refer to a juror by a number. If you’re the type with a tendency to forget names, think about making a list, or a jury box diagram, in order to remember. As the juror is seated, and her name called out, write the name down. To prevent butchering the juror’s name, many attorneys write down the phonetic pronunciation of the juror’s name. W. Brockett & J. Keker, Effective Direct and Cross-Examination § 10.16, at 224 (1986).
Finally, the questions listed in the previous section may form the basis of voir dire questions. However, those questions were generic and could be applied to any type of case. The following are specific voir dire questions that may be helpful:
- “What feelings do you have about cases involving product related injuries?”
- “This is a case against a corporation. How do you feel about the fact that a corporation is involved?”
- “How do you feel about the fact that twelve citizens in this community can by their verdict tell a corporate manufacturer that it made an unsafe product?”
- “Do you believe that a real estate broker must perform certain duties to earn a commission in connection with a property transaction? If so, what are they?”
- “Have you ever been dissatisfied with the representation you received from a real estate broker?”
- “Is there anyone that believes that just because someone loses money in a business deal, that someone else must be at fault for that loss?”
- “If you find the manufacturer responsible for the injuries, it’s also your responsibility in this type of case to assess the amount of damages. How do you feel about assuming this responsibility?”
- “How do you feel about people bringing lawsuits to get money for their injuries?”
- “How do you feel about our court system which provides that injured people can seek money damages for their injuries?”
- “In addition to medical bills and lost wages, Plaintiff is asking for money for pain and suffering caused by this collision – how do you feel about that?”
- “How do you feel about placing a dollar value on pain and suffering?”
- “How many agree with me that frivolous claims should be rejected by jurors?”
C. Handling Juror Challenges
Lawyers don’t select juries. Lawyers de-select juries by eliminating undesirable people from a group of people that actually shows up for jury duty. It is often difficult to pick the truly undesirable people from the group. That’s why there is a niche market for jury consultants in the first place. Typically, lawyers de-select jurors through a combination of information, experience, intuition and instinct. However, it is the unpredictability of a jury that is a factor in why so many cases settle before trial.
You can challenge a juror for cause for any of the following reasons:
- If the juror is expected to be called as a witness. (A.R.S. § 21-211)
- If the juror has a direct or indirect interest in the matter. (A.R.S. § 21-211)
- If the juror is related “by consanguinity or affinity within the fourth degree” to one of the parties. (A.R.S. § 21-211).
- If the juror is biased or prejudiced in favor or against one of the parties. (A.R.S. § 21-211).
- If the juror is not 18 years of age. (A.R.S. § 21-201).
- If the juror is not a citizen of the United States. (A.R.S. § 21-201).
- If the juror is not a resident of the jurisdiction in which he or she is summoned to serve. (A.R.S. § 21-201).
- If the juror has been convicted of a felony, unless the juror’s civil rights have been restored. (A.R.S. § 21-201).
- If the juror is currently adjudicated mentally incompetent or insane. (A.R.S. § 21-201).
- If the juror fails to meet any other statutory qualification.
Some of the above listed juror challenges have applicable case law you should review before using to challenge a juror. For example, to challenge a juror on the basis of bias or prejudice in favor or against one of the parties, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip. Inc. v. Greenwood, 464 U.S. at 556, 104 S.Ct. 845. You must remember to keep such requirements in mind, as you never know when a judge might inquire as to your grounds for a cause challenge.
Additionally, each side receives at least four peremptory challenges. Depending on the number of alternate jurors, each side will get additional challenges. If there are to be 1 or 2 alternate jurors, each side gets one extra challenge, if there are to be 3 or 4 alternate jurors, each side gets two extra challenges, and if there are to be 5 or 6 alternate jurors, each side gets 3 extra challenges. Ariz.R.Civ.P. 47(f). Additionally, if two or more parties on a side have adverse or hostile interests, the court may allow additional challenges, as long as each side has an equal number of challenges. Ariz.R.Civ.P. 47(e). Parties exercise their challenges by alternate strikes, beginning with the plaintiff. Ariz.R.Civ.P. 47(a)(3). If a party fails to exercise a challenge, it forfeits its remaining challenges. Id.
The United States Supreme Court has held that the use of peremptory challenges to strike jurors based solely on race or gender violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). The Supreme Court in Batson articulated a three-part test to determine whether the use of peremptory challenges was discriminatory and impermissible: (i) the party opposing the strike must first present a prima facie case of racial discrimination; (ii) the burden then shifts to the party who made the strike to provide a race-neutral explanation; and (iii) if a race-neutral explanation is offered, then the judge must determine if discrimination occurred. Under Batson, the party alleging discrimination has the initial burden of persuasion, however, if the opposing attorney can make out a prima facie case of racial discrimination, you will need to articulate a nondiscriminatory reason for striking the juror. Purkett v .Elem, 514 U.S. 765 (1995).
Most studies have found that demographics have little predictive value. Instead, jurors make decisions based on a variety of factors, including their knowledge base, values, beliefs, attitudes, and experiences. Every juror is different. For better or for worse, jurors typically obtain much of what they know about the law from the media. Jurors can hold their own preconceived notions about the legal system based solely on their exposure to television. During voir dire, you need to learn the perceptions of the jury of the legal system. Because jurors may have formed opinions about cases where they have little information about the facts (i.e. the McDonalds/coffee case), you need to probe the experiences of the jurors to determine whether they are desirable or undesirable.
PART THREE: CARRYING OUT YOUR STRATEGY AND CASE THEME AT TRIAL
- Opening Statements – Effectively Delivering the Burden of Proof
Many would consider the opening statement to be the most important part of a trial. The opening statement is your first chance to present your case to the fact finder and to present yourself and your client as believable and credible sources of information. Even if a juror doesn’t reach a decision when listening to your opening, most jurors will start to make up their minds early. “[P]eople do not enjoy stress, and indecision is stressful. Most will form a strong inclination to find a particular way early in the case just to relieve the pressure.” Wilkens, The Art of Opening Statement, 25 Trial 56, at 57 (Nov. 1989). Jurors then spend the rest of the trial looking for reasons to confirm their initial impressions, and may even choose to selectively ignore information that contradicts their initial impressions. While we would all like to believe that every part of a trial has meaning to the fact finder, it is impossible to ignore the fact that many jurors make up their minds about the case before the first witness is called to testify. It may be cliché, but an attorney doesn’t get a second chance to make a good first impression.
Do not talk like a lawyer. Use common language. Before preparing an opening statement, closing arguments, or questions for the witnesses, think about the words you want to use to describe the key elements of your case. You then want to keep coming back to those words or phrases. Keep things simple. At the same time, respect your audience. Treat them as equals. Do not talk down to the jury. The jury needs to understand that getting your ideas over to them is the most important job you have.
As stated above, keep your audience in mind. Today, the largest group of individuals serving on juries are those “whom grew up in the 1970s and ‘80s….” Hansen, Reaching Out to Jurors, 88 A.B.A.J. 33 (Feb. 2002). Generally, these “Generation Xers” are “less patient than older jurors.” Id. As such, it is important to get to the substance of your opening quickly. Also, keep the rules of opening statements in mind. The opening statement has a narrow purpose, which does not include becoming “argumentative,” or attacking the credibility of witnesses who have not yet testified. United States v. Dinitz, 424 U.S. 612 (1976) (Burger, C.J., concurring). Save overt emotion and hyperbole for later. Once you have captured the jury’s attention and done your introductions, you have two more goals. First, tell the jurors what to expect and alert them to the evidence they should look for as the trial progresses. Second, tell your story in a compelling way that works with your theme.
Do not say you are outraged; tell the jury your story in simple words so that the jury becomes outraged. Be cautious about being too detailed in outlining the evidence. Give the jury the facts in “broad strokes” and avoid “over-informing” them. S. Hamlin, What Makes Juries Listen 113, at 125 (1985). An attorney must avoid overstatement. Clifford, Credibility of a Case Depends on a Lawyer’s Personal Believability, NAT’L L.J., Feb. 8, 1993. You do not want to promise something you cannot deliver. Id. If you promise to prove something, the jury may think that you have to prove it to win.
The most important part of the opening statement is the first minute or two. In this brief period of time, you should communicate to the jury the theme of the case, the summary of facts which entitle your client to a favorable verdict, and, most importantly, your enthusiasm about the case. Use a “hook” to grab the jury’s attention. Perlman, The Compelling Opening Statement, 30 Trial 64, at 67 (May 1994). At this point in the game, the jurors are anxious and wondering what the case is all about. They are receptive to information at this point more than at any other point during the trial. The jurors are also looking for someone who they can trust and rely upon. Therefore, the first few minutes of the opening statement must start by demonstrating that enthusiasm and confidence about the case.
Preparation is usually the key to delivering an effective opening statement. It is often better to prepare the closing argument before the opening statement because doing so helps in focusing the theory and themes of the case, the disputed and undisputed evidence, and which parts of the case to emphasize and de-emphasize. An attorney responsible for delivering an opening statement should rehearse as much as possible. The time spent preparing for the opening statement is invaluable. While some attorneys prefer to practice an opening statement in front of a mirror, it is usually more productive to practice in front of an audience. If possible, the audience should consist of people who are familiar and unfamiliar with the case. People who are familiar with the case will be able to point to specific facts or themes which ought to be mentioned in the opening statement. Conversely, people who have no prior knowledge about the case will be similar situated to the fact finder and should be able to judge the true effectiveness of the opening statement. After presenting the opening statement, the audience should candidly evaluate the opening statement for content, inconsistencies, and other factors. If you do not have the luxury of putting together an audience to evaluate the opening statement, you should try to at least videotape yourself practicing the speech. Videotaping the opening statement is also convenient because you can watch the tape several times and rewind or fast-forward certain portions.
The purpose of rehearsing the opening statement should be to make it as effective as possible. You need not memorize the opening statement, but should memorize the general outline you plan to present. If you memorize the opening statement verbatim, there is a good chance it will come off to the jury as being forced and without emotion. Moreover, if you forget a word, you may stumble, which would also come across poorly to the trier of fact. Alternatively, if you rely on notes, you could neglect the trier of fact. Eye contact with the fact finder is essential to developing credibility.
Just like teachers use visual aids to help their students learn materials, an attorney should use visual aids to help the trier of fact to understand the case. If a particular exhibit is predominant throughout your case, and plays a role in the theme of your case, seek permission to display the exhibit during your opening statement/
Ideally, the goal of an opening statement should be to present the facts in some detail to paint a picture of the case, and using various forms of media is an effective way to paint a picture. In People v. Green, the showing of a motion picture was allowed during the opening. People v. Green, 47 Cal.2d 209, 302 P.2d 307 (1956). In People v. Kirk, an attorney was permitted to play an audiotape during his opening statement. People v. Kirk, 43 Cal.App.3d 921, 117 Cal.Rptr. 345 (1974). Today, you can choose from a wider array of visual aids to present the opening statement. For example, you can use a PowerPoint presentation to present an outline or timeline of a case. While there are only a few “E-Courtrooms” in the Valley, it does not take much to put together a PowerPoint presentation. You just need a computer, a projector, and a screen. In other situations, you may opt for something a little more foolproof. These days, it is easy to create professional looking charts and graphs on cardboard paper to present the case. In some cases, it may even make sense to enlarge key documents or pictures. In addition, you may want to consider purchasing presentation software which allows the user to enlarge, focus, or enhance the view of a scanned document. Some software programs even allow you to highlight or make notations of a document, akin to a teacher writing on a blackboard.
The available technology today makes it easy to create multimedia presentations with high production values. The advantage in creating a multimedia presentation is that it will help the trier of fact learn and process information, and will provide the fact finder with a proper framework for understanding the trial. Visual aids also enhance juror retention and heighten interest, provided that the attorney keeps the aids simple and understandable. As with any technology, it is prudent to practice and learn the technology to ensure that there are no technical glitches at trial.
You do not need to have the latest gadgets, however, to present an effective opening statement. At the root, the opening statement involves telling a story. At trial, the jury hears two sides of a story, and it is the jury’s job to decide which version is true. Storytelling is not about reading from a script, at least in a courtroom. Notes are a distraction for everyone if you need to constantly look down. In addition, people write differently than they speak, and reciting a written opening statement just does not sound right. While it is obviously important to grasp the important points of a story, you need not memorize the story in its entirety either. If you memorize the story word for word and loses your place, you could become nervous and flustered. The goal of a good story is to have the jury focus on the content of the speech, not the mistakes. You must prepare your opening argument, but you must also prepare for the unexpected. If you have a story memorized word for word, it will be much more difficult to make changes on the spot.
In preparing for the opening statement, the most important place to invest time is in gathering details from the client. Details are the cornerstone of an effective story, and you want the story to paint a complete picture. Clients often fail to reveal small pieces of information in an initial interview, especially if you interrupt their story. But, if you listen to the client the first time, you will be able to gather all the important information for the story. If it would be effective to visit a scene to get a better picture of the details, then you should do so if possible. Remember that vivid details will engage the jury, and will help the jury relive the events from the client’s perspective.
The juror deliberation can become a battle between two conflicting stories; leaving the jurors to make a determination on their assessment of the stories. Allen, Factual Ambiguity and Theory of Evidence, 87 NW.U.L.REV. 604 at 605 (1994). Therefore, it is important that the story itself should resemble a proper story. Too often we forget what a proper story sounds like. A proper story is organized and consistent with a proper beginning, middle, and ending. Good stories also have themes or plot devices to help engage the audience. Attorneys should consider using classic storytelling techniques like telling parallel stories, using flashbacks, telling the story from the first or third person, or dramatizing certain details.
In crafting the story, it is important to identify the human elements involved. There are emotions and characters traits in stories. While not all characters are perfect, it is important for the jury to relate to the characters in the story. Before rushing into the merits of the case, be sure to “put a human face on [the] legal problem.” Reidinger, Spinning Yarns, 82 A.B.A.J. 102 (June 1996). You should identify the human elements in the story, even if you are representing a corporation or a governmental agency. The story is also is good place to reveal the weak points of a character because it is better to have your weak facts come out at the beginning of the trial because it builds credibility.
Furthermore, from a strategic point of view, the conventional wisdom is that it is probably better to reveal the weakness in one’s own case rather than letting the other side do so. However, while most experienced litigators still believe it is wise to “soften the blow” by beating the opposition to the punch, this tactic has been questioned. Commentators have questioned whether the mentioning and “sponsoring” of the fact implicitly tells the jury that the fact is significant. R. Klonoff & P. Colby, Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials 12, at 88, 166 (1990).
- Presentation of Evidence
It is important to keep Rule 403 in mind when presenting evidence, as the trial judge has discretion in deciding whether an exhibit can be admitted. Ordinarily, the judge will consider three factors: “(1) whether the object to be exhibited is relevant to the case; (2) whether the jurors need to see the object in order to understand the oral testimony about the object; and (3) the risk that viewing the object will inflame the jurors’ emotions.” Edward J. Imwinkelried, Evidentiary Foundations § 6.07, at 259 (5th ed., LexisNexis 2002).
In deciding when to request the admission of an exhibit, it is important to do so at the most opportune moment. It is generally more effective to introduce most exhibits at the beginning or towards the end of the direct examination. If you introduce an important exhibit in the middle of an examination, the jury may forget it. There are several advantages to introducing an exhibit towards the end of an examination. First, introducing an exhibit at the end of the direct examination avoids disturbing the pace of the direct examination. Second, by introducing exhibits at the end of a direct examination, you can easily repeat the highlights of the direct examination because the exhibits themselves are often summaries of the direct examination. Third, jurors are more likely to remember highlights from the end of a direct examination than from the middle of a direct examination. Pay attention to the amount of time an exhibit is viewable. Exhibits draw attention from oral testimony, and you should not have to fight for the jury’s attention. Exhibits should complement rather than supplement the oral testimony.
- The Types of Evidence
Evidence is generally classified as either real or demonstrative. In general, real evidence is evidence that is “has a historical connection with the transaction giving rise to the suit,” and demonstrative evidence is used to help illustrate testimony. Id., § 4.07 at 117. Lawyers, as teachers, use real and demonstrative to carry out their case theme and strategy by explaining matters to the trier of fact.
Real evidence is the object that was actually involved in the matter which is at the heart of the litigation. For example, real evidence could be the actual weapon used in a crime or the actual stolen jewelry. Real evidence generally has probative value by itself. The trier of fact may draw conclusions by looking at real evidence. Demonstrative evidence, on the other hand, is used primarily to illustrate or explain testimony.
Not every case, however, will present the opportunity to use real evidence. What happens if the evidence is too cumbersome or impossible to bring to Court? What happens if the evidence was destroyed? Demonstrative evidence can be the answer to these questions. Demonstrative evidence is evidence used to illustrate or explain testimony, like a floor plan of a house. Without introducing a floor plan as demonstrative evidence, it would otherwise be difficult to describe the layout of a house to the trier of fact. The most common examples of demonstrative evidence include maps, diagrams, models, photographs, charts, computer simulations, and the like. The overall line of demonstrative evidence may blur with real evidence in some circumstances. Nevertheless, the scope of demonstrative evidence is fairly large, and the scope will only increase with innovations in technology. The use of computer graphics and simulations is relatively new, but will become more common when software and price barriers change.
- Using Technology – Determining if it is Right for You and the Court
The most important consideration in deciding to use demonstrative or real evidence at trial is whether it fits the case. You do not necessarily need to create graphs, charts, and the like for every single case because every case presents a different set of facts and issues. It all depends on the case. Not every case demands the use of advanced computer simulations. In People v. McHugh, counsel sought to introduce illustrative computer animation. When this means of illustrative evidence was challenged, the court said:
Whether a diagram is hand drawn or mechanically drawn by means of a computer is of no importance. What is important is [that] the presentation… fairly and accurately reflect the oral testimony offered and that it be an aid to the jury’s understanding of the issue.
People v. McHugh, 124 Misc. 2d 559, 476 N.Y.S.2d 721 (N.Y. Sup. Ct. 1984).
While computer simulations or models may look impressive, they must add some inherent value to the case to prove worthwhile. The use of a piece of demonstrative evidence must help your case. While this may sound simple, it may not be so easy in practice. Often times, a picture or chart may not be easy to read. There is an art to creating a visually appeasing chart, graph, or any other piece of demonstrative evidence. For example, any graph or chart should contain large and readable font styles as well as contrasting colors. If the fact finder is confused by the graph or chart, the trier of fact will spend time trying to decipher it instead of paying attention to the merits of the case. It is not smart to have the trier of fact spend too much time trying to understand the piece of demonstrative evidence. Assuming that your piece of demonstrative evidence is clear and easy to understand, it is also smart to not make it available for extended periods of time. Give the fact finder a sufficient amount of time to view the piece of demonstrative evidence, and then put it away.
Perhaps the biggest consideration in choosing a piece of demonstrative evidence is cost. How much will the client pay for these materials? Does it make sense to create a graph in house or send it to a vendor? Some offices may be better equipped to do things than others. Even if an office contains the latest computers and software products, in many circumstances, it may be more time and cost efficient to out-source the project. Choosing the right vendor to create a professional looking piece of demonstrative evidence is important, which is why many of these companies operate mainly on repeat business and referrals.
Finally, an important consideration is whether the trial will be a bench trial or a jury trial. Cater to the audience. What may be appropriate for a jury may not be effective in front of a judge. If you have a bench trial, consider the background of the judge.
- Witness Examination
Well before trial is set to begin, you should think about what you are trying to accomplish with each witness and what message you want each witness to convey to the trier of fact. Some questions you should consider for direct examination include:
- What am I trying to prove?
- What witnesses do I need to prove my case? Who are my best witnesses?
- How should I order my witnesses in order to tell my story?
- What can I do to make my examination more interesting to the trier of fact?
- What are the legal requirements of getting my evidence or testimony introduced?
- What exhibits should I introduce and when?
- What demonstrative aides should I use to reach my goals?
- What objections should I expect? How can I overcome those objections?
When choosing whom you will call as witnesses, it is desirable to consider having a “mix” of types of witnesses. Overby, Preparing Lay Witnesses, 26 Trial 88, at 90 (Apr. 1990). This not only includes calling both lay and expert witnesses, but different types of lay witnesses to hold the juror’s attention throughout your case in chief. Consider calling, “a cross-section of family members and people who have a more formal relationship” with your client, “such as a banker, employer, or pastor.” Id.
However, if you can eliminate the need for certain witnesses, do so. Monotony will certainly not hold the attention of the jury. Moreover, the more witnesses you call, the less time you will likely have to prepare your witnesses. Thus, the more witnesses you call, the greater the chance for an unexpected answer or for your opponent to find a hole in your case. However, you cannot be too efficient. If your case is very fact intensive, you should only use each witness for 2 to 3 points at a maximum. This will make it easier for the trier of fact to understand the issues in the case.
Always over-prepare your witness, especially your main witnesses. Keep in mind that all witnesses are apprehensive about cross-examination. If you properly prepare your witness, however, you may be able to alleviate some of these concerns. It is best to do a run through of the expect cross-examination questions. In preparing your witnesses for trial, make sure that you devote enough quality time to explain the process. Some witnesses will need more time than others. However, at the minimum, the witness should understand (1) Why he or she is being called as a witness, (2) What facts he or she is going to prove and why those facts are important, (3) What the overall theory of the case is, (4) How his or her testimony fits in with the overall theory of the case and the evidence to be presented, (5) Your opponent’s theory of the case, and (6) Anticipated objections and anticipated cross-examination.
For each witness you intend to call or cross-examine, prepare a checklist of what you need to get from this witness and what exhibits will be introduced through that witness. If you anticipate that there may be problems getting a particular exhibit admitted into evidence, have several opportunities and approaches ready. Consider whether you are going to organize the direct examination chronologically or through logical relationships. Chronological organization is often the best and usually lends itself to good story telling. Moreover, “chronology is the order in which things happened,” and is thus the easiest order for the judge and the jury to follow. McElhaney, Organizing Direct Examination, 76 A.B.A.J. 92, at 94 (Mar. 1990).
Do not forget principles of primacy and recency. If you can, ask several key questions before going into the witness’ background and broad identifying information. Once you have your checklist for each witness, prepare only an outline of the main topic areas you plan to cover with the witnesses. There may be a few critical questions that you want to make sure you ask in a particular way. If so, write them out, but keep that to a minimum.
The best way to keep both the jury and the witness on the same page with you is to use headlines to introduce new topics. Start each new topic with a headline. Do not say, “Let me direct your attention to the meeting of April 14, 2002. What, if anything, happened on that occasion?” Instead, say “I am now going to ask you questions about the meeting of April 14, 2002.” Then, ask short, simple questions, in plain everyday language about the meeting. Good direct examination presents itself as the way people really talk. If possible, ask questions that start with who, what, where, when, how and why, as these are questions that encourage a narrative response from the witness. A perfectly acceptable question is, “What happened next?” Researchers in the Duke University Law and Language Project studied the effect of different question styles used throughout direct examination. The researchers found that, “the jurors believed that permitting the witness to use the narrative style was an expression of trust and belief on the part of the lawyer, and [the jurors] then adopted the lawyer’s attitude as their own.” Conley, Language in the Courtroom, 15 Trial 32, at 35 (Sep. 1979).
Cross-examination involves some of the same strategies as a direct examination. The goal of effective cross-examination should be to minimize the impact of the direct examination. Before you can even prepare for a cross-examination, you need to develop your theory and theme of the case. Ideally, these ideas will come to you early on. Many times, the other side’s witness will actually help you develop your case. If cross examining the other side’s witness will not help you, consider not examining the witness at all. An attorney does not need to cross-examine every single witness in order to prevail. An attorney should only cross-examine a witness if doing so will develop the cause of action or case theme. There is no point in conducting aimless cross-examination in the hope that the witness will inadvertently reveal some damaging fact. Today, effective discovery will reveal much of the information in a case before trial. Before considering whether to cross examine a witness, consider whether the witness has hurt your case, whether the witness was important, whether the witness was credible, and whether cross examining the witness will help your case.
While you may want to conduct your direct examination in some logical order, the same rules do not apply to cross-examination. Most cross-examiners attempt to recommit the witness to her current testimony, so often a strict chronological sequence is not as encouraged as it is in direct. Lubet, Understanding Impeachment, 15 AM.J Trial Advoc. 483, at 499 (1992). Do not allow the witness to anticipate your next question, or the opportunity to hurt your case with an answer. “[P]hrase your question in terms of bedrock fact, making sure it contains nothing that approaches a characterization. The more factual the question, the less possible it is for the witness to deny you a simple answer.” Lubet, Cross-examination: Endgame, 17 Litigation 40, 42 (Wint. 1991).
The strongest points of a cross-examination should be at the beginning and end of a cross-examination because the trier of fact is more likely to recall these points. Start the cross “crisply” because the jury (and the client) expects something noteworthy. Juries have preconceived notions of cross-examinations as being exciting. Don’t let them down. It is also important to end on a high note because jurors tend to remember the last point. In general, you should make as few points as possible in a cross-examination. You should strive to only make one or two big points because the trier of fact has a greater likelihood of retaining a small amount of information.
Any question you pose on cross-examination should be in the form of a leading question, unless you are absolutely sure that you know the answer. Therefore, never ask “how” or “why” questions. If the other side’s witness answers your “yes” or “no” questions with an explanation, ask the judge for assistance. Most witnesses will listen to the judge, and you will send a message to the jury that the particular witness is evasive or non-cooperative. If the witness continues to provide long narrative answers, it is usually effective to pose the same question again. Give the jury credit where due. They will see through evasive and argumentative witnesses and give their testimony little weight. When you prepare for trial, you should consider scripting your initial 5 or 10 questions.
Conducting an effective cross-examination takes experience. Some legal scholars believe that an attorney needs a minimum of 20 to 25 jury trials under his belt in order to be moderately successful. In many instances, an expert witness has seen the courtroom more than the attorney conducting the cross-examination. Although experience in the field is important, thorough preparation is always beneficial, and can overcome lack of experience.
One of the main rules of cross-examination is to always know the answer to the question before it is posed. The broad discovery and disclosure rules take a lot of the guessing and surprises out of cross-examination. Before the case even begins, you should know the substance of the other side’s case. Review the witness’ prior deposition, statements, and reports to find areas where the witness will agree and disagree with your case. Look for items that the witness must admit and items that they may admit. If the witness then contradicts her earlier statements, read her the prior testimony or statement. Consider also looking for past testimony of experts because such testimony may be admissible under Ariz.R.Evid. 801(d)(1). You should then carefully review the information produced in discovery and disclosure in order to prepare for cross-examination. Question all the information produced by the opposing side with respect to the opposing side’s expert. People embellish their education and achievements and experts are no different. Experts have biases too.
Finally, jurors try to relate to witnesses. In some instances, it is not appropriate to conduct a difficult cross-examination, especially if the witness is a victim or a child. However, experts are a different story. Experts are being paid to provide their opinions, and deserve little sympathy.
- Rebuttal – Casting Doubt on the Assertions Made by the Defense
Ariz. R. Civ. P. 39(b) governs the order of proof in civil trials before a jury. Rule 39(b) provides that the plaintiff shall first present his evidence, and the defendant follows second. Any additional parties shall then introduce their evidence in the order directed by the court. Thereafter, the plaintiff, then the defendant, then the other parties may present rebuttal evidence.
Rebuttal evidence is evidence to counter a new fact or allegation made by an opponent’s case. The scope of a plaintiff’s rebuttal is generally limited to matters discussed by the defendant. Rebuttal evidence is not a vehicle for repeating evidence that the party put on in its case-in-chief. Catchings v. City of Glendale, 154 Ariz. 420, 743 P.2d 400 (App.1987); Deyoe v. Clark Equipment Co., 134 Ariz. 281, 655 P.2d 1333 (App.1982); Lowery v. Turner, 19 Ariz.App. 299, 506 P.2d 1084 (1973). However, the mere fact that evidence could have been presented as part of the plaintiff’s case-in-chief does not mean that the rebuttal evidence should be excluded per se.
In some instances, it may make sense to purposefully wait to present evidence as part of the rebuttal. As long as the other side raises the substantive issue as part of their case-in-chief, you will be able to present rebuttal evidence to contradict or refute the other side’s evidence. However, you do run the risk that the other party will not present the evidence you seek to refute. Therefore, it does not make any sense to wait to present any substantial part of your case until the rebuttal phase.
- Closing Arguments
- How to Structure a Closing Argument
The conventional wisdom is that the closing argument should be prepared before the opening statement because preparing the closing argument first allows you to think about the claims and defenses, the theory and themes of the case, and the disputed and undisputed evidence, and how to integrate these into a persuasive argument. Preparing the closing argument first will also help in deciding which parts of the case to emphasize, and which parts of the case to de-emphasize.
Trials rarely run exactly as planned. The closing argument is the last opportunity counsel has to tie up any loose ends, and is a great opportunity to give the trier of fact one last reason to rule in your favor. Even though many studies show that a jury makes up its mind about a case after the opening statement, it is important to treat the closing argument as if it really matters because an effective closing argument can swing votes or change the outcome altogether. The closing argument is a memorable and reasoned appeal to the jurors. The jurors will feel more comfortable finding for your client if they believe they reasoned the conclusion to do so on their own, rather than it being forced upon them during your closing. R. Waicukauski, P. Sandler & J. Epps, The Winning Argument Ch. 4 (2001).
Successful closing arguments typically contain several attributes. First, the case theme, which was introduced during opening statements and presented by the evidence, is reinforced. Second, the important points are placed at the beginning (primacy) and at the end (recency). Third, the important points are repeated in different ways to not bore the jury, for example, consider using an analogy to persuade the jurors. See generally McElhaney, Analogies in Final Argument, 6 Litigation 37 (Wint. 1980). Fourth, highlighting the weaknesses attacks the other side’s case. Fifth, you anticipate the other side’s closing argument and make adjustments. Sixth, you address your weaknesses.
- Delivering Your Case
Like other parts of the trial, closing arguments should be rehearsed but not memorized. In preparing for trial, you should create a notebook for the closing argument containing initial thoughts about the summation, including thoughts about the general theme of the case. But the closing argument needs to be flexible to reflect the actual events of the trial. Undoubtedly, something unexpected will happen at trial. Whether a witness says something under oath contrary to a deposition, or some new piece of evidence mysteriously appears, you need to be able to solve these problems. Great attorneys can confront adverse facts and (1) mitigate the damage by placing it in the proper context and/or (2) integrate the adverse facts into their own theory of the case.
Even though the closing argument is the last opportunity for you to confront an adverse fact, you should make a point of identifying adverse facts from the very beginning. If you know that the other side will present an adverse fact, you should present it first on your own terms in order to build credibility. The attorney who acts first will have the opportunity to shape the facts and impute his own view, making it difficult for the other side to later rebut the facts.
As mentioned above, one technique that works quite well during closing argument is the use of analogies. If you can find an apt comparison of some type, or a good story that demonstrates the point you are trying to make, use it. Sources of analogies may include fables, literary allusions, historical incidents, or Biblical references. See generally R. Moses, Jury Argument in Criminal Cases- A Trial Lawyer’s Guide (2nd ed. 1993). Take the time to try to formulate good stories that will make the point you are trying to make. If you are going to use an analogy, however, test it out carefully. You need to make sure that the analogy cannot be easily turned against you.
Use of the jury instructions can also be very helpful, particularly if your theory of the case is that the plaintiff cannot or has not been able to prove essential elements of the cause of action that the plaintiff is pursuing. In fact in some trials, “a copy of the jury instructions is the only tangible thing that jurors take with them into their deliberations.” Greene, A Jury Researcher Joins the Jury, 91 Case & Comment 28, at 34 (Jan.-Feb. 1986). If this is the case, take measures to call attention to key jury instructions, such as having it blown up on foam board. Have each element highlighted. Then, go through each element of the instruction where the proof is missing and point out to the jury that the plaintiff has failed to prove certain material elements. This technique is particularly effective in fraud cases where there are nine elements of common law fraud that the plaintiff must prove.
Much of the discussion in Section IIIB is relevant here. At closing argument, it is especially helpful to use demonstrative evidence to sum up the case. If the issues are complex, and you have not won your case by now, a good PowerPoint presentation could put the entire case in perspective for the jury. However, unless your case contains a fact scenario involving the Titanic, do not show film clips from that movie during a closing argument.
In Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 945 P.2d 317 (App. 1996), Standard Chartered (“SC”) alleged negligence, breach of fiduciary duties, and securities claims against Price Waterhouse (“PW”) in relation to SC’s purchase of a bank. PW performed the bank’s audits for years prior to SC’s purchase of the bank. During SC’s closing argument, its lawyers played a videotape comparing PW’s auditing practices with the sinking of the Titanic. The video included clips of a Hollywood movie depicting the Titanic’s sinking. The trial judge determined, after screening the video that it was not inflammatory and was appropriate for use during SC’s closing. PW did not object to showing the video when it was played for the jury. After closings, PW objected that (1) the video was improper, inflammatory and argumentative, (2) PW did not have an opportunity to review the video prior to it being shown to the jury, and (3) that there were no facts in the record about the Titanic and therefore attempting to “match” the facts of the Titanic to the facts of the SC/PW case was inappropriate. The trial judge overruled the objection. PW appealed this ruling, and the Arizona Court of Appeals agreed that the video was improper, inflammatory, argumentative, and “based on nonexistent or inaccurate evidence about the sinking of the Titanic.” Id. at 47, 945 P.2d at 358. The SC Court stated that the purpose of closing arguments is to “enable each party to review the evidence and tie it to the applicable law.” 190 Ariz. at 48, 945 P.2d at 359. Demonstrations, according to the SC Court, should not be used to divert the jury’s attention. The SC Court determined that a videotape about the Titanic sinking was non-evidentiary. In fact, the SC Court said that they “see little difference between the use of videotaped Hollywood disaster footage to suggest the impact of a tort and the use of mood music, animated cartoons, or professional actors, costumes, and dramatic props.” Id.
- Jury Instructions
Standard 5.f of the A.B.A. Civil Trial Practice Standards states “final instructions should be provided for the jurors’ use during deliberations.” Many of these standard “final instructions” are already written for you. While many jurisdictions have officially approved, pattern instructions, there are also commercially prepared sets of instructions in widespread use. In addition, the American Bar Association has created sets of recommended jury instructions for specific types of trials. Do not mess with these sources of recommended jury instructions if possible. Only in the most compelling of circumstances will the judge modify the standard preliminary jury instructions in substance. You may be able to modify the jury instructions, however, to substitute the names of the parties. Also, some of the standard substantive law instructions have alternatives that can be selected. If you want your jury instructions used rather than the other side’s instructions, however, keep the essential core of the standard instructions intact. Get your proposed instructions to the judge in the proper form (usually both in hard copy and on disk) on time.
If you want to change or add to the instructions, look to Arizona law and law outside of Arizona for source materials. The key cases setting out what must be proven can also be a good starting point. Look to reported cases where the issue involved was the adequacy of the jury instructions. What you want is a set of jury instructions that correctly state the law to be applied by the jury with enough factual content so that the jury understands what it is supposed to do. But the court should prevent the parties from incorporating too much of the evidence into the instructions themselves. When drafting your proposed instructions, remember that the jurors will be given copies of the instructions before they start their deliberations.
The judge will normally give the jury a standard set of preliminary instructions before opening statements. These preliminary instructions will also include the admonition to the jurors. But what if your case is one in which you think it would be helpful if the jurors were also instructed on the substantive law before the trial starts? Raise this possibility with the judge at the joint pretrial conference, or at some other appropriate time. If you can state a reasonable justification for the early instructions, the judge may agree. Regardless of what the judge does preliminarily, a full set of instructions will be given at the end of the trial. The timing question here is whether the instructions will be given before or after closing arguments. If you intend to use the jury instructions in your closing argument, convincing the judge to give the jury instructions before closings could be helpful.
When you receive a copy of the instructions submitted by the other side, take the time to look them over. You may be able to learn something about your opponent’s trial strategy from their proposed instructions. You also need to identify which instructions are objectionable and start formulating your objections to make to the judge. For example, instructions that single out particular items of evidence for special emphasis or highlighting may be prohibited as “argumentative” and are thus objectionable. Drake v. Dean, 15 Cal.App.4th 915, 19 Cal.Rptr.2d 325 (1993).
Find out as soon as you can when the judge intends to settle the jury instructions. You will need to be ready to state precisely why your opponent’s instructions are wrong and why your instructions represent the correct statement of the law, or what other reasons you have for objecting. This process is often done initially off the record, which may make it important to place your objections on the record before the instructions are given.