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The Paralegal’s Role In Trial Preparation

Posted on August 22, 2013 by

Prepared and Presented by:

Marvin Stuart Lanter
Law Offices of Marvin Stuart Lanter
1925 Century Park East, Suite 2000
Los Angeles, Calif. 90067

Email: mlanter@lanterlaw.com
Website: lanterlaw.com

Helping Your Trial Lawyer Win In California:

Essential Trial Preparation and Techniques for Paralegals

I. The Paralegal’s Role In Trial Preparation

E. Developing and Executing a Trial Plan

i. Developing Goals for Each Witness

ii. Deciding on Approach for Questioning

iii. Anticipating Cross-Examination

F. Witness Preparation

i. Identifying Client Behaviors that Affect Credibility

ii. Dealing With Weaknesses in Your Case

iii. Anticipating Cross-examination

USING WITNESS EXAMINATION OUTLINES IN TRIAL

How to Prepare and Use an Outline for Witness Examination

Witness testimony is one of the primary methods of presenting evidence at time of trial. In that regard, developing the direct examination and cross-examination questions for witnesses who will be called to testify is a fundamental component of trial preparation. The manner in which this process is approached and executed will vary depending upon the personal style and skill of the individual involved. However, either a lawyer or a paralegal can prepare a witness questions.

Thoughtful consideration must be given to the direct examination, and perhaps even more so to the cross-examination of witnesses. The manner in which a witness is examined, on either direct or cross, will depend upon the personal style of the attorney, the specifics of the case and of the witness. Examination of a witness is truly an art, not a science, and cannot be reduced to a set of rules. There are psychological factors involved whenever words are used in a courtroom. Direct examination and cross-examination are often developed around words or phrases, which carry significant impact.

The direct examination of the plaintiff’s witnesses will form the basis of the plaintiff’s case. He must, through the direct testimony of his witnesses, tell his side of the story and meet his burden of proof. It is unusual for a plaintiff to persuade a jury through a point made on cross- examination. Nevertheless, cross-examination is also a vital function in the over-all case, and a valuable tool in distilling the truth.

The attorney and paralegal should develop an outline in connection with direct examination and cross-examination of each witness. The framework for the outline can begin with successful question sets from previous cases, and be modified to include all relevant areas of questioning for the case at hand.

An outline is also useful in preparing a witness for direct examination, to help explain to the witness what questions he will be asked. There are some risks to this, of course, in that the defense attorney might be able to develop an impression of “rehearsal” between the lawyer and the witness. On the other hand, an examination outline may save considerable time in the preparation of direct examination and cross- examination.

Despite operating from an outline, during time of trial it is essential that the attorney remain flexible to actual testimony and events in the courtroom.

I would also recommend that you prepare a Witness Contact List that the attorney can have available to him at all times during the trial. This is useful since the actual order and length of testimony of witnesses can sometimes differ from the attorney’s planned sequence. This list should include all contact information- business, home cell telephone numbers, addresses and email addresses.

The following outlines are examples of formats that may be used in different types of examinations. Each attorney will have to create his own outline compatible with his own experience and the jurisdiction in which he practices.

Examining the Plaintiff-the Preparation

As previously mentioned, direct examination of the plaintiff is one of the most important methods of presenting the testimony necessary to meet the plaintiff’s burden of proof.

The following is a sample outline for an automobile collision case:

SAMPLE OUTLINE FOR THE DIRECT EXAMINATION OF THE PLAINTIFF

  • Background Information
  • Employment
  • The Collision
  • Began Trip
  • Vehicles
  • Passengers
  • Description of Scene and Weather
  • Traffic and Traffic Controls
  • Visibility and Speed
  • Collision
  • Force of Impact
  • Damage to Vehicles
  • After Collision
  • Medical Treatment
  • Hospital
  • Return Home
  • Medical Treatment
  • Medical Progress
  • Losses
  • Lost wages
  • Auto
  • Medical
  • Present Condition
  • Prior Health and Work Record
  • Present Complaints
  • Before and After

Preparation for the Examining of an Eyewitness

The primary purpose of calling eyewitnesses is to establish the defendant’s liability. Accordingly, an eyewitness should be questioned so that he will describe the accident in such a way that the legal requirements to establish liability are obtained.

After the preliminary information about the background of the witness is obtained, the various events leading up to the accident should be established. An examination outline for such a witness need not list every question in detail. Perhaps, it might consist solely of the various points to be established by the witness. On the other hand, a lawyer can develop an outline for examining such a witness, which can be used as a tool of preparation in every case of that nature. The following is a sample outline, which is designed to be used in the direct examination of an eyewitness in an automobile case.

DIRECT EXAMINATION OUTLINE FOR AN EYEWITNESS (AUTO CASE)

  1. Background Information
  2. Description of Scene & Weather
  3. Traffic & Traffic Controls
  4. Location of Witness & Vehicles
  5. The Collision
  6. After Collision
  7. Damage to Vehicles
  • a. Plaintiff’s car
  • b. Defendant’s car
  1. Conversations
  • a. Any conversations overheard with plaintiff, defendant?
  • b. Plaintiffs or Defendant?
  • c. Passengers?
  • d. Drinking?
  • e. Injuries to Plaintiff?
The Investigating Police Officer’s Testimony

Jurors tend to place a great deal of weight upon the testimony of a police officer or other law enforcement official called to the scene of a collision. Therefore, the watchful trial attorney should approach the examination of such a witness with due care. If the investigating officer is required by law to make a report and if that report is available to the plaintiff’s attorney, a direct examination outline can be created around the form of the required report. Using an outline in such a case will mean that the examination can be prepared without a great deal of repeated effort on the part of the plaintiff’s lawyer.

The examination of an investigating officer should include his qualifications, that is, his training and experience and all of the factors which he may have knowledge of in connection with the liability aspect of the case.

Not to be overlooked, however, is the fact that many investigating officers can very descriptively describe the injuries they observed at the scene. In addition some investigating officers carry cameras in the car and routinely photograph accidents.

The attorney should consider all of these factors in preparing an examination outline. The following is a sample of the direct examination of an investigating officer in an auto case.

DIRECT EXAMINATION FOR INVESTIGATING POLICE OFFICER

  1. Background
  2. Training and Experience
  3. The Collision
  4. Description of Scene and Weather
  5. Description of Vehicles
  6. Diagram and Photos
  7. Damage to Vehicles
  8. Conversations with Drivers and Witnesses
  9. Form any opinion as to whether defendant had been drinking?
  10. Plaintiff’s injuries

Examination of Lay Witness Testimony on Injuries

In many instances, descriptive testimony from a lay witness may have a greater impact upon the jury than even the doctor’s testimony. Accordingly, in a personal injury case, the attorney should spend the appropriate amount of time on the preparation of lay witnesses’ testimony.

A layperson that has personal knowledge may testify about what they have observed regarding the injuries and the effect of the injuries upon the plaintiff. This means testimony, for example, about the matter of changing dressings, or the insertion of drainage tubes and the effect of the same on the plaintiff, or testimony as to the disposition, appearance and physical condition of the plaintiff based upon close examination.

Through the examination and testimony of the lay witness, the plaintiff’s attorney should try to draw out the symptoms the plaintiff exhibited, the pain which they observed he suffered after the injury, the effect of the injuries upon his health or physical condition, the effect of the injuries upon his ability to work or his earning capacity, and other conditions which the witness can personally observe.

In a similar manner, the plaintiff’s attorney should have lay testimony about the complaints made by the plaintiff. For example, the fact that the plaintiff said he was suffering from headaches, or that his vision wasn’t as good as it was before the accident, and other complaints of that nature, where permitted.

The following is a very basic sample outline for the examination of such a lay witness relative to the injuries suffered by the plaintiff.

DIRECT EXAMINATION OUTLINE FOR LAYPERSON

  1. Background
  2. Knowledge about occurrence
  3. Treatment
  4. Employment
  5. Activities before injury
  6. Health before injuries
  7. General Problems after injuries
  8. Activities after injuries
  9. Health after injuries
  10. Present time

Preparing the Lay Witness for His Testimony

Well in advance of the trial date, it is advisable for the plaintiff’s attorney or paralegal to interview all witnesses who they intend to call at the time of trial. Some attorneys prefer to have a pre-trial conference with the witnesses shortly after subpoenas are served and then again before trial. Yet other attorneys prefer to schedule an interview with the witnesses just prior to trial. Whichever the attorney’s preference, a pre-trial conference with each witness should be a standard procedure in generally every case. This is true regardless of whether a witness has provided a written statement or had his deposition taken.

Some trial attorneys and paralegals like to schedule a meeting of all of the witnesses at the same time, except treating doctors and expert witnesses. The thought process behind this strategy is that a pre-trial conference with all of the witnesses, even hostile witnesses, has a beneficial effect. First, it allows the attorney to make a comparison of the effectiveness of each witness. Second, it boosts the confidence of those who are less sure of themselves. In addition, it can save the attorney a considerable amount of time, and help refresh the recollection of all of the witnesses when they hear others describe the incident. It also gives the witnesses an over-all picture of what the trial is about, and it tends to develop a more uniform position with respect to the facts of the case.

Most witnesses will be cooperative and willing to participate in a group conference if they understand it is for the purpose of advising them of what to expect in court, trying to reduce the inconvenience of testifying, and discussing with them their out-of -pocket expenses in connection with their testimony.

As with the other witness preparation procedures previously discussed, each attorney and paralegal will have his or her own method of preparing a lay witness for his testimony in court. The variations will have to do with the individual lawyer’s personal style as well as with the specific factors of the given case.

Nevertheless, each lawyer and paralegal should develop some basic procedures to follow for interviewing a witness in preparation for trial. Some attorneys may argue that contact with a potential witness should be limited as much as possible, because it could have a negative perception to the jury. However, most attorneys would disagree with that position since it is very risky to call a witness without having personally interviewed him and instructed him on what to expect, and, jurors usually accept the fact that lawyers customarily interview witnesses before putting them on the witness stand.

FORMAT FOR CONDUCTING WITNESSES’ INTERVIEW

  1. What is the court procedure
  2. Explain Payment of expenses
  3. What is the examination procedure
  4. Listen to the question
  5. How to answer
  6. Tell the truth
  7. Answering questions
  8. Time and Distance
  9. What is the plaintiff trying to prove
  10. How to question the witnesses
  11. Dress
  12. Thanking the witness

Preparing a Medical Witness for Testifying at Trial

Notwithstanding the fact that many doctors routinely testify as expert witnesses, it nevertheless remains important to thoroughly prepare a doctor for his trial testimony. While some physicians have had considerable experience in court, many have not. Even an experienced medical witness should be interviewed and prepared by the attorney or paralegal prior to time of trial. This serves two purposes. First, the doctor has an opportunity to educate the attorney about his medical opinions specific to the case. Second, the attorney has an opportunity to discuss the overall facts of the case with the doctor. As part of this process, I recommend furnishing a tailored outline and delivering any additional medical records to the doctor to assist with this preparation.

The lawyer should always make it clear that the doctor will be paid for his time, not only at time of trial, but also in connection with his time for pre-trial conferences with the lawyer. The lawyer should make sure that the physician is paid in a timely manner.

For the most part, it can be difficult to schedule an interview with a doctor because of the time constraints of his medical or surgical practice. The attorney should suggest scheduling their meeting at a time when he feels that the doctor can devote sufficient time and attention to the matter. This may mean a conference either before or after the doctor’s regular office hours.

At the conference, the attorney should be prepared to fully and comprehensively discuss the case with the doctor. As previously mentioned, the goal should be not only to prepare the doctor but also to have the doctor educate the attorney. The attorney should develop a basic format for the conference with the doctor, just as he would do for a conference with a lay witness. Clearly, the method of preparing the doctor will vary depending upon the type of case, the experience and qualifications of the doctor as well as many other factors.

During the pre-trial conference, the attorney should discuss the doctor’s compensation, as well as the date and time he expects to call upon the doctor at time of trial. The attorney should make every effort to schedule this as accurately as is possible to fit in with the doctor’s schedule and the proper timing of the case.

The attorney should also briefly review the plaintiff’s theory of the case so that the doctor will understand the background of the action and how his testimony fits in with the case.

The attorney should carefully go over the rules that apply to medical testimony in the case where this action is being brought. The attorney should explain the “burden of proof” to the doctor. The doctor should be carefully prepared with respect to hypothetical questions asked at time of trial. The attorney should make it clear to the doctor the importance of the legal rules and tests that apply to medical testimony since he may inadvertently use a phrase, which may have serious legal consequences for the plaintiff.

Reviewing the Client’s Medical File

Both the attorney, as well as the doctor should review the patient’s medical file carefully. As the attorney reads the client’s medical file, he should pay particular attention to past medical treatment of the client, prior to the injuries in the case being tried. The medical file should also be checked as a possible source of cross-examination material for the defense.

The doctor should be warned that the opposing attorney has the right to examine the patient’s file if the doctor brings it to court. Every possible contingency should be covered with the doctor to avoid surprise at the time of trial. If medical reports furnished by the doctor have been delivered to the opposing attorney, he should be made aware of this fact and how these reports can be used in cross-examination. If the doctor’s deposition has been previously taken, he should go over that, too. Some attorneys make it a practice to outline medical reports and depositions provided by the treating doctor to the opposing side for the convenience of preparing the treating doctor for trial.

An outline of the direct examination should be provided to the doctor and it reviewed together at the time of this conference. If x-rays or other medical tests are to be interpreted by the doctor, or if hospital records used, these should be fully examined at the time of the conference as well. Hospital records in particular should be reviewed by the doctor as a source of possible cross-examination by the defendant’s attorney, and for the additional purpose of educating the plaintiff’s attorney about the client’s injuries.

If medical illustrations or models or drawings are to be utilized at time of trial, these should be reviewed with the doctor. All demonstrative aids to be used with the doctor should be gone into at that time.

Prepare the Doctor for Cross-Examination

Take some time to review potential cross-examination questions with your medical expert. In that regard, any books or articles to which the doctor has contributed as an author should be evaluated as a source of possible cross-examination. The plaintiff’s attorney should, in advance, analyze the possible lines of cross-examination questioning of his doctor so that his medical expert will be not be surprised at time of trial.

During the same meeting, it is advantageous to also have your medical expert review the defendant doctor’s deposition or medical reports, and assist you with developing possible cross-examination questions of the defendant’s medical expert.

DIRECT EXAMINATION: PLAINTIFF’S MEDICAL WITNESS

  • Qualifications
  • Introduce Records and X Rays into Evidence
  • First Meeting with Plaintiff
  • History Obtained from Patient
  • First Examination
  • Have Expert Describe Course of Treatment
  • Elicit Information Concerning Present Condition of Patient
  • Develop Causal Relationship Between Trauma and Present Condition
  • Review Medical Bills

The Paralegal’s Role In Final Trial Preparation

Prepared and Presented by:

Marvin Stuart Lanter
Law Offices of Marvin Stuart Lanter
1925 Century Park East Suite 2000
Los Angeles, CA 90067

Email: mlanter@lanterlaw.com
Website: lanterlaw.com

III. The Paralegal’s Role In Final Trial Preparation

A. RULES

1. RULES-STATE COURT RULES

Purpose

The purpose of the State Court Rules is to provide a uniform body of procedural rules for the all State Courts in California. It is your responsibility to know these rules as they apply to your case.

TEXT OF INTRODUCTORY STATEMENT

The Judicial Council is established under article VI, section 6, of the Constitution of California, and is given various powers and responsibilities to improve the administration of justice.

Judicial Council rules, standards, and orders

Unless otherwise indicated, each rule in these California Rules of Court was adopted by the Judicial Council under its constitutional authority to “adopt rules for court administration, practice and procedure not inconsistent with statute,” or under express authority granted by the Legislature.

Throughout the rules, “shall” and “must” are mandatory, “may” is permissive, and “should” indicates a nonbinding recommendation. “Will” indicates a future contingency or predicts action by a court or judicial officer in the ordinary course of events, but does not signify a mandatory duty. Whenever “must” is used in a new rule or an amendment to a rule with an effective date on or after January 1, 2001, it is synonymous with “shall” as used in the rules before that date.

All of the California Rules of Court have the force of law.

The non-mandatory nature of the standards is indicated by the use of “should” instead of the mandatory “shall” or “must.”

Judicial Council Forms

The Judicial Council adopts and approves legal forms used in the courts.

Under Government Code section 68511, the council may prescribe certain forms. The council “adopts” those forms, and use of those forms is mandatory (rule 201.1(b)(1)).

The council may also “approve” forms. Use of an approved form is not mandatory, but the form must be accepted by all courts in appropriate cases (rule 201.1(c)(1)).

Forms thus are adopted for mandatory use and approved for optional use. The lower left corner of the first page of each form indicates whether the form is mandatory or optional.

A form adopted or approved by the council is not subject to the requirements of rule 201, which specifies the format of papers filed in the trial courts.

A party may file a “duplicate” of a council form produced entirely by computer (rule 201.1(h), (i)).

What is covered in the California Rules of Court?

(I have chosen various sections of interest re trial practice-this is not exhaustive see the index of the California Rules of Court.)

TITLE ONE. Appellate Rules

TITLE TWO. Pretrial and Trial Rules

DIVISION I. Rules for the Trial Courts

CHAPTER 2. Civil Trial Court Management Rules

CHAPTER 3. Settlement and Pretrial Rules

DIVISION II. Civil Law and Motion Rules

CHAPTER 2. Format and Filing of Papers

CHAPTER 3. Hearings

CHAPTER 4. Particular Motions

TITLE THREE. Miscellaneous Rules

DIVISION IV. General Rules Applicable to All Courts

Title Five. Special Rules for Trial Courts

DIVISION II. Rules for Coordination of Civil Actions Commenced in Different Trial Courts

DIVISION III. Alternative Dispute Resolution Rules for Civil Cases

DIVISION V. Complex Cases

DIVISION VIb. Rules for Fax and Electronic Filing and Service

2. RULES-LOCAL RULES OF COURT

Purpose

Each County has it own Local Rules of Court. These rules are known as the local County Superior Court Rules and shall at all times be supplementary to and subject to statutes, the California Rules of Court, and any rules adopted by the Judicial Council and shall be construed and applied so they do not conflict with such rules and statutes.

It is your responsibility to know these rules as they apply to your case.

What do the Local Rules Of Court cover?

(I have chosen various sections of interest re trial practice-this is not exhaustive see the index of the California Rules of Court.)

  • Organization
  • Superior Court Personnel
  • Judgments and Post-Judgment Orders<</p>
  • Court Hours and Priority of Trial
  • Grand and Trial Jurors
  • Trial Court Delay Reduction
  • Civil Trial Procedure
  • Civil Law And Motion General
  • Alternative Dispute Resolution

3. RULES “LOCAL” LOCAL RULES OF COURT
Purpose

Many trial courts have their own “Local” Local Rules of Court. The rules of the Trial Judge can cover just about anything regarding the management of the case, particularly the rules of the Trial in their Courtroom.

Make sure you obtain them at the Case Management/Status Conference or have your Attorney Service pick them up. (I have included examples in the FORMS section of these materials.)

What do the “Local” Local Rules Of Court cover?

The “Local” Local Rules can cover the mandatory use of the Podium, approaching witnesses, notice of use of the blackboard, number of copies of exhibit and witness lists, Trial Briefs, Voir Dire, Objections, exhibit numbering and handling, specific exhibit tabbing, courtroom demeanor, courtroom trial hours and days, etc.

4. Jury Fees

Jury Fees are due at least 25 days before the trial date. (CCP 631(5)).

The cost for the initial deposit for the first day for all counties is $150.

5. Local Rules – Final Status Conference, Issues Conference/CASE MANAGEMENT CONFERENCE, TRIAL Management Conference

ORANGE

LOCAL RULE 450. ISSUE CONFERENCE/CASE MANAGEMENT CONFERENCE

An issue conference will be required in all cases at least 10 days prior to trial, at which time counsel are to meet and confer and execute necessary documents as listed below.

Counsel for the plaintiff shall arrange the issue conference at a mutually agreeable time and location.

At the issue conference the parties shall:

A. Exchange exhibits and inspects photos and diagrams (to be submitted on the date of trial), excluding those contemplated to be used for impeachment or rebuttal.

B. Stipulate to all facts amenable to stipulation.

C. Prepare a Joint Statement of the Case.

D. Prepare a Joint Witness List, excluding impeachment or rebuttal witnesses.

E. Prepare a Joint List of Controverted Issues. If all the parties fail to agree to an issue as controverted or uncontroverted, then the issue is controverted. (Required for both jury and non-jury trials)

F. Exchange all motions in limine, etc.

G. Prepare voir dire questions for the court to include in its voir dire. (Jury trials only)

H. Execute the Statement of Compliance.

The above items, including opposition to motions in limine, trial briefs and the Statement of Compliance signed by all counsel, shall be submitted to the courtroom clerk in the department of the judge to whom the case has been assigned for trial, or, if not so assigned, with the clerk in Department 1 no later than noon of the Friday before trial.

NOTE: Failure to conduct the issue conference as required may result in sanctions pursuant to Rule 454.

At the discretion of the assigned judge, a case management conference may be scheduled in lieu of or in addition to the issue conference.

LOS ANGELES

LOCAL RULE 7.9(h)

Final Trial Preparation. The court shall require counsel to attend a final status conference, which shall be held not more than 10 days prior to the trial date. The conference on I/C cases will be held before the assigned I/C judge; on M/C cases, the conference will be held in a department to be designated. At least 5 days prior to this conference, counsel must have exchanged and filed lists of pre-marked exhibits (See Rules 8.61-8.63) to be used at trial, jury instruction requests, trial witness lists, and a proposed short statement of the case to be read to the jury panel explaining the case. Failure to exchange and file these items may result in not being able to call witnesses, present exhibits at trial, or have a jury trial. If actual trial does not commence within 30 days of the set trial date any party has the right to request a modification of any final status conference order or any previously submitted required exchange list.

In an I/C case, the parties shall file and serve any trial preparation motions and dispositive motions, other than summary judgment motions, including motions in limine or bifurcation motion, with timely statutory notice so as to be heard on the day of this final status conference. At this conference, the court will also consider, inter alia, major evidentiary issues and special verdict issues. In M/C cases, the parties shall file and serve any such trial preparation motions at least five days before the final status conference and they shall be set for hearing on the first day of trial.

In addition, at the final status conference the court shall consider severing for trial all unserved or recently served fictitiously named parties.

SAN BERNARDINO

LOCAL RULE 411 TRIAL MANAGEMENT CONFERENCE (TMC)

A trial management conference will be held in all general civil and complex cases. The purpose of this conference will be to finalize trial preparation and allow the trial of the case to proceed in a more expeditious manner. On the date set by the Court, the parties and trial counsel shall appear and submit to the Court any motions in limine, their jury instructions, a verdict form, their witness list, their exhibit list, a statement of any stipulated facts, proposed voir dire questions and/or questionnaires, and a short statement of the case to be read to the jury if applicable.

If a party reasonably believes a witness’s name or an exhibit should be confidential until used in trial, he shall so indicate to the Judge in camera. All motions in limine shall have been submitted in writing with service completed at least 8 days before the conference.

All proposed jury instructions should likewise be submitted in their proper form, including special instructions. A mere reference to CACI instruction numbers will not suffice.

B. USEFUL WEB INFORMATION REGARDING RULES

1. Los Angeles Superior Court www.lasuperiorcourt.org

2. Orange County Superior Court http://www.occourts.org

3. San Bernardino Superior Court www.co.san-bernardino.ca.us/courts

4. Riverside Superior Court www.courts.co.riverside.ca.us

5. Ventura County Superior Court www.ventura.courts.ca.gov


The Paralegal’s Role At Trial

Prepared and Presented by:

Marvin Stuart Lanter
Law Offices of Marvin Stuart Lanter
1925 Century Park East Ste., 2000
Los Angeles, Calif. 90067

Email: mlanter@lanterlaw.com
Website: lanterlaw.com

IV. THE PARALEGALS ROLE AT TRIAL

A. MAKING AN EFFECTIVE TRIAL PRESENTATION

The world we live in is highly visual, colorful, electronic and interactive. We are accustomed to a world where a multitude of ideas and images are competing to grab and hold our attention. Hi-tech and highly visual information production and delivery is an increasingly important dynamic of our culture.

All trial lawyers know that graphics will be important at trial, because the old saying that “a picture is worth a thousand words” is true. People understand, remember, and believe what they both see and hear much better than they understand, remember, or believe what they only hear.

People accept and retain visual evidence more easily. Studies have shown that people retain visual information better than verbal information. Jurors retain up to 80% of what they see and it is as low as 20% without visual input. A picture IS worth a thousand words.

This is no surprise to trial lawyers because we have always dealt with the concepts of primacy and recency. People tend to believe what they hear first and tend to remember what they hear last. The same concepts apply to visual evidence. In fact, you can create a virtual tidal wave of evidence that will overwhelm your opponents who do not present evidence electronically.

The ability to support everything said in an opening statement or closing argument with video, photographs, documents, charts, bullet points, and timelines is very powerful. The jury can more readily associate the evidence with your position when it sees it rather than simply hearing about it.

Defining Demonstrative Evidence and Distinguishing Demonstrative Evidence from Other Forms of Evidence

Direct evidence

Direct evidence consists of a witness testifying directly on the basis of his or her own knowledge as to the facts in issue.

Indirect evidence

Indirect or circumstantial evidence consists of proof of facts and circumstances from which the trier of fact may infer other connected facts, which logically follow. Such evidence permits the jurors to utilize their own human experience in making the connection between past events of a similar nature and what has generally been found to be the cause or result of such occurrences.

Real evidence

Real evidence is the “real object itself such as the weapon used in a shooting, the defective product, and so forth.

Demonstrative evidence

Demonstrative evidence illustrates a case to the judge and jury. Since “seeing is believing” and since this form of evidence appeals directly to the senses, it is highly persuasive. Demonstrative evidence can either be in the form of “real evidence” (e.g., showing how the defective product fails to rotate properly) or in the form of “evidentiary aids” (e.g., enlargements of the photographs, positives of x-rays, charts, blackboards, skeletal devices, computer animations and more).

Principles of Using Demonstrative evidence

1. To help explain a critical point in the opening statement or summation.

2. To help defeat a point being made by your opposition in opening statement or summation.

3. To help a witness explain a point or a theory to the trier of fact.

4. On cross-examination, to explain how the witness’s point or theory is wrong or misguided.

5. To help you win the case (or, at the very least, to help you prevail on a particular issue or point.)

Effective Use Of Your Visual Aids

Visual images can be very effective in trial. Here are some suggestions:

  • Plan early.
  • Develop graphics that simplify complex ideas, so that you can understand them and a judge or jury can understand them.
  • Think visually, or work with someone who does.
  • Visual aids should clarify and solidify your message. Too often, lawyers use visual aids packed with complex terminology, intricate diagrams or confusing charts. These only confuse and frustrate jurors and judges.
  • Concentrate on managing the” impressions” formed, not just the facts. The starting point in designing your visual aids should be determining the essence of your message. What points are absolutely critical for the judge or jurors to understand? Design your visual aids with that concept in mind. Then use numbering, bulleting, coloring or models that allow for easy understanding.
  • Simplify, simplify, and simplify the message. Avoid too many lines, too much artistic flair and too many distracting colors.
  • Electronic presentation of evidence allows the jury to absorb the evidence rapidly, making it easier to prove your points. When you rely too much on oral presentation, each juror may have a different image in his head about the themes and facts. Technology allows you to control the image so that each juror sees the images you wish, very early in the case. It is like taking them to the movies as a group instead of giving each of them a radio to listen to on their own. This reduces the risk of misconception and gets them all on the same page rapidly.
  • Avoid the rush by allowing enough time to complete work that may require more time (such as video, animations and models).The worst time for the lead counsel to resolve the nuances of how he or she will use and display the visual aid is during the course of the trial, under the watchful eyes of the judge and jurors, and while opposing counsel is poised and ready to pounce at the slightest transgression. Resolve all the issues of moving, positioning and displaying the visual aid before the trial.
  • Help the attorney prepare to use the visual aid at trial. Moreover, use your visual aids while preparing your witnesses so their testimony flows logically and naturally with the introduction of the visual aid.

Help Prepare Courtroom Presentations.

This might be one of the more sensitive, yet vital, tasks a paralegal can perform in assisting the attorneys prepare for trial. Ironically, while the actual presentations (opening statements, closing arguments) attorneys make at trial are vitally important, they seldom receive the attention they deserve. Powerful and persuasive communication in the courtroom results only from focused practice, and every exceptional attorney knows the importance of communicating with utter confidence and conviction. There is only a tiny window of opportunity to make your points in a convincing, persuasive fashion. Paralegals can play a critical role at this juncture by making sure all prepared presentations are concise, logical and have impact. How? Follow these tips:

The sage philosopher Yogi Berra opined, “You’ve got to be very careful if you don’t know where you are going, because you might not get there.”

With this in mind, make sure the attorney’s presentations are consistent with the theme of the case. Share only the essential facts and details because the minutia will overwhelm the jurors. Help the attorney reduce the presentation to the key points and somehow compress it into a tiny package that will inform and touch the jurors.

Your attorney might want to heave a blizzard of information at the jurors and expect them to hack through the thicket of complex details associated with your case in order to grasp the key elements. This is typically unproductive, particularly where the evidence or testimony will be confusing and technical. Keep the attorney focused, and make sure he or she gives the jurors a clear road map. The most memorable and persuasive presentations are powerful because the message was clear, the language was precise and the storytelling was logical and compelling.

In the final stages of trial preparation, help the attorney hone the presentations with practice. Videotape the presentations, and help the attorney identify problems or distractions and refine points. Study and polish every aspect of the delivery, including timing, pacing, pausing, vocal variety, gestures, movements and eye contact. Critically analyze the presentations and identify any distracting habits. Does your attorney tightly cling to the lectern, mumble, speak without enthusiasm or vocal energy, stare at the floor or the visual aid, or nervously shuffle to dissipate energy? Help the attorney identify and eliminate any aspect of the presentation that diminishes its impact.

Travel and Living Arrangements

Plan Ahead. Find out what Hotels and Motels are nearby so as to facilitate easy access. Also inquire as to the Business Center facilities at the Hotel or Motel. What are the hours, fees and quality?

Witness Scheduling

It is your responsibility to have enough witnesses for the Trial day. Most Trial Judges will use all available trial time and witnesses must be present for testimony at all times. Some Judges will rest your case if there is trial time available and you do not have your witnesses present. If you overbook make sure the Judge orders the witnesses back the next day. Don’t be caught short.

Court Room Set-Up

1. Don’t Overlook the Details

Visit the courtroom before trial if possible. Identify details that will provide an advantage to your team, such as line of sight for the jurors, the witnesses and the judge; where you will position your visual aids and documents; and layout of the courtroom and the courthouse area (where to park, where to eat, the locations of the electrical switches, the restrooms, and so forth). Do everything possible to eliminate all uncertainty about details that might contribute to additional stress for your team.

2. Know the answers to the following questions before the trial begins: How will you transport the visual aid to the courtroom? Will you be permitted to store it in the courtroom before and during the trial? Will there be an easel, stand or table on which you can display it? Will you need assistance moving or operating the visual aid? Are there any particular rules to which the judge adheres that would limit how and when you will be permitted to use your visual aid? Do you anticipate any objections by opposing counsel or reluctance on the part of the judge to your using any visual aids? Plan and prepare in order to avoid needless scrambling and anxiety.

© 2014 The Law Office of Marvin S. Lanter, Los Angeles Personal Injury Lawyer. All Rights Reserved.
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