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Monthly Theme: Opening Statements Part One

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Opening Statements: How to Tell a Persuasive Story

Written by NITA guest blogger and Program Director Michael Johnson

“It was the best of times, it was the worst of times…”

“The magician’s underwear has just been found in a cardboard suitcase  floating in a stagnant pond on the outskirts of Miami.”

“First the Colors.

Then the humans.

That’s usually how I see things.

Or at least how I try.

 

* * * HERE IS A SMALL FACT * * *

You are going to die.

 

What is common to these quotes?

Whether it is from classic fiction (Charles Dickens, A Tale of Two Cities (1859)), a cult novel of a generation (Tom Robbins, Another Roadside Attraction (1971)), or a more contemporary novel (Markus Zusak, The Book Thief (2005)), each of these lines is the first lines of the book–the beginning of the story.

Each is deep with meaning, intrigue, and invitation.

The meaning is not evident, and won’t be clear without delving into the story much deeper.

The intrigue is exactly that–what could this story possibly be for that opening sequence to be true?  How is it possible that it was both the “best of times” and the “worst of times” at the same time?

The invitation is for the reader, listener, to want to know, hear, more:  to want to become engrossed in the story.  And, in the example from The Book Thief, duplicated here as closely as possible from the printed version of the book, the invitation is not only auditory, but visual as well.

The challenge for a Opening Statement is exactly the same.  How do we tell a story, with a compelling start, that invites and intrigues the audience to delve more deeply into the meaning? Our audience is, of course, the jury, and our primary means of communication with them is the spoken word rather than the written word.  The art of telling a story orally differs in the method of delivery but shares much of the principles of a well written and read story.

In my view, and the view of many others, the Opening Statement is the single most significant part of any trial.  It is your opportunity to engage the audience and provide them with a context in which to consider the evidence, the players, and the compelling reason why it is just and right that your side should prevail.  Studies that have examined how jurors decide cases have consistently supported the crucial importance of the Opening Statement.  The studies indicate that there is a strong correlation between a juror’s ultimate conclusion and that juror initial impression.  Put another way, juror’s frequently view the evidence and the closing arguments to validate their sense of the what is the right and just result  Starting strong with a good compelling invitation and a well structured story is a winning combination.

During the NITA webcast on July 12, we will explore these ideas in more detail.  Our discussion will delve into the concepts of primacy and recency, viewing matters from a point of view, how much detail the content of the story should contain, the organization of the story, developing and using thematic statements, and since we are telling a story to a jury in a court of law, the legal context of the story.  We will grapple with how to be persuasive without crossing the line into prohibited argument.  And, very importantly, we will explore the method and manner of delivery, and the importance of being mutli-dimensional.

 

Monthly Theme: Hearsay Part Two

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Direct, Hearsay, and [Proper] Bolstering

Written by NITA guest blogger Professor Jules Epstein

It is a fundamental tenet that a witness has to present a ‘fresh’ version of her story, and may not be asked or permitted to say “well, here is what I told my friends.”   It is not what the jury came to hear; and if coupled with an in-court version is condemned as “improper bolstering [, which] occurs when an out-of-court statement is offered solely to duplicate or corroborate trial testimony.”  State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008).

But this statement of law is actually incorrect.  Many out-of-court statements may be used to duplicate trial testimony – as long as they have independent hearsay admissibility.

Let’s start with Rule 803, which permits the hearsay of anyone.  And “anyone” includes the testifying witness.  That is apparent from the definition:  “’Hearsay’ means a statement that…the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence.” Fed.R.Evid. 803.  Nowhere does the Rule say, or even imply, that the declarant and the testifying witness must be different people.  But see Brisbon v. United States, 894 A.2d 1121, 1128 (D.C. 2006)(questioning whether a criminal defendant may testify to his own alleged excited utterance).

A witness repeating her own hearsay is not atypical.  A rape complainant may testify to the assault and then read the jury her excited utterance text message that also details the crime.  See, e.g., State v. Young, 2016-Ohio-7477 (Ct. App.).  The same is true with a present sense impression, a statement made for medical diagnosis and treatment, or a contemporaneous entry into the declarant’s own business record.

What is the power of this?  Repetition, which breeds believability.  Consider this example:

Q:      Where were you when the accident occurred?

A:        Right on the corner.

Q:     And what did you see?

A:     This big car, it was red, ran the light, hit the child and drove off.

Q:     Where you able to see the license plate?

A:      Yes, it was XDS123

Q:      What’s the first thing you did?

A:      I had my phone open, as I was about to text my mom, so I typed down the license.

Q:        Please read and show us what you typed.

A:     XDS123

Q:        What’s the very next thing you did?

A:      I was blown away, I dialed 911 and screamed what happened?

Q:      I am going to play a tape [911 call].  “Oh my god, hit and run, red car, XDS123.”  Was that your voice?

A:        Yes.

Q:     And is that what happened?

A:        Yes.

This repetition of out-of-court assertions may also occur if the statement is admissible under the 807 ‘catch-all’ residual hearsay exception.

There is a second way prior statements are admissible on direct examination – when they are consistent with the witness’ live testimony and rebut a claim of recent fabrication or corrupt motive made in the opposing party’s opening statement.  The proponent of the witness need not defer the use of a prior consistent statement until after cross-examination – the ‘impeachment’ has already occurred.  See, e.g., State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008)(attack in opening statement allows use of prior consistent statement under 801(d)(1)(B)).

There is little an opponent can do.  The independent admissibility of each hearsay statement warrants its use, precluding a bolstering objection.  All that remain are objections under Rules 403 and 611 that the repetition is cumulative and unnecessary, but given the presumed reliability of each hearsay exception, these arguments will be difficult to make until much damage is done.

[Professor Jules Epstein is the Director of Advocacy Programs at Temple Beasley School of Law in Philadelphia, PA.]

 

 

 

 

Hearsay Monthly Blog Theme: Part One

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The Business Records Exception to Hearsay and the Admissibility of Underlying Scientific Evidence Contained in the Record

written by NITA guest bloggers Marina Tous Clots and Michael J. Dale – article originally published to The Legal Advocate on March 9, 2016

Everyone is familiar with the business records exception to hearsay contained in the Federal Rules of Evidence (FRE) and in corresponding state rules of evidence. And everyone knows that not everything contained in the business record comes into evidence pursuant to that exception. The most obvious exception to the business record exception is hearsay within the business record. However, for the hearsay within the document to come into evidence, the statement itself must be relevant, and then there must be a separate exception to hearsay or a non-hearsay purpose for the underlying statement within the business record.

But what if the business record itself or the record within the record contains scientific information? For example, suppose in a tort, employment, or child welfare case, a party wishes to put into evidence scientific tests where somebody’s substance abuse is at issue or to put into evidence a business record that contains within it a scientific test. Suppose the test is a hair follicle or a urinalysis test.

This blog post discusses why the scientific information may pass the business records exception yet may still be subject to other evidentiary concerns like relevance and probative weight.

Step One
The evidentiary starting point is FRE 801(c), which defines hearsay as “a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

Under this definition, there is no room for doubt that scientific tests introduced to prove or disprove someone’s use of drugs fall within the definition of hearsay.

Step Two

The next and equally obvious point of evidentiary reference is the business record exception to hearsay. FRE 803(6) permits the introduction of business records, including scientific facts, regardless of whether the declarant is available as a witness. The elements of this exception, as we know, are:

  • the record was made and kept in the course of regularly conducted business activity;
  • the record is one that is routinely made and kept in the business’s usual practice;
  • the record was made at or near the time of the event that it records;
  • the record was made by a person with knowledge or from information transmitted by a person with knowledge; and
  • the proponent does not show a lack of trustworthiness in relation to the source of the information or the method of preparation.

All these conditions are shown by the testimony of a qualified witness or a certification that complies with FRE 902(11). Assuming that the proponent of the scientific tests can prove all of these elements, the business record exception will be met and the tests will overcome a hearsay objection.

However, even if the documents fall within the business record exception, the entire document will not necessarily be admitted into evidence. Again, as we know, business records oftentimes describe both the personal knowledge of employees and things told to employees by third parties.

Step Three
The third level of analysis occurs in situations where an out-of-court statement that falls within the business record exception contains another out-of-court declaration from a person other than the one who wrote the purported evidence. This is what we commonly refer to as hearsay within the business record or hearsay within hearsay. An example of hearsay within the business record would be a hair follicle or urinalysis test taken by an independent drug-testing agency and relied upon by a doctor when drafting her medical report.

FRE 805 states that hearsay within the business record is not excluded from evidence if each part of the combined statements conforms with an exception to the rule against hearsay. This means the tests must satisfy an independent hearsay exception or non-hearsay test and they must be found to be independently relevant.

Relevance and Probative Weight
To illustrate this matter, it is useful to take a closer look at what the results of our example—hair follicle or urinalysis tests—tell us. These tests analyze organic samples for traces of drugs. Depending on the tissue or fluid used, the tests can determine whether there are existing traces of drugs for a specified period of time. In the case of urinalysis, the tests show the use of drugs for a period of time prior to the taking of the test, depending on the drug. For hair follicle testing, it is generally accepted to be longer, between six to twelve months of prior drug use. However, nothing on the face of the test explains any of this. The business record exception neither explains the relevance of the test nor whether it is accurate

Thus, the relevance problem is twofold: 1) What does the test show? In other words, what is its relevance? and 2) Was the test properly administered? If so, are the results accurate?

Independent Relevancy
FRE 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

The issue here is that generally, nothing on the face of drug test explains its significance, or what it proves. Therefore, one could think that there could be a potential objection regarding the relevance of the test.

However, it is generally accepted that FRE 401 is an evidentiary starting point and that there are very few things that are kept out by this rule. Even if nothing on the face of the test explains exactly what the results mean, courts generally accept them into evidence so that their significance can be explained at a later stage.

Once we have established that the underlying scientific tests within the record would be deemed independently relevant, the results would only show that during the period of time covered by the test, the person had taken drugs. The results do not specifically indicate the amount or frequency in which the drugs were taken. Nor do they show that the test was properly administered.

Probative Value: The Significance and Accuracy of the Results
The last and perhaps most significant issue is this: even if the underlying scientific tests eventually get admitted into evidence, their significance and accuracy can still be challenged. Thus, a qualified witness should testify on direct examination as to the proper administration of the test and the test’s meaning and accuracy. There are, in turn, at least two obvious ways in which to attack the underlying scientific evidence: 1) deposing the person who carried out the tests or a qualified witness to show inadequacies in the way the tests were carried out, and 2) offering an expert witness’s testimony to challenge the findings introduced on direct examination.

Conclusion
An exhibit may only be admitted into evidence after a full evidentiary foundation is established. Oftentimes we are faced with business records that contain underlying scientific evidence. In the case of hair follicle or urinalysis tests, nothing on the face of the test explains the relevance of the test nor whether it is accurate. In those instances, the question arises as to whether those underlying scientific tests are admissible into evidence. The answer is that the tests must independently be found to be relevant and then they must satisfy an independent hearsay exception or non-hearsay test. If the tests satisfy these requirements, they will come into evidence. Once the tests are admitted into evidence, they can still by attacked by deposing the qualified witness or by offering an expert witness’s testimony to challenge the accuracy of the results.

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Marina Tous Clots is a Spanish attorney, a graduate of the University of Barcelona, and a dual-degree law student at Nova Southeastern University in Fort Lauderdale, Florida. She is a research assistant for Professor Michael J. Dale. She can be reached at m.tousclots@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

Monthly Theme: Voir Dire Part Three

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Recognize Leaders

Written by NITA guest blogger Melissa M. Gomez and excerpted from her book Jury Trials Outside In: Leveraging Psychology from Discovery to Decision

One persuasive person can make all the difference. That is why, in jury selection, I not only focus on those characteristics that will make jurors biased against my client, but also those that give a person the kind of charisma that will make her a persuasive thought leader in deliberations.

Leadership is a topic that has been studied and discussed extensively in business journals and academic research. In 2010, for example, de Vries, Bakker-Pieper, and Oostenveld conducted a study that evaluated different leadership styles. In their research, they surveyed 279 employees of a governmental organization. They then categorized their leadership findings into six communication styles: verbal aggressiveness, expressiveness, preciseness, assuredness, supportiveness, and argumentativeness.[1]

In the jury context, one of the main goals of voir dire is to get a sense of who the leaders may be on a panel. Who will be the foreperson, and what kind of impact will that person have on the other members of the panel? In that and other contexts, we often perceive leaders as those who are outwardly talkative, dynamic, and forceful with their opinions. In other words, we associate leaders as those who act in line with de Vries et al.’s verbal aggressiveness and argumentativeness. In doing so, we focus on the wrong characteristics. What these scholars found is that the strongest leaders are not always the loudest—other qualities abound that make someone the kind of person others will actually want to follow.

The research suggested that preciseness is the characteristic that most clearly indicates perceived leader performance and satisfaction with the leader, and this is above and beyond other leadership style variables. It isn’t about being loud. It is about being clear. Precision makes it easy for others to know what to do and where to go. It is the comfort of organization and clarity as opposed to leadership by volume, which can feel like chaos.

In Malcom Gladwell’s book, The Tipping Point,[2] he discusses the precision type leaders and their power to bring other people to act, to adopt an idea or to purchase a product. He calls them “salesmen.” In your jury, these are the panel members that sell a case idea or concept in such an effective manner that the other jurors will follow. Having a person like this on your jury can be like having a jury of one person. You convince her, she will convince everyone else with precision. If she is against you, she will turn everyone else against you. All I have to say is that if voir dire reveals someone who appears to have that kind of strong leadership potential, you need to be pretty darn confident she is going to be on your side to keep her on the jury. For me, if I am not confident about which side she will support, she will be my number one strike (or, more likely, my final strike if I decide to play chicken with opposing counsel, hoping they strike her first).

A Pennsylvania focus group in which one of these powerful salesmen participated comes to mind. The case at issue involved an emotionally charged story about an injury to a child. Deliberations were heavy with debate. As the other panel members argued, the salesman did not jump out of the box, yelling his opinions. He was too effective for that. Instead, he sat. He watched. He listened. He didn’t say a word. He didn’t volunteer to be the foreperson. Once the rest of the jurors became exhausted and frustrated with one another, he spoke—not only from his own perspective, but using what he had gained from the other jurors’ opinions. He spoke with a certain grace and sophistication that drew people in. He didn’t say much, but after he did, no other juror voiced an opinion independent from his interpretation. The salesman was selling, and the rest of the jurors were buying.

At the end of their deliberation, I sat down and discussed the case with the group, actively trying to get opinions from the other jurors. They repeatedly referred back to what the salesman had said, repeating his words and starting sentences with “well, I just agree with Bob” or “As Bob said . . . .”

Therefore, when assessing leadership, you must ask not only if there is a person who has the confidence and assertiveness to lead. You also must consider whether that person has the kind of charisma that will make others want to follow and the precise clarity so they can follow.

The good news is that a powerful salesman will more likely than not make him or herself known in jury selection if given a chance. She will speak with confidence in voir dire and happily provide opinion with clarity and precision. For this reason, if the court process allows, ask questions that are open-ended. Getting a sense of communication styles by letting jurors speak freely will give you a better picture of confidence, charisma, and eloquence—the telltale signs of a salesman. Getting just the facts in voir dire may help you identify basic characteristics in your juror profile, but hearing the manner in which someone speaks lets you know more about the interpersonal style or skills of that person.

After all, the power of one can make all the difference.

[Nationally known jury consultant and the President of MMG Jury Consulting, LLC, Dr. Melissa M. Gomez holds a PhD in Psychology and a Master of Science in Education from the University of Pennsylvania. She has worked on over 500 jury trials across the United States with a focus on the psychology of learning, behavior, and decision-making. She is the author of Jury Trials Outside In: Leveraging Psychology from Discovery to Decision, published by NITA.]

[1]. Reinout E. de Vries, Angelique Bakker-Pieper & Wyneke Oostenveld, Leadership = Communication? The Relations of Leaders’ Communication Styles with Leadership Styles, Knowledge Sharing and Leadership Outcomes, 25 Journal of Business and Psychology 367 (2010).

[2]. Malcom Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000).

Monthly Theme: Voir Dire Part Two

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Practice, Practice, Practice

Written by NITA guest blogger: Richard Schoenberger

Most cases involve two trials, the first one in the court room and the second one in the jury deliberation room. Pre-trial studies that identify top demographic trends of participants who would most help your case and that gather feedback in the form of surveys and multiple focus groups can obviously help develop themes and find the right jurors for you. But, at some point, you will be standing there – naked and alone – charged with the task of finding the right jurors for your client’s case or, much more accurately, “de-selecting” the wrong ones. This article makes the case for the notion that the best voir dires are those that have been practiced in advance. Huh, you say?

This we know for sure: At a minimum, one can lose the opportunity to win a trial in voir dire. Therefore, isn’t jury selection the most important part of the trial? For me, it is hard to argue otherwise. After all, these are the folks who will be making the decision that affects your client’s future. Get the wrong mix, and you may have yourselves a problem. Get the wrong leader? Forget about it! An individual’s occupation/vocation, whether for compensation or volunteer, really matters. Are they in leadership positions? Do they supervise, terminate, manage, make difficult upper level decisions? If so, they are probably a leader and you need to pay particular attention. Are they a leader who values personal responsibility over social responsibility? If yes, more likely a good defense juror in a civil case. If not, probably a good plaintiff juror. But, get them talking to find out! Easier said than done?

And remember, your goal is not to uncover those folks who are likely to agree with your case, but the exact opposite. You are in search of those whose belief systems are directly counter to some of the weaknesses in your case. So, your focus during selection is on the bad stuff in your case, not the good stuff. You are out there trying to gauge reaction to the things you are worried about, not the things that make your case strong. The last thing you want to do is highlight your good jurors.

Getting people to be brutally honest and speak openly in front of a room full of strangers on topics that concern you and that they never before considered can be, to put it mildly, a tad difficult. How do you make jurors feel comfortable enough to talk and really open up? How do you bounce from juror to juror? How do you reveal and “de-select” those jurors who are wrong for your case? This is hard enough for the most experienced lawyers, but can be particularly challenging for those just starting out.

Despite this, it seems that new trial lawyers don’t spend enough time preparing for all-important jury selection, and as such, it becomes the scariest part of the trial for them. If conventional wisdom supports the notion that lawyers should practice/rehearse opening statements, why isn’t it equally important that lawyers practice/rehearse voir dire? You would be amazed at how much better you will feel with the real thing when you have already spent an hour or two with a group of people asking open-ended questions about your concerns in your upcoming case – i.e. when you have emptied your “worry basket” with vulnerability and candor; when you have worked out your first 1-2 minutes in front of them; where you can learn to listen and react instead of simply trying to educate; when you have practiced converting from open-ended questions to leading-type questions to establish a cause challenge.

A focus group specifically devoted to jury selection can be done on the cheap. Systems exist for recruiting local residents to come in for a few hours for a fairly low sum, certainly less than $1,000. Or, you can simply grab a group from your firm or a group of trusted family/friends and force them to assume the role of pretend jurors. This can be done even more cheaply! By practicing this way, you develop the muscle memory for themes you wish to advance, for problems you want to voice. Do it more than once if you can. These dress-rehearsals make the real thing so much better…and dare I say, more enjoyable!

Remember, first impressions matter. Jury selection is the first time that you will have the jurors’ undivided attention. This is the time that you can establish rapport; that you are able to show yourself as the trustworthy lawyer who will lead the jury down the path of truth and justice. To do this correctly, you will not be taking copious notes, but instead standing before them, razor-focused and attentive to the verbal and non-verbal cues that they will be offering up. How uncomfortable is that? Much less so when you practice. You and your clients will benefit tremendously.

[Richard H. Schoenberger is one of the most highly respected trial lawyers in California. In 2011, he was selected as the Trial Layer of the Year by the San Francisco Trial Lawyers Association. It was his second nomination for this prestigious award. Rich joined the Walkup Melodia office in August of 1987 and became a partner in 1995. He has served as program director at NITA’s Advanced Advocacy program since 2014.]

 

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  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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