Vermont Bar Association’s

Young Lawyers Division

Mid-Winter Thaw Seminar Materials

Fundamentals of Pre-Trial Practice

January 14, 2017

Le Sheraton Montreal

Speakers:

Justice Harold Eaton

Tristram Coffin, Esq.

Barbara Blackman, Esq.

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1

Conducting Effective Motions Practice

The Basics:

• CLEAR STATEMENT OF THE “SITUATION”

• CLEAR STATEMENT OF THE LAW

• CLEAR EXPLANATION WHY RELIEF SOUGHT IS JUST

• FACTUAL SUPPORT IF CONTESTED. E.G. AFFIDAVIT

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Motions to Compel and for Protective Order

• Rule 26 and Rule 37

• Meet and Confer Obligation

• Conferred in good faith to resolve the dispute

• Support for motion – The Airing of Grievances.

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SUMMARY JUDGMENT FED AND STATE

• Rule 56:

“no genuine dispute as to any material fact”

Support for facts asserted to be in dispute or not: “materials in the record including…

Statement of Undisputed Facts

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Summary Judgment (cont.)

• Statement of Disputed Facts

• Lesser pleading standard in Vermont

• Very developed federal case law on what constitutes a “genuine issue of material fact.”

• Vermont adopts some but not all.

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Summary Judgment (cont.)

• Non-moving party is entitled to have all inferences drawn in its favor

• Must present admissible evidence showing there is a genuine fact dispute

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4

Trial Preparation Issues: Organizing and Presenting Your Story

Presenting Your Story

• What’s in the case? Motions in Limine

• Developing a Trial Theme

• Some notes on organizing for Trial

• What matters in an opening?

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Motions in Limine

• What evidence will come in will define your story

• Avoid surprises: better to know your story than have it told to you at trial!

• The more important and complex the issue, the earlier you should present it to the trial judge

• Judge’s comfort level and preferences vary

• Know your Judge’s preferences

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Developing a Trial Theme

• Jurors think like people, lawyers don’t always!

• So, how do people think?

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Carl Jung

• Archetypes – universal, archaic patterns, images and symbols

• Innate and developed through culture

• Embodied in the collective unconsciousness

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The Hero Quest Pattern

• Joseph Campbell, The Power of Myth

• Common themes in western stories:

Ordinary world

Call to Adventure

Refusal of the Call

Meeting with the Mentor

The Ordeal

The Reward

The Road Back

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The Hero Quest Story (cont.)

Examples:

-- Moby Dick

-- The Ring Trilogy

-- Star Wars

-- Northern Exposure

-- Harry Potter

Common themes – common interpretation, common understanding?

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The Seven Themes of Advertising

• Overcoming the monster

• Rebirth/Comeback story/Redemption

• Quest

• Journey and Return

• Rags to Riches

• Tragedy

• Comedy

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Everything Important I Learned in Kindergarten…

• It’s mine

• He’s not sharing

• She started it

• He didn’t clean up his mess

• Say you are sorry

• Don’t hit people

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Lawyers’ adoption of these themes…

• There is power in the one-line case summary – like the one-line movie theme:

“In space, no one can hear you scream.” Aliens

“We are not alone.” Close Encounters

“Long ago, in a Galaxy Far, Far away”

“His whole life was a million-to-one shot”, Rocky

“Make America Great Again”

Can you make a tag-line that works for your case?

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One word themes to help focus your case:What is my best story?

• Responsibility

• Truth

• Civility

• Justice

• Greed

• Defendant was running late

• Good versus evil

• Weak versus powerful; David v. Goliath

• Stuff happens

• Perseverance

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One word themes (cont.)

• Sacrifice

• Obedience

• Order

• Plaintiff will never be normal again

• Loyalty

• Expectation

• No objective evidence

• It was just an accident

• Integrity

• Credibility

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Sum up of Trial Themes:

• Find one that speaks like a person

• Keep it simple, make sure you can stick to it big picture

• Develop in discovery

• Use from the first instance with the jury: voir dire, opening.

• Repeat the theme – KEEP IT SIMPLE

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Opening Issues:

• Surveys repeatedly show jurors make up their minds within minutes of hearing from lawyers

• First impression is key.

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Opening Issues (cont.)

• Must CONNECT!

• Honesty! You honestly believe your cause

• Passion!

• Keep it Simple!

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"Do you solemnly swear that the testimony you are about to give in the matter now before us to

be the truth and nothing but the truth, so help you God?"

V.R.C.P. 30

• 10 days’ notice unless Judge says otherwise (ex-parte)

• Any party can concurrently record but cannot secretly

• When to videotape?

• Notice may be accompanied by request produce documents. 5 days to serve written objection and then requesting party not entitled to documents except by order of the court

• Parties can stipulate (or judge can order) telephone deposition

V.R.C.P. 30, cont’d• Examination and cross-examination of witness

may proceed as permitted at trial

• What are the “Usual Stipulations” anyway?

• Objections shall be stated concisely and in a nonargumentative and nonsuggestive manner.

• Attorney may instruct deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion (bad faith, unreasonably to annoy, embarrass, or oppress the deponent or party)

Objections as to Form are Waived• leading questions

• lack of foundation

• assuming facts not in evidence

• mischaracterization or misleading question

• non-responsive answer

• lack of personal knowledge

• testimony by counsel

• speculation

• asked and answered

• argumentative question

• witness’ answers that are beyond the scope of the question.

NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11–CV–146, 2012 WL 6553272, at *2

(E.D.Tenn. Dec. 13, 2012)

Preparing Your Client

• “Please state your name” -- 95% of your job is already done

• 162 Essential Rules

• My rules

• Know your adversary

• Be aware that some clients may dislike collegial banter between counsel.

Preparing Adverse Party / Witness Depo

• Don’t do discovery deposition; have a game plan – filing for SJ?

• Throw away your list of questions – Listen!

• Deciding when to impeach – deposition or trial

• How do you know when you’ve done a good job?

Expert Depositions

• Now’s the time to have real fun!

• Lock them in

• How to use the expert disclosure

• Blah, blah, blah -- Don’t let them bury you in an answer

• Medical terminology

Civil Cases in VT

Year Added Disposed Pending Cleared

2012 5878 5574 3289 95%

2013 7457 6568 4058 88%

2014 6863 7238 3736 105%

2015 6693 7000 3578 105%

2016 5949 6338 3180 107%

By Case Type

How Disposed

Civil Jury Trials

Year Total

FY 2012 22

FY 2013 17

FY 2014 28

FY 2015 22

FY 2016 29

2016 Civil Jury TrialsCounty Total

Addison 5

Bennington 1

Caledonia 1

Chittenden 5

Essex 0

Franklin 1

Grand Isle 0

Lamoille 2

Orange 0

Orleans 0

Rutland 2

Washington 5

Windham 1

Windsor 6

Mediation

•“Full time” Mediators in Vermont mediate approximately 125-150 matters annually.

•75% Average Success Rate

Additional link from Barbara Blackman:

https://www.youtube.com/watch?v=0zlGYtcUhhc