Colin E. Kaufman

Adam Leitman Bailey, PC

April 11, 2013

Trial up to Openings

Facts

Law

Opponent

Judge

Investigation

JudgeScholar PragmatistSettlerStickler

JuryVenueDemographics

Audience

Jury or Bench TrialJury Judge

Not jadedReceptive to moral

argumentsSusceptible to

sympathyTrial will run longer in

one block

Higher probability of quirky verdict

More scope for appellate review

ExperiencedReceptive to legal

argumentFocused on factsTrial quicker, but may

be discontinuous + delay in judgment

Verdict generally consistent with similar cases

Seldom reversed on factual issues

How do the facts fit the law you need?

What is your story?

Why should I care?

Theory of the Case

Frame the argument

Introduce buzz words and taglines

Prepare the fact-finder to make a moral judgment in your client’s favor

Juries and judges want to do the right thing – help them

Theme(s)

Investigation and legal research lead to a consistent story, themes, opening, testimony, summation, which leads to a verdict in your client’s favor.

Trials are a Unitary Whole

Varies by County

Case

Judge

You may influence

Reverse bifurcation

trifurcation

Bifurcated v Unified Trial

1)Preparation1)Develop facts2)Know the law

2)Everything Counts

HOW TO WIN CASES

(For Plaintiff) Marked Pleadings

Proposed Jury Charges

Stipulated Facts (if any)

(Some Judges/Some cases) Trial Memorandum of Law

Motions in Limine

(Some State Judges + Federal) Exhibit List

Proposed Transcript Readings, objections, fairness readings

What you need - Pretrial Conference

• When sorely prejudicial material

• Alerts the other side

• Decisions in limine are preliminary• When opposing, always give the judge the

out – I won’t use it in opening, let’s see how the evidence develops

• When bringing the motion – Judge, your decision here affects the structure of my case

Motions in Limine

• Pro• Gives the Court an overview

• Allows the Court to prepare

• Gives the court time to research legal issues raised

• Generally makes life easier for the Court

• Con• Give your opponent an overview of your case

• Allows opposing counsel time to prepare, to exploit weaknesses and to bolster his case where needed

• Gives your opponent time to research legal issues

My job is not to make life easy for the Court (and certainly not for my adversary)

Trial Brief

18-24 veniremenLittle roomTake chargeEVERYTHING COUNTSJury Questionnaires

Jury Selection

Introduction Identify Matters in contention

Don’t argue your case

Questioning Open ended Identify prejudices (without calling it that)

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