Loading presentation...
Prezi is an interactive zooming presentation

Present Remotely

Send the link below via email or IM

Copy

Present to your audience

Start remote presentation

  • Invited audience members will follow you as you navigate and present
  • People invited to a presentation do not need a Prezi account
  • This link expires 10 minutes after you close the presentation
  • A maximum of 30 users can follow your presentation
  • Learn more about this feature in our knowledge base article

Do you really want to delete this prezi?

Neither you, nor the coeditors you shared it with will be able to recover it again.

DeleteCancel

Make your likes visible on Facebook?

Connect your Facebook account to Prezi and let your likes appear on your timeline.
You can change this under Settings & Account at any time.

No, thanks

Opening Statement and Direct Examination

No description
by

Elizabeth Bagby

on 9 February 2016

Comments (0)

Please log in to add your comment.

Report abuse

Transcript of Opening Statement and Direct Examination

Opening Statement and Direct Examination
Jacob C. Walbourn
Who am I?
Education
Graduate of Larry A. Ryle High School, Union, KY (May 2003)
BBA, Management and Marketing, Gatton College of Business and Economics, University of Kentucky (December 2006)

JD, University of Tennessee (May 2010)
Admitted to Practice of Law in Kentucky (October 2010)

Employment
Assistant Director, e-Warrants Rural Implementation Project - Office of the Attorney General (2010-2012)
Attorney - Lexington-Fayette Urban County Government (2012-2013)
Assistant Attorney General - Office of Civil and Environmental Law (2013-2015)
Associate - McBrayer, McGinnis, Leslie & Kirkland, PLLC (2015-Present)
What do I do?
Land Use
- Planning and Zoning
Obtain governmental approvals for development proposals
Zone changes, variances, development plans
Property rights/disputes
Cell tower regulation

- Other miscellaneous areas
Administrative law
“Governmental” – Open Records, other matters

What
did
I do?
Employee negligence
-Auto accidents, general negligence

42 U.S.C. §1983 actions
Constitutional claims against police, prosecutors, judges

Constitutional practice
-Voting rights

Government takings
-Eminent Domain/Inverse condemnation
Where have I been?
-Sixth Circuit Court of Appeals (Cincinnati)
-Hamilton County (OH) Probate
Effective Litigation Strategies
This class focuses on trial techniques, so we’ll focus on that
-Typically goal should be to avoid trial
Civil cases
-Rule 12(b)(6) Motions to Dismiss
-Rule 56 Motions for Summary Judgment
-Settlement
Criminal Cases
-Motion to dismiss or plea bargain
What is an Opening Statement?
Over the last several years, the scope of statements made during opening remarks has expanded considerably. The purpose of opening statement is to outline for the jury what the proponent expects his proof to be.
Fields v. Commonwealth
, 12 S.W.3d 275, 281 (Ky.2000) (“The only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced.”);
Co–De Coal Co. v. Combs
, 325 S.W.2d 78, 79 (Ky.1959) (“An opening statement of counsel is prefatory to introducing evidence. Its purpose or function is merely to inform the judge and the jury in a general way of the nature of the case and the issues involved, particularly to outline what the attorney's client expects to prove.”). In aid of that, charts, photographs and other demonstrative materials are used to explain the proposed testimony.

Parker v. Commonwealth
, 241 S.W.3d 805, 808 (Ky. 2007)

Breakdown
“Explain to the jury the issue they are to try”
-What is this case about? What is the jury’s role?
“Outline what the attorney's client expects to prove”
-What evidence will you be putting on?
-What witnesses will you call?
-What is your burden of proof?
“In aid of that, charts, photographs and other demonstrative materials are used”
-People remember 15% of what they hear, 85% of what they see

Opening Statement
BEFORE you even start to draft, consider:
Which side am I on?
Plaintiff/prosecutor goes first, defense goes second
- If I’m first, I set the tone (*except voir dire)
- If I’m second, I have an opportunity to rebut and/or to establish my affirmative defense

Who am I talking to?
Bench trial, jury trial, arbitration?
- Judges/arbitrators need less instruction/more familiar with standards (with exceptions)
- Juries may be intimidated, less educated on law, views colored by their past experience
Affirmative Defense?
Affirmative defenses = burden shifting

-Affirmative defenses must be proven by the
defendant

What are some affirmative defenses?
-Statute of limitations
-Waiver
-Estoppel/laches
-Self-defense
-Insanity (criminal)

What
should
you do?
Prepare
Opening statements are your first opportunity to connect with trier of fact
Juries will be at their most attentive at this point
Jurors may, consciously or unconsciously, pick which side they think is more credible/“good guy” at this stage
- Particularly in civil trials where “good guy/bad guy” distinction is less obvious
- That presumption may be hard to overcome

What is your blueprint for success?
Type of case
- What do I/they have to prove? (Elements)
Burden of proof
- Civil: Preponderance
- Criminal: Beyond reasonable doubt
Determine important from extraneous
Which facts should the jury focus on?
- Who should the jury pay attention to?
- What red herrings are out there?
Acknowledge reality
Juries appreciate honesty and genuineness
"Take the sting out" of bad facts
What
shouldn't
you do?
Be
openly
argumentative
Argument is not allowed in opening statements – just supposed to be a preview of a case
This doesn’t mean you can’t engage in some level of argument.
EXAMPLE: “While Appellant may find the prosecutor's characterization of his defense theory as “stupid” rather harsh…”
Stopher v. Commonwealth
, 57 S.W.3d 787, 806 (Ky. 2001), as amended (Aug. 15, 2001).
Talk too long/short (or read from a paper)

Don't want to minimize your case
Don't want to lose the jury's interest
Try to be Perry Mason (Matlock? McCoy?)

You aren't a TV lawyer
You need to approach the case with the levity it calls for
Raymond Burr
as
Perry Mason
Andy Griffith
as
Ben Matlock
Sam Waterson
as
Jack McCoy
A note on TV/movies...
A Time to Kill (1996)
12 Angry Men (1957)
A Few Good Men (1992)
My Cousin Vinny (1992)
Liar Liar (1997)
To Kill A Mockingbird (1962)
Make promises you can't keep

"The worst injustice you have ever heard"
"Most obvious case of..."
Also, be wary of these demonstrative aids...

Actual evidence sometimes can be used
Demonstrative aids can be used (as long as they are non-prejudicial)
But, be careful of questionable evidence
Parker v. Commonwealth
Commonwealth played Defendant’s rap CD about “gang war” as part of opening statement
- “Shot the b**** at close range”
- “Remember the 31st” (murder occurred on 7/31)
Defendant objected during statement
Commonwealth could not get rap CD in evidence as "adoptive admission"
Defendant’s conviction reversed and he was re-tried (convicted of manslaughter on re-trial)
- “It is necessary that when evidentiary materials are sued, they must at least be authenticated or their admissibility determined before their use.”
Hypothetical:
The Farmer and the Interloper
Interloper sues Farmer for battery
Battery:
“Any unlawful touching of the person of another, either by the aggressor, or by any substance set in motion by him.”
Andrew v. Begley
, 203 S.W.3d 165, 171 (Ky. Ct. App. 2006)
Also:
“Intent to make contact with the person” is an essential element of civil battery.
Vitale v. Henchey
, 24 S.W. 3d 651, 657 (Ky. 2000)
Make an Opening Statement for Interloper
Elements of battery:
- Unlawful
- Touching of person
- By aggressor
- Intentional
Burden of proof: preponderance of evidence
Bad facts: drunk and combative
Good/bad guy problems?
Any helpful demonstrative aids?
Was this a real case?
Hypothetical Wrap-Up
Sometimes, a Carpenter is going to be your paying client… how do you represent his interests appropriately?
Direct Examination
What is the purpose of direct examination?
To establish the facts you said you would establish in your opening statement OR
To introduce evidence OR
To rebut facts presented by party with burden OR
To establish an affirmative defense
What
should
you do?
Have a plan
What facts do I need from this witness?
- If you can’t come up with any, don’t call them
In what order should I call this witness?
- What is my blueprint? Where does this make sense?

Prepare witness
You can talk with your witnesses, ask them your questions in advance to see how they respond
- You cannot tell a witness what to say – they take the oath and you don’t want to suborn perjury
- You can, however, refine your questions to make your point



Play by the rules
Kentucky Rules of Evidence
- KRE 611
- KRE Article 7: Experts
- OBJECTION!
Motions in Limine
Practical Considerations
Has this person offered testimony before?
- Other matters
- Deposition testimony
- Verified pleadings/discovery

- Prepare them!
- Answer only the question asked
- You are testifying to the jury (not the lawyers)

Is this person comfortable testifying?
What
shouldn't
you do?
Opening Statement
Opening Statement
Direct Examination
Direct Examination
Leading questions
Leading questions
ARE NOT
yes or no questions
- Was the sun out that day?
Leading questions
ARE
questions that suggest the answer to the witness
- The sun was out that day, wasn’t it?
Best practice: don’t use yes or no if you don’t have to do so
- Jury will think you are putting words in the witness’ mouth

KRE 611(c)
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony.

Ordinarily leading questions should be permitted on cross-examination, but only upon the subject matter of the direct examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
An Aside: Exceptions to Every Rule
Hostile witness (KRE 611(c))
Young children (
Hardy v. Com
.)
“Subnormal intelligence” (
Clements v. Com
.)
Confused/elderly (
Embry v. Turner
)
Professionals/experts (
Brewster v. Com
.)
Refresh recollection (
Blankenship v. Com
.)

The moral: Abide by general rules, be wary of exceptions. The law is full of them.
Ask questions that you aren't sure what the witness' answer will be
This means you didn't prepare
You should never put your case to chance
Argue with a witness
Even if testimony is not going well, this will not look good to a jury
Fail to hear the witness' answer
You may need to adapt - this isn't scripted (and shouldn't sound like it is)
Another Aside: The Repeater
Personal pet peeve: attorneys who try to underline each point by repeating what the witness just said
Q: What color was the car?
A: Red.
Q: So the car was red?
A: Yes.
Q: So what did you see this red car doing?
Exception: rhetorical strategy to underline important point
Why not argue/repeat/not listen?
The trier of fact (usually, a jury) will be determining your (client’s) fate
Recognize limitations/weaknesses of jury, but don’t treat them like children
You are your client's representative - represent them appropriately
Special Considerations: Evidence
Some cases may require the introduction of tangible evidence, documents
- Foundation must be laid for admission (later class)
- ITEMS NOT ADMITTED CAN’T BE VIEWED BY JURY LATER
Invoking “the Rule”
KRE 615 requires the judge, upon request of either party, to exclude witnesses from the courtroom prior to their testimony, unless the witness is:

- A party that is a person
- The designated representative of a non-person party (e.g., corporate representative)
- Someone “essential to the presentation of the party’s cause”
Questions? Stories?
jwalbourn@mmlk.com
Jacob.Walbourn@gmail.com
Full transcript