NITA Publications

Trial Advocacy Basics

"She had everything she needed, didn't she? Three years of law school study, many months of preparation, a new suit, and a briefcase full of files and notes. Had she done enough? Had she forgotten anything? This would be no law school exercise. This time the stakes were real." - excerpt from page 1 of Trial Advocacy Basics.

Trial Advocacy Basics, by Dent Gitchel and Molly Townes O'Brien, provides a complete and concise guide to the beginning trial advocate. Practical advice on every stage of trial preparation and practice, from voir dire to verdict, is included. The authors explain trial procedures and techniques in a straightforward manner, using colorful examples, memorable quotes, and humor.

• >> TABLE OF CONTENTS
  TABLE OF CONTENTS
  
  CHAPTER ONE. INTRODUCTION TO THE COURTROOM
  1.1 WELCOME TO THE COURTROOM
  1.2 THE NATURE OF TRIAL
  1.3 WHAT MAKES A GOOD TRIAL LAWYER?
  1.4 THE BASIC OUTLINE OF A JURY TRIAL
  1.5 DIFFERENCES BETWEEN BENCH AND JURY TRIALS
  
  CHAPTER TWO. GETTING READY FOR TRIAL
  
  2.1 THE THEORY OF YOUR CASE
  2.2 DEVELOPING THE LEGAL ASPECT OF CASE THEORY
  2.3 DEVELOPING THE FACTUAL ASPECT OF CASE THEORY
  2.3.1 THE IMPORTANCE OF LOGIC IN CASE PRESENTATION
  2.3.2 MARSHALING THE EVIDENCE
  2.3.3 CONDUCT A "FAVORABLE/UNFAVORABLE" FACTS ANALYSIS
  2.3.4 TAKE YOUR FILE APART AND REARRANGE IT
  2.4 PUTTING IT ALL TOGETHER
  2.4.1 A THEME FOR YOUR CASE
  2.4.2 PREPARE A TRIAL NOTEBOOK
  2.4.3 PREPARE TO PRESENT THE TESTIMONY OF YOUR WITNESSES
  2.4.4 TAKE YOUR WITNESSES TO THE WOODSHED
  2.4.5 PREPARE YOUR CROSS-EXAMINATIONS
  2.4.6 PREPARE YOUR EXHIBITS
  2.4.7 PREPARE MOTIONS IN LIMINE
  2.4.8 PREPARE YOUR VOIR DIRE QUESTIONS
  2.4.9 PREPARE YOUR OPENING STATEMENT AND REVIEW YOUR CLOSING ARGUMENT
  2.5 BEFORE THE TRIAL BEGINS
  
  CHAPTER THREE. THE LAWYER'S COURTROOM DEMEANOR
  3.1 THE TRIAL LAWYER ON TRIAL
  3.2 EFFECTIVE COURTROOM BEHAVIOR
  3.2.1 BEFORE YOU GET TO COURT
  3.2.2 AT COUNSEL TABLE 3
  3.2.3 WHILE MAKING AND RESPONDING TO OBJECTIONS
  3.2.4 WHILE ADDRESSING THE JURY--THE IMPORTANCE OF EYE CONTACT
  3.2.5 WHILE EXAMINING WITNESSES
  3.3 MANAGING YOUR BODY
  3.3.1 HANDS
  3.3.2 LEGS AND FEET
  3.3.3 VOICE
  3.3.4 DRESS
  3.3.5 LET THE JURY KNOW YOU
  3.4 THE GENTLE ART OF PERSUASION
  
  CHAPTER FOUR. JURY SELECTION
  4.1 JURY SELECTION BASICS
  4.2 PREPARATION BEFORE TRIAL
  4.2.1 GET COURTROOM-SPECIFIC INFORMATION
  4.2.2 DECIDE WHAT KIND OF PEOPLE YOU MOST WANT AND DO NOT WANT ON THE JURY
  4.2.3 LEARN AS MUCH AS YOU CAN ABOUT THE MEMBERS OF THE JURY PANEL
  4.3 TECHNIQUES FOR CONDUCTING VOIR DIRE
  4.3.1 BASIC JURY QUESTIONING TECHNIQUES
  4.3.2 USING VOIR DIRE TO TEACH THE JURY ABOUT YOUR CASE
  4.3.3 EXERCISING CHALLENGES FOR CAUSE
  4.3.4 EXERCISING PEREMPTORY CHALLENGES
  4.4 FINAL THOUGHTS AND THE FINAL QUESTION
  
  CHAPTER FIVE. OPENING STATEMENT
  5.1 THE GOALS OF OPENING STATEMENT
  5.2 HOW TO PREPARE YOUR OPENING STATEMENT
  5.2.1 REVIEW THE PLEADINGS
  5.2.2 BUILD YOUR OPENING STATEMENT ON THE THEME OF THE CASE
  5.2.3 OUTLINE YOUR OPENING STATEMENT
  5.3 HOW TO DELIVERY YOUR OPENING STATEMENT
  5.3.1 REHEARSE
  5.3.2 STICK TO YOUR OWN AGENDA
  5.3.3 STAND AT A COMFORTABLE DISTANCE IN FRONT OF THE JURORS
  5.3.4 MAINTAIN EYE CONTACT
  5.3.5 USE VISUAL AIDS
  5.3.6 FOLLOW THE CARDINAL PRINCIPALS OF SINCERITY, HONESTY, AND SIMPLICITY
  5.4 OBJECTIONS TO IMPROPER OPENING STATEMENT
  
  CHAPTER SIX. DIRECT EXAMINATION
  6.1 INTRODUCTION
  6.2 ORGANIZING DIRECT EXAMINATION
  6.2.1 HUMANIZE THE WITNESS
  6.2.2 HAVE THE WITNESS ESTABLISH HIS CONNECTION TO THE CASE
  6.2.3 HAVE THE WITNESS DESCRIBE THE SCENE
  6.2.4 LET THE WITNESS TELL HIS STORY
  6.3 PERFORMING DIRECT EXAMINATION
  6.3.1 YOUR DEMEANOR
  6.3.2 YOUR QUESTIONS
  6.3.3 HANDLING A WITNESS'S PROBLEMS ON THE STAND
  6.3.4 SOME SPECIFIC TECHNIQUES
  
  CHAPTER SEVEN. CROSS-EXAMINATION
  7.1 INTRODUCTION: CROSS-EXAMINATION AND IMPEACHMENT
  7.2 PLANNING FOR CROSS-EXAMINATION
  7.2.1 KNOW THE CASE FILE
  7.2.2 KNOW WHAT YOU WANT TO ACCOMPLISH
  7.2.3 DEVELOP A THEORY
  7.2.4 SHOULD YOU CROSS-EXAMINE AT ALL?
  7.3 THE STRUCTURE OF CROSS-EXAMINATION
  7.3.1 FIRST, BRING OUT EVIDENCE FAVORABLE TO YOUR CLIENT'S CASE
  7.3.2 SECOND, HAVE THE WITNESS ACKNOWLEDGE THE WEAK SPOTS IN HIS TESTIMONY
  7.3.3 FINALLY, CHALLENGE THE WITNESS
  7.4 CROSS-EXAMINATION TECHNIQUE
  7.4.1 WHERE TO STAND? TAKE CENTER STAGE
  7.4.2 BE COURTEOUS
  7.4.3 KEEP UP THE QUESTIONING PACE
  7.4.4 MAINTAIN EYE CONTACT
  7.4.5 ASK LEADING QUESTIONS
  7.4.6 KNOW ALL THE ANSWERS
  7.4.7 WHEN TO USE NON-LEADING QUESTIONS
  7.5 ESSENTIAL CROSS-EXAMINATION SKILLS
  7.5.1 CONTROL THE WITNESS
  7.5.2 LISTEN AND BE FLEXIBLE
  7.5.3 DO NOT TRY TO MAKE YOUR CLOSING ARGUMENT DURING CROSS-EXAMINATION
  
  CHAPTER EIGHT. IMPEACHMENT
  8.1 TYPES OF IMPEACHMENT
  8.2 REVEALING WEAKNESS: ATTACKING THE WITNESS'S COMPETENCE
  8.2.1 INABILITY TO PERCEIVE
  8.2.2 INABILITY TO REMEMBER
  8.3 REVEALING MISTAKES OR LIES: PRIOR INCONSISTENT STATEMENT
  8.3.1 METHOD
  8.4 EXPOSING THE LIAR: ATTACKING THE WITNESS'S CHARACTER FOR TRUTHFULNESS
  8.4.1 OPINION AND REPUTATION EVIDENCE
  8.4.2 PRIOR CONVICTIONS
  8.4.3 PRIOR UNCONVICTED BAD ACTS
  8.5 REVEALING REASONS TO SHADE THE TRUTH OR LIE: ATTACKING THE WITNESS FOR BIAS, PREJUDICE, INTEREST, OR CORRUPTION
  
  CHAPTER NINE. EXPERT WITNESSES
  9.1 INTERVIEWING YOUR EXPERT WITNESS BEFORE TRIAL
  9.2 PREPARING THE EXPERT FOR THE COURTROOM
  9.3 PRESENTING THE DIRECT TESTIMONY OF YOUR EXPERT WITNESSES
  9.3.1 EMPHASIZE THE EXPERT'S OPINIONS AND CONCLUSIONS
  9.3.2 A BASIC OUTLINE FOR THE DIRECT EXAMINATION OF AN EXPERT WITNESS
  9.4 CROSS-EXAMINING AN EXPERT WITNESS
  9.4.1 ELICIT FAVORABLE FACTS FROM YOUR OPPONENT'S EXPERT
  9.4.2 OBTAIN CONCESSIONS CONCERNING ASSUMPTIONS
  9.4.3 IMPEACH THE EXPERT WITNESS'S CREDIBILITY QUALIFICATIONS
  
  CHAPTER TEN. EXHIBITS AND ILLUSTRATIVE AIDS
  10.1 INTRODUCTION
  10.2 TYPES OF EXHIBITS
  10.3 MAKE AND USE A CHECKLIST OF EXHIBITS
  10.4 OBSERVE THE "RITUAL OF FOUNDATIONS"
  10.4.1 STEP ONE: QUALIFY THE WITNESS AND ESTABLISH RELEVANCE
  10.4.2 STEP TWO: SHOW THE EXHIBIT TO OPPOSING COUNSEL AND THE JUDGE
  10.4.3 STEP THREE: HAVE THE WITNESS IDENTIFY THE EXHIBIT
  10.4.4 STEP FOUR: ASK THE NECESSARY QUESTIONS TO LAY THE EVIDENTIARY FOUNDATION
  10.4.5 STEP FIVE: OFFER THE EXHIBIT
  10.4.6 STEP SIX: PUBLISH THE EXHIBIT TO THE JURY
  10.5 A REVIEW SCRIPT
  10.6 SPECIAL PROBLEMS IN EVIDENTIARY FOUNDATIONS
  10.6.1 PROBLEMS OF AUTHENTICITY
  10.6.2 HEARSAY: THE BUSINESS RECORDS EXCEPTION
  10.6.3 SHOULD YOU ELICIT UNDERLYING FACTS OR PARROT THE RULE?
  10.6.4 A SAMPLE BUSINESS RECORDS FOUNDATION
  
  CHAPTER ELEVEN. OBJECTING AND RESPONDING TO OBJECTIONS
  11.1 INTRODUCTION
  11.2 HOW TO MAKE OBJECTIONS
  11.2.1 THE BASICS
  11.2.2 DO NOT OBJECT UNLESS THE EVIDENCE WILL HURT YOUR CASE
  11.2.3 OBJECT WHEN INADMISSIBLE EVIDENCE WILL HURT YOUR CASE
  11.2.4 MOTIONS IN LIMINE
  11.2.5 OBJECT WHEN THE QUESTION IS ASKED
  11.2.6 OBJECT AS SOON AS YOUR OPPONENT ATTEMPTS TO READ FROM DOCUMENTS
  THAT HAVE NOT BEEN ADMITTED INTO EVIDENCE
  11.2.7 INTRODUCE FACTS THAT SHOW YOUR OPPONENT?S EVIDENCE IS INADMISSIBLE BY CONDUCTING A VOIR DIRE OF THE WITNESS
  11.2.8 OBJECT TO THE JUDGE'S QUESTIONS ONLY WHEN THE JURY IS OUT OF THE ROOM
  11.3 THE GROUNDS FOR OBJECTION
  11.3.1 OBJECTIONS TO THE FORM OF INTERROGATION
  11.3.2 OBJECTIONS TO NON-RESPONSIVE TESTIMONY
  11.3.3 OBJECTIONS TO THE ADMISSIBILITY OF EVIDENCE
  11.3.4 OBJECTIONS BASED ON RELEVANCE
  11.3.5 OBJECTIONS BASED ON LACK OF AUTHENTICATION OR IDENTIFICATION
  11.3.6 OBJECTIONS BASED ON PREJUDICE OR OTHER COUNTERBALANCING FACTORS
  11.3.7 OBJECTIONS BASED ON PRIVILEGE
  11.3.8 OBJECTIONS BASED ON COMPETENCE OF WITNESSES
  11.3.9 OBJECTIONS BASED ON HEARSAY
  11.3.10 OBJECTIONS BASED ON ORIGINALITY
  11.4 HOW TO RESPOND TO OBJECTIONS
  11.4.1 ANTICIPATE OBJECTIONS
  11.4.2 DO NOT WITHDRAW YOUR QUESTIONS
  11.4.3 DO NOT ASSUME THAT OBJECTIONS WILL BE SUSTAINED
  11.4.4 IF YOUR OPPONENT'S OBJECTION TO "LEADING" IS SUSTAINED, ELICIT THE TESTIMONY WITH A NON-LEADING QUESTION
  11.4.5 BE SUCCINCT AND ACT CONFIDENT
  11.4.6 RESPOND IF YOU HAVE A RESPONSE
  11.4.7 RESPOND ON THE SAME BASIS AS THE OBJECTION
  11.4.8 RESPONDING TO HEARSAY OBJECTIONS
  11.4.9 MAKE AN OFFER OF PROOF
  
  CHAPTER TWELVE. CLOSING ARGUMENT
  12.1 THE PURPOSE OF CLOSING ARGUMENTS
  12.2 HOW AND WHEN TO PREPARE YOUR CLOSING ARGUMENT
  12.3 THE CONTENTS OF AN EFFECTIVE CLOSING ARGUMENT
  12.3.1 APPEAL TO BOTH HEART AND MIND
  12.3.2 USE THE FACTS IN EVIDENCE TO SUPPORT YOUR THEORY OF THE CASE
  12.3.3 INCORPORATE THE LAW AS CONTAINED IN THE JURY INSTRUCTIONS
  12.4 A GENERAL OUTLINE FOR CLOSING ARGUMENT
  12.4.1 RECONNECT WITH THE JURY
  12.4.2 RETURN TO YOUR THEME AND THEORY OF THE CASE
  12.4.3 ARGUE LIABILITY OR GUILT
  12.4.4 IN A CIVIL CASE, ARGUE REMEDY
  12.4.5 TELL THE JURY EXACTLY WHAT YOU WANT THEM TO DO
  12.5 DELIVERING YOUR CLOSING ARGUMENT
  12.5.1 DO NOT READ
  12.5.2 USE VISUAL AIDS
  12.5.3 DO NOT BE TOO LONG WINDED
  12.5.4 CHOOSE YOUR WORDS CAREFULLY
  12.5.5 VARY YOUR DYNAMICS AND RHYTHM
  12.5.6 SOME RHETORICAL DEVICES
  12.6 THINGS YOU MAY NOT DO IN CLOSING ARGUMENT
  12.6.1 YOU MAY NOT STATE YOUR PERSONAL BELIEF AS TO CREDIBILITY
  12.6.2 YOU MAY NOT ASK THE JURY TO DECIDE THE CASE ON AN IMPROPER BASIS
  12.6.3 YOU MAY NOT MAKE A "GOLDEN RULE" ARGUMENT
  
  October 21, 2010

• >> AUTHORS
  
  
  • Dent Gitchell
    
    
    • Dent Gitchel is a trial lawyer and law professor from Little Rock, Arkansas. He recently retired from a long career at the University of Arkansas at Little Rock, where he remains a professor emeritus. During his twenty years at UALR, he directed the trial advocacy program and coached the school's trial competition teams. He has also taught trial advocacy as a visiting professor at the University of Richmond and the University of Arkansas at Fayetteville. For many years Gitchel served as a team leader at the Emory University Trial Techniques Program in Atlanta. Gitchel has served on the faculty of numerous NITA programs. Before teaching, he had an active trial practice in Little Rock for fifteen years. In 1994, Gitchel took a one-year leave from his teaching duties to serve as chief legal counsel to the governor of Arkansas.

  
  

  • Molly Townes O'Brien
    
    
    • A graduate of Brown University and Northeastern University School of Law, Molly Townes O'Brien served as a judicial clerk in the United States District Court and the Georgia Supreme Court before practicing law in Pennsylvania as a civil litigator and then as an Assistant Public Defender. She later was an Honorable Abraham L. Freedman Teaching Fellow at Temple University. In 1997, she joined the faculty of Emory University Law School and served as the Director of Advocacy Skills Programs through 2001. Ms. O'Brien has also served on the faculties of the University of Akron School of Law and University of Wollongong. Her primary teaching interests are in Education Law and Policy, Evidence, Trial Advocacy, Alternative Dispute Resolution and Criminal Law. She is currently an academic fellow to the International Society of Barristers, and a Research Fellow of the Constitutional Law Center at the University of Akron School of Law. She is former co-chair of the Clinical and Skills Education Committee of the American Bar Association Section of Legal Education and Admissions to the Bar. She has also served on the Ohio Supreme Court Task Force on Jury Service. She takes an interdisciplinary approach to the study of law and writes on issues relating to race, education, criminal law, and trial theory and practice.