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Advanced Trial Handbook Index Trial Organization Jury Selection Opening Statement Study on Objections Prosecutorial Misconduct Documentary Foundations Demonstrative Evidence Direct Examination Cross-Examination Trial By Ambush Closing Argument Post Trial Motions

Advanced Trial Handbook - Trial Organization One of the most important goals a trial attorney should have been the presentation of his or her case in a clear and orderly manner so that it may be easily understood by the jury. A trial attorney should strive to appear organized, in control, well prepared, and familiar with all aspects of the case. This is only possible if the organizational framework is created early in the litigation and well before the actual trial date. Every stage of the trial should be planned and organized several months earlier and the best way to do this is with a trial organizational system. There are two types -- a trial notebook or trial folder -- and they enable the trial lawyer to properly separate, outline and arrange all aspects of the case.

The first step is to create and develop a theme for the case. This is the central story or principle around which the case must develop and which will be supported by the witnesses and evidence. To that end, the trial attorney should prepare an outline establishing the theme of the case and setting out how the theme will be proven during trial. This outline should identify what witnesses and documents will be used, what issues will be addressed, and what will ultimately be proven at trial. Create a section in the trial notebook or folder system that includes the theme of the case as the first entry.

Next, prepare an "order of proof outline" which will set out the expected progression of the trial. Include the order in which each witness will be called to testify, as well as the documentary evidence that will be introduced at trial. The order of proof should identify all documents that will be introduced and should also describe how and through which witnesses the documents will be introduced. The order of proof outline should be flexible, inasmuch as the order of witnesses' testimony may vary; nevertheless, the exercise of planning out how and when the evidence will be presented to the jury is very important.

The trial notebook or folder system should include sections with outlines for voir dire/jury selection, opening statement, direct examination for each witness, cross examination for opposing witnesses, legal research, motions in limine, jury instructions, verdict forms, and closing arguments divided by each issue relevant to the case. Each section should be separately divided within the trial notebook or folder system.

The jury selection section should contain a basic outline of the types of questions you intend to ask in order to select a fair and impartial jury. It should include a diagram of the jury box so that you may include the jurors' names and comments about each prospective juror.

The opening statement and closing argument sections should include concise outlines laying out what will be said and in what order. These outlines will guide you in presenting the opening and closing. Try not to read from the outlines since reading will detract from the quality of your presentation.

The witness sections of your organization system should include an examination outline for each witness. These outlines will refer you to areas that you will cover during questioning. Direct examination outlines should generally highlight the key answers that are sought during questioning. The cross examination outline should pinpoint the specific areas of questioning where leading questions will be used to attack the witness' credibility and/or testimony. Additionally, the witness sections should include copies of the documentary evidence that will be introduced or discussed with each witness, so that the document may be at your fingertips when needed.

The motions in limine section should contain the actual motions that you will argue at trial as well as relevant case law and statutes. Similarly, the legal research section should contain relevant case law, statutes, and memoranda on relevant issues in the trial. In your trial organizational plan, you should arrange documentary evidence chronologically in the order in which you intend to introduce them at trial. This will allow you to find what you are looking for when you need it. Having a document that you cannot find during trial is the same as not having the document at all.

You should also keep in mind that the trial organizational plan should help prove your theme of the case. The plan should contain everything that you need to successfully present your case.

During the trial, keep your counsel table clear except for a rule book, a legal pad, pen, and the particular notebook section or folder that pertains to that part of the trial that you are handling at a given time. You should not have books, papers, and pens thrown all over the table. This will send the wrong message to the jury. If you limit the materials on the counsel table to a specific folder and note pad, you are sending a clear message to everyone in the court that you are prepared, organized, and in control of the situation.

Using this system will force you to prepare properly for trial. You should adopt and incorporate an organizational plan into pretrial preparation. This will allow you to be better prepared, organized, and in control of your case.

Advanced Trial Handbook - Jury SelectionThe Modern Jury Selection PhilosophyThe purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial lawyers and recommended by jury psychologists throughout the country. The days of asking the prospective jury panel several limited, leading questions about their ability to follow the law and to be fair and unbiased are gone. The current jury selection process requires an open-ended, free discussion with the potential jury members about their feelings, life experiences, and opinions regarding the major issues in the case.Voir Dire Goals

Jury psychologists have confirmed that the jurors come into the courtroom with preconceived opinions affecting the way they will view the case. These opinions have been formed as a result of their life experiences. Attitudes that stem from life experiences will probably not change despite excellent legal arguments. Accordingly, your primary goal in jury selection should be to properly screen the panel to determine which potential jurors are prejudiced against your case and your client. This will allow you to eliminate the problem jurors.

Your second goal should be to educate the potential jury on the issues in the case. This will allow you to determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors, because of their personal experiences, are better suited to sit on certain juries than others. For example, if one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous crimes, she may not be well suited to judge a case involving conversion.

In educating the jury, incorporate your case theme into your voir dire and introduce it at the first logical opportunity. Define the main issues that will be considered during the trial.

Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely honest with them. This also takes away the “shock” value of the problems with your case when your opposition raises it.

Your third jury selection goal should be to establish rapport with the jury. This will be the only time where the jury will be able to interact and speak with you. Use a conversational tone when addressing the jury. Make sure that your body language is sending the right message. Try to keep your hands out of your pockets. Prevent crossing your arms or rolling your eyes at any potential juror’s response. This type of body language may be interpreted by the jury members as an attack upon them.Use The Open Forum Approach

In order to maximize the chances of achieving an open, honest discussion with the prospective jury, ask open-ended questions. The old voir dire questions that simply require the jury to follow along nodding their heads and saying “yes, we will be fair,” “no, we will not discriminate,” “yes, we will follow the law,” should be thrown away. Instead, approach jury selection as an open forum for discussion about the issues that will be presented in the case. Use the selection process to probe the jury’s feelings regarding those issues. Make sure to ask the jury how they feel about the matters raised. Find out what their personal feelings are.

Remind the jurors that there are no right or wrong answers in voir dire. Explain that you are seeking candid and complete responses. Encourage the jury to speak openly about their feelings and sincerely thank them when they are honest with you, even when you do not agree with them.

Do not be afraid that a potential juror will contaminate the rest of the panel by answering your questions in such a negative way that it will pollute the entire panel. You want to hear how the juror really feels about the things that will be addressed in the trial before that juror is actually empaneled. Make sure to allow the jurors to do the talking. This will be your only opportunity to hear what the jury has to say. You will be doing the talking the rest of the trial. Learn to become a very good listener when it comes to voir dire.

Once a juror candidly states his or her position on a matter, ask the rest of the panel, “How many of you agree with that juror?” Have the jurors that agree raise their hands, and then have them each explain what they believe. By going through this process, you will identify all jurors that have strong feelings about the important aspects of your case. You will then be able to ask the necessary questions to have the biased, prejudiced, or inappropriate potential jurors eliminated for cause without having to use one of your precious peremptory strikes.

To put yourself in the proper state of mind for this type of open forum jury selection, visualize yourself as a talk-show host discussing important matters that will be coming up in the show with the audience before the show begins. The discussion should invite the audience to comment about the topics that will be considered on the show. Go from audience member to audience member reinforcing the issues and seeking their opinions and beliefs.

Determine which audience members raise their hands, talk the most, and seem most informed. Take note of who looks mad, who looks at peace. Evaluate all of this information before exercising your peremptory strikes on the audience.The Presentation

You will probably be somewhat nervous in the beginning of your voir dire. This is normal. If you are feeling exceptionally nervous, admit it, and explain that you are feeling nervous because the case is very important to your client. By being honest with the jury, you will give them an opportunity to reciprocate and be honest with you.

Consider using an outline that has all the key points you wish to discuss with the jury. This will prevent you from reading to them. Try not to deliver your entire voir dire presentation from behind the podium. Instead, use the podium only when you need to review your outline. The rest of the time, you should have nothing that is physically between you and the jury. Maintain a safe distance from the jury so that they do not feel that you are encroaching upon their space.

Many experienced trial attorneys and judges recommend that attorneys memorize the jurors’ last names before they address them. This is certainly very impressive. Nevertheless, if you feel you are too nervous, or you are unable to memorize all potential jurors’ last names before questioning them, create a chart where you place each juror’s name in the box that corresponds to the seat he or she has in the jury panel. This will allow you to look down occasionally at your jury chart and determine the correct name for each juror.

Trust your gut feeling. Many times, you will look at a juror and, for whatever reason, feel that you are not comfortable with that potential juror. Chances are good that the juror is not feeling comfortable with you, either. In that case, strongly consider using one of your peremptory strikes to eliminate that potential juror from being a decisionmaker in your case.

Jury selection is very challenging. During voir dire, you must ask proper questions, be a good listener, take note of relevant answers, keep track of what every juror said, evaluate the jurors’ body language, notice how the jurors interact with each other, consider how the jurors act towards your client, and then evaluate who may be the most dangerous to keep on the panel. Once that is complete, you must then prepare challenges for cause, decide who you will strike using your peremptory challenges, and preserve the record for appeal. Needless to say, jury selection requires proper preparation and thorough execution. Take whatever time is necessary to prepare physically and mentally to conduct a proper voir dire examination using the modern method of questioning. This will greatly increase the likelihood of your deselecting the right jury.Assistance with Jury Selection

Always have someone assisting you in the jury selection process. Consider using an associate, paralegal, secretary, or friend to sit in the audience taking notes about how the jury reacts to you, your client, and the questions that you are asking. It may be difficult for you to evaluate the entire panel when you are questioning a particular juror. By having another person assisting you in observing the jury, you will be able to monitor the entire panel’s response and reaction to your questions.

Make sure to confer with your co-counsel or assistant before you move to strike a potential juror for cause or before you use your peremptory strikes. Speak with your client about his or her feelings regarding the jury. Many times a client will have strong feelings for or against individuals that you should take into consideration before making your final decision to exclude certain individuals from the jury.Conclusion

Use the modern method of jury selection to improve your success rate at trial. Make sure to prepare for jury selection as thoroughly as you would for an opening statement or closing argument. By taking the voir dire selection process seriously, you will greatly enhance your performance in jury selection.

Advanced Trial Handbook - Opening Statement

A good opening statement paves the way for a successful trial. It represents the attorney's first opportunity to persuade the jury in the client's favor. A trial attorney should develop the entire case during the opening and show that the evidence will prove that his or her client should win the case. Many have described the opening as the most important part of the case.

First and foremost, prepare your opening so that it tells a complete and interesting story. Do your best to avoid a bland, boring discussion of what the evidence will show. The opening should be "alive," well organized, and persuasive. The theme of the case should be clearly and concisely presented. Highlight who the important witnesses are and what they will say. Further, you should identify the important documents and demonstrate what they will prove.

Demonstrative evidence should be used during the opening. This will greatly increase the jury's understanding of what the evidence will actually show. Moreover, it directs the jury's attention to important evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of contract case, you should blow up the relevant portion of the contract around which the dispute developed. Show that portion of the contract to the jury and read it to the jury during the opening statement. The opposition has no valid basis to object to your doing this provided that the portion of the contract that you are showing to the jury will be accepted in evidence.

In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the incident occurred and what injuries were sustained by your client. Use the charts to explain the complex engineering and medical terms that will be heard throughout the case.

The opening is limited to what the evidence will show. It cannot be argumentative; however, this does not mean that you are prohibited from being interesting, persuasive or from having a little fun during your presentation. Quite the contrary, a successful opening statement should be entertaining and should leave the jury with a feeling that you are right and that your client should win. Deliver the opening with enthusiasm and conviction. Use rhetorical questions to make the jury think about your case. Bring the key issues in the case to the forefront by placing the jury in the controversy through the use of descriptive words and well-developed thoughts by painting a verbal picture of your case.

Fully develop the players in the case. Tell the jury who your clients are and what they are all about. Develop their personalities so that the jury will get to know them and understand them.

In organizing the opening statement, remember that jurors tend to remember best what they hear first and last. Thus, present the strongest evidence in that order. Near the end of your presentation, make statements that will leave the jury with an understanding of what your clients have gone through and what the jury may do to remedy the situation.

The opening statement should also be used to introduce the weak portions of your case and to defend against your opponent's case. This will take the wind out of the opposition's sail and will enhance your credibility because you are being open and honest with the jury. Use the opening to expose your opponent's weaknesses. If you know that your opposition will call a witness whose credibility is questionable, you should mention the credibility problems during the opening. Once the tainted witness takes the stand, the jury will be ready to question the validity of that witness's testimony even before your cross-examination begins. The "defensive" aspect of your opening statement should be sandwiched in the middle of your opening and should not take up more than 10% of your presentation.

If possible, move away from the podium and try to talk to the jury as if you were speaking to a group of friends. This will allow you to speak more freely, openly and relaxed. Do not read your opening. Use as few notes as possible. The opening statement should not resemble a scientific or academic forum. Speak to the jury about your case using easy to understand language.

The opening statement is one of the most crucial aspects of the trial. Accordingly, it should be fully developed and adequately prepared. Do not rush through the opening. Instead, speak in a manner that is relaxed, easy to understand, entertaining, and persuasive. A great opening statement may not win the case by itself; however, it will certainly set the stage for a successful verdict.

Also see Prosecutorial Discretion, Police Discretion and Public Integrity website.Caught.net does NOT and cannot give legal advice.  Keep this in mind as you read these suggestions from websites dealing with prosecutorial misconduct.

As seen on Prosecutorial Abuse Website: Summary or Checklist of Possible Remedies and Opposing Actions for Prosecutorial Misconduct and Abuse. 

These are remedies and suggestions which an attorney and his or her client should consider when trying to offset prosecutorial wrongdoing.  The list is not exhaustive, and, to some extent, contains ideas which are somewhat novel.  Some are without significant precedent and some have no precedent.  Yet, the relative novelty of the opposition makes it more effective in some cases. These possible remedies for consideration (without any elaboration, and in no particular order) are:Direct constitutional action against federal prosecutor and conspiring witness; Raising issues at all levels in state criminal proceedings (trial court and all available appellate courts) to be able to make 2254 habeas corpus petition in federal court without dismissal for failure to exhaust remedies; Filing 2254 or 2255 petition in federal court within 1 year after conviction becomes final raising any issues of prosecutorial misconduct and abuse and any issues of ineffective assistance of counsel; Demand pre-trial expert discovery equivalent to expert discovery permitted in federal civil actions, to obtain such discovery, if possible, and to preserve such issue on any appeal; Demand that prosecutor and/or court or appropriate agency provide funds to defendant equivalent to the amount being spent by the prosecutor (including the market value of the prosecutor's time), if the defendant is unable to afford to pay such amounts himself/herself; File a civil action, as soon as possible, against complaining witnesses for any wrongdoing by them, to ensure that you bring your claim on a timely basis (because if you waited until the criminal proceeding ends you might be precluded by the statute of limitations) and to obtain discovery useful in the civil and criminal actions; and to make the overall litigation more easily resolved through global structured settlement (including the defendant, prosecutor and complaining witness); File a criminal complaint against the federal prosecutor and/or complaining witness if you have grounds, using the Givens rationale (direct constitutional action); File a motion demanding that the prosecutor recuse himself/herself due to a conflict of interest, if appropriate (note: a meritorious civil or criminal action by the defendant against the prosecutor would seem to be grounds for recusal, as well as the filing of a meritorious 2255 petition alleging prosecutorial misconduct); Demand and file a motion for the taking of pre-trial depositions of bribed prosecutorial witnesses as a constitutional right, or demand an evidentiary hearing in the alternative, to enable the defendant to get all relevant facts in the record; this will be useful during any appeal and during a 2255 or 2254 habeas corpus petition; File charges against the prosecutor with the appropriate state organization (usually a part of the state court system) which regulates the conduct of attorneys in the state and can order or recommend sanctions against errant attorneys, including suspension or disbarment; but make doubly sure that you have appropriate grounds; Establish a record that the bail being sought is excessive, without justification, far more than is being requested or imposed in other, similar matters, would have the effect of precluding you from defending yourself (by taking funds needed for your defense, or worse, would preclude you from getting out of prison and make you less able to defend yourself against the charges as a result), and that this is the prosecutor's intent; also, request an evidentiary hearing on the bail issue to establish an appropriate record; and go up on appeal on these bail issues, as an interlocutory appeal, if and to the extent possible under law; Demand an evidentiary hearing on the bail issue (as stated within the prior point); Move to stay the criminal proceeding as unconstitutional selective, arbitrary and discriminatory enforcement of law (which stay would require holding up the prosecution until the prosecutor commenced criminal proceedings against all others similarly situated); Seek a jury charge to let the jury be told that it is lawful for a jury to nullify the court's instructions to the jury by finding in favor of the defendant if the jury wishes, under whatever standards for upholding jury nullification exist under law; in other words, request a charge on the law which governs the extent to which a jury may find for the defendant in spite of the governing substance law as charged to the jury; and do this with an eye toward raising this issue on appeal if and when the defendant's request to charge is denied by the judge; Demand the right of defendant to appear before the federal grand jury to explain his/her side of the issues; When making a 2254 or 2255 petition, demand that any hearing on the matter be commenced within 70 days from the date of filing the petition (under the Speedy Trial Act of 1974, as amended), and upon failure to obtain the commencement of such a hearing within the 70-day period, move to have your criminal proceeding dismissed under the Speedy Trial Act of 1974, as amended; Encourage co-defendants to make some of these motions, and join in with their motion, if applicable; Demand that the prosecutor's report to the court monthly the amount of time and money they are spending in their prosecution of the defendant (which is necessary for the defendant to be able to know how much funding he/she should be able to get, similar to "matching funds" to oppose the prosecution); Make a motion to require the prosecution to answer under oath that he/she has turned over all listed categories of exculpatory evidence set forth in your motion, as a way of forcing the prosecutor to turn over more exculpatory evidence than he/she normally would, and prepare for the 2254 or 2255 motion based on prosecutorial wrongdoing (of not providing the defendant with all exculpatory evidence the prosecutor did in fact receive, or had failed to accept when he/she was obtaining evidence from various persons); Make a motion to request the judge to permit the defendant to testify at the trial with substantial restrictions on the prosecutor's right to cross-examine the defendant as to the defendant's background, prior convictions, other matters -- on the grounds that such testimony is too prejudicial and the jury's need to hear the defendant's side of the story far outweighs the prejudice which the extraneous cross-examination would create for the defendant (and thereby make the defendant unable to testify in his/her own behalf); and do this for purposes of using any denial of the motion as a basis for appeal, and for possible 2255 prosecutorial abuse in denying a reasonable request; Review the complete website and the related website Prosecutorial Abuse Website for other matters to add to this list; Make a motion to have the judge hold that expert witness reports and all documents upon which the reports are based is not covered by the grand jury secrecy provisions for various reasons, including that experts are not fact witnesses; their testimony is purchased and revealing of the whole relationship is required to limit expert-witness abuse; experts were not envisioned or used when the grand-jury secrecy doctrine was first established, and it was judicial oversight by which expert testimony was swept within the grand-jury secrecy provisions; File a motion to preclude the prosecutor from using testimony of prisoners who have been promised mitigation of sentence as violating the Citizen's Protection Act of 1998, 28 U.S.C. Section 530B; and take this issue up on appeal and in a 2255 or 2254 petition.

How to Deal with Prosecutorial Misconduct and Abuse - Part Two

If you believe you have become a victim of prosecutorial abuse or misconduct, you should consider consulting with a different criminal attorney.  You may find that your present attorney is unwilling to deal with the problems properly.  You may also consider a civil rights attorney.  Review these and other possible matters with such attorney:

Applicability of 28 USC 2254 or 28 USC 2255 or other state or federal habeas corpus motions, or other motions for a new trial, or to dismiss criminal proceedings (grounds for which may include one or more points listed below);

All complaints which your criminal attorney voiced to you about the activities of the prosecutor;

All complaints which you have, if any, about your criminal attorney, whether voiced to such attorney or not;

Any pre-trial publicity which may have been generated by the prosecutor;

Any possible bribery of prosecution witnesses;

Any possible failure to ask for exculpatory evidence when the prosecution was investigating the matter;

Any possible failure by the prosecutor to turn over exculpatory evidence to your criminal attorney (evidence which would tend to help prove innocence of the defendant, or cast doubt on the accuracy or veracity of any of the prosecution's witnesses);

Any possibilities for obtaining discovery which might have been overlooked, even if such discovery requires an application to the court for permission to obtain;

Any possibilities for obtaining government-provided additional funding of the costs of your investigation or retention of expert witnesses;

Any possible use of civil litigation at this time to preserve your right to relief for the infringement of your constitutional rights (bearing in mind that such action might expose you to discovery yourself, unless you apply for and obtain a court order in the civil case protecting your from discovery until resolution of the criminal matter);

Possibility of a motion to disqualify the prosecutor for the alleged misconduct, and because of any civil action you might have or have brought against the prosecutor;

Motion in the criminal case to demand expert discovery comparable to that which is provided in civil litigation under Rule 26(b)(4) of the Federal Rules of Civil Procedure, the denial of which would be an excellent ground for appeal (the issue being the unconstitutionality of Rules 16(a)(1)(E) and 16(a)(2) of the Federal Rules of Criminal Procedure and 18 U.S.C. Section 3500 7/1/01 Letter to Sen. Leahy, with rule and statute quoted at end of letter which prohibit expert discovery, and particularly expert discovery of government employees who are used as expert witnesses (such as FBI laboratory experts);

Possibility of application of doctrine prohibiting arbitrary, selective and discriminatory enforcement of law, which means that under constitutional law you are not allowed to be selected for prosecution while others known to have done the same thing are not also being prosecuted (which gives grounds to stay, but not to dismiss, the discriminatory criminal proceedings);

Failure to present felony to grand jury under New York law is grounds for a dismissal, whether or not the defendant is incarcerated (there is a constitutional right under New York law to have a felony alleged in a complaint brought before a grand jury for indictment, unless this is waived by the defendant, and this is so even if the defendant is out on bail); you should determine whether this right exists in any other states;

And other matters which come to mind. This list is far from exhaustive.

Trial Document and Evidence Foundations

In order to succeed in cases, trial attorneys must present documentary evidence at trial. Before this type of evidence may be introduced, certain evidentiary foundations must be established. A lawyer may have the best "proof" in the world, but if it is not admitted into evidence, it will be of no use.

Regardless of the type of evidence, whether records, bills, photographs, letters, diagrams, or charts, a lawyer must lay the proper foundation before the documents may be introduced at trial as evidence.Business Records:

You should ask the following questions in order to establish the foundation for business records to be admitted into evidence and be considered an exception to the Hearsay Rule:Are you familiar with Exhibit "A" (business records) for identification? Can you identify these documents? Were these documents prepared in the ordinary scope of the business of your company? Where are these documents stored after they are prepared? Where were these documents retrieved from? Is it a regular part of your business to keep and maintain records of this type? Are these documents of the type that would be kept under your custody or control?

Move the documents into evidence. See Fla.R.Evid. § 90.803(6).Tape Recordings:

You should ask the following questions in order to establish the foundation for tape recordings to be admitted into evidence:Have you had the opportunity to hear the voice of Mr. X before? How many times have you heard his voice? Tell us how you are familiar with Mr. X's voice? Have you heard the recording marked as Exhibit "B" for identification? Do you recognize the voice? To whom does the voice belong?

Move the recording into evidence.Photographs:

You should ask the following questions in order to establish the foundation for photographs to be admitted into evidence:I am showing you what has been marked as Exhibit "C" for identification. Do you recognize what is shown in this photograph? Are you familiar with the scene (person, product, etc.) portrayed in this photograph? How are you familiar with the scene portrayed in the photograph? Does the scene portrayed in the photograph fairly and accurately represent the scene as you remember it on (date in question)?

Move the photograph into evidence.Authenticating a Letter:

You should ask the following questions in order to establish the foundation for a letter to be admitted into evidence:Are you familiar with the signature of Mr. Smith (person who signed letter)? How are you familiar with Mr. Smith's signature? Show the witness plaintiff's Exhibit "D" for identification. Do you recognize the signature at the bottom of this letter? Whose signature is it?

Move the letter into evidence.Diagrams:

You should ask the following questions in order to establish the foundation for diagrams to be admitted into evidence:I am showing you what has been marked as Exhibit "E" for identification. Are you familiar with the area located at 16th Street and 12th Avenue in Dade County, Florida? How are you familiar with this area? Based on your familiarity with the area, can you tell us whether the scene depicted in this diagram fairly and accurately represents the area as you recall it on the date in question?

Move the diagram into evidence.Refreshing Recollection:

To refresh an individual's memory on a particular matter, you should first establish that the witness does not remember something. Then ask the following questions:Did you at sometime remember this? Did you at anytime prepare a document setting out what happened? Would a review of this document assist you in remembering the matters that we are concerned about today? I am handing you Exhibit "F" for identification. Please review it and tell me if it helps you to remember. Does that document refresh your recollection? Do you now have an independent recollection of the facts? Tell us what happened.

Authenticating Handwriting in a Document:You should ask the following questions in order to establish the foundation for a handwritten document to be admitted into evidence:Are you familiar with the handwriting of Mr. Smith? How are you familiar with Mr. Smith's handwriting? I show you Plaintiff's Exhibit "G" for identification. Do you recognize the handwriting in this document? To whom does it belong?

Move exhibit into evidence.

If you are "stuck" in attempting to introduce documentary evidence at trial and do not remember how to do it, just recall the basic steps necessary to establish an evidentiary foundation.Show that the witness is familiar with the document that you are attempting to admit into evidence. Have the witness authenticate the document. Establish that the document is what it purports to be. Demonstrate the documents relevance to the case.

After you have accomplished the above steps, chances are that you have laid the proper foundation for the exhibit to be admitted into evidence. You should then boldly offer it as your next exhibit in the case.

Advanced Trial Handbook - Demonstrative EvidenceSince the days of "show & tell", demonstrative evidence has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grabs the jury's attention and often has them sitting at the edge of their seats when things like models and objects are being shown.

Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items.

Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Pursuant to Florida Rule of Evidence, §90.901, "authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, demonstrative exhibits must constitute an accurate and reasonable reproduction of the objects or matters involved in the actual case. Brown v. State of Florida, 557 So.2d 527 (Fla. 1st DCA 1989).

Before a demonstrative exhibit will be allowed to be shown to the jury, it must first be established by a witness that the model is a reasonably exact reproduction or replica of the object involved, that when viewed by the jury it causes them to see substantially the same object or scene as the original in question. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958).

If a witness is not able to state that the demonstrative exhibit is in substantially the same condition and appears substantially the same as the object in trial, then such a deficiency will be fatal to the admissibility of the demonstrative exhibit and the court will generally not allow the exhibit to be used during trial. Gencorp, Inc. v. Wolfe, 481 So.2d 109, 111 (Fla. 1st DCA 1983).

If a trial attorney is attempting to keep an exhibit from being entered into evidence, the argument that should be made is that the exhibit does not truly and accurately portray what it purports to portray. Additionally, a trial attorney may argue that the exhibit is not necessary to assist the witness in explaining his/her testimony to the jury. Finally, if the model is of the type that may mislead the jury or cause confusion or undue prejudice, then a motion pursuant to Florida Rule of Evidence, §90.403, may be made that the probative effect of the model is greatly outweighed by its prejudice.

The determination as to whether an exhibit accurately represents the object or area in the case, is a matter decided by the trial court. Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court's discretion. Brown v. State of Florida. 557 So.2d 527 (Fla. 1st DCA 1989); Federal Savings & Loan v. Wylie, 46 So.2d 396 (Fla. 1950).

A trial attorney who does not use demonstrative exhibits during trial is at a great disadvantage because chances are the other side will effectively use them. Demonstrative exhibits help to bring the case alive and keeps the jury interested and focused on what is being presented. Demonstrative exhibits should be used anytime the opportunity arises.Photographs

A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel, and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful pieces of evidence. After all, "one photograph is worth a thousand words." Before a photograph may be used at trial, it must first be admitted in evidence.

Photographs are admissible in civil trials if they are relevant. For a photograph to be deemed relevant, a trial attorney must argue that the photograph tends to prove or disprove a material fact in the case. See, Fla.R.Civ.Pro. Rule 90.401 and Fla.R.Evid. §90.401. Nevertheless, before a photograph is admitted into evidence, it must first be authenticated; thus, the proper foundation must be established.

Contrary to the belief of many practicing attorneys, the photographer does not need to be called as a witness before a photograph may be allowed into evidence. All that is necessary, is that a witness with knowledge, testify that the photograph fairly and accurately represents the condition, product, person or scene that it depicts. City of Miami v. McKorkle, 199 So.2d 575 (Fla. 1940). Once the witness authenticating the photograph establishes that the photograph correctly and accurately depicts what the witness has previously seen, then the photograph is admissible. If more than one photograph is shown to the witness for purposes of authentication, the lawyer must ask the witness to identify and authenticate each photograph before showing the photographs to the jury.

If the photograph was taken long after the incident in question, this does not mean that the photograph is inadmissible; however, the witness must establish that the conditions depicted in the photograph did not change from how they appeared at the time at issue. If the conditions in the photograph depict something different than what appeared at the time in question, then the photograph may be declared inadmissible if it lacks probative value as a result of the changes, or if the probative value is out-weighed by prejudice to the jury. Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981).Questions regarding who took the photograph, how it was taken, from what angle it was shot, what the lighting was like, the film quality and other matters do not go towards the admissibility of the photograph. Those matters are directed towards the weight and credibility of the evidence offered. Those types of questions are proper subjects for cross-examination. Channewacker v. City of Jacksonville Beach, et al., 419 So.2d 308 (Fla. 1982).

Gruesome photographs showing grotesque scenes, severely injured and bloody people, and other potentially offensive depictions are generally admissible on the same grounds as photographs depicting other matters if they are relevant. See Wilson v. State, 436 So.2d 908 (Fla. 1983). Gruesome photographs are admissible if they truly and accurately depict a material fact in question at the trial. Id. For example, the cause of death, the type of injury, the location of injury, the extent of injury, and the intent of the defendant among other related things. See Lewis v. State, 566 So.2d 270 (Fla. 2d DCA 1990).

Nevertheless, pursuant to Fla.R.Civ.Pro. Rule 90.403 and Fla.R.Evid. 403, a defendant may move to exclude a gruesome photograph on the basis that its probative value is greatly out- weighed by prejudice to the defendant. If it appears that the only reason the photograph is being used is to inflame, shock, or excite the jury, then the photograph should be excluded as more prejudicial than probative. Lewis, 566 So.2d at 272; Also See, Gore v. State, 475 So.2d 1205 (Fla. 1985).

Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.

Direct Examination During Trials

A successful direct examination can be accomplished by controlling the witness without hampering her ability to testify freely, truthfully and honestly. This balance can only be reached by thoroughly preparing for the questioning. Preparing For The Direct

To prepare the direct examination, you should: review the law; determine what essential elements must be proven through each witness; and list the facts and elements that will be established through the witness. Next, you should outline all of the key points that must come out through the testimony of each witness that you are presenting at trial. The outline should set up the foundation necessary for additional testimony, expert testimony or the introduction of exhibits.

You should prepare a file for each witness. The file should include your outline, copies of the exhibits that will be used with the witness, the relevant deposition, trial subpoena, return of process, and any working notes that you may have that relate to the witness.

Prepare to meet with the witness at least one week before the trial in order to evaluate the witness's personality, ability to speak, and manner of dressing. Provide the witness with some suggestions on how she should dress at trial, and how she should handle herself before the jury. Go over the expected testimony with the witness so that you may cover the key points, the evidentiary foundations necessary to be established at trial as well as any problem areas that may be encountered during the case. If the deposition of the witness has been taken, give the witness an opportunity to read the deposition well before she takes the stand.

If you are going to ask a witness to work with an exhibit, chart, or other demonstrative aid, allow the witness to see the chart or model before the trial so that the witness will appear comfortable with the exhibit by the trial date. Make sure you show the witness any exhibits that will be introduced to her well before the witness takes the stand.

Establish a good relationship with the witness by being considerate and pleasant to work with. Make arrangements to meet with the witness again right before the witness takes the stand. During this second pre-trial meeting, you should briefly go over the essential points and answer any questions that the witness may have.

Anticipate evidentiary objections to your direct examination and research the law so that you may present a solid argument to defeat them. Be prepared to proffer the excluded testimony on the record outside of the presence of the jury if the objection is sustained. Direct Examination at Trial

During the trial, develop the direct examination through the use of conversational language. Avoid reading questions to the witness. This will bore the jury and leave them with the feeling that the presentation was rehearsed. You may have your outline present, but use it only as a reference and not as a script. Remember to guide the witness through the testimony so that she does not ramble.

Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on the issues through the witness on the stand. Ask the types of questions that a reporter or investigator would ask to become fully informed of what happened in the case. This technique will allow you to view the case from the jury's perspective. Remember you may know everything about the case, but the jury is hearing the testimony for the first time at trial.

The jury's focus of the direct examination should be on the witness and not on you. Unlike cross-examination, you should limit your use of leading questions during a direct examination. The majority of questions should be open-ended allowing the witness to provide the answer. If you are having a hard time formulating a proper question, start your question with, who, what, why, when, where and how.

Although leading questions are generally not permitted on direct examination, there are many exceptions to this rule. See Florida Statute §90.612(3)(a). Leading questions may be used during a direct examination in the following situations: (1) preliminary matters such as a person's name, address, and background; (2) undisputed facts, for example: "I would like to direct your attention to October 23, 1995, you were in Paris on that day were you not?"; (3) an adverse or hostile witness Rule 1.450 Fla.R.Civ.Pro.; (4) when a witness has difficulty in speaking; (5) when necessary to refresh a witness's recollection Fla.Stat. §90.613; and (6) when encountering an unwilling, reluctant, or recalcitrant witness. See, D.R.P. v. Carrol, 438 So.2d 31 (Fla. 3d DCA in 1993).

Avoid repeating the witness's answer, as well as the use of "habit" utterances such as "uh- huh", "okay", "alright", etc. Try not to jingle your keys or pocket change when questioning. Do not play with your pen, curl your hair or create any other physical distractions that will take the jury's attention away from the witness. Stay focused on the questions, listen to the answers and appear very interested.

Do not use a monotone. Instead, change the tone of your voice based upon the importance of the testimony. Highlight the key points of the testimony with the use of voice inflection. Avoid legalese, speak clearly and to the point. Use action words and "word pictures," adjectives and adverbs in presenting your questions. Attempt to establish a rhythm with the witness and vary your pace so that the testimony is interesting to the jury. This will make your presentation powerful. Open and close the direct examination with the strongest testimony. Jury psychologists have established that jurors remember best what is heard first and last. Anticipate and isolate the troubling testimony in the middle of the presentation. Placing the difficult part of the testimony in the middle allows you to diffuse your opposition's anticipated cross-examination.

At the end of the examination, thank the witness and sit down. Attempt to appear confident during the entire cross-examination. Conclusion

A direct examination must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. Never underestimate the importance of the direct examination. Set aside enough time in your trial preparation to properly prepare for an effective direct of each witness you anticipate to call at trial. A strong direct examination is an important building block that will lead to your success at trial.

Advanced Trial Handbook - Cross ExaminationImpeachment of A WitnessOne of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements. This results in embarrassing situations for those attorneys.Depositions

When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions:Do you remember having had your deposition taken on (state the date)? Do you remember that a court reporter was present at your deposition? Do you remember having been sworn in to tell the truth? Did you tell the truth on that date? (If applicable) Do you remember having your attorney present at your deposition?

After you have set the foundation for the impeachment, then you should ask the witness the following question: "Do you remember having been asked the following question and your giving the following answer." At this point, you should read the question previously asked and the answer given by the witness in the deposition.Use of Inconsistent Statements in Documents

A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement or letter. The trial attorney should first highlight the inconsistent trial testimony that will be impeached. Next, the lawyer should identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:Do you remember having given a statement to (person) regarding how the accident occurred? Did you give that statement freely? Who was present when you gave your statement? When was the statement given?

The witness should then be shown the exhibit and asked the following question: I show you what has been marked as Plaintiff's Exhibit "A" for identification. Is this a copy of your sworn statement?

Finally, read the relevant portion of the statement that directly contradicts the trial testimony of the witness.

Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages or lose control of the witness.

There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most "dangerous" witness at trial.Expert Witness

At trial, there may be nothing more challenging and dangerous than cross-examining an expert witness. The lawyer about to cross-examine an expert witness needs to be very careful and very well prepared prior to cross-examining the expert. One of the problems that the trial practitioner encounters in attempting to effectively cross-examine an expert is that the expert usually controls the testimony by being very knowledgeable in the area he is testifying about. What makes it more difficult is that the lawyer usually is not as well versed in the subject as the expert. Nevertheless, an attorney may successfully cross-examine an expert witness by zeroing in on the weaknesses of the expert or of the expert's testimony and exposing them to the jury.

A trial attorney preparing to cross-examine an expert witness should first read and summarize the deposition taken of the expert witness in the case or read and summarize prior depositions given by that same expert in other cases. You will probably find many helpful statements in the prior depositions that will assist you in your case. Additionally, research whether the expert has written any articles, books or editorials that may contradict his opinion in your case. Next, determine what school the expert has graduated from and see if any of the professors that taught the expert have different opinions that may be introduced and compared to the expert's opinion at trial.

A trial attorney should be thoroughly prepared on the subject that will be the basis of the cross-examination. It is not advisable to directly challenge an expert within his or her field. However, it is always very helpful to be knowledgeable in the area so that if the expert's testimony deviates from the accepted norm, you may expose him or her as an advocate or as a hired gun.

A trial attorney should always cross-examine an expert witness. There is nothing worse then allowing an expert witness to give his opinions without challenge. The jury may believe that by failing to cross-examine the expert you have accepted the expert's opinion.

The most effective way of beginning cross-examination is to affect or attempt to affect the expert witness's credibility. To do this, you should attempt to expose the expert's. The expert witness will either be biased because of friendship, money or his relationship with the attorney or the attorney's client. Bringing this out to the jury's attention by using short precise leading questions will be very helpful. Attempt to point out, if possible, the disproportionate amount of time in court which the expert spends in comparison to the amount of time he spends in his given field of expertise. Additionally, point out the number of times that the expert witness has testified on behalf of the particular opposing lawyer or the lawyer's law firm. Point out the number of times the expert has testified for parties that stand for similar things, for example, insurance companies, large manufacturers, or big businesses.

After you have exposed the expert's bias, you should attempt to attack his qualifications. No matter how qualified an expert witness may be in a given field, there are probably levels in his field that the expert has not reached. For example, if the expert witness only has a masters degree, you may point out that he lacks a Ph.D. in his given field. Moreover, do not do this if your expert does not have a Ph.D. in his given field. If applicable, you should point out that the expert witness has not published any articles in his learned field, or has not held any teaching positions in colleges or universities. Obviously, you need to discover this information before cross examining the expert witness. One way of learning this background information is by obtaining the expert's curriculum vitae or detailed resume well in advance of the trial. Another inexpensive way of attaining information on experts is by serving expert interrogatories on your opponent. See Fla.R.Civ.Pro. Rule 1.280(4)(1A).

Another way of effectively cross examining an expert witness is by making the expert your witness. If you are able to have the opposing expert testify as to general principles that are consistent with your theory of the case, you will have succeeded in your cross-examination. While this may be very difficult to accomplish if the expert is honest and if the questions that you are asking are basic leading question which cannot be denied, you have a good chance of prevailing as the expert will have to admit the facts suggested in your question or appear foolish.

Another way of successfully cross-examining the expert witness is by attacking the expert's facts. You will always be able to point out that the expert received his facts and materials from the opposing attorney. Use this to your advantage and use hypothetical questions in order to change the facts so that they are consistent with your theory of the case; then, ask the expert controlled questions within the restricted scenarios that you have presented. This will allow you to tell your version of the case through the opposing expert. Be very careful when you do this so as not to allow the expert too much room when testifying. You should present the hypothetical question in long detailed factual patterns followed by a direct leading question relating to the factually restricted hypothetical. Even if the expert refuses to provide you with a favorable response, you have told the jury your story repeatedly by using the hypothetical question.

Although there are many ways to effectively cross-examine an opposing expert, you should only choose two or three areas of attack at trial. If you try all of them you will probably make the cross examination too lengthy or overly confusing. Moreover, the longer an opposing expert witness is on the stand, the greater the likelihood that the expert will hurt your case. Therefore, when cross-examining the opposing expert, be prepared, be thorough, hit your two or three areas of attack, expose the expert's weak points, then politely thank the expert and sit down.other way to successfully cross-examine the expert witness is by impeaching the expert with an article, journal or chapter of a book from his field. In your research, you will probably find positions and opinions that are contrary to the expert witness's opinion. Attempt to have the expert witness agree that the author of the article, book, or treatise is authoritative or at least a well recognized expert in the field. Next, identify the article, and read the relevant portions that contradict the opinion of the expert. Finally, ask the expert if he agrees with the statement that you just read. It does not matter whether the expert agrees or disagrees, you have effectively demonstrated to the jury that other published experts do not agree with the opposing witness's position.

Finally, if you consider yourself to be extremely knowledgeable and an expert in the opposing expert's field, you may attempt to directly attack him. Be extremely cautious as this is very difficult and dangerous. You should only attempt this if you are sure that you will succeed, or if the expert has made an obvious error in his investigation or in his calculations. Before attacking an expert "head on," you should confer with your own expert to make sure that the direct attack will be successful.
The Advanced Trial Handbook
Trial by Ambush and the Motion In Limine

The standard trial order entered by most trial judges in Florida normally states that forty- five (45) days before trial, the parties shall furnish opposing counsel with a written list containing the names and addresses of all witnesses, (impeachment, rebuttal or otherwise) intended to be called at trial. Generally, only those witnesses listed shall be permitted to testify at trial.

Despite the trial court's order and your diligence in properly requesting the names of all witnesses in each deposition as well as in each interrogatory question, an opposing counsel may inform you during trial that he has just "found" a witness in your case that he intends to call to testify against you. In many instances, opposing counsel's acts amount to "trial by ambush."

Despite the trial court's order, most judges will not allow any witness not previously disclosed or ever mentioned to even get near the courtroom, let along testify. Nevertheless, there are certain circumstances when a trial judge may be convinced that a witness should be allowed to testify even though they have not been listed prior to the trial. A trial judge may properly allow such witness to testify during the trial if the party presenting the previously undisclosed witness diligently attempted to find said witness and was unsuccessful due to the witness' unavailability and if the attorney can show that the opposing side is not prejudiced, that the trial will not be disrupted, and the orderly and efficient trial of the case may continue. Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

In Binger, the Supreme Court of Florida held that a trial court may exclude the testimony of a witness whose name has not been disclosed in accordance with the trial court's pre-trial order requiring disclosure of all witnesses when the opposing party is prejudiced, the opposing party does not have independent knowledge of the existence of the undisclosed witness, testimony by the undisclosed witness may disrupt the orderly and efficient trial of the case, and no diligence has been shown in attempting to find the witness prior to the actual trial of the case. Binger, 401 So.2d at 1314.

Prejudice should be demonstrated before the trial court exercises its discretion to exclude the testimony of a witness whose name has not been disclosed in accordance with a pre-trial order. Binger, 401 So.2d at 1313; Hilton, Vincent, Pipkin, et al. v. Robert T. Hamer, et al., 501 So.2d 1365 (Fla. 4th DCA 1987); William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987). (All cases affirms the trial court's refusal to allow undisclosed witnesses to testify.)

It no longer matters that the undisclosed witnesses are being used simply for impeachment or rebuttal purposes at trial. After the Binger decision, the Florida Supreme Court specifically required that "all witnesses names should be exchanged before trial including rebuttal and impeachment witnesses when the pre-trial order so requires." 401 So.2d at 1314.

Nevertheless, the trial court is afforded broad discretion in deciding whether an undisclosed witness should be allowed to testify. William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987); Binger, 401 So.2d at 1313. The trial court will not be reversed unless the judge abused his or her discretion. The determination as to whether to allow an undisclosed witness to testify during trial largely will be decided if the party opposing the undisclosed witness can show that it will be prejudiced. Binger, 401 So.2d at 1314. Green v. Shoop, 249 So.2d 85 (Fla. 3d DCA 1970); See also, Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980).

If you apply the above guidelines and rules to your case, you should succeed in convincing the court that it should not allow opposing side to try its case by ambush. Chances are you will succeed in preventing the undisclosed witness from testifying in any capacity unless it can be shown that the prejudice can be cured and the undisclosed witness will not substantially endanger the fairness of the proceeding, or disrupt the orderly and efficient trial of the case. Binger, 401 So.2d at 1314.

If you are successful in preventing the undisclosed witness from testifying at trial, you should also move in limine to prohibit any testimony, evidence or other mention of the undisclosed witness during the trial by the opposing counsel. This alone may taint the jury's perception of your case.

When confronted with an opposing counsel's surprise tactic during trial, remember to properly establish your client's prejudice if the surprise maneuver is allowed to proceed during trial. Next, convince the court that the prejudice can not be cured and the matter will affect the fairness of the trial, as well as the orderly and efficient process of the case.

Motion In LimineMotions in limine can be done at the very last minute, even while the jury is waiting in the hall to come in. BE FOREWARNED. These motions have the ability to negate your case entirely and knock the legs right out from under you. The courts give judges "broad discretion" in ruling on these motions. Read about motions in limine

Advanced Trial Handbook
Closing Arguments Discussed

The closing argument is one of the most important parts of a trial, as the entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney's last minute attempt to persuade the jury to find in favor of his or her client.

During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid, and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way.

The podium should not be used. Instead, walk around freely. The use of a podium blocks communication and sends a message to the jury that there is something between you and them. Closing argument should be presented without notes or with as few notes as possible. If notes must be used, then use flash cards or very well organized papers so that you are not fumbling through documents when closing the case. Stand no closer than six feet from the jury. If you get too close, you will be encroaching on the jury's comfort zone and may cause them discomfort.

Begin the closing argument with a basic greeting. Almost all trial attorneys will thank the jury for their patience and attention before formally beginning the summation. This should not be done in a patronizing way, but sincerely and honestly. You should also explain what the summation is all about. A road map should be given to the jury explaining what is going to be done and how it will be accomplished.

Use simple and plain English. Leave legalese at the office. Avoid using excessively flowery language or complex legal terms. If complex scientific, medical or legal terms must be used, make sure that those words and terms are completely explained and defined well before they are used in context during the closing argument.

Next, discuss the difference between a civil and criminal trial. The jury should understand that a civil trial is not conducted like a criminal trial and that at the end of the civil case, no one will go to jail or lose any privileges. The jury should understand that monetary damages are being sought.

After that, discuss the standard of proof. Compare and contrast the standard of proof in civil cases from that of criminal cases. Examples of how the standard of proof works in civil cases should be provided. For instance, the trial attorney should explain that the greater weight of the evidence is like the scale of justice. That is, if the scale tilts to one side just a little bit, that is enough to be considered the greater weight of the evidence. Other examples may be used,such as the difference between 51% and 49%. These examples will help the jury understand the standard of proof and how to decide the case.

Follow that discussion with a complete and interesting explanation about the basis of the lawsuit. A short summary of the theory of the case and the establishing evidentiary facts should be presented to the jury at that point. Deliver this portion of the closing as if telling a story.

After the general picture has been fully illustrated, break down the case by elements in the order that they will be presented to the jury in the instructions. For example, in a negligence case, the attorney should explain what the elements of liability are and how the elements were met or not met in the case. Show how the evidence supports the theory of the case.

The testimony of the witnesses and the documented evidence supporting the claim should be discussed at that point as well. It important not to rehash all the evidence presented during trial. If the entire case is presented during closing, this will become too boring and the jury will be put to sleep. Instead, point out the highlights of the testimony and the key pieces of the evidence in the trial.

Never misstate the evidence or your position in the case. Jurors do not forget these things, and collectively remember everything that happens in the trial. Jurors can and will forgive a lawyer if he is kind and honest, but if they think the lawyer is lying to them or misstating the evidence or the law, the jury will never forgive that lawyer and the client may suffer as a result.

Make sure that demonstrative evidence is used when explaining the key points in your case. The jury will need to see and hear the important parts of your argument. The use of demonstrative evidence greatly increases the effectiveness of the closing argument. It will allow the jury to fully understand the case.

It is important to anticipate the arguments that may be made by the other side. Prepare to rebut those arguments before they are made. Nevertheless, avoid attacking the other side's attorney directly. Juries do not appreciate this type of argument and it often backfires. Under all circumstances, do not engage in a personality battle with the opposing party or counsel.

After completely discussing the elements of the case and your client's right to prevail in the lawsuit, move on to discuss damages. This is extremely important and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages. After the damages presentation, the jury should be fully convinced that your client has sustained significant harm and should be compensated. If properly presented, a significant verdict may result. Conversely, if representing the defense, the argument should focus more on the liability aspect of the case.

The defense should discuss damages in a pure logical and mathematical way. The defense should remind the jurors not to reward the plaintiff, but solely to compensate the Plaintiff and only if liability exists. Some defense lawyers believe that no particular amount should be discussed during closing argument when defending damages. This has proven to be effective for many defense attorneys, but it is also a very dangerous practice. If the jury plans to award the plaintiff a compensatory award, and the defense does not discuss specific amounts, the jury may feel obligated to award the amounts suggested by the plaintiff's attorney. Instead, a defense attorney may want to argue that no damages should be awarded, but that if damages are awarded, the amounts should be based on realistic figures. A sincere and conservative discussion of damages should then follow.

After damages are discussed, you should conclude the closing argument with a strong ending. The heart of the case should be proclaimed, followed by a request that the jury find in favor of your client. Thank the jury for their attention, then sit down at counsel table and appear confident that justice will be served.

Always remember to deliver the summation convincingly, clearly, and in an organized manner. Great closing arguments are rarely spontaneous. They require proper preparation, organization, practice, and inspiration. If delivered properly the closing may make all the difference in the result of the trial. Thus, you should devote sufficient time and effort to properly prepare the closing argument.Personal Beliefs Should Not Be Asserted During Closing Argument

When presenting closing argument to the jury, you should never assert your personal belief about the facts in the case or about anyone's credibility at trial. A trial lawyer who states what she thinks about the case or about the witnesses' credibility during closing arguments will violate the law. Such conduct may even require reversal of the case as discussed in more detail below. A lawyer may not vouch for the credibility of a witness or even opine that a witness should be believed or not believed based on counsel's statement to the jury that the witness was telling the truth. Sequin v. Hauser Motor Co., 357 So.2d 1089 (Fla. 4th DCA 1977). It is also improper for a trial lawyer to state that she believes that her client was seriously injured during an accident. Albertson's, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1989). Further, it is forbidden to state a personal belief during closing as to whether a party acted reasonably or unreasonably in causing the accident being litigated. See Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787 (Fla. 1989).

A trial lawyer must never state her opinion of the opposing party or opposing counsel during closing argument. In cases where the plaintiffs' attorneys have verbally attacked the opposing attorney and opposing parties as being liars, despicable and guilty of committing fraud upon the court and the jury, the Third District Court of Appeals has consistently reversed the cases and granted new trials. Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409 (Fla. 3d DCA 1995); Kendall Skating Center, Inc. v. Martin, 498 So.2d 1137 (Fla. 3d DCA 1989); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990).

Rather than alleging that the opposing party, opposing counsel and the opposing party's witnesses are liars, a trial lawyer should simply point out the inconsistencies in the opposing side's testimony, the bias and lack of credibility that the evidence has shown, followed by a simple question presented to the jury focusing on who the jury should believe. The plaintiff's witnesses appear credible and have good qualifications and backgrounds, and if the defendant's witnesses have made inconsistent statements or have questionable motives for testifying the way they did during trial, the plaintiff's attorney should then compare and contrast the testimony of the plaintiff's witnesses against the defendant's witnesses and ask the jury "who they are going to believe." By handling the credibility problem of the opposing side in this fashion, the attorney may highlight what the problems are with the opposing side's witnesses without basing it upon the attorney's own opinion.

During closing argument, remember to keep your personal beliefs out of the presentation. Instead, direct your comments to the evidence and the law and explain to the jury what conclusions should be reached without stating what "you believe."

Teach the jury, use logic, tell stories, but do not provide the jury with your personal opinions about the case. If you do, your case may be reversed.The Golden Rule

During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant's attorney needs to immediately object and move for a mistrial since this would be considered a violation of the "Golden Rule".

If an argument strikes at that sensitive area of financial responsibility and requests the jury to consider how much they would like to receive under similar circumstances, then the argument violates the "Golden Rule". Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). Trial attorneys may not ask the jury to measure the plaintiff's pain and suffering by putting themselves in plaintiff's shoes. Schreidell v. Shoter, 500 So.2d 288 (Fla. 3d DCA 1986), rev. denied. 511 So.2d 299 (Fla. 1987. The jury should not be asked to mentally go through the same pain and suffering that the plaintiff went through in deciding what damages should be awarded. National Car Rental System, Inc. v. Bostic, 423 So2d 915, 917 (Fla. 3d DCA 1983); State Farm Mutual Automobile Ins. Co. v. Curry, 608 So2d 587 (Fla 4th DCA 1992).

On the other hand, it is permissible to ask the jury to consider what damages the plaintiff has suffered. It is also proper to ask the jury to place themselves in the position of compensating the plaintiff for the injuries the plaintiff sustained. Simmonds v. Lowery, 563 So.2d 183 (Fla. 4th DCA 1990). In Simmonds, the plaintiff's attorney during closing argument requested that the jury "think about what you would pay someone for one day of what you hear she [plaintiff] has to go through and for the rest of her life." There, the court found that the argument was not a "Golden Rule" violation since it simply requested the jury to consider how much they would pay the plaintiff for damages, rather than asking the jurors to how much they would want to recieve if it was their case. The court found that plaintiff's counsel merely asked the jury to do what jurors are required to do - that is, compensate the plaintiff for injuries sustained once a finding of liability has been made. Id.

If the argument is not directed towards damages, the argument may not constitute a "Golden Rule" violation. In Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992), an automobile rear end collision negligence case, the appellate court found that it was permissible for the defendant's counsel to discuss the possibility of the jurors driving a car and realizing that they were about to hit a car in front of them that had suddenly and unexpectedly stopped. The Fifth District Court of Appeals found the argument to be permissible because it was not directed to damages. Id.

In order to preserve an objection to a "Golden Rule" violation, defense counsel must immediately object to the argument. Schreidell, 500 So2d at 233. The motion for a mistrial should also be made at the time that the improper argument is made. If it is not made contemporaneously with the statement in question, the objection may be waived unless it constitutes a fundamental error. Newton v. South Florida Baptist Hospital, 614 So.2d 1195, 1196 (Fla. 2nd DCA 1993). Schreidell, 500 So.2d at 233. If the error is so fundamental as to extinguish a party's rights to a fair trial, then a new trial me be warranted even in the absence of a timely objection or motion for mistrial. Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

A contemporaneous motion of mistrial should be made to preserve an appeal on any objection to an improper "Golden Rule" comment made during closing arguments. Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA 1988). The motion for mistrial may be made when closing argument is finished, but must be made before the jury begins to deliberate. Id. Nevertheless, it is recommended that the objection and motion for mistrial be made contemporaneously with the objectionable statement to avoid any inadvertent waiver of the issue.

When making closing arguments to the jury, it is important that the trial attorney not ask the jury to place themselves in the litigant's shoes. Instead, refer to the "reasonable person" or explain that if the word "you" is said during closing argument, that it does not mean the "jury" but only means people in general. See Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla 3d DCA 1992). If a "Golden Rule" violation occurs, the opposing party must immediately object to the impermissible statement; otherwise, the objection may be deemed waived.

Reversal of MisfortuneObtaining the remedies provided by California's posttrial motions requires strict adherence to a complex set of procedures

By Christina J. Imre and Holly R. Paul

Christina J. Imre is a partner with Horvitz & Levy, specializing in civil appeals, writs, and trial consultations. She recently authored the posttrial motions chapter in California Civil Appellate Practice. Holly R. Paul is a certified appellate specialist and an associate with the firm.

When a substantial money judgment is entered against a party, the immediate reaction is to appeal. But between the entry of a judgment and the perfecting of an appeal lies the arcane area of law known as posttrial motions. Used properly, they can snatch victory from the jaws of defeat, obviating the need to appeal or, at minimum, transforming a party into a respondent instead of an appellant. A successful posttrial motion can save the cost of paying for the record on appeal and avoid the need to post an expensive bond staying enforcement of the judgment. In other situations, the appropriate posttrial motion may be a prerequisite to obtaining relief on appeal. However, such motions can be a jurisdictional minefield. Failure to timely file the proper document, or to raise a necessary ground, or to dot the "i" or cross the "t" can result in automatic denial of the motion, or, even if it is granted, render it a nullity in the appellate court. In California courts, two of the major posttrial motions are the motion for judgment notwithstanding the verdict (JNOV) and the motion for new trial. JNOV and new trial motions serve different, yet often complementary, functions. The motion for new trial permits the court to reexamine an issue of fact or law.1 The trial court has broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror.2 A motion for JNOV, while more limited in scope, can be an even more powerful tool. Since a JNOV challenges the legal sufficiency of the evidence at trial,3 prevailing on the motion results in a new and different judgment in the moving party's favor.4

For example, in a JNOV motion, a defendant that lost at trial may challenge the plaintiff's right to recover punitive damages when, as a matter of law, the plaintiff did not prove entitlement to such damages by clear and convincing evidence. In a concurrent new trial motion, the defendant might challenge the punitive award as excessive. Where there is a basis to file both motions, the new trial motion is usually an alternative to the JNOV, because a successful JNOV motion will result in an entirely new judgment, obviating the need for a new trial.

Code of Civil Procedure Section 629 authorizes the trial court, on its own motion or that of a party, to "render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." A JNOV motion challenges the legal sufficiency of the evidence presented at trial. The court must deny the motion if it finds substantial evidence to support the verdict.5 Thus, the trial court's power to grant a motion for JNOV is severely limited. Moreover, the trial court may not grant a JNOV unless there is an actual verdict. If the jury returns no verdict or an incomprehensible verdict, a JNOV is not appropriate.6

When the trial court rules on the JNOV, it must presume that all evidence supporting the verdict is true.7 A JNOV is proper if, after reviewing all conflicts in the evidence in favor of the party that prevailed at trial, the court determines that party is not entitled to judgment as a matter of law.8 Unlike its powers on a motion for new trial, the court cannot reweigh the evidence and cannot judge the credibility of witnesses.9 Not only must it disregard conflicting evidence, it also must draw all reasonable inferences in the winning party's favor.10

However, if the evidence supporting the verdict is inherently incredible, the trial court need not accept it as true.11 Likewise, if the verdict is supported only by inferences contrary to clear, uncontradicted evidence that cannot rationally be disbelieved, a JNOV is proper. Two examples illustrate this point.

In one example, a plaintiff sues a defendant for misappropriating a product idea. The plaintiff introduces evidence that the defendant gained knowledge of the idea from the plaintiff and that the defendant used the idea. This creates an inference that the defendant copied the product idea. However, the defendant dispels this inference by offering admittedly genuine correspondence and testimony of third-party witnesses showing that the defendant obtained the idea from another source. The defendant's evidence is uncontradicted, and the jury's verdict for the plaintiff is not supported by substantial evidence. Under such circumstances, a JNOV for the defendant is proper.12

In a contrasting example in a similar scenario, the defendant offers no evidence to corroborate the claim that the product was the defendant's idea. There are numerous similarities between the two ideas and the plaintiff demonstrates that the defendant had access to the plaintiff's idea. In this case, unlike the prior example, the jury's verdict for the plaintiff cannot be overturned by a JNOV because the defendant's evidence was not clear, positive, and uncontradicted. The inference that the defendant had misappropriated the plaintiff's idea was never dispelled.13

The fact that the court may have denied a directed verdict motion during trial is no bar to filing for a JNOV after the trial is over.14 In addition, the making of a directed verdict motion is not a prerequisite to JNOV relief.15 Code of Civil Procedure Section 629 says only that a JNOV should be granted where a directed verdict motion should have been granted had it been made. This rule stands in sharp contrast to the federal requirement. (In federal court, a motion for judgment as a matter of law must be made before submission of the case to the jury in order to renew the motion after judgment.16)

Because new trial and JNOV motions are often sought concurrently, the time limit for filing the JNOV motion is synchronized with the time for filing a notice of intent to move for a new trial. A JNOV motion must be made within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659.17 Section 659 provides that the notice of intent must be served and filed either 1) before the entry of judgment, or 2) within 15 days of service of notice of entry of judgment, or, if no notice of entry is given, within 180 days of entry of the judgment, whichever is earlier. When one party has already moved for a new trial, the remaining parties have 15 days after service of the first notice of intent to file one of their own.

In contrast to a new trial motion (in which the party must make a motion), the trial court may grant a JNOV sua sponte any time before its power to rule on a new trial motion expires, so long as it gives five days' notice.18 A JNOV also differs from a motion for a new trial in that a JNOV motion consists of a single document. The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.19 (In contrast, a party seeking a new trial may first file a notice of intent to move for a new trial, followed by points and authorities and supporting declarations.) Since a JNOV contemplates entry of a new and different judgment, a proposed judgment should be included with the motion or at latest be submitted at the time of hearing. Prompt compliance is important because the trial court has limited time in which to act.

Because JNOV and new trial motions are often made in the alternative, the court cannot rule on the JNOV motion before the time for filing a new trial motion has expired.20 But if the court fails to rule on the motion within 60 days of the service of notice of entry of judgment by the clerk or any party, or if no notice of entry is given within 60 days after filing of the first notice of intention to move for a new trial, a JNOV is deemed denied by operation of law.21 In cases in which a JNOV and a new trial are sought, both motions must be decided at the same time and before the court's power to grant the new trial motion expires.22 The formal judgment notwithstanding, the verdict should be signed and filed within this 60-day period.23 However, substantial compliance has been deemed sufficient.24 If a memorandum opinion is entered in the court minutes within the 60-day period, the JNOV is not void for lack of jurisdiction, even if the formal judgment is not actually signed until after the 60-day window has closed.25 What if a notice of appeal is filed before the JNOV motion can be filed or heard? This problem typically occurs when the court will not stay the execution of a money judgment and the plaintiff threatens to execute on that judgment before the posttrial motions can be decided. In that situation, the defendant will be compelled to file an appeal bond and notice of appeal. To do so is the only other way to stay enforcement of the judgment.26 There is a split of authority on whether filing a notice of appeal deprives the trial court of jurisdiction to rule on the JNOV motion.

In Weisenburg v. Molina,27 the Fourth District followed the general rule that a notice of appeal divests the trial court of the power to rule on anything except matters collateral to the judgment.28 Finding that a JNOV is not "collateral" because it contemplates an entirely new and different judgment, Weisenburg held the trial court loses jurisdiction to rule on a JNOV motion once a notice of appeal is filed.29 The First District, in Foggy v. Ralph F. Clark & Associates, Inc. disagreed, reasoning that since a new trial motion is deemed a collateral matter, so too should one for a JNOV.30 Foggy seems the better reasoned authority, since Weisenburg compels a party to choose between the statutory right to file for a JNOV and staying execution of the money judgment.

Another major posttrial motion, that for a new trial, differs markedly from a JNOV, although the two have certain similar deadlines. Under a new trial motion, the court may review any type of error or irregularity occurring at trial as long as the error is prejudicial.31 Additionally, the court's discretion to grant a new trial is extremely broad. "So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside."32 It is a common misconception that a new trial motion is appropriate only after a court or jury trial, when in fact the motion is available in a wide variety of situations short of an actual jury trial. A new trial motion may be used to challenge judgments of dismissal after a demurrer is sustained without leave to amend, judgments of dismissal generally, judgments on the pleadings, decisions granting judgments on agreed statements of ultimate facts,33 and summary judgments.34 However, a new trial is not available for ordinary defaults and certain types of confessed judgments.35

The court's authority to grant a new trial is purely statutory.36 Unlike JNOVs, new trial motions may not be granted by the court on its own motion.37 Moreover, the trial court may only grant a new trial on one or more of the grounds enumerated in Code of Civil Procedure Section 657 or 657.1. The grounds are:Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which the party was denied a fair trial. This ground includes evidentiary rulings, judicial and attorney misconduct, and some juror misconduct, such as errors in the formation of the jury and juror competency.38 Jury misconduct. This includes overt acts of the jury, amounting to misconduct, that violate the right to a fair and impartial trial. In many respects, it overlaps the foregoing ground.39 Accident or surprise against which ordinary prudence could not have guarded. The accident or surprise must prejudice the moving party and diligence must be shown.40 Tactical mistakes and attorney negligence do not qualify.41 The moving party may waive this ground by its conduct during trial, for example, by failing to request a continuance when a key witness unexpectedly fails to appear.42 Newly discovered evidence. The newly discovered evidence must be material to the outcome, and the moving party must have exercised strict diligence.43 This is a very difficult standard to satisfy. Excessive or inadequate damages. Here, the court will reweigh the evidence and grant the motion only if, after reviewing the entire record, it believes the jury clearly should have reached a different verdict.44 As an alternative, the court may grant a conditional new trial, dependent on the opposing party's willingness to accept remittitur or additur.45 A new trial motion on the grounds of excessive or inadequate damages must be made if a party wishes to argue on appeal that a factual error was made in calculating damages.46 However, a new trial motion is not necessary to preserve an appellate challenge to a damage award for legal error in calculating damages.47 If there is any doubt whether the error is legal or instead factual (as is often the case), or if there is any basis to challenge the size of the award on factual grounds, a motion for new trial should be made to preserve the right to raise the issue for appeal. Insufficiency of the evidence, or verdict or other decision against law. When reviewing for insufficiency of the evidence, the trial court sits as the thirteenth juror,48 exercising its broadest powers. The court may evaluate witness credibility, draw inferences contrary to the jury's, and reweigh the evidence.49 And it is not bound by the jury's determination even if supported by substantial evidence.50 In a new trial motion asserting that the verdict is against law, the moving party may raise a new legal theory for the first time, but only when there is no material conflict in the evidence.51 The ground for a decision against law differs from the insufficiency-of-the-evidence ground in that, in the former, a judge does not reweigh the evidence.52 Error in law. The error must be prejudicial and excepted to.53 However, formal exceptions to the trial court's rulings are not required. Reporter's inability to prepare a transcript on appeal. This ground may be raised when the reporter dies or becomes disabled or there is a loss of all or a substantial portion of the reporter's notes.54

The Code of Civil Procedure contemplates three components to a new trial motion. One is the jurisdictional notice of intent to move for a new trial. The second is an optional (but highly advisable) memorandum of points and authorities. The third component, depending on which new trial grounds are raised, is the supporting declarations.55

As a general rule, the notice of intent is due within 15 days of service of notice of entry of judgment.56 The time for filing the notice of intent is jurisdictional and cannot be extended by stipulation or court order.57 A late-filed notice of intent is void and deprives the court of jurisdiction to grant the motion.58 Moreover, there is no extension of time for service by mail.59

Of the three components to the new trial motion, the jurisdictional notice of intent is the easiest to draft. It need only identify the moving party, state the statutory grounds (enumerated in Code of Civil Procedure Sections 657 and 657.1) on which the motion will be based, and specify the basis for the motion -- that is, whether the motion will be based on declarations, the minutes of the court, or both.60 Because the appellate court may uphold the grant of a new trial on any of the grounds listed in the notice of intent,61 it is usually wise to list all statutory grounds, even if they do not seem at first blush to apply. Each adverse party must be served with the notice of intent within the 15-day period.62 This, too, is a jurisdictional requirement. Failure to serve cannot be cured by the party's appearance at the hearing nor relieved by the trial court under Code of Civil Procedure Section 473.63 And failure to serve one of several adverse parties deprives the trial court of the power to grant a new trial to any party except to the extent the court can act without jeopardizing the unserved party's rights.64 The correct fee should be tendered with the notice of intent because otherwise the clerk may refuse to file it.65

The supporting memorandum of points and authorities is due 10 days after the notice of intent is filed.66 While optional, points and authorities are critical to the successful motion. Apart from the obvious need to persuade the judge to retry the case, the memorandum is the moving party's best opportunity to guide the court in preparing an adequate order and statement of reasons should the motion be granted, a task that cannot be delegated to counsel.67 Moreover, given the many jurisdictional rules and pitfalls, the memorandum is the ideal vehicle to remind the court of applicable deadlines and requirements that must be followed should a new trial be granted.

Declarations must be filed to support a new trial motion made on any of the first four grounds listed in Section 657. (Those four grounds are irregularity in proceedings, jury misconduct, accident or surprise, and newly discovered evidence).68 Two types of declarations are contemplated: juror declarations are needed to establish juror misconduct or irregularity in the proceedings,69 and attorney declarations must be filed when the ground is accident, surprise, or newly discovered evidence.70

Moreover, the attorney and party must file "no-knowledge" affidavits or declarations when the motion claims predeliberation misconduct by a juror. Such declarations are necessary to show the attorney and party were unaware of the misconduct until the trial was over.71 The requirement is designed to prevent a party from gambling on the trial outcome by holding the misconduct card in reserve to raise in a new trial motion.72 However, the rule does not require no-knowledge declarations for juror misconduct during deliberations.73

It is critical to review Evidence Code Section 1150 before drafting any juror declaration. To impeach the jury's verdict successfully, the declaration must demonstrate overt acts that are objectively verifiable -- that is, statements, conduct, and events open to sight and hearing and thus subject to corroboration.74 Declarations that attest to a juror's subjective reasoning process may not be used to impeach the verdict.75

Subjects that are proper for juror declarations include:Jurors' agreement to a chance or quotient verdict.76 Jurors' discussion of an improper matter during deliberations.77 Jurors' discussion of the case before deliberations began.78 Jurors' bringing into deliberations items not in evidence at trial.79 Subjects that are not appropriate for juror declarations include: Effect of improper influences on the jury's mental processes.80 Juror confusion on a particular legal concept.81 Jury's intention with regard to a particular verdict.82

Timely filing of declarations is another jurisdictional requirement. The affidavits or declarations in support of the new trial motion are due within 10 days after the notice of intent is filed, but this time may be extended by the court for an additional 20 days.83 Counter-affidavits are due within 10 days of service of the moving party's affidavits, and this time is likewise subject to extension.84 Declarations are important because testimony at the hearing on a new trial motion is not allowed.85 However, taking live testimony at the hearing is not ground for reversal on appeal unless the other party objects.86

The trial court must rule on the new trial motion within 60 days of service of notice of entry of judgment, or, if no notice of entry has been given, within 60 days of the first notice of intent to move for a new trial.87 If the court does not rule within this time, the motion is deemed denied by operation of law.88 Nunc pro tunc orders are not permitted.89 Thus, if the court takes the motion under submission, it is important to contact the clerk on a regular basis to remind the court of the jurisdictional deadline by which to rule.

When the trial court grants a motion for a new trial, it must draft an order and a specification of reasons.90 The order must state the statutory grounds on which it is based,91 and it should quote or paraphrase the statutory language as closely as possible.92 The order may be a minute order or a formal written order signed by the judge and filed with the clerk.93

The specification or statement of reasons may be part of the order or it may be a separate document. If the specification of reasons is prepared separately, it must be signed and filed within 10 days of filing the new trial order.94 This 10-day time period may extend beyond the 60-day window,95 but it too is jurisdictional.96 If the specification of reasons is not filed within that 10-day time period, the order granting a new trial is void.97

Counsel cannot prepare the order and specification of reasons. The trial judge must personally draft the documents.98 Noncompliance with this requirement has been used to overturn grants of a new trial.99 Moreover, the court cannot incorporate sections of the moving papers by reference.100 However, the court may "borrow" from the points and authorities by quoting, paraphrasing, or summarizing the identical position asserted in the moving papers: "the critical factor involved is whose mental processes are being used, not whose language is being employed. [T]he specification of reasons must be the product of the judge's mental processes and not that of the attorney for the moving party."101

The reasons for granting a new trial must be framed in terms of specific evidence in the case. Ultimate facts and general conclusions are insufficient.102 A statement such as "defendant's negligence was not the proximate cause of plaintiff's injuries" will not pass muster.103 If the new trial is granted on the ground of insufficiency of the evidence, the specification of reasons must identify the particular deficiencies in the evidence.104 On appeal from a new trial order based on insufficiency of the evidence or inadequate or excessive damages, the appellate court will presume the order was made only for the reasons set forth in the statement.105 With regard to excessive or inadequate damages, it is not enough to say the jury's damages award is too low or too high; the court must state how it arrived at the different figure.106 While a specification of reasons is not required for denial of a new trial motion, it does apply to conditional orders denying a new trial upon acceptance of remittitur or additur.107

JNOV and new trial motions are complex and intricate endeavors laden with jurisdictional, sometimes draconian, pitfalls. Even when the hazards are successfully avoided, the trial court may still deny the motion. Given the potential rewards, however, it can be an exercise well worth the effort.

1 Code Civ. Proc. §656; Carney v. Simmonds, 49 Cal. 2d 84, 90 (1957).
2 Tice v. Kaiser Co., 102 Cal. App. 2d 44, 46 (1951); Valdez v. J. D. Diffenbaudgh Co., 51 Cal. App. 3d 494, 512 (1975); Norden v. Hartman, 111 Cal. App. 2d 751, 758 (1952).
3 Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 877-78 (1978); Moore v. San Francisco, 5 Cal. App. 3d 728, 733-34 (1970).
4 See Code Civ. Proc. §629.
5 Foggy v. Ralph F. Clark & Assocs., Inc., 192 Cal. App. 3d 1204, 1213 (1987).
6 Mish v. Bruckus, 97 Cal. App. 2d 770, 776 (1950).
7 Foggy, 192 Cal. App. 3d at 1213.
8 Rollenhagen v. City of Orange, 116 Cal. App. 3d 414, 417 (1981), overruled on other grounds by Brown v. Kelly Broad Co., 48 Cal. 3d 711, 738 (1989).
9 Clemmer, 22 Cal. 3d at 877.
10 Hauter v. Zogarts, 14 Cal. 3d 104, 110 (1975); Castro v. State, 114 Cal. App. 3d 503, 507 (1981).
11 Hale v. Farmers Ins. Exch., 42 Cal. App. 3d 681, 690 (1974), disapproved on other grounds by Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 822 (1979).
12 Teich v. General Mills Inc., 170 Cal. App. 2d 791 (1959).
13 Donahue v. Ziv Television Programs, Inc., 245 Cal. App. 2d 593 (1966).
14 Teich, 170 Cal. App. 2d at 794.
15 Rollenhagen, 116 Cal. App. 3d at 417.
16 Fed. R. Civ. P. 50.
17 Code Civ. Proc. §629.
18 Id.
19 Id.
20 Id.
21 Code Civ. Proc. §§629, 660.
22 Id.
23 Id.
24 Catania v. Halcyon Steamship Co., 44 Cal. App. 3d 348, 351-52 (1975); Espinoza v. Rossini, 247 Cal. App. 2d 40, 45 (1966).
25 Catania, 44 Cal. App. 3d at 351-52.
26 See Code Civ. Proc. §917.1.
27 Weisenburg v. Molina, 58 Cal. App. 3d 478, 485 (1976).
28 See Code Civ. Proc. §916.
29 Weisenburg, 58 Cal. App. 3d at 485-86.
30 Foggy, 192 Cal. App. 3d at 1213.
31 Cal. Const. art. IV, §13; Code Civ. Proc. §475.
32 Jiminez v. Sears, Roebuck & Co., 4 Cal. 3d 379, 387 (1971).
33 Carney, 49 Cal. 2d at 88.
34 Scott v. Farrar, 139 Cal. App. 3d 462, 467 (1983).
35 Carney, 49 Cal. 2d at 90.
36 Fomco, Inc. v. Joe Maggio, Inc., 55 Cal. 2d 162, 166 (1961); Code Civ. Proc. §657.
37 Ehrler v. Ehrler, 126 Cal. App. 3d 147, 151 (1981).
38 Code Civ. Proc. §657(1). See also Townsend v. Gonzalez, 150 Cal. App. 2d 241, 249-50 (1957) (evidentiary rulings); Gay v. Torrance, 145 Cal. 144, 148-49 (1904) (judicial misconduct); Russell v. Dopp, 36 Cal. App. 4th 765, 775 (1995) (counsel misconduct); Weathers v. Kaiser Found. Hosps., 5 Cal. 3d 98, 102 (1971) (juror competency).
39 Code Civ. Proc. §657(2). See also Smith v. Covell, 100 Cal. App. 3d 947, 952 (1980) (receiving or communicating information from sources outside the evidence in the case).
40 Code Civ. Proc. §657(3). See also Hata v. Los Angeles County Harbor/UCLA Medical Ctr., 31 Cal. App. 4th 1791, 1806 (1995).
41 In re Marriage of Liu, 197 Cal. App. 3d 143, 155 (1987).
42 Garcia v. County of Los Angeles, 177 Cal. App. 3d 633, 637 (1986).
43 Code Civ. Proc. §657(4). Liu, 197 Cal. App. 3d at 153.
44 Code Civ. Proc. §657.
45 Code Civ. Proc. §662.5.
46 When ascertaining the amount of damages "requires resolution of conflicts in the evidence or depends on the credibility of witnesses, the award may not be challenged for inadequacy or excessiveness for the first time on appeal." Glendale Fed. Sav. & Loan Ass'n v. Marina View Heights Dev. Co., 66 Cal. App. 3d 101, 122 (1977). See also Baker v. Pratt, 176 Cal. App. 3d 370, 382 (1986).
47 Glendale Fed. Sav. & Loan Ass'n, 66 Cal. App. 3d at 122.
48 Code Civ. Proc. §657(6). See also Norden, 111 Cal. App. 2d at 758.
49 Valdez, 51 Cal. App. 3d at 512.
50 Collins v. Lucky Mkts., Inc., 274 Cal. App. 2d 645, 652 (1969), disapproved on other grounds by Scala v. Jerry Wilt & Sons, Inc., 3 Cal. 3d 359, 370 n.6 (1970).
51 Hoffman-Haag v. Transamerica Ins. Co., 1 Cal. App. 4th 10, 15 (1991).
52 McCown v. Spencer, 8 Cal. App. 3d 216, 229 (1970). 53 Cal. Const. art. VI, §13; Code Civ. Proc. §657(7).
54 Code Civ. Proc. §§657.1, 914.
55 Code Civ. Proc. §§657, 658, 659.
56 Code Civ. Proc. §659 provides the notice of intent must be served and filed either 1) before entry of judgment or 2) within 15 days of notice of entry of judgment or, if no notice of entry has been given, within 180 days of entry of the judgment, whichever is earlier. The remaining parties have 15 days from service of that notice of intent to file and serve their own notice of intent.
57 Code Civ. Proc. §659.
58 Douglas v. Janis, 43 Cal. App. 3d 931, 936 (1974).
59 Code Civ. Proc. §659.
60 Id.
61 Foggy, 192 Cal. App. 3d at 1217.
62 Code Civ. Proc. §659.
63 Spruce v. Wellman, 98 Cal. App. 2d 158, 160 (1950).
64 Carruthers Bldg. Co. v. Johnson, 174 Cal. 24 (1916); see Spruce, 98 Cal. App. 2d at 161.
65 Kientz v. Harris, 117 Cal. App. 2d 787, 790 (1953); see Foley v. Foley, 147 Cal. App. 2d 76, 78 (1956).
66 Cal. R. Ct. 203.
67 Code Civ. Proc. §657.
68 Code Civ. Proc. §658.
69 Id.
70 Id.
71 Weathers, 5 Cal. 3d at 103.
72 Wiley v. Southern Pac. Transp. Co., 220 Cal. App. 3d 177, 186 (1990).
73 Krouse v. Graham, 19 Cal. 3d 59, 82 (1977).
74 Evid. Code §1150; see also People v. Hutchinson, 71 Cal. 2d 342, 350 (1969); Lankster v. Alpha Beta Co., 15 Cal. App. 4th 678, 681 n.1 (1993).
75 See Evid. Code §1150; Lankster, 15 Cal. App. 4th at 681 n.1.
76 Chronakis v. Windsor, 14 Cal. App. 4th 1058, 1066 (1993).
77 Moore v. Preventive Medicine Medical Group, Inc., 178 Cal. App. 3d 728, 740 (1986).
78 People v. Lessard, 58 Cal. 2d 447, 453-54 (1962).
79 People v. Karis, 46 Cal. 3d 612, 642-43 (1988); Lessard, 58 Cal. 2d at 453-54.
80 Evid. Code §1150(a).
81 For example, declarations showing jurors "confused the concepts of comparative negligence and preponderance of the evidence" reflect merely deliberative error, not reversible misconduct. Ford v. Bennacka, 226 Cal. App. 3d 330, 332, 334 (1990).
82 A declaration that says jury "specifically found" that the plaintiff suffered no lost profits and concluding that the jury intended the damage award to compensate the plaintiff for pain and suffering is improper impeachment of the verdict because it simply relates the jurors' mental processes, none of which is objectively verifiable. Cove, Inc. v. Mora, 172 Cal. App. 3d 97, 99, 103 (1985).
83 Code Civ. Proc. §659(a).
84 Id.
85 Linhart v. Nelson, 18 Cal. 3d 641, 644 (1976).
86 Bardessono v. Michels, 3 Cal. 3d 780, 794 (1971).
87 Code Civ. Proc. §660.
88 Id.
89 Seigal v. Superior Court, 68 Cal. 2d 97, 101 (1968).
90 Code Civ. Proc. §657.
91 Id.
92 Mercer v. Perez, 68 Cal. 2d 104, 111 (1968) ("We reiterate our advice that the statutory language, or a reasonable approximation thereof, be used in all cases.").
93 Code Civ. Proc. §660.
94 Code Civ. Proc. §657.
95 Fortenberry v. Weber, 18 Cal. App. 3d 213, 221 (1971); Resort Video, Ltd. v. Laxer Video, Inc., 35 Cal. App. 4th 1679, 1694 (1995).
96 Hand Elecs. Inc. v. Snowline Joint Unified Sch. Dist., 21 Cal. App. 4th 862, 867 (1994).
97 La Manna v. Stewart, Inc., 13 Cal. 3d 413, 418 (1975); Mercer, 68 Cal. 2d at 121.
98 Code Civ. Proc. §657.
99 Tramell v. McDonnell Douglas Corp., 163 Cal. App. 3d 157, 170 (1984) (holding new trial order inadequate because it adopted counsel's suggestion for the specification verbatim); Oberstein v. Bisset, 55 Cal. App. 3d 184, 187 (1976) (adoption of specification drafted by attorney violates Code Civ. Proc. §657); Devine v. Murrieta, 49 Cal. App. 3d 855, 860 (1975) (new trial order inadequate because it incorporated the entire argument set forth in the plaintiff's memorandum of points and authorities).
100 Devine, 49 Cal. App. 3d at 860.
101 Eltolad Music, Inc. v. April Music, Inc., 139 Cal. App. 3d 697, 707 (1983).
102 Clemmer, 22 Cal. 3d at 888.
103 See, e.g., Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 62 (1973); Scala, 3 Cal. 3d at 369-70.
104 Mercer, 68 Cal. 2d at 116.
105 Code Civ. Proc. §657 provides that the new trial order shall be affirmed if it should have been granted on any ground stated in the motion, whether or not specified in the order or specification of reasons except that (a) the order shall not be affirmed on the ground of the insufficiency of the evidence to justify the verdict or upon the ground of inadequate or excessive damages, unless such ground is stated in the order and (b) on appeal from an order granting a new trial [for insufficiency of the evidence] or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.
106 Big Boy v. County of San Diego, 154 Cal. App. 3d 397, 404 (1984).
107 Neal v. Farmers Ins. Exch., 21 Cal. 3d 910, 931 (1987).

Other Washington Resources—General 

Alliance for Equal Justice

American Civil Liberties Union of Washington  

Association of Washington Cities  

Columbia Legal Services   

Consumer Counseling Northwest  

Contractors in Washington State

Corporations of Washington State   

Equal Justice Coalition

Law for Washington - Your Gateway to Washington State Law and Government   

Lawyer Referral Services  

Legal Foundation of Washington  

Municipal Research Services Center  

Northwest Justice Project  

Northwest Women's Law Center 

Resolution Washington

TVW-WA State Public Affairs Network 

Washington Alliance of Polygraph Examiners

Washington Association of County Officials

Washington Defender Association  

Washington Defender Association Standards for Public Defense Services  

Washington LawHelp

Washington State Association of Counties  

Washington State Commission on Judicial Conduct 

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