John Paul II Catholic University of Lublin

LEGAL ADVOCACY

FALL 2017

PROFESSOR DELAINE R. SWENSON

SYLLABUS

HANDBOOK

FACT PATTERNS

CLASS SYLLABUS

“LEGAL ADVOCACY”

Professor Delaine R. Swenson

office: CJPII 721 tel: 445-3721

Topic 1: Introduction to Legal Advocacy and its importance.

  • In Class Exercise: Introductory Presentations
  • Homework: Introductory Speech

Topic 2: Public Speaking Skills – Establishing a relationship with your audience.

  • Reading: Legal Advocacy Handbook – Oral Advocacy Skills and Establishing a Relationship with your Audience Sections
  • Homework: Introductory Speeches Continued

Topic 3: Introduction to the Adversarial Process, Overview of An American Jury Trial.

  • Reading: Legal Advocacy Handbook – Adversarial System; Overview of an American Jury Trial Sections.
  • In Class Exercise: Adversarial vs. Inquisitorial Trial Systems

Topic 4: Jury Selection in the American Trial System.

  • Reading: Article on the US Jury Trial
  • In Class Exercise: Jury Selection Fact Pattern

Topic 5: Developing a Theory of the Case/Opening Statements

  • Reading: Legal Advocacy Handbook – Developing a Theory of the Case/Opening Statements Section.
  • In Class Exercise: Developing a Theory of the Case.
  • Homework: Opening Statements

Topic 6: Direct Examination of a witness.

  • Reading: Legal Advocacy Handbook – Direct Examination of a Witness Section
  • In Class Exercise: Direct Examination Scenarios
  • Homework: Direct Examination

Topic 7: Cross Examination of a witness.

  • Reading: Legal Advocacy Handbook – Cross Examination of a Witness Section
  • In Class Exercise: Cross Examination Scenarios
  • Homework: Cross Examination

Topic 8: Use of Exhibits in the Courtroom.

  • Reading: Legal Advocacy Handbook – Using Exhibits Section
  • In Class Exercise: Use and Types of Exhibits
  • Homework: Direct Examination using Exhibits

Topic 9: The Closing Argument

  • Reading: Legal Advocacy Handbook – Closing Arguments Section
  • In Class Exercise: Identifying Arguments
  • Homework: Closing Arguments

Topic 10: Evidence and it’s admission at Trial.

  • Reading: Legal Advocacy Handbook - Simplified Rules of Evidence
  • In Class Exercise: Objections and Responses

Topic 11: The form and function of the Trial; Professional Responsibility of the Trial Lawyer.

  • In Class Exercise: Lawyer’s Professional Responsibility Exercise

Class 12: Oral Advocacy toward the Court sitting without a Jury. Pre-Trial Arguments.

  • In Class Exercise: Arguments before the Court.

Topic 13: Final Trials – Review of the Law and Facts in the individual cases.

  • Reading: Assigned Case Files

Topic 14: Preparation for Final Trials

Final Exercise: Presentation of full Criminal or Civil US Jury Trial in Trial Teams. The class grade will depend on the final exercise, class attendance and participation. Students must attend at least 65% of classes to participate in the final trials.

Materials on:

THE ADVERSARIAL PROCEEDING

Definitions

Adversarial systems are based on the belief that pitting two adversaries against each other, with each interested in presenting their version of the truth, is the best way for a decision maker to determine the probable truth.

A system is usually said to be adversarial if it includes the following elements:

The decision maker is neutral and passive (This may be either judge or jury.)

The parties, not the court, are responsible for presenting the proof.

The proof is presented in a formal setting where a set of rules governs the trial and the behavior of the litigants. (Proof must normally be presented in the form of oral testimony by witnesses who can be examined in open court by both parties.)

Within these elements there is often room for flexibility and adaptation. In most adversarial systems for example, judges are allowed to do more than just sit silently and observe the parties. They have some ability to ask witnesses questions and make meaningful inquiry in an effort to help determine the truth. Adversarial systems also allow for certain types of evidence to be presented to the decision maker in a form other than first person oral testimony. In the Anglo-American common law tradition such consideration is often given to categories of evidence which fall within exceptions to the “hearsay rule”- the general rule that excludes second hand information.

Historical Development

The adversarial process has its origins in the historical development of England. In England during the medieval time period (400-1400 AD), the forms of accepted dispute resolution included trial by battle and trial by ordeal. In trial by battle, the accused was required to fight the accuser. The underlying belief was that God would give victory to the party who was right. Trial by ordeal was similar in that it relied upon a “heavenly judgment.” In trial by ordeal, the litigant would subject himself to torture which might include carrying a hot metal bar, placing his arm in boiling water, or being totally immersed in water. If he survived the ordeal then he was awarded the judgment. While these methods of dispute resolution required little in the way of evidence, they did include procedural elements which would appear in later phases of England’s legal development: they required the active participation of the parties and only limited participation by the judge.

As England emerged from the medieval age of ignorance and superstition, it developed more sophisticated, reason based methods to resolve conflicts- court systems and court trials. During the early phases of legal development, court procedures were not adversarial but inquisitorial in nature. Judges interrogated the witnesses. They allowed very little if any participation by the accused. Lawyers were infrequently used. Judges often introduced their political opinions into the proceedings.

The British adversarial process really began to take shape in the 17th and 18th centuries. No one set out to create an adversarial system from an inquisitorial one. It developed slowly, over time. It was a result, at least in the beginning, of judges and lawyers making changes in their day-to-day courtroom behaviors that gradually began to reshape how court trials were conducted. Judges began to allow the accused and their lawyers more freedom to present evidence and make arguments. The lawyers began to seize the opportunities given them to play a more active role in litigation and expand their importance in the system. As the lawyers became more active, the courts developed more complex rules to control the lawyers and to establish a structure for the trial proceeding.

There have been numerous explanations given for why these changes took place: the development of more democratic ideals and principles, the rise of individualism, the growth of the market economy, and the response to the abuses of the inquisitorial system. There is no definitive explanation. It was probably a mixture of all these reasons.

As Great Britain expanded its empire to the far reaches of the globe, it brought its legal system with it. Systems based on adversarial principles operate in much the same form in many former British colonies such as Canada, Australia, New Zealand and of course the United States.

Currently, the United States possesses the legal system perhaps most widely identified with adversarial trial proceedings. This is due in large part to American film and television using the court trial as a dramatic mechanism. It should be kept in mind that much of the dialogue and behavior engaged in during the courtroom scenes in these films and programs would never be allowed in a real U.S. courtroom. Most “courtroom dramas” are not realistic depictions of U.S. court trials.

The foundation for many elements of the adversarial process employed by the U.S. system exists within the 6th Amendment to the U.S. Constitution. The 6th Amendment establishes a number of “Constitutional rights,” some of which are the same rights protected by international fair trial standards. These rights are: the right to be tried without undue delay (“speedy trial”), the right to a public trial, the right to be informed about the nature and charges against him, the right to confront the witnesses against him, the right to have witnesses summoned to testify in his favor, and the right to be represented by an attorney. While neither the right to be presumed innocent nor the requirement that the government prove the accused guilty beyond a reasonable doubt are mentioned in the Constitution, American courts have found that both these rights exist within the common law, are implied by the Constitution and must be afforded an accused.

C. Claimed Strengths and Weaknesses of the Adversarial Process

Of course no legal system provides the perfect balance between protecting public safety and resources and defending the rights of the individual. The adversarial process has its strengths and weaknesses like any other system. These are some of the claims that have been made in this regard:

Claimed Strengths:

It encourages judicial impartiality and neutrality.

It is a superior mechanism to determine the truth because:

The decision maker has the benefit of hearing different perspectives and arguments.

Examined live testimony is generally more reliable and complete than unexamined secondhand information.

Parties with the greatest motivation to uncover facts in their favor are given the power to do so.

It is an open and participatory form of dispute resolution which works to protect individual rights and to give the process legitimacy in the eyes of the public.

The adversarial court trial provides a fixed date when the matter may be resolved.

Claimed Weaknesses:

It is too expensive.

It is too slow to bring cases to a conclusion.

It is too unequal. The wealthier accused can hire better legal assistance.

Procedural rules sometimes prevent important evidence from being heard.

The Preference for Live Witnesses

In order for an adversarial trial process to function effectively, the courts must show a strong preference for live witness testimony.

There are three main reasons to require live witnesses to testify in court and subject themselves to the examination of the parties. These are:

It provides an accused greater ability to challenge the prosecution case and present his defense. This is necessary to protect his fair trial right to call and examine witnesses.

It enhances the truth seeking function of the court since in many cases it increases the level of reliability of the information considered by the court in making its decision.

It allows for greater public observation of information considered by the court in making its decision. This provides an important measure of public oversight for the organs of justice- the courts, prosecution and police, which over time, should lead to greater public trust in the institutions and the process.

In adversarial systems, a common justification for excluding information which does not come from first person, live witness testimony is that the information is not reliable. It is important to note that in these systems live testimony is not considered more reliable and credible on its face but is considered more reliable because it can be tested for credibility and reliability through the process of examination and cross examination.

Requiring live witness testimony can provide a number of benefits to the court. It gives the court the opportunity to view the age, education, understanding, and behavior of the witness (witness demeanor) which may impact the court’s opinion of the witness’ credibility. It requires a face-to-face meeting between the accuser(s) and the accused which may reveal errors in identification, prejudice against the accused, and even purposely false accusations. The court examination of a witness by the parties is also bound to provide the court much more information upon which to base its decision than would a mere reading of a police report. The police person writing the report may not have understood all the relevant issues or known all of the relevant facts at the time he questioned the witness. The police person may have omitted important facts in the report or taken too narrow an approach in his investigation. A great deal of the distortion and inaccuracy that occurs in police reporting can be remedied by requiring live witnesses to be examined by the parties in court.

ELEMENTS OF AN AMERICAN JURY TRIAL:

  1. Pre-Trial Hearings
  2. Jury Selection
  3. Opening Statement – Prosecution/Plaintiff
  4. Opening Statement – Defense
  5. Direct/Cross Examination of Prosecution/Plaintiff’s Witnesses
  6. Direct/Cross Examination of Defendant’s Witnesses
  7. Closing Argument by Prosecution/Plaintiff
  8. Closing Argument by Defense
  9. Jury Deliberation
  10. Verdict

ORAL ADVOCACY SKILLS

What makes a presentation successful?

  • Deal with Anxiety.

"Practice makes Perfect".

There is no substitute for preparation.

Organization makes you focused.

Pause, look ahead and take a deep breath.

  • Makes the project ideas your ideas.
  • Establish and maintain a relationship with the participants.
  • Be yourself, be genuine.
  • Use humor.

Tell anecdotes, stories.

Be careful, not everyone can tell a joke and not everyone laughs at the same thing.

  • Use a variety of visual aids.
  • True-to-life examples and situations tell a story.
  • Vary your speech techniques.
  • Speak to the group, do not read your notes.

Tips for reducing anxiety

1.Be organized

Organization = Confidence which leads to a focused presentation.

  1. Mentally Rehearse

In your "mind's eye" picture yourself walking into the room, being introduced delivering your presentation with confidence and enthusiasm and leaving the room knowing you have accomplished the goals of your presentation.

  1. Practice

Use a mirror or have someone critique the presentation or videotape it. Stand up and pretend an audience is in front of you.

  1. Breathe

Sit up, relax and breathe deeply several times. When you are nervous, your muscles tighten and you may forget to breathe.

  1. Focus on relaxing

Don’t dwell on tension, think about relaxing. Repeat to yourself "I am relaxed" take a breath.

  1. Release Tension

Try an isometric exercise that releases pent up tension

  1. Move Around

Moving around releases tension from your body. If they are natural, you can't gesture too much.

  1. Establish Eye Contact

Looking in the audience's eyes, connect and make your presentation personal and friendly. As you establish eye contact you lose your self-consciousness.

Points taken from Effective Presentation Skills, by Bert Decker and Steve Mandel

HOW TO ESTABLISH A RELATIONSHIP WITH YOUR AUDIENCE:

By using a variety of platform techniques you will be able to establish a rapport with the audience which will help you deliver your points more effectively. This will aid in creating an environment that will capture the attention of and effectively persuade your audience.

THE BODY:

  1. EYE CONTACT:
  • Look them in the eyes, creates a personal exchange between two people.
  • Pick out several friendly faces, but don’t forget the unfriendly ones.
  • Move your eyes around the room, everyone must feel you are talking to them.
  1. POISE AND APPEARANCE:
  • Feel comfortable, act comfortable.
  • Dress appropriately for the situation, audience, occasion, location.
  • Your demeanor will give the impression you wish to convey.
  1. GESTURES:
  • Help get the point across.
  • Can promote the reaction from the audience you wish .
  • Common gestures:

Sweeping hand - illustrates a broad field.

Vertical, chopping - emphasize practice points and breaks an idea into parts.

Palms out - "Stop" or reject an idea.

Palms up - invites acceptance, open mindedness or participation.

Upturned fist - draws the audience to you and gives an aggressive emphasis.

  • Guidelines to remember:

They should draw attention to the idea, not to the gesture itself.

Vary their use. Overuse it and it loses its effect.

Synchronise the gesture with the phrase or word.

Choose your gesture wisely - none is better that the wrong one . DON’T POINT!

Using too many limits their value - control yourself if necessary.

Practice their use - especially if there are new to you.

4. BODY MOVEMENTS:

  • Effective at relieving tension within you.
  • Draws attention back to you instead of from a visual aid or a distraction.
  • Engages a audience by keeping their attention and involving different areas of the audience at different times.
  • Can pace the presentation and change the mood.
  1. FACIAL EXPRESSIONS:
  • Helps create the desired mood. Your mood will be adopted by the audience.
  • No inspiration on the part of the presenter = no inspiration on the part of the audience.
  • Needs to be appropriate to the situation.
  • Beware of distracting mannerisms:

- usually the presenter is unaware of them; can cause an audience to be amused (at the expense of the presenter) or offended and they can detract from the objectives of the presentation.

THE VOICE:

  1. PITCH OR INFLECTION:
  • A pitch different than your normal one indicates tension or nervousness, be aware of what nervousness does to your voice.
  • Needs to be natural to you and in a range that is sustainable over the course of your presentation.
  • Should be varied to keep the interest of the audience.
  • Must not be annoying to the audience.
  1. VOICE QUALITY:
  • A voice that is nasal, thin, harsh, pinched or breathy can be difficult to overcome .
  • Practice helps correct or control and problems. First step is awareness. Record yourself and listen. A very painful but very instructive exercise.
  1. VOLUME:
  • The loudness and force depends on the size of the room and audience.
  • Everyone should be able to hear you, but not be overpowered by you. If the audience cannot hear you, you are wasting everyone’s time. Make sure amplification equipment is available and working if you need it ahead of time. Practice using it.
  • Vary the intensity to make your points and to keep it interesting.

9.RATE:

  • Too fast and you lose your audience immediately because they can't catch what you're saying. Remember your lips move at a faster pace than the audience’s capacity to absorb what you are saying.
  • "Drag your feet" and lose your audience from disinterest or boredom.
  • Vary the rate and you create a mood and keep your audiences interest.
  1. PAUSES:
  • Don’t be afraid of silence!
  • Can be used to draw attention to important points if used immediately before or after the point.
  • Used deliberately and infrequently. Overuse seems artificial.

11. VOCAL PROBLEMS (VERBAL PAUSES):