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Trial Advocacy II - Law B521 Winter-Spring 2011
Monday, 3:30 – 5:00 pm, Rm 117 Wm H Gates Hall
Professor Maureen A. Howard
Rm 337 Wm H Gates Hall
P: 206-616-6236
E: [email protected]
Office hours: Wednesdays 1:00 pm-5:00 pm or by appointment
Assistant: Dawn Bell (206) 543-7283 or [email protected]
Course Overview – General Information
Mock Trials
Winter Bench Trial
Spring Jury Trial
Trial Advocacy Announcements
Required Books
Recommended Books and Materials
Large Lectures
Large Lecture Sign-In and Commentary
Format for Submitting Assignments
Missed lectures
Small Sections
Courtroom Attire
Recording
Objections During Small Section Exercises
Weekly Small Section Points
Missed Small Sections
Small Section Redux
Grading
Extra Credit
Courtroom Observation
Trial Ad Blog
Judge Coughenour Award in Trial Advocacy
Assignments for Winter Quarter
Assignments for Spring Quarter
Coughenour Mock Trial Competition
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Course Overview
Trial Advocacy II (TA2) is a graded, advanced course in trial advocacy, building on the skill sets
learned in Trial Advocacy I (TA1). Both TA1 and Evidence are prerequisites for enrollment in
TA2. Students must also obtain Professor Howard's permission to enroll in TA2. In TA2,
students broaden and deepen their study and practice of trial skills; strengthening the basic skills
introduced in TA1, such as opening statement, direct examination, cross examination, and
closing argument, and learning new skills such as jury selection techniques, preparation and
examination of expert witnesses, and drafting and arguing motions in limine.
Student Commitment Required – Scheduling Concerns
TA2 is a two-quarter course, culminating in a mock bench trial at the end of winter quarter and a
mock jury trial at the end of spring quarter before a real sitting judge. The class will meet twice
each week. On Mondays from 3:30-5:00 p.m. the entire class will meet in Room 138 for a
lecture/discussion/demonstration on some aspect of trial technique (the “large lecture”). On
Wednesdays or Thursdays, small groups of students will meet for performance of trial-related
problems (the “small sections”). The small section classes will be held downtown Seattle in the
evenings either at the King County Courthouse or in a law firm mock trial courtroom.
Attendance at Both the Large Lectures and the Small Sections is Expected
Students are expected to attend each large lecture, attend the full two hours of each small section
class, and complete each of the small section performances. Pretrial hearings are tentatively
scheduled for the week of April 25, 2011. Mock jury trials are tentatively scheduled for Monday
May 9 and/or Tuesday, May 10, 2011. These dates are subject to change and depend in part on
the availability of the courthouse for the final trials and the dates of the judicial spring
conference. Trials will be held in the evening (approximately 5:00 p.m. – 11:00 p.m.) at the
King County Superior Courthouse before a Washington State judge. The Washington State Rules
of Evidence will apply. A jury will deliberate and reach a verdict in each mock trial.
MOCK TRIALS
Winter Bench Trial
The winter quarter concludes with a bench trial of the civil case Polisi v. Clark and Parker &
Gould (“Polisi”). This is the same case file used in Trial Advocacy I in autumn 2010. Where the
TA1 trial focused on exclusively on liability, the TA2 trial will focus on exclusively on damages.
Students will try the bench trial one-on-one. Party designations (plaintiff or defense) will be
made by the small section instructors during the first small section the week of January 17.
Spring Jury Trial
The spring quarter concludes with a jury trial of a criminal case. During winter quarter, students
will have an opportunity to sign up for their preferred jury trial assignment – prosecution or
defendant – and select a trial partner on a sign-up sheet which has been given to your small
section instructors. Jury trial partners do NOT need to be enrolled in the same small section
class. While we will attempt to accommodate student preferences, we cannot guarantee that
students will be assigned the party, the trial partner, or the trial night of their choice. Jury trial
assignments will be made by Tuesday, March 8, 2011. Students who have not yet signed up
indicating a preference at that time will be randomly assigned.
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TRIAL ADVOCACY ANNOUNCEMENTS
All announcements for TA2 will be posted on the Trial Advocacy course pages on the UW Law
School website http://www.law.washington.edu/courses/howard/B521_ WiSp11. Please check
the web site regularly for any changes in assignments.
REQUIRED BOOKS (all available at the UW Bookstore)
Trial Techniques, by Thomas A. Mauet (Aspen 8th ed., 2010) (referred to as "Mauet"). The
current version of the book is the 8th
edition, which will be available for purchase at the
bookstore. The book will be a useful resource for you for years to come and is a sound
investment. You may, however, use the 6th
or 7th
edition if you choose.
Effective Expert Testimony, by David Malone and Paul Zweir (NITA 2nd
ed., 2006). (referred to
as “Malone”).
Whichever edition you choose to use, there are used copies of both books available on
Amazon.com and at local used bookstores. I will also put a copy of each of these books on
course reserve in the law library.
The case file for winter quarter is Polisi v. Clark and Parker & Gould (2nd
ed).
The case file for spring quarter is a criminal case (murder) and it will be provided at the end of
winter quarter.
RECOMMENDED BOOKS AND MATERIALS
Washington Practice, v.5D, Courtroom Handbook on Washington Evidence, by Karl B. Tegland
(Thomson West 2008-2009 ed.) ***** HIGHLY RECOMMENDED *****
Rather than having to purchase Tegland, you may want to take advantage of our "lending
library." Dawn Bell (Room 328) has a collection of Teglands (older editions are fine), gathered
from various sources. Stop by her office if want to borrow a copy for the duration of the class.
You may also find copies on Amazon or at local used bookstores. And, of course, we have
several copies in the Reference section of the Law Library.
Federal Trial Objections Quick Reference Card (NITA).
Modern Trial Advocacy, Analysis and Practice, by Steven Lubet (NITA 4th ed., 2009)
McElhaney's Trial Notebook, by James W. McElhaney (ABA 4th
ed., 2006)
Cross-Examination: Science and Technique, by Larry Posner and Roger Dodd (LexisNexis 2nd
ed., 2004)
Evidentiary Foundations, by Edward J. Imwinkelried (LexisNexis 7th
ed., 2008)
Younger, Irving, "An Irreverent Introduction to Hearsay," (ABA Litigation Section Pamphlets)
Effective Use of Courtroom Technology: A Lawyer’s Guide to Pretrial and Trial, by D. Siemer,
F. Rothschild, A. Bocchino, and D. Beskind (NITA 2002)
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LARGE LECTURES
The large lectures are on Mondays from 3:30-5:00 pm in Room 138. Some of the large lectures
will revisit a trial advocacy skill that students studied in TA1. The purpose of these lectures is to
go beyond the “how to” basic lectures offered in TA1.
Some lectures will showcase a guest lecturer - local or national practitioners who will share the
lessons learned (sometimes painfully!) from their experiences in the courtroom. The goal of
these guest lecturers is to give students more depth and texture as to each topic, as well as more
of a “behind the scenes” practical look at each skill.
For guest lectures, students are asked to NOT use their laptops. As Federal Judge Marsha
Pechman tells her juries at the beginning of a trial when she “admonishes” them not to visit the
scene, read about the case in the media, or do any outside research: “Your job is to pay attention
during the proceedings. There is no homework.” Similarly, TA2 students’ job is to absorb the
lecture. For some lectures, the nuts and bolts of the skill being discussed have already been
concretized in the TA1 and TA2 course materials and in the students’ notes from TA1, so there is
no need for note taking. In addition, several guest lecturers over the years have complained
about the trial advocacy students’ inattention during their lectures and this has reflected poorly
on prior classes. Students should use their best judgment and be respectful of our guest
lecturers’ generosity in sharing their time and talent.
Large Lecture Sign-In and Commentary (1 Point)
As discussed below under “Grading,” attendance at the large lecture and submission of a short
commentary on the lecture will garner the student 1 point. As with TA1 there will be a weekly
sign-in sheet circulated at the beginning of the lecture. It is the student’s responsibility to sign
the sheet before leaving the classroom. Students must sign the sign-in sheet or submit their
name on a piece of paper at the time of the lecture to receive the 1 point credit for
attendance. Students must also submit by via
https://catalyst.uw.edu/collectit/dropbox/belld3/13249 a short (one paragraph) commentary
about the lecture. The commentary may include an evaluation of the speaker or the utility of the
talk, a comment on the presentation in general, or any lingering questions on the subject
presented. The drop down box is also available on the first page of the course webpage.
Format for Submitting Assignments
Be sure to include your name, date, a heading (including date of lecture summarized), and the
date submitted on all assignments. Include heading (including date of lecture summarized) on
email subject line.
Sample e-mail subject line:
Subject: TA2 1/3/11 - Large Lecture Summary (Topic)
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Missed lectures
If a student is unable to attend a weekly large lecture, the make-up protocol is different than in
TA1. Because not all the large lectures will be recorded there is a different protocol for lecturers
recorded and those not recorded. In order to make up the one point for a missed large lecture
that is not recorded a student must find a practitioner in town to meet with for at least one hour to
be tutored in the trial advocacy skill covered that week in large lecture. The lawyer should be
someone who specializes in the same area (civil/criminal) as the current case file. The student
will then need to submit by https://catalyst.uw.edu/collectit/dropbox/belld3/13246 a two-page
summary of the meeting with the lawyer, his/her advice on the topic, and the student’s evaluation
of the lawyer as a prospective trial advocacy lecturer. This is available on the first page of the
course webpage.
For those lectures that are recorded, a podcast will be available for student review. Students may
earn the missed 1 point by watching the podcast and submitting a short summary/critique (1 page
max) to https://catalyst.uw.edu/collectit/dropbox/belld3/13246.
Students should not contact any of the small section instructors who are teaching Trial Ad 2 for
this makeup assignment. Students may, however, contact any of the Trial Ad 1 instructors who
are not teaching TA2. Professor Howard can suggest other lawyers to contact if you strike out.
WEEKLY SMALL SECTIONS
Students are pre-assigned to a specific small section, led by two part-time instructors. The small
section classes are held from 5:30 pm – 7:30 pm on Wednesday/Thursday evenings downtown at
the courthouse or at a law firm mock trial courtroom. Small sections are limited so that every
student will have an opportunity to participate as trial counsel in the weekly exercises. The
instructors' critiques will follow each student's performance. These performances and critiques
are the heart of the course.
In order to permit all students to participate in each performance session, the time of each
student's performance and the instructors' critiques are necessarily limited. Each student will be
limited to performance of only a portion of the problem assigned. Students may be asked to
begin at the point where the previous student was stopped, or to begin at some other point as
directed by the instructor.
Guest witnesses may be provided for some of the exercises; in most instances, however, students
in the section will act as witnesses. In carrying out the role of a witness, the student must
simulate as closely as possible how such a person would respond as a real witness in a real trial.
The witness's perspective provides the student an invaluable insight into trial advocacy
techniques.
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Any changes in small section assignments must be done through Academic Services.
Once Academic Services has approved a change, the student is responsible for advising the small
section instructors as well as Dawn Bell. Mrs. Bell's office telephone number is 543-7283, and
her email address is [email protected] . Changes in small section assignments are strongly
discouraged and may not be possible due to strict limitations in class size.
Courtroom Attire for Small Sections
Students should wear "court clothes" to the small section classes. A lawyer's appearance may
have a substantial effect on the trier of fact and is a matter of concern for the serious
advocate. More importantly to our task at hand, it has been our experience that students dressed
more formally than the usual law school attire find themselves more easily “getting into
character” and presenting a more polished performance. A suit is not necessary by any means,
but strive for something approximating “business casual.”
An additional reason for courtroom attire is that the small sections are held downtown in
borrowed courtrooms, and the lending judge may, from time to time, stay as a guest critiquer for
the small section class.
Recording During Small Sections
In addition to being critiqued by the instructors, the student performances will be digitally
recorded weekly and students are expected to review their performances. Each student must
purchase a Secure Digital (SD) media and/or the new SDHD format cards. These can usually be
purchased for around $10-20 for a 2GB card. and bring it to the weekly small
sections. Specifications for the Secure Digital (SD) media and the new SDHD are posted on the
trial ad course web page. Self-review of the recorded performances are sure to provide the
student with added insight into the instructors' critiques. In addition, Professor Howard is
available during office hours or by appointment to review student recorded performances and
provide supplemental feedback. The bench trials will all be videotaped. Each student is required
to view the video of his or her bench trial and submit a brief (one page) evaluation, self-
identifying the student's strongest skill(s) and a specific skill the student intends to work on
during spring quarter.
Objections During Small Section Exercises
Objections may be made by any member of the class during performance sessions (whether
participating in the exercise or not), although the primary duty to object is with the opponent
performing the exercise. This is referred to as the “all object” rule. Objections should be made
whenever an objectionable question is asked, even if you would forgo the objection as a strategic
matter in a real trial. This practice is designed to develop your "ear" and to trigger an almost
reflex reaction to objectionable questions. Furthermore, it teaches the examining counsel to
retain poise and concentration even though bombarded with objections. Later in the course we
will discuss withholding objections for tactical reasons.
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Weekly Small Section Points
There are a total of six (6) points that can be earned each week at the weekly small sections. One
point is earned if the student emails the instructors the homework assignment (preparation) in
advance of class. One point is earned if the student attends the full two hours of class. Two
points are earned if the student participates by performing the week’s assignment. An additional
zero to two points can be earned based on the student’s demonstration (or lack thereof) of
knowledge and ability with respect to the week’s skill.
As in TA1, the instructors will give immediate verbal feedback in class, telling the students
where they went wrong and where they excelled. Then, privately, the instructors will rate each
student’s performance on a scale of 0-2 points. (0 = no demonstrated mastery of skill; fails to
meet expectations; 1 = average performance; average student performance on a comparative
basis with other students; and 2 = great demonstration of mastery of skill (at student level); puts
student in top 1/3 of expected student performance for skill). A student’s numeric score will be
emailed to him or her individually the day following the small section.
Missed Small Sections
If a student misses a small section, the student can make up the small section points missed as
follows:
1. The student can still earn the 1 point for the weekly small section homework assignment by
emailing it to the instructors;
2. The student may earn the remaining 5 points by:
a. attending another small section that same week and thereby earn the remaining 5
possible points as follows: The student shall email the instructors of the small
section he or she would like to attend to make sure there is room in that section
that week for a visiting student. If the student chooses this option, the student
shall attend another small section that week (and earn 1 point) but still perform
the week’s exercise for their regular small section instructor at the next regular
small section the student is able to attend. The regular small section instructors
will still be “grading” the student’s mastery of the skill (0-2 points) ; or
b. meeting with a trial lawyer for a one-hour tutorial on the skill that was covered in
the missed small section. The student may not meet with any of the instructors
teaching Trial Ad 2, although they may contact former Trial Ad instructors. The
student should work with the attorney on the performance exercise that was
assigned for the missed small section. If the student chooses this option, the
student shall attend another small section that week (and earn 1 point) but still
perform the week’s exercise for their regular small section instructor at the next
regular small section the student is able to attend. The regular small section
instructors will still be “grading” the student’s mastery of the skill (0-2 points);or
c. performing some of the extra credit assignments listed below under "Grading" in
order to make up the missed points for a missed small section class.
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3. Small Section Redux
a. Students who fail to earn the full 2 points for a small section performance may
submit a supplemental corrective exercise to Professor Howard to earn extra
credit points. A student can videotape himself or herself “redoing” the exercise,
incorporating the feedback received in the small section. The student should then
watch the taped performance and self-critique it. The student shall then submit
the videotape along with a one-page report to Professor Howard, briefly stating
what the in-class critique was, and include a brief self-evaluation of the revised
video-performance.
b. The “Small Section Redux” will garner the student at least one extra credit point,
regardless of the demonstrated mastery of the skill. Up to the original full two
points can be earned if the skill is well-demonstrated.
GRADING
TA2 is a graded course. As a skills course, there is no mandatory grading curve. The goal is for
each student to master the skills introduced and revisited, and, to that end, the class begins with
the expectation that all enrolled students who want it will earn a letter grade of “A.”
Point System
There are 200 core points available, along with possible extra credit points. The number of
points needed for each letter grade is as follows:
A 180-192
A- 170-179
B+ 160-169
B 150-159
B- 140-149
C 130-139
D 120-129
Possible Points
Weekly large lecture attendance and summary 1 x 11 = 11
Opening Statement Competition 13
Submit tape for competition 2
Selected/compete as finalist 8
Attend competition and vote 3
Weekly small section 66
Preparation (homework – but not MIL) 1 x 11 11
Attendance (not MIL) 1 x 11 11
Participation (not MIL) 2 x 11 22
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Demonstrated mastery of skill (not MIL) 0-2 x 11 22
Written Motion in Limine 10
Argue Motion in Limine 5
Trial Performances
Bench Trial 30
Jury Trial 60
Post-Trial Self-Evaluation 10
TOTAL POSSIBLE POINTS 192
EXTRA CREDIT
Other Extra Credit Points
Courtroom Observations
For each separate visit to court to observe a portion of trial proceedings, a student may earn an
additional 1 point, up to a total of 5 points, by submitting a brief commentary/analysis on some
trial advocacy skill the student observed in court. These papers should be emailed to Dawn Bell
at [email protected] .
Trial Ad Blog
For each comment posted by a student on the trial advocacy blog created by Mary Whisner, Trial
Ad Notes, a student may earn 1/2 point of extra credit, up to a total of 8 points. The link for the
blog is: http://trialadnotes.blogspot.com/. I will invite Mary Whisner to come and reintroduce
students to the blog during class.
Judge Coughenour Award in Trial Advocacy – Best Oral Advocate
The winner will be chosen by Judge Coughenour himself based on his observation and
evaluation of four trial advocacy students in trial. The trial is currently scheduled for Thursday,
May 12, 2011. The four students selected to compete will earn an additional 10 points for
competing.
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SYLLABUS FOR WINTER QUARTER 2011
Assignments for Winter Quarter
Week 1 – 1/3/11 – Revisiting Cross Examination
Week 2 – 1/10/11 – Voir Dire/Case Analysis
Week 3 – 1/17/11 – Closing Argument
Week 4 & 5 – 1/25 & 1/31 – Experts – Direct and Cross
Week 6 – 2/7/11 – Arguing to the Bench
Week 7 – 2/14/11 – Arguing to the Bench
Week 8 – 2/21/11 – Trial Preparation Week
Week 9 & 10 – 2/28 & 3/7 – Bench Trials
WEEK 1 (January 3, 2011): REVISITING CROSS-EXAMINATION
Large lecture Monday, January 3: Guest lecturer Jeff Robinson will come and talk about the
Chapter Method of cross-examination
Reading Assignment: Polisi file – please read entire case file; Mauet, pp 251-311
http://www.wsba.org/media/publications/denovo/denovo1010.pdf#page=9
http://www.wsba.org/media/publications/denovo/denovo0610.pdf#page=9.
Recommended reading: (in the library)
Pozner & Dodd, Cross-Examination: Science and Technique
Lubet, Modern Trial Advocacy, Analysis and Practice, pp. 270-306
Small Section assignment for Wednesday, January 5 or Thursday, January 6: The small
section instructors will assign every student as either plaintiff or defense for the final bench trial
during this week’s small section. Please do not leave your small sections without confirming if
you are assigned as plaintiff or defense because you will need this designation for next week’s
small section assignment. This week's small sections will focus on implementing the Chapter
Method of cross examination, which Jeff Robinson will talk about during the large lecture and
which Pozner and Dodd discuss in the text Cross-Examination: Science and Technique, which is
in the law library.
Every student will prepare in advance and conduct a cross examination of Maggie Polisi on
behalf of the defense on topics relating to the issue of damages. All students must be prepared
to play the role of Maggie Polisi. For this week only, regardless of your ultimate trial
designation, all students will prepare the assignment on behalf of the defense.
All students should also be prepared to object to each examination (the “All Object” Rule).
REMEMBER: In class we have an objection that does not exist in the real world on cross
examination: “Objection. NOT leading!” For additional instruction on the methodology and
content of objections at trial, please see Lubet, pp. 270-306 (recommended reading). There are
also supplemental materials on objections posted on the TA2 course page.
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Homework (1 Point): For this week's homework assignment, please prepare in
advance and turn in to your small section instructors on the night of the small section the
two or three CONCLUSIONS you intend to ARGUE to the jury in closing argument
based on the FACTS you plan to elicit during the cross examination you've prepared for
this week's small section.
A reminder that this week you are shooting to craft a cross exam composed of questions
that:
1) You already know the answer to (no fishing! Discovery is over! - the lawyer should
be ready to impeach if there's no compliance by the witness - )
2) Are actually statements, not questions.
3) Don't have tag lines ("isn't it true" "isn't that correct")
4) Have only one NEW fact per question (there can be multiple facts, but only one
new fact - moving the cross exam in "baby steps" and not big chunks)
5) Include no quibble words (adjectives, comparators, subjective opinions, etc)
6) Do not allow the witness to repeat the direct exam
7) Do not ask the "one question too many" 8) ARE LEADING!!! (Remember: we have the artificial objection this week of
"Objection. NOT leading" that all students are to interpose if a non-leading
question is asked.)
WEEK 2 (January 10): VOIR DIRE/CASE ANALYSIS
Monday, January 10: Voir Dire (a.k.a. Jury Selection or more accurately, Juror
Deselection)
Professor Howard will speak on methods and techniques for getting prospective jurors to open
up and share information during jury selection in order to better identify underlying biases,
preconceptions, attitudes and beliefs.
Reading Assignment:
Mauet, pp. 31-60, 477-478, 497-499;
http://www.wsba.org/media/publications/denovo/denovo1209.pdf#page=7.
Supplemental Materials: (on course webpage)
"Conducting Voir Dire," and Howard, "Voir Dire: Winning Hearts and Minds”
Podcast of lecture by Sam Chapin (formerly with the King County Prosecutor’s
Office) explaining the logistics of conducting an effective voir dire.
Recommended reading:
Lubet, pp. 529-5551
McElhaney, pp. 116-123
References:
Wash. Civ. R. 38; RCW 4.44.120-250
Wash. Crim. R. 6.3, 6.4
Fed. R. Crim. P. 24
Fed R. Civ P. 47; 28 U.S.C. 1870
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Week 2 Small Section assignment: (no recording this week)
Conduct a voir dire for your assigned trial case on some topic relevant to the issue of damages.
If you can, please bring a friend or relative to your small section to act as a potential juror
to fill out the venire. If you bring a lawyer or law student, we will ask that person to adopt the
background and attitudes of someone else, e.g., a parent or neighbor, and to answer voir dire
questions as that person would. Your colleagues and instructors will also serve as potential
jurors, again adopting the background and attitudes of someone well known to them.
Homework (Preparation) Assignment: (1 Point)
In preparation for this week’s work, please identify the 3 best and 3 worst facts for your side
(prosecution or defense) of the case on the issues of damages.
Please email the following to your small section instructors by noon on Tuesday, January 11:
1) The 3 best and 3 worst facts for your side (prosecution or defense) of the case;
2) The three topics you believe are most critical to explore on voir dire; and
3) Choosing one of the three topics, at least 10 questions you intend to ask during the
small section exercise on jury selection.
WEEK 3 (January 17): CLOSING ARGUMENT
Large lecture Monday, January 17: School holiday – NO CLASSES
Reading Assignment:
Mauet pp. 401-461 -- Closing Arguments; pp. 499-540
http://www.wsba.org/media/publications/denovo/denovo0810.pdf#page=8.
**Recording on course webpage on Making and Meeting Objections at Trial**
Recommended Reading: McElhaney, pp. 619-674
Week 3 Small Section assignment:
Your performance assignment this week is to prepare and give a portion of your closing
argument in your assigned trial case focusing on the issue of damages, making sure that your
closing clearly communicates your theory of the case. You will have approximately 10-15
minutes to deliver your argument in your small section, so you cannot give a complete
summation. You should include the following in your argument:
1. Statement of the Theme: At or near the beginning of your argument you should state
something like the following: "During my opening statement I told you that this was a
case about ________." Here, state your theme of the case, that is, a few dramatic words
or sentences that will immediately capture the jurors' attention, will be remembered by
them throughout the trial, and make them want to rule in your favor.
2. Arguing Witness Reliability: As the major part of your argument, argue why the
testimony of the main witness either should be or should not be relied upon by the jury in
reaching their verdict. Discuss the facts you brought out in your direct or cross
examination which support your argument. Do not refer to any other witness in any way.
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You are limited to the facts set forth in the problem, and cannot add any new or additional
material facts, but you may invent personal background information about the witness and may
argue from any inferences that could have been established from the facts. You may use a
diagram or any other demonstrative aid in presenting your argument.
Homework (Preparation) Assignment: (1 Point)
Please email the following to your small section instructors by 5 pm on Monday, January 17:
(1) your theme,
(2) the three facts that best support your theme,
(3) the three facts that most undercut your theme, and
(4) how you plan to deal with the troubling facts in closing argument.
WEEKS 4 and 5 (January 24 and 31): EXPERTS – DIRECT AND CROSS
For your small section homework assignment for these two “Expert” weeks (January 24 and
January 31), please email to your instructors by noon the day of your small section the
following:
The week you are conducting the direct exam of your expert:
Identify what you perceive to be the most vulnerable aspects of your expert's conclusion(s) and
how you plan to deal with them on direct exam in order to best insulate your expert from attack
on cross exam.
The week you are conducting the cross exam of your adversary's expert:
Identify the two or three conclusions you intend to argue in closing based on your cross exam,
and then list the facts/admissions you plan to elicit from the expert on cross to bolster those
conclusions.
Large Lecture Monday, January 24: Direct and Cross Examination of Expert Witnesses
Professor Howard will come and speak to the class about conducting an effective direct and
cross examination of an expert witness.
Reading Assignment:
Mauet, pp.309-400 – Experts
Malone, pp. 89 – 122 (Direct Examination); pp. 161 – 244 (Cross-examination)
Recommended reading:
Lubet, pp.213-255:
McElhaney, pp. 469-513
Malone and Zweir, The Expert Witness (NITA 2004).
Supplemental Course Materials:
Strait, “Expert Witness in the Courtroom,”
Reiss, “Outline of Direct Examination of Expert”
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Week 4 Small Section assignment: Plaintiff’s counsel will prepare and conduct a direct
examination of their expert witness and defense counsel will prepare and conduct a cross
examination of that expert witness. Students conducting a direct examination will present 15
minutes of the direct examination in real time, as if you were actually in court developing the
testimony for a jury unfamiliar with the facts of the case. Remember: you know the case like the
back of your hand by the time you walk your witness through the direct examination, but it is the
first time the jurors are hearing it! Provide your witness an opportunity to develop rapport with
the jury and provide the jury enough detailed background information on people and places
before moving into critical action sequences.
Although, due to time restraints, you will only be presenting 15 minutes of your direct
examination, please prepare the entire examination. This is for a couple of very practical
reasons. First, you will get much more out of watching your colleagues perform other sections
of the examination if you have thought through and organized the same section in advance. The
instructors’ critique of your colleagues’ performances will also be more meaningful for you in
this way, and you may be able to offer valuable feedback as well. Second, we want to avoid
having all students prepare just the first 15 minutes of the examination. (Wouldn’t that be
boring?) So be aware that your instructors may ask you to pick up an examination where another
student left off. Last, your preparation now will only make preparing for your bench trial that
much easier.
For these two weeks’ small section assignments, you’ll need to meet with another student and
do an hour of collaborative work before your small section the week you are assigned to do
a direct exam, so plan accordingly! Please team up with another student in your small section
who is representing the same party and meet for at least one hour to go over your direct
examinations for small section (30 minutes with you prepping the other student as your witness;
30 minutes with your colleague prepping you as his or her witness).
All students should also be prepared to object to each examination (the “All Object” Rule). For
additional instruction on the methodology and content of objections at trial, please see Lubet, pp.
270-306 (part of this week’s recommended reading, above).
Homework (Preparation) Assignment: (1 Point)
Please email the following to your small section instructors by noon the day of your small
section:
1) The week you are doing direct exam: a) confirmation you have met with the student
playing your expert and practiced for at least 30 minutes; b) the weaknesses in your case
vis a vis this witness; and c) your plan to deal with those weaknesses.
2) The week you are doing cross-exam: an outline of your cross examination (bullet points
are fine) and the one or two conclusions you intend to argue to the jury in summation
based on the facts you elicit from the witness on cross exam.
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WEEK 5 (January 31): EXPERTS – DIRECT AND CROSS (Continued)
Large lecture Monday, January 31: Selection and Preparation of Expert Witnesses
Reading Assignment:
Mauet, pp.309-400 – Experts
Malone, pp. 89 – 122 (Direct Examination); pp. 161 – 244 (Cross-examination)
Recommended reading:
Lubet, pp.213-255
McElhaney, pp. 469-513
Malone and Zweir, The Expert Witness (NITA 2004).
Supplemental Course Materials:
Strait, “Expert Witness in the Courtroom"
Reiss, “Outline of Direct Examination of Expert”
Week 5 Small Section assignment: Defense counsel will prepare and conduct a direct
examination of their expert witness and plaintiff’s counsel will prepare and conduct a cross
examination of that expert witness.
Homework (Preparation) Assignment: (1 Point)
Please email the following to your small section instructors by noon the day of your small
section:
1) The week you are doing direct exam: a) confirmation you have met with the student
playing your expert and practiced for at least 30 minutes; b) the weaknesses in your case
vis a vis this witness; and c) your plan to deal with those weaknesses.
2) The week you are doing cross-exam: an outline of your cross examination (bullet points
are fine) and the one or two conclusions you intend to argue to the jury in summation
based on the facts you elicit from the witness on cross exam.
WEEK 6 (February 7): DEALING WITH DAMAGES IN OPENING
Large lecture Monday, February 7: Dealing with Issues of Damages in Opening Statement
Reading Assignment:
Mauet, pp. 61-93, 493-495, 511-513
Supplemental Course Materials on TA2 course page – Opening Statement –See link:
http://www.wsba.org/media/publications/denovo/denovo0210.pdf#page=8.
Recommended reading:
Lubet, pp. 411-466
McElhaney, pp. 124-137.
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Week 6 Small Section Assignment: All students will give a portion of their opening statement
for their bench trial focusing on topics relevant to the issue of damages.
Homework (Preparation) Assignment: (1 point) Submit to your small section instructors a
short analysis of what you anticipate to be the most difficult aspect of dealing with the issue of
damages in opening statement and how you propose to handle it.
WEEK 7 (February 14): ARGUING TO THE BENCH
Large lecture Monday, February 14: Effective Oral Argument to a Judge
Professor Howard will speak on how to persuasively present motions to a judge.
Reading Assignment:
Supplemental Course Materials on TA2 course page:
VOI v. DOT case materials for background for motion in limine
Memo of law regarding admissibility
Effective Pre-trial Motions: Persuading the Judge
Recommended reading:
Lubet, pp.
McElhaney, pp.
Week 7 Small Section Assignment: All students will argue one side of the pre-packaged
written motion in limine in the short case of VOI v. DOT (on course page). Plaintiff Vending
Operator, Inc. (VOI) has filed a pretrial motion in limine seeking an order to preclude defendant
Nita Department of Transportation (DOT) from introducing evidence regarding Chris Della
Valle’s “survey” of customers at the vending stations, including the comment cards themselves,
any written summary of the survey results, or any oral testimony as to the content of the survey
results. Students who are plaintiff’s counsel in the final bench trial shall argue for plaintiff VOI;
students who are defense counsel in the final trial will argue on behalf of DOT.
Homework (Preparation) Assignment: (1 point) Submit to your small section instructors a
short analysis of what you anticipate to be the most difficult aspect of arguing the motion and
how you propose to handle it.
WEEK 8 (February 21): TRIAL PREPARATION WEEK
Monday, February 21: University Holiday - NO CLASSES
There will be no small sections this week to allow students adequate time to prepare for trial. All
students must meet with their witnesses for at least one hour to prepare the direct examination for
trial, and to meet with the attorney for whom they will be serving as a witness to prepare for trial.
WEEK 9 and 10 (February 28 and March 7): BENCH TRIALS
********* See course webpage for Bench Trial Rules, including time limits. *********
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Spring Quarter 2011
Assignments for Spring Quarter
Week 1 – 3/28/11 – Case Analysis
Week 2 – 4/4/11 – Revisiting Jury Selection
Week 3 – 4/11/11 – Revisiting Impeachment
Week 4 – 4/18/11 – Revisiting Opening Statement
Week 5 – 4/25/11 – Opening Statement Competition
Week 6 – 5/2/11 – Court Decorum and Trial Preparation
Week 7 – 5/9/11 – Jury Trials and Coughenour Competition
5/12/11 – Coughenour Mock Trial Competition
TA2 students have a major assignment this quarter: to try a case to a jury. Please read very
carefully the Local Rules of the Trial Court, which will be posted on the TA2 course page.
The Rules explain important details, including strict deadlines, for filing pretrial motions and
for the final jury trial.
LARGE LECTURES
Weekly topics: Some large lecture classes this quarter will be taught by guest lecturers. As a
result, there may be unanticipated scheduling conflicts that will require either a change of
lecturer or a change in the order of large lecture topics.
***** The small section assignments will not change from the schedule outlined below,
regardless of the large lecture topic for the given week. *****
WEEK 1 (March 28): CASE ANALYSIS
Large lecture: Monday, March 28: EVERY CRIMINAL CASE HAS A VICTIM. Whether
as a prosecutor convinced of the defendant’s guilt, or a defense attorney convinced of the client’s
innocence, attorneys have to deal with the fact that there is a victim. Serial murder survivor
Maggie Baker will come and share her personal experience as a victim in the criminal justice
system. See course page under Guest Lecturers for more about Maggie Baker’s story.
Recommended Reading:
McElhaney, pp. 619-674
Week 1 Small Section Assignment: (no recording this week)
The focus of this week’s small section assignment is to emphasize the importance of having a
well-developed and well-argued case theory and theme at the outset of your case, as this will
shape all your decisions as you proceed to prepare your case for trial.
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In your small sections this week, you will conduct a collaborative case analysis of the case of
State v. O’Neill and give an informal closing argument. You will be analyzing the case from the
defendant’s perspective, regardless of your party designation for the rest of the quarter.
(Remember: once you’ve identified the good and bad facts for the defense, you need only switch
them for the prosecution).
In order to prepare for trial and to present your case most effectively you need to know what it is
that you want to argue to the jury in summation. You can't argue your case if you haven't
presented the evidence to support your argument. You can't know what evidence to present if
you haven't decided what you want to argue. You need to analyze the facts to determine which
ones can be argued to support your side of the case, and which ones cannot (and thus need to be
neutralized as much as possible).
Your instructors will talk with you about how case analysis affects development of a case theory
and theme, and how theory and theme set the framework for closing argument and inform all
other strategic decisions of trial preparation. For this first small section please prepare to give a
short, simple (plain language!) summary of the defense’s case and why you should win. Pretend
that you are talking to your grandmother, who has asked about the case you’re working on. Boil
your case down to its essence, and keep it SHORT – you will be limited to three (3) minutes.
Remember, you are talking to your grandma: NO READING / NOTES!
You will have about five minutes to deliver your informal closing argument in your small
section. Remember: the focus of this first week’s assignment is to emphasize the importance of
case analysis and a well-developed and well-argued case theory and theme.
Develop a clear theory of your case. To assist you in developing your theory, please email your
small section instructor a one-page summary of a) your case theory; b) the conclusions you want
to argue in summation; c) the facts that support your conclusions; and d) a statement of your
theme, including the first two lines of your closing argument – your “grabber.” (See “homework”
assignment, below).
Homework (Preparation) Assignment: (1 Point)
Please email the following to your small section instructors by noon on Tuesday, March 29:
1) The 5 best and 5 worst facts for the defense;
2) a one-page summary of a) your case theory; b) the conclusions you want to argue in
summation; c) the facts that support your conclusions; and d) a statement of your
theme, including the first two lines of your closing argument – your “grabber;” and
3) The three topics you believe are most critical to explore on voir dire (for the
defense).
WEEK 2 (April 4): REVISITING JURY SELECTION
Monday, April 4: Guest lecturers will come and speak about the logistics of jury selection.
Reading Assignment: Mauet, pp. 31-60, 477-478, 497-499.
http://www.wsba.org/media/publications/denovo/denovo0610.pdf#page=9.
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Recommended reading:
Lubet, pp. 529-5551
McElhaney, pp. 116-123
References:
Wash. Civ. R. 38; RCW 4.44.120-250
Wash. Crim. R. 6.3, 6.4
Fed. R. Crim. P. 24
Fed R. Civ P. 47; 28 U.S.C. 1870
Week 2 Small Section assignment: (no recording this week)
Conduct a voir dire in the case of State v. O’Neill for your assigned side. If you can, please
bring a friend or relative to your small section to act as a potential juror to fill out the
venire. If you bring a lawyer or law student, we will ask that person to adopt the background
and attitudes of someone else, e.g., a parent or neighbor, and to answer voir dire questions as that
person would. Your colleagues and instructors will also serve as potential jurors, again adopting
the background and attitudes of someone well known to them.
Homework (Preparation) Assignment: (1 Point)
In preparation for this week’s work, please identify the 3 best and 3 worst facts for your side
(prosecution or defense).
Please email the following to your small section instructors by noon on Tuesday, April 5:
1) The 3 best and 3 worst facts for your side (prosecution or defense) of the case;
2) The three topics you believe are most critical to explore on voir dire; and
3) Choosing one of the three topics, at least 10 questions you intend to ask during the
small section exercise on jury selection.
WEEK 3 (April 11): REVISITING IMPEACHMENT
Monday, April 11: The Chapter Method of Cross Examination/Impeachment
Pozner and Dodd on Cross-exam (video).
Reading Assignment:
Cross Examination: Mauet, pp. 251-311
Special Impeachment Problems (posted on the TA2 course webpage)
Recommended reading:
Pozner & Dodd, Cross-Examination: Science and Technique (on reserve)
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Week 3 Small Section assignment: (recording this week)
This week's small sections will focus on implementing the Chapter Method of cross examination.
Prepare a cross examination of one of the witnesses in your assigned trial case. Each student
shall also prepare the special impeachment problems that will be posted on the Trial Ad course
webpage. All students must be prepared to play the role of ALL witnesses for their side of the
case (prosecution/defense).
All students should also be prepared to object to each examination (the “All Object” Rule).
REMEMBER: In class we have an objection that does not exist in the real world on cross
examination: “Objection. NOT leading!” For additional instruction on the methodology and
content of objections at trial, please see Lubet, pp. 270-306 (part of last quarter’s recommended
reading). There are also supplemental materials on objections posted on the TA2 course page.
Homework (Preparation) Assignment: (1 Point)
Please email the following to your small section instructors by noon on Tuesday, April 12: An
outline of your cross-examination (bullet points are fine), the one or two conclusions you intend
to argue to the jury in summation based on the facts you elicit from the witness on cross-exam,
and how you plan to sequence the impeachment into your cross-examination.
WEEK 4 (April 18): REVISITING OPENING STATEMENT
Monday, April 18: More on Opening Statement – Tryouts for the Competition
http://www.wsba.org/media/publications/denovo/denovo0210.pdf#page=8.
Week 4 Small Section assignment: (recording this week)
All students will give an Opening Statement in their small sections this week. Please submit a
recording of your performance to Professor Howard by 5 pm on Friday, April 15 for
consideration for the Opening Statement Competition. Submission of a recording will garner
a student 1 point; selection to compete and performance in the competition will earn a student an
additional 8 points. The winner of the competition is awarded a prize of $1,000. The
competition finalists will be announced by 6:00 pm on Sunday, April 24. The top four students in
the competition will be invited to compete in the Coughenour Mock Trial Competition on May
12, 2011, which carries an additional purse of $1,000.
Homework (Preparation) Assignment: (1 point)
Please e-mail the following to your small section instructors by noon on Tuesday, April 19:
1. your theme,
2. the three facts that best support your theme,
3. the three facts that most undercut your theme, and
4. how you plan to deal with these troubling facts in opening statement
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*** ADDITIONAL HOMEWORK DUE FRIDAY APRIL 25 (10 Points) ***
Each student shall draft and submit a motion in limine this week. Please email the motion to
both the small section instructors and to Dawn Bell at [email protected] (acting as Clerk of Court)
by noon on Monday, April 25, 2011. The written motion in limine is worth 10 points.
Instructions on the motion in limine can be found on the TA2 course webpage. You will be
arguing these motions in next week’s small section classes.
WEEK 5 (April 25): OPENING STATEMENT COMPETITION
Monday, April 25: The Opening Statement Competition (for which you can earn up to 10 extra
credit points) will be held during the regular class time on April 25. All students must attend.
Week 5 Small Section Assignment: (no recording)
Students will individually argue the motion in limine they submitted last week and will be graded
on their oral advocacy. Students shall each have 10 - 15 minutes to argue their motions in limine
to their small section instructors acting as judges. Students should be prepared to respond to
questions from the bench.
No written homework this week!
WEEK 6 (May 2): COURT DECORUM and TRIAL PREPARATION
Large lecture Monday, May 2: Professor Howard will speak on courtroom etiquette.
Reading Assignment: (all posted on TA2 course web page)
Supplemental Materials on Court Decorum and Trial Ethics
http://www.wsba.org/media/publications/denovo/denovo1210.pdf
Local Rules of Court
No Small Sections this Week
There are no small sections this week in order to allow additional time to prepare for trial.
WEEK 7 (May 9): JURY TRIALS and COUGHENOUR Competition
Trials are scheduled to be held downtown at the King County Superior Courthouse during the
evenings on Monday, May 9 and/or Tuesday, May 10, 2011.
Please refer to the Local Rules for instructions for the mock jury trials. Schedule of trials will be
posted on the Trial Advocacy 2 course pages on the UW Law School website
(https://courses.law.washington.edu/howard/B521all_WiSp11/).
Reading Assignment:
Review the Washington Rule of Evidence as you prepare for trial.
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MAY 12, 2011 -- Coughenour Mock Trial Competition - Judge Coughenour Award in
Trial Advocacy – Best Oral Advocate
The Coughenour mock trial competition will be held the afternoon of Thursday, May 12, 2011
from 1:00 p.m. to 4:00 p.m. in Room 138.
The winner will be chosen by Judge Coughenour himself based on his observation and
evaluation of four trial advocacy students in trial. The trial is currently scheduled for Thursday,
May 12, 2011. The four students selected to compete will earn an additional 10 points for
competing. There will be a reception in Room 115 following the trial, where Judge Coughenour
will announce the winner, who will receive an award of $1,000. You are all invited.
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