Term
| categories of jury instructions |
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Definition
general instructions, burdens of proof, elements and definitions of claims and defenses, measure of damages, and verdict forms
there are also "pattern" or "uniform" instructions and jury forms for frequently tried cases like auto accidents |
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Term
| how to draft jury instructions |
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Definition
are numbered to reflect which side requested them and cited to source (e.g. plaintiffs #1 pattern instruction #14 or based on AZ revised statute Ch 4 Sec 13)
the judge gets one set of marked and one set of unmarked instructions; each party gets a marked set of requested instructions from other side |
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Term
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Definition
to "settle instructions"
make sure court reporter is present or if summary is given to her afterwards make sure all objections are taken down to preserve trial record for appeal |
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Term
| learn your jurisdiction's waiver rules |
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Definition
some require only that the record clearly show your objections at the instruction conference in order to raise error on appeal
others require that you renew your objections before and after the instructions are read to the jury. many require that you raise any claimed error in a motion for a new trial |
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Term
| first minute or two of closing |
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Definition
should communicate three things:
1. theme
2. why the jury should find in your favor
3. your enthusiasm about the case |
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Term
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Definition
a good closing argues, your themes, your theory of the case, the supporting evidence used to argue
it is logic and emotion brought together |
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Term
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Definition
| your closing should reiterate your theory of the case explicitly to the jury and demonstrate why your theory most logically incorporates and explains both the contested and undisputed facts admitted at trial |
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Term
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Definition
avoid; it is improper for a lawyer to directly state his personal beliefs and opinions about the credibility of the witnesses
i.e. "i think that" and "i believe that" are objectionable (should really be eliminated from trial vocabulary entirely) |
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Term
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Definition
| key to utilizing this technique is to follow your factual argument immediately with the corresponding instruction so that the association is firmly fixed in the jury's mind |
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Term
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Definition
can be good to questions jury was unable to ask during trial (e.g. you're probably saying, that's a lot of money you're asking for. yes it is but..."
or can be used effectively to challenge your opponent with difficult or unanswerable questions; if he fails to answer the question, the jury will undoubtedly remember it |
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Term
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Definition
confronting it has two advantages:
1. your weaknesses are your opponent's strengths; addressing them first you can in part deflate his later arguments and take the wind out of his sails
2. jury will respect your honestly and candor when openly discussing those weaknesses |
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Term
| closing arguments are the time to solve problems, not ignore them |
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Definition
| this is time to deal openly with the jury's concerns about the case and discuss them candidly |
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Term
| force your opponent to argue his weaknesses |
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Definition
| rhetorical questions are particularly good for this |
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Term
| body position and gestures |
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Definition
| stand straight with feet planted and lean forward slightly; use gestures that draw attention to your face since this is where the words are coming from |
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Term
| body position and gestures |
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Definition
| stand straight with feet planted and lean forward slightly; use gestures that draw attention to your face since this is where the words are coming from |
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Term
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Definition
| usually right before or after the facts; state the issue in a way that the answer is obvious and answer it anyway |
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Term
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Definition
| too much time reviewing undisputed facts and too little time arguing why the jury should accept their version of key facts |
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Term
| what really happened and proof |
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Definition
| common approach is to begin by telling the jury what really happened from your perspective and then move immediately to all the sources that make your version of the what happened more plausible |
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Term
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Definition
in CIVIL cases only; plaintiffs usually argue liability first then damages
use a chart that breaks down damages precisely, jurors will be more likely to award large verdicts if they see how the money will help the P deal with her future
many courts ban a "per diem" argument (e.g. so much per day for rest of P's life) |
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Term
| damages from D's perspective |
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Definition
1. might decide to argue only liability
2. might argue liability first, then damages
3. argue damages first, then liability
key is to start by denying liability then move to damages without sounding defensive |
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Term
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Definition
1. burden of proof
2. elements of claims, damages, and defenses
3. definitions of important legal terms
4. credibility of witnesses
5. using common sense and experiences in life
6. sympathy should not be considered |
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Term
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Definition
P's choice is to anticipate or save it for rebuttal - most P's will mention D's likely claims in closing so jury won't hear these for the first time from the defense
psychological research shows that persons are more resistant to counterarguments if they have been given reason to resist them first |
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Term
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Definition
| should appeal to jury's sense of fairness and justice; should remind jury of a key theme or other important point, most effective conclusions end crisply and dramatically so that last phrases linger in the air |
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Term
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Definition
| don't wait to bring up points - D can argue narrowly, precluding you from arguing; or might waive closing, precluding rebuttal, don't "sandbag" key points like this |
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Term
| rookie mistakes during rebuttal |
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Definition
serious mistake to ONLY respond to questions raised during defense closing argument; this makes rebuttal sound defensive and passive; use your rebuttal to hit your best points in a fresh way; periodically weave in select defense contentions and refutations
a clever defense lawyer will weave in a series of questions and challenge the other side to answer - resist the temptation; keep rebuttal active and positive |
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Term
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Definition
1. intro
2. your strongest points
3. defendant's contentions and your refutation
4. conclusion |
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