Fundamentals of Pre-Trial Practice

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Scarlett Malone
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1 Vermont Bar Association s Young Lawyers Division Mid-Winter Thaw Seminar Materials Fundamentals of Pre-Trial Practice January 14, 2017 Le Sheraton Montreal Speakers: Justice Harold Eaton Tristram Coffin, Esq. Barbara Blackman, Esq.

2 1/13/2017 Conducting Effective Motions Practice The Basics: CLEAR STATEMENT OF THE SITUATION CLEAR STATEMENT OF THE LAW CLEAR EXPLANATION WHY RELIEF SOUGHT IS JUST FACTUAL SUPPORT IF CONTESTED. E.G. AFFIDAVIT 1/13/

3 1/13/2017 Motions to Compel and for Protective Order Rule 26 and Rule 37 Meet and Confer Obligation Conferred in good faith to resolve the dispute Support for motion The Airing of Grievances. 1/13/ SUMMARY JUDGMENT FED AND STATE Rule 56: no genuine dispute as to any material fact Support for facts asserted to be in dispute or not: materials in the record including Statement of Undisputed Facts 1/13/

4 1/13/2017 Summary Judgment (cont.) Statement of Disputed Facts Lesser pleading standard in Vermont Very developed federal case law on what constitutes a genuine issue of material fact. Vermont adopts some but not all. 1/13/ Summary Judgment (cont.) Non-moving party is entitled to have all inferences drawn in its favor Must present admissible evidence showing there is a genuine fact dispute 1/13/

5 1/13/2017 Trial Preparation Issues: Organizing and Presenting Your Story Presenting Your Story What s in the case? Motions in Limine Developing a Trial Theme Some notes on organizing for Trial What matters in an opening? 1/13/

6 1/13/2017 Motions in Limine What evidence will come in will define your story Avoid surprises: better to know your story than have it told to you at trial! The more important and complex the issue, the earlier you should present it to the trial judge Judge s comfort level and preferences vary Know your Judge s preferences 1/13/ Developing a Trial Theme Jurors think like people, lawyers don t always! So, how do people think? 1/13/

7 1/13/2017 Carl Jung Archetypes universal, archaic patterns, images and symbols Innate and developed through culture Embodied in the collective unconsciousness 1/13/ The Hero Quest Pattern Joseph Campbell, The Power of Myth Common themes in western stories: Ordinary world Call to Adventure Refusal of the Call Meeting with the Mentor The Ordeal The Reward The Road Back 1/13/

8 1/13/2017 The Hero Quest Story (cont.) Examples: -- Moby Dick -- The Ring Trilogy -- Star Wars -- Northern Exposure -- Harry Potter Common themes common interpretation, common understanding? 1/13/ The Seven Themes of Advertising Overcoming the monster Rebirth/Comeback story/redemption Quest Journey and Return Rags to Riches Tragedy Comedy 1/13/

9 1/13/2017 Everything Important I Learned in Kindergarten It s mine He s not sharing She started it He didn t clean up his mess Say you are sorry Don t hit people 1/13/ Lawyers adoption of these themes There is power in the one-line case summary like the one-line movie theme: In space, no one can hear you scream. Aliens We are not alone. Close Encounters Long ago, in a Galaxy Far, Far away His whole life was a million-to-one shot, Rocky Make America Great Again Can you make a tag-line that works for your case? 1/13/

10 1/13/2017 One word themes to help focus your case: What is my best story? Responsibility Truth Civility Justice Greed Defendant was running late Good versus evil Weak versus powerful; David v. Goliath Stuff happens Perseverance 1/13/ One word themes (cont.) Sacrifice Obedience Order Plaintiff will never be normal again Loyalty Expectation No objective evidence It was just an accident Integrity Credibility 1/13/

11 1/13/2017 Sum up of Trial Themes: Find one that speaks like a person Keep it simple, make sure you can stick to it big picture Develop in discovery Use from the first instance with the jury: voir dire, opening. Repeat the theme KEEP IT SIMPLE 1/13/ Opening Issues: Surveys repeatedly show jurors make up their minds within minutes of hearing from lawyers First impression is key. 1/13/

12 1/13/2017 Opening Issues (cont.) Must CONNECT! Honesty! You honestly believe your cause Passion! Keep it Simple! 1/13/

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105 "Do you solemnly swear that the testimony you are about to give in the matter now before us to be the truth and nothing but the truth, so help you God?"

106 V.R.C.P days notice unless Judge says otherwise (ex-parte) Any party can concurrently record but cannot secretly When to videotape? Notice may be accompanied by request produce documents. 5 days to serve written objection and then requesting party not entitled to documents except by order of the court Parties can stipulate (or judge can order) telephone deposition

107 V.R.C.P. 30, cont d Examination and cross-examination of witness may proceed as permitted at trial What are the Usual Stipulations anyway? Objections shall be stated concisely and in a nonargumentative and nonsuggestive manner. Attorney may instruct deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion (bad faith, unreasonably to annoy, embarrass, or oppress the deponent or party)

108 Objections as to Form are Waived leading questions testimony by counsel lack of foundation speculation assuming facts not in evidence mischaracterization or misleading question non-responsive answer lack of personal knowledge asked and answered argumentative question witness answers that are beyond the scope of the question. NGM Ins. Co. v. Walker Const. & Dev., LLC, No. 1:11 CV 146, 2012 WL , at *2 (E.D.Tenn. Dec. 13, 2012)

109 Preparing Your Client Please state your name -- 95% of your job is already done 162 Essential Rules My rules Know your adversary Be aware that some clients may dislike collegial banter between counsel.

110 Preparing Adverse Party / Witness Depo Don t do discovery deposition; have a game plan filing for SJ? Throw away your list of questions Listen! Deciding when to impeach deposition or trial How do you know when you ve done a good job?

111 Expert Depositions Now s the time to have real fun! Lock them in How to use the expert disclosure Blah, blah, blah -- Don t let them bury you in an answer Medical terminology

112 Civil Cases in VT Year Added Disposed Pending Cleared % % % % %

113 By Case Type

114 How Disposed

115 Civil Jury Trials Year Total FY FY FY FY FY

116 2016 Civil Jury Trials County Total Addison 5 Bennington 1 Caledonia 1 Chittenden 5 Essex 0 Franklin 1 Grand Isle 0 Lamoille 2 Orange 0 Orleans 0 Rutland 2 Washington 5 Windham 1 Windsor 6

117 Mediation Full time Mediators in Vermont mediate approximately matters annually. 75% Average Success Rate

118 Additional link from Barbara Blackman:

The following materials are the product of or adapted from Marvin Ventrell and the Juvenile Law Society with permission. All rights reserved.

The following materials are the product of or adapted from Marvin Ventrell and the Juvenile Law Society with permission. All rights reserved. Trial Skills for Dependency Court? Its not just for TV Lawyers