Thursday, March 22, 2018
Friday, January 19, 2018
Thursday, January 18, 2018
Wednesday, January 17, 2018
Justin Hall, a minor child and the only son of Jesse Hall, sustained serious injuries on June 29, 2017, while attended the ForensiTech forensic science camp at Morgan University in Morgan, Utah. . . . Justin fell down a mountain . . . sustained a spinal cord injury resulting in quadriplegia and a serious concussion leading to long-term impairment.
The lawsuit is against ForensiTech, Inc.
Introduction of Case by Judge Chinn
students relate to case
How the parent is portrayed will make a big difference.
at time of discovery -- a minor
discovery of diabetes -- after application
exhibits 1-3-4-9 do not require same Stipulation 2b --
must prove duty, breach, causation, damage
bifurcated -- monetary separated
attorneys -- ability to be concise and to articulate in your opening how approach summary of what witnesses will testify about and identify the critical witness the court should pay attention to.
who is the critical witness for the plaintiff -- not necessarily the expert
the expert provides critical info, but
not an ordinary negligence case -- must be gross negligence
page 70 -- elements of Gross negligence
falling short of duty of care-- must articulate
defense is comparative negligence -- does not rise to the claim of gross negligence
Parent release -- stipulation -- release effective against ordinary negligence, not gross negligence -- must point that out briefly in opening
how they perceive their approach to claim
Stipulation #3-- can hint at damage later two-phase trial (may affect scores)
mention bifurcated trial -- we are not going to talk about damages but we will prove
we're not going to go into a monetary amount -- will be for a later date for this court to decide
-- showing that you understand the nature of the trial
Note the defendant
must believe the position you take
must be able to address 2. Minors, page 71 --
ordinarily a 14 year old does not make these types of decisions
It is rebuttable -- a 16 year old is not going to call forseeable and say "I have type diabetes, so you'll need to have snacks for me."
so cannot be held to an adult standard
Must articulate the standard, the burden of proof
preponderance -- briefly mention what it means to have this standard -- in opening mention
by the end of the day's trial, we sill have proven that
don't argue it in opening statement
by the end of the trial we will establish by preponderace
(a lot of roughage)
move into the meat of the manner
can use roughage to develop character -- convincing character
Jesse Hall -- Parent -- must convince you about
standard 14 year old
parent knows the minor
suing on behalf of the minor
acting in full consideration of everything he knows about the minor
Paragraph 2 --
(witnesses -- not verbatim) avoid exact language --
mature, but getting out of paying for a nanny, calling every evening
Justin's Friend --
When talking about moving Justin -- guide's training -- were they as careful as they should have been?
Did they do anymore damage then?
Both experts got paid money -- not critical
Justin to blame for his own diabetes emergency and fall/injury
Critical witness for defense -- counselor
New Rules of Evidence
formatted to look more like Utah and federal rules of evidence
separated rules and guidance -- How to -- in an appendix (do not cite to a judge --)
Do not have to refer to objections by number
Judicial notice -- wouldn't usually use judicial notice -- on January 2 at 2 in the morning, the sun isn't up -- could ask court to take judicial notice, but prob. not
Privilege -- most likely won't come out
Hearsay -- drastically changes -- still really hard
an out of court statement offered to prove the truth of the statement
does not matter if in court or not
exemptions -- affidavit
statement by opposing party, admission by party opponent
someone who is party to the case, offered against them, 801D -- not hearsay
parent of minor child
stip 1C -- can't testify -- not a party opponent must come in under hearsay objections because the parents are bringing the lawsuit
more exceptions now
purpose of medical diagnosis or treatment
records of regularly conducted business activities
judgments of previous conviction
Lay Witness and Expert Opinions
lay witnesses opinion not relevant
if based on rational perception, helpful to factfinder -- fun to fight about (drunk, speeding)?
Expert -- tender this witness in the area of -- gone now
no one tenders in court anymore
What you do is to lay the foundations, then just ask the expert the expert opinion questions?
Other team can still object that expert isn't qualified -- after expert opinion question
Can put resume in as evidence --
Invention of Fact
in rules of evidence -- can point out to judge
creation of a material fact
-- not in the affidavit -- and likely to affect the outcome of the trial
Cross -- if asked about a fact not in the statement -- -- may answer consistent with their statement even if not in it (Don't say, not in my statement. can if it is material. better to say I don't know.)
Attorney -- object under invention of fact fule -- asking for a fact not in this witness's statement which would materially affect the case
Can impeach and refresh witnesses recollection
Can't (shouldn't) impeach on immaterial -- could for material fact
Character Evidence (really hard!)
cannot use a character trait to prove that the person acted in conformity with this trait
cannot use a prior act to prove conformity with that prior action
exception -- if convicted of crime
particular type of lock pick -- found also in this case --
Exclusion for Prejudice, confusion, waste of time -- 403 (known by number)
cumulative questions, compound questions
when a piece of evidence is relevant, but so unfairly prejudicial to
probative value outweighed by risk of being unfairly prejudicial -- not sustained very often
convicted of crime -- not related to the current issue -- prejudicial
Appendix -- Guidance
How to object
* Beyond the scope -- not allowed in cross -- cross-examining attorney -- has access to full scope
assumes facts not in evidence
After -- when did you start -- no evidence that ... happened
arguing facts not in evidence -- closing -- can object -- Your honor --at end of argument facts in closing argument not in the case -- argued in closing -- not established in the case
Etiquette -- proper behavior in the courtroom at all times.
score on Instagram -- have to identify your school/team
Attorney Coach -- 2 CLE credits for attending meeting and coaching the team
marking on the exhibit -- not allowed -- changed fact in case materials -- no laser pointer
no pointer sticks -- no prop -- no magic marker
up to 24 x 36
can place the exhibit stickers --
can use the numbers that exist
if you want an easel, bring it
Code of Ethics Roster -- turned in at first trial
Can designate a parent -- prior to the students coming in. . .
Roster for Virginia
scratch or legal yellow pads, pens
Tuesday, December 12, 2017
Monday, December 11, 2017
How to be a witness
Develop a character and always stay in character.
General guidelines in court procedures
Specific rules for witnesses
|Develop Your Character "Think in Character"
When you receive your case booklet
Read your witness statement
Before you can portray a character
Write a short biography & include. . .
Where were you born?
How old are you?
When is your birthday?
Where do you live/address?
Do you have a job?
Who are your friends?
What are your sports/hobbies?
What's your favorite thing to do?
As you write your biography. . .
You begin to think in 3 dimensions
You start thinking as a real person
Make a list of your likes (5)
Leonard Nimoy -- as he stayed in character more and more, he became the Spock character. He used his own background and emotions to build the character on.
Categorize your character
"If I were a movie, what would I be?
"If I were a book, what would I be?"
"If I were a car, what would I be?"
"If I were a pet, what would I be?'
"If I were a song, what would I be?"
Do you see how this can help?
Courtroom Basics Witness #1 Example
confident, quick to respond , competent -- a police officer will tend to keep his answers short and two the point. (Look at the judge on the bench when giving a narrative. We watched to 56:41.
During Direct. ..
know the questions your attorney will be asking
practice with your attorney
appear confident and trustworthy
Be sure your testimony is consistent with your witness statement
If a map or something else that requires you to stand
map (evidence poster) make sure you do not block it from the judge(s)
No markers --
No pointers -- finger only
If the attorney asks permission for you to approach the map/evidence poster. . . .
Don't block the vision
If asked "do you recognize?"
Follow the attorney's instruction
Courtroom Basics example
clarified answers in cross
calm, collected, professional
at poster, looked at it first, did not block it, pointing to exactly where you need to post
Courtroom Basics example how use voice and hands
Witness is the expert on his or her statement
Know it backwards, forwards, sideways
Practice! Practice! Practice!
A witness can only testify to his or her own witness statement.
or the fact situation if it would be reasonable for him or her to have knowledge of that
Be sure that your testimony
you don't want to be impeached
You made a witness statement
and you were truthful as you made that. . .
attention to page, line
show how it affects the case. . . relevance . . .
Courtroom Basics example
Rules for Witnesses
Courtroom Basics example
monotone -- blonde wife About 1:30
attorney defended objection -- Your Honor, may I be heard
Rules for Witnesses
Do not leave the courtroom until trial is over -- recess only
No talking with anyone outside the well until the trial is over
Most important strategy -- Practice, practice, practice
Most important Rule -- have fun!