Anatomy of a TrialPart of the NEWBIE LITIGATOR SCHOOL 2015 Series

Premier Date: October 27, 2015

Anatomy of a Trial

MEET THE FACULTY

PANELISTSLeland H. Chait Sugar Felsenthal Grais & Hammer LLP

Damian Capozzola The Law Offices of Damian D. Capozzola

Anatomy of a Trial

MODERATORJohn Martin,

MartinSirott LLC

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Practical and entertaining education for business owners and executives, Accredited Investors, and their legal and

financial advisors.

For more information, visit www.financialpoisewebinars.com

DISCLAIMER:

THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT

MAY BE BEST FOR YOUR INDIVIDUAL NEEDS

Anatomy of a Trial

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ABOUT THIS SERIESAnatomy of a Trial

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This series is targeted to attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to provide an introduction to various different components and parts of litigation – from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. The series is best viewed as a whole, building from one session to the next.

EPISODES IN THIS SERIES

Anatomy of a Trial

(Dates below are premier dates; all webinars also available on demand)

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EPISODE #1 Federal Civil Procedure Rule Refresher 8/18/15

EPISODE #2 Discovery Practice 8/26/15

EPISODE #3 Evidence Rule Refresher 9/3/15

EPISODE #4 Mediation Basics 9/10/15

EPISODE #5 Working with Experts 9/22/15

EPISODE #6 Motion Practice I – TROs and Preliminary Injunctions 10/6/15

EPISODE #7 Motion Practice II - Motions to Dismiss and Summary Judgment

10/20/15

EPISODE #8 Anatomy of a Trial 10/27/15

EPISODE #9 Appellate Practice – 101 11/3/15

EPISODE #10 Post-Judgment Proceedings & Collections 11/11/15

Anatomy of a Trial

ABOUT THIS WEBINAR

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This session will let you know what to expect when you finally make it to trial. The panelists will walk you through those critical final pre-trial steps leading up to the big day, including pre-trial briefing, witness and exhibit preparation, and motions in limine. The discussion will then turn to trial itself and provide insights in terms of what to expect and how to put your best case forward.

Anatomy of a Trial

What Does Preparing for Trial Involve?

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• Knowing your Themes- What are the key points you need to make throughout trial?

What is the essential story you need to tell?

Why should the judge or jury like and believe your client?

What is the most important evidence supporting your case?

- Organize your presentation of evidence around those themes. What do particular documents and witnesses contribute?

How will you use them in closing to tell your story?

Anatomy of a Trial

Universe of Material Produced in Discovery

Testimony and Exhibits to be Used at Trial

Winnowing Down the Evidence

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(Not drawn to scale. Inner box typically much smaller.)

Anatomy of a Trial

Knowing Your Audience

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Is this a Bench or a Jury Trial?• May alter impact of evidence.• May affect manner in which arguments are

presented (oral or written).• May determine whether case goes in as a

whole or in parts.

Anatomy of a Trial

Preparing for Trial: Formal Requirements

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Pretrial Procedures Vary Dramatically Many courts (including most federal districts) require detailed

pretrial orders that identify not only the evidence to be presented, but objections to exhibits and witnesses (and the responses to the same) to resolve issues before trial.

Some jurisdictions much more informal – leaving issues to be addressed on the fly.

Know Your Jurisdiction’s Rules!

Anatomy of a Trial

Preparing for Trial: Witnesses

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It isn’t enough to know who you need:— Witnesses will tell the jury your client’s story.— Order is important -- avoid starting in the middle

if possible.— Primacy and Recency: Your first and last

witnesses (and the beginning and end of your examinations) tend to make the biggest impressions.

— If you must present deposition testimony in lieu of live testimony, consider how it will be presented.

Anatomy of a Trial

Preparing Witnesses for Trial

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o Make Sure Witness Knows What Can be Expected, Especially on Cross-Examination

o Make Sure Witness is Aware of Themeso Avoid the Over-Rehearsed Presentation

Anatomy of a Trial

Putting Together Exhibits

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Know Whether It Will Come in What are the likely objections to the exhibit? Are there limited purposes for which it can be used? Is it substantive evidence, or merely a demonstrative used to illustrate

testimony?

Know How It Will Come in Even if there is no objection to the exhibit, a sponsor is useful to explain its

significance.

Know Why You Need It What role does the exhibit play in the story you are telling? What use are you

going to make of it in your arguments?

Anatomy of a Trial

Objections v. Motions in Limine

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When Do You File a Motion in Limine? Issue capable of being resolved with

limited context Seeks advance ruling on objections or on

whether evidence will be admissible May be desirable to help ensure important

evidence is available/identify what will need to be addressed with jury

Anatomy of a Trial

Function of Motion in Limine

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• Motions in Limine can almost always be revisited at trial, so:• Denial of motion in limine generally does

not eliminate need to object at trial• Grant of motion in limine may affect

appellate standards if excluded evidence is introduced despite order

Anatomy of a Trial

What’s a Trial Brief?

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In a Jury Trial• Generally introduces case

• Provides analysis of legal issues likely to arise at trial

• Helps the judge address objections as they arise

In a Bench Trial• Addressed to finder of fact, not

just person presiding at trial

• Closer to opening statement

• Consider cross-referencing exhibits to preview the evidence

Anatomy of a Trial

Jury Instructions and Verdict Forms

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Questions to consider• Does the court require the use of particular form

instructions?

• Do the form instructions cover your issues?

• Can you use/do you want a special verdict form?

Anatomy of a Trial

The Big Day is Here: Starting Trial

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Jury Selection• Know the rules of the road – Who will question

jurors, how for cause and peremptory challenges are made

• Consider themes in questioning jurors/presenting questions to be asked by court.

• Use methodology to track information furnished by jurors to help make challenges

Anatomy of a Trial

A Good Opening

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Tell your story – focusing on your themes.

Keep it simple, counselorChronological organization usefulPreview who will be telling them what

Don’t promise more than you can deliver

Anatomy of a Trial

Putting on Your Case

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Keep all eyes on the witness The witness should be telling the story, not

the lawyer

Listen to the witness and use answers to guide testimony with follow-up

Use witnesses to help explain key exhibits

Anatomy of a Trial

Playing Defense: Cross-Examination

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Have a theory of the witness

• Is the witness lying, mistaken, or unimportant?

Design your examination accordingly

• An unimportant witness may not need substantial examination

Keep it simple

• Ask short, direct, leading questions.

Anatomy of a Trial

Objections at Trial

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Some Basics: Know the Rules of Evidence Anticipate Testimony to Make

Timely, Appropriate Objections Object when it Matters

Anatomy of a Trial

Closing Arguments

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• Retell your Story in Vivid Language

• Review the Key Evidence Supporting your Position

• Focus on Your Themes to Remind Jurors (or the Court) Why Your Client Deserves Judgment

MORE ABOUT THE FACULTYJOHN MARTIN

Anatomy of a Trial

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jmartin@martinsirott.com

John Martin is a member of MartinSirott LLC, a firm he founded in 2009. He has over twenty years of experience in representing clients in both trial and appellate courts, and has obtained successful results in all stages of the litigation process from initial motion practice through appeal. His practice is devoted to complex commercial disputes, with principal emphasis in fiduciary and financial litigation. He has substantial experience in defending against class, shareholder, and derivative actions, including defending claims against individual corporate officers and condominium association board members sued in derivate claims. John is also a frequent author and speaker on issues relating to professional ethics, including ethical issues associated with attorney marketing and attorney fee arrangements. He currently serves as chair of the Chicago Bar Association’s Professional Fees committee, in which capacity he arbitrates and mediates attorney fee disputes, and has previously served as chair of the American Bar Association Section of Litigation’s Ethics and Professionalism Committee.

Before founding MartinSirott LLC, John was an associate and partner at Schiff Hardin LLP in Chicago and a law clerk for a federal district court judge.

MORE ABOUT THE FACULTYDAMIAN D. CAPOZZOLA

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ddc@ddclaw.com

Damian D. Capozzola has handled significant commercial litigation matters across a broad spectrum of industries and has represented some of the world's largest defense contractors, food manufacturers and wholesalers, telecommunications companies, and insurance companies. Having litigated at three leading national law firms since graduating from the University of Virginia School of Law in 1996, he opened his own practice in 2013. In addition to his commercial litigation experience Damian also litigates torts, employment, personal injury, and health care cases. Finally, through the years, he has devoted a significant amount of pro bono time successfully prosecuting misdemeanor crimes for two local municipalities.

Damian has successfully first-chaired or co-chaired many jury trials, bench trials, and arbitrations, and has contributed to successful trial results and settlements in a number of other matters. He has extensive experience in taking and defending depositions, and he has written and lectured on litigation strategies -- including the effective use of technology in the courtroom -- and working with experts. Since 2006 he has been the co-author of the Thomson Reuters/West Trial Practice Series treatise, “Expert Witnesses in Civil Trials: Effective Preparation and Presentation.”

In 2011 Damian was appointed by Governor Schwarzenegger (and was subsequently reappointed by Governor Brown) to the California Law Revision Commission, which he Chaired in 2014. He is also a Past-President of the Los Angeles Italian-American Lawyers and the West Regional Vice-President for the National Italian-American Bar Association.

MORE ABOUT THE FACULTYLELAND H. CHAIT

Lee Chait is a partner with Sugar Felsenthal Grais & Hammer LLP in Chicago. He has successfully tried business disputes in state and federal courts throughout the United States. He advises individuals and businesses with complex commercial disputes, including cases brought on a class action basis, in the employment, insurance, antitrust, regulatory compliance and healthcare fields

Lee has also successfully litigated disputes alleging consumer fraud, regulatory compliance problems, antitrust, consumer protection and unfair trade practices violations, violations of the Racketeer and Corrupt Organizations Act, common law fraud, and breach of fiduciary duty. He has extensive experience defending class action cases and in federal bankruptcy proceedings.

Lee is particularly knowledgeable in matters affecting the health care and life sciences industries, and he has represented healthcare providers and payers and pharmacy benefit managers in regulatory matters and provider-payer disputes. He has also assisted business clients with internal investigations and audits for compliance with antitrust, insurance and health care laws and regulations.

Anatomy of a Trial

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lchait@sugarfgh.com

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IMPORTANT NOTE:

THE MATERIAL IN THIS PRESENTATION IS FOR GENERAL EDUCATIONAL PURPOSES ONLY.

IT SHOULD NOT BE CONSIDERED LEGAL, INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS. 32