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Transcript
00:09
Good afternoon, and welcome to the It’s Law Podcast presented by FR Law Group. I’m your host today, Richie Edwards, and I’m joined by Rita Gara and Troy Froderman. Today in Episode Six, we’re going to be talking about Your Day in Court. Troy and Rita have significant extensive experience actually trying cases being in a courtroom. And they’re going to teach us today what what that really entails how it’s different from, you know, Suits and TV shows that we see on Netflix and other places, how it goes day to day and how it’ll impact your case, and ultimately, the results that you achieve. So, I think you’ve both appeared on podcast before. So, you know, I guess we’ll dispel a little bit with the introductions, but ask how we’re doing today. And then we’ll get started. Good, very good. Happy to be here. Same. Good. So, the way I want to start it is I want to go with, you know, reader, what does it mean to be in court? You know, what does that really entail for somebody? I think it actually sounds simple, but a really good question. Because most people think of the end game, I think, which is the trial, the dramatic scenes that you see on TV, that might not always be so realistic. But there are actually a lot of other reasons why you may be called into court. And in fact, as most of us I think, generally understand, a large percentage don’t have an exact number, but a large number of cases never actually go to trial, they get settled much earlier. So you may never see the inside of a courtroom, and certainly since COVID.
01:40
When was the last time you were actually in a courtroom?
01:44
I guess it was probably three months ago. Yeah, it’s changed a lot since COVID. And the popularity and ease of use now with Zoom. But
01:53
to get back to kind of why you might find yourself in court short of a trial.
01:58
There are a lot of preliminary
02:02
types of proceedings that will go on that will help determine the direction of your case. And so, or the nature of your case, we’ll start with kind of that was the easiest one. Most people think in terms of being in court as like a typical lawsuit, you know, party A versus party B, one of the things that a tool that we see used in court, which to some people may not be as familiar as the injunction. So the injunction you might have heard of it as like a temporary restraining order. It’s a tool that you can use when you most commonly used to stop somebody or frame somebody from at you’re asking for a judicial order, telling somebody to stop doing something. Think of it, I think an easy example would be
02:45
you’re a business owner, and you somebody is using your logo. So, it might take you two years to resolve this lawsuit. But in the meantime, it has a potential to hurt your business. So you’re gonna go into court and ask a judge to order that person to stop using your local pen in the outcome of a case. So, why might you be in court for that? Trial? I think you can speak to this as well. A lot of civil proceedings, as compared to criminal I think a lot of civil civil proceedings
03:18
are done that you are a lot of the work of a civil proceeding is done at your desk.
03:24
You are writing, writing, writing, writing, emailing, but for an injunction, it is sort of a
03:33
a rare kind of a big ask for a judge because you’re basically saying, “I want you to infringe on the rights of somebody else,” without actually
03:42
going through a trial. On the merits of the case. Here’s a common example. And while we’re talking about for this podcast, or civil trials, right, criminal is a different beast. We’re not going to talk about family law, or tax or probate. Yes, this is just ordinary civil court. One of the most common
04:08
issues that it’s the subject of a preliminary injunction hearing is a non-compete. So, company A employ somebody to be their sales representative and to give them a district or market that employee gets recruited to a competitor, the competitor wants to use that sales reps and knowledge of the customer base of Company A. So Company A says, no. And they want if they have most companies of any sophistication, have already written non-compete clause or a non-solicitation clause. That non-solicitation is you’re not going to go to Company B and try to recruit Company A’s employees, but on the non-compete which is fairly common.
04:58
Those are almost always said
05:00
juncture but preliminary injunction? And one of the things that they look for and that is, among other things, is the non compete clause itself enforceable? Is it sufficiently narrow in scope and duration, etc. So, that that’s where you often find yourself in court and the client finds itself in court. And that’s, that happens quickly. Because normally to get from the filing of a complaint all the way to a trial can be yours. Right. But on a injunction request, that’s usually a matter of less than 30 days, oftentimes sooner than that. Right. And I think, you know, as we see, so in civil we use tools like affidavits, sworn affidavits from witnesses, we also use depositions. So you’re going to have tools whereby the witness doesn’t have to come into court.
05:56
Because they can, they can swear under penalty of perjury to facts, and the judge can use that. But in cases like injunctions or other things we’ll talk about later,
06:08
the benefit of having your client appear in court and testify as, sometimes there just is no
06:16
better alternative or being able to look, a judge in the eye and explain your case, is just something that oftentimes will not translate on paper, especially,
06:27
you know, although oftentimes, you think of civil proceedings is boring, they’re emotional when you get sued, or you’re suing somebody you feel like your rights are infringed upon, to be able to make that plea in person is oftentimes a lot more persuasive than a paper affidavit. So, I think that’s one of the benefits. And to your point, about while you’re spending a lot of time at their desk, as opposed to in the courtroom,
06:50
a lot of that is leading up to what we would call motion practice. And so, it’s very boring for non lawyers, I’m sure, but it can sink or swim your case. And so what we call motion for summary judgment, or even before the answer the complaint, the defendant may file a motion to dismiss, those motions are heard by a judge. If you’re fortunate enough to get oral argument, then you’re in the courtroom. So that’s really one of your days in court. And it really depends. Oftentimes, if you’re in federal court or state court, the federal judiciary, there are fewer judges, large case loads, and, frankly, more times than not, they’ll just rule on the pleadings. So you don’t even get you you do get your day court beat your lawyers not physically present, right in court, whereas in state court, more judges, and
07:50
if it’s a motion for summary judgment, you’re likely to get it in face hearing with the judge, and the client is able to attend those hearings if they want to. So that’s technically one of the ways you have your days in court. Yeah. And I want to really quickly make a distinction for maybe non lawyer, your audience between the injunction hearings that we’ve talked about, they’re really quick, you get in there, and you’re just in front of the judge, right? There’s there’s no jury, it’s the plaintiff telling their story made the defendant answering some questions. Same thing with motion practice, often there is no testimony, it’s just the lawyer may be given an argument in the state court, like Troy said, but again, it’s just to the judge. And then later, as we’ll talk about the trial, right would be depending on the case to the actual jury. So, it’s interesting to me that your first times in court, your first days in court, are just in front of a single judge, and they get to be judge, jury and executioner. As soon as they decide where your case goes from there. Same thing maybe in an evidentiary hearing. And that’s, you know, then you ultimately are like you said, a couple of years after you filed your case, after you’ve had a few days in court, you finally get to a trial. So, how does that, how long does that normally take in your experience during the civil world to get to the actual trial in front of a jury of your peers? It really depends on the judge, it depends on the workload caseload that the judge has. It also depends on the nature of the case. Some cases are very simple. So they’re, they’re not long in terms of duration. So it’s a two or three day trial, those are easier to schedule. If you have a complex case, involving multiple parties, complex issues, that’s going to take several weeks.
09:34
First of all, it’s gonna be very expensive. But secondly, it’s harder to get those scheduled. And so those tend to go out further and, frankly, could be up to two years before those parties get their day in court.
09:48
And before that, though, you mentioned an evidentiary hearing. So, one of the things that
09:55
we have to do in litigation is depending on the nature of the case, and the
10:00
issues involve. We hire experts, experts are not cheap. So, you have to disclose the expert. During the course of the case, you have a report that’s issued, then the other side opposes your expert or experts. And then before the trial, the other side may try to strike that expert and say that the issues that he’s he or she are opining on, they’re not qualified to do or it’s invading the province of the jury, the jury doesn’t need an expert on that issue, or the court doesn’t need an expert. So, you ended up with an evidentiary hearing where you have the experts sometimes present proffered testimony for the judge to determine whether it’s admissible or not to go in front of the jury, the real hang up on that is If the court decides that that expert or experts aren’t qualified, or for whatever reason, you’ve spent a lot of money. Yeah, that’s just been unfortunately wasted. So, you got to be very careful in terms of your selection of an expert that really need to be an expert on that issue. Obviously, what kind of TV, but you want to make sure that that expert hasn’t been disqualified.
11:22
Right. And that has happened. So yeah, the other thing and evidentiary hearings that are interesting as a tool is, as you get to trial, there’s a thing that we call them a, when I was starting out, I could never remember the motions eliminate that there was such a weird name.
11:35
But but, you know, arguing about what kind of evidence will be allowed along the lines that we were just talking about with an expert, but it may not be an expert of maybe documents, it may be witness testimony. And as the old saying goes, you can’t unring a bell, once it’s been wrong, sometimes, it’s a really good tool to have your day in court before court to determine some of those evidentiary issues. We’ve all seen the dramatic scenes of somebody standing up an objective thing, but once that statement has been made, or the witness has testified, you can’t really tell the jury, you can tell the jury, you know, you’re going to disregard that, as the judges often will do to objective evidence that they’ve sustained an objection to but
12:17
the jury has heard it. So depending on the juror, whether or not they’re really going to be able to forget that evidence that they were told to forget about. One of the tools you can do to prevent that happening in trial and blowing up your potential day is argue those issues at a motion eliminate herrenberg before you ever get to trial. Yeah. So I mean, we’re learning and hopefully educating the audience that you file your lawsuit. And you might have a few days in court a few opportunities to make arguments prior to, you know, during that two years or longer, maybe less before you get to trial. So in one sense, it’s not just file and then wait for your calendar date to come up. There’s a lot going on in the lead up to trial, a lot of preparation, a lot of different thing that lays that lays the foundation for that first day in court. Right. And then we finally get there. We’ve done our our motions for summary judgment, we’ve done our motions eliminate, we’ve decided on the evidence we get there, we show up the court day, once right, what happens? Well, how is that first day, so if it’s we’ll just assume for this discussion that it’s going to be in front of a jury chair. So, the first thing that happens is that you go into the courtroom with your client and the opposing parties that are with their client, the judge comes in, makes rulings perhaps that day, on the motions eliminate which issues are going to be allowed to be heard in front of the jury.
13:44
Any fights on exhibits, try to get that resolved. And then you select a jury. So, that’s called more dire. And you impanel a group of could be up to 30 people, citizens of Maricopa County, where the county in which you reside, or where the case is being heard. And it’s changed a lot over the years, right? You used to be able to really spend a lot of time examining the prospective jurors to find out who in your experience and opinion is good for your case and who’s not. And so, there’s really two ways to challenge a juror.
14:25
When it relates to there’s only one now. Right now you have to find a reason to have cause and cause could be anything from severe hardship for that particular prospective juror where somebody who is biased, and then the judge has to make that determination.
14:45
And so, what that takes the let’s say that trial starts in the morning, that process can take a half to two thirds of the first day and trial. Yeah. And it’s a little frustrating for people who aren’t used
15:00
To the proceeding, because you feel like nothing’s getting accomplished, right. And there’s also frustration of how you’re making this decision
15:10
on these jurors, you know, for him, it’s a little bit more understandable now because it is because you just have the right to just just saying that that’s a notice of any
15:21
that was being abused and prolonging trials. So that is no longer the case. So once the the jurors are selected, they can be anywhere from in state court, it can be anywhere from six to 12 jurors, and the parties agree to that. Normally, if they don’t, then the judge makes the decision. And so, jury is then impaneled, the judge gives them their oath, they then are prepared to hear opening statements. Right. And we know I want you to touch on that a little bit. And Troy, you said it has changed a lot. Now, you do a lot of early questionnaires you submit to the jurors, no, in Maricopa County, at least they show up and they get an iPad and click through all the questionnaires and you get the results. And you’re not necessarily examining them. But talk to us a little bit about the art of selecting a jury and parsing through their responses to try to get a jury that. I mean, we have to say we want somebody sympathetic to your case. Yeah, it’s such an interesting area. And you’ll get a wide range of opinions and views. And I think even among, among attorneys, some people really liked that process. Some people don’t, I think, from my perspective, one of the most important things is, depending on the judge, and the opportunity that you have to engage in some border questioning, it is your first chance to make that impression on the jurors. And not just make an impression, but engage and see who you have a chemistry with, who is paying attention to you, responding to, you know, the dumb joke you make as you’re trying to make a connection with them. And you know, who is annoying and doesn’t want to be there? I think you know, you can
17:03
I think they even made a TV show about it, you can hire jury consultants spent a lot of money, whether that’s effective or not, you’ll you’ll find a lot of different opinions about it.
17:13
You can’t really learn and tell everything about a human being from a profile, we know that. But I think the things that are important. Number one is you’ll you’ll have your client there, and they can weigh in on opinion.
17:27
Obviously now, as Troy said, it is different. When I was practicing in Illinois, you had a certain number of peremptory strikes, I want to say, depending on the type of case was anywhere from five to seven, where you could for no reason at all, just say we choose to strike these jurors. So, there was a lot more art there. When you’re talking about bias.
17:47
Or for cause you have to establish,
17:51
you know, a significant reason based on previously outlined
17:57
criteria that would disqualify somebody. I think Troy mentioned a few obvious ones, like if they were related to a party, if they had a personal interest in the case, if they were a felon who didn’t have their civil rights restore, they couldn’t sit as a drivet, those things are all going to be flushed out.
18:15
Probably before that. So, I think really, especially when you’re going to look at not having the ability to strike as many more liberally it really is about making that connection with the jury. Yeah.
18:32
How important it is to either one of you in picking the right jury. And I mean, do you know retiring, maybe retiring six years, you pick six? Can you tell if you’re gonna win or lose at that stage? Or how important is it really to get the right jury? Well, again, it’s changed so much.
18:49
Because now you’re gonna get the jurors that come in chronological order, unless they’re struck restricted for costs. Yeah. So
18:59
really all you can. And there are some judges that don’t allow us to ask questions. Because the jurors personally prospective jurors fill out a questionnaire right beforehand, and then we all get the questionnaire. And then we have to decide how hard we’re going to push for cause.
19:16
And you don’t want to be, you know, too direct about it, because they may still be on the jury. So you want them to like you. It used to be a lot easier to sound like an old geezer.
19:29
Because you would be able to give it many opening basically. Yeah, yeah. And so that really helped a lot. You can kind of ask me questions. And again, my choice, it really does depend on what kind of freedom you’re gonna be given. I think one of the things too, you’re not supposed to indoctrinate your jury, meaning you’re not really supposed to give them the facts of the case. But there are ways you can kind of manage certain expectations. One of the questions that I always like to do we, some of the forums I’ve been in, we were allowed to
20:00
squat questions. Well, what do you do in your free time? What kind of TV shows do you watch? And then there will always be the, you know, you understand, if you watch the crime shows, you understand what you see on the law of water is not gonna be what happens here. You know, we’re not gonna wrap this up in 30 minutes, number one that usually always gotta laugh. But then also, you know, what kind of evidence to expect, you know, to see. And so that’s sometimes not necessarily particular to your case, but can help them address their expectations. With respect to your question about whether or not it really makes a difference. I think it does, but I don’t think you can always tell. I have had both experiences were a juror that I wanted to cover up my partner felt like we should keep was the one who saved the case, as you oftentimes will get an opportunity, which is so wonderful to talk to the jurors after a verdict. And then I’ve had the other
20:56
experience where a juror I loved was I miss her I completely. So I think you do your best, and then you hope for the best. Yeah. And one thing that I think people don’t appreciate, unless they’ve been in the courtroom is just how stoic and serious it is when you’re in there. Yeah. And one thing we always tell every one of our clients when you’re in the courtroom,
21:21
most courtrooms now are microphones. So there’s no secret conversation that you’re going to have with your lawyer. And the jury is watching you. And if you’re not a likable individual enough, you’re going apoplectic over every answer that’s made that you think is, you know, hogwash.
21:42
That, that does come and can be, from a jurist perspective, even though there’s more than one.
21:49
You can get one hold up, they don’t like you because you’re wearing a blue shirt that day. It’s hard. It’s a difficult thing. But yeah, the opening statements are really the key, because I think that’s the study still support this. But after the opening statement, normally, but 80% of the jurors have made up their mind before anybody’s testifying. Yeah. So despite all the admonitions,
22:19
they often do, right. Yeah, right. Yeah. Well, you said statement, right. And it is a distinction, something statement, technically an opening argument. But tell us about that. Tell us how, how you paint the picture for the jury in a way that’s not maybe overtly argumentative, but tells the jury what they need to know to rule for you at the end? Yeah. So just bear in mind that in the opening statement, the jury has not heard any testimony. They’ve not been presented with any evidence. It’s opening right at the beginning after they’ve been told about it. And sometimes it happens. On the same day that you have panel, the jury, sometimes it happens the next day, it just depends on the timing. And sometimes the plaintiff makes the opening statement, and then they rest for the day, which is bad for the defendant because the jurors go home. And all I’ve heard is what the plaintiff had to say. So that if you’re representing the defendant, try to avoid that.
23:14
So, what you want is the jury to understand the basics of the case? What’s this case about? What are you going to hear through the course of this case?
23:27
And it’s everybody that I know would like to be able to stand up on the defense side and use the Cousin Vinny line. Everything you just said is hogwash.
23:41
That will get an admonition also from the judge.
23:44
But it’s really trying to keep it simple.
23:47
Don’t be argumentative. And there’s
23:51
a gray area there where you can be a little argumentative. But if you get too argumentative on the other side of jacks, and the judge sustains it, that just puts a awkward pause in what you’re trying to establish with a jury. You want the jury to understand the basics of the case, and why your client is right. Yeah, and that’s, you know, I think it’s interesting that you mentioned My Cousin Vinnie, and then the TV show thing, because it’s not all life that you mentioned earlier. It’s more stoic. You know, what came to my mind was the A Few Good Men, right? Housing, housing, and it gets the big, the big admission. And yeah, I did it. I ordered the code red, read a talk to us about actually presenting witnesses because you’re rarely if ever going to get that big admission that ends the case and you win. So, how do you go about that presenting witnesses to tell the jury what they need to know when you know, the defendant is not going to, you know, talk to the crime. I call that a Perry Mason moment shows my age a little bit, I guess, too, but yeah, everyone wants that moment and you’re lucky in your career if you get it a couple times, where it works for you
25:00
We’ve all had the experience where you have the fun, the not so fun surprises of things you didn’t expect. Presenting witness is always interesting. Because you know, you don’t pick your witnesses, the case provides the witnesses for you. And
25:17
we’ll talk about directing cross the two, two very different examinations of the same witness. I think the first thing, we’re, we’re considering presenting a witness and the directing crosses, you need to have done your prep with your witnesses.
25:33
That is so important. And one of the big things is,
25:38
you meet with them, because by the time typically, especially, we’re talking about trial, by the time you get to trial, the events that happened to create this
25:48
could have happened. And the events that happen that you’re fighting about didn’t happen at the day and filed the lawsuit. So if it’s taken two years to go to trial, the events leading up to the actual complaint that you filed, could have been six months ago, could have been four years ago, depending on the nature of the action. So you’re prepping the witness because
26:08
details get lost or forgotten. And you’re not, hopefully you’ve moved on a little bit, and you’re not talking about the lawsuit every day of your life. So you have hopefully prepped your witness ahead of time not only to kind of get that memory, going again, and get the recall going, but also
26:26
to manage their expectations, so they understand what’s about to happen. Because again, most people’s frame of reference for testifying is going to come from TV. And the other really important thing is, it’s going to be emotional, most people are going to be nervous, or some people are going to be very excited to get up there. And some people are going to be very angry. And one of the things that I have found in trials is that anger almost always doesn’t play well with a jury.
27:00
You know, if you’re being disrespected in court, and you know, there’s a time and place for emotion. But if you are up there bitter and angry, even if you have every right to be, it doesn’t always help your story be heard so that prep work is so important to getting a good witness. And right now we’re just talking about your witnesses. So that could be like a direct examination, we call it when you it’s your witness, you’re putting on the stand and you’re wanting to elicit the information they have. And, and I think the way that I would always approach it is, I think the trial is very much its storytelling. And so, when you get your witness up there, what part of the story are they telling? So you frame your questions in a way that elicits the answers that make sense and kind of put the the pieces of the puzzle together in a way that they can kind of see the picture you’re trying to create. And
27:55
you know you there are rules about how you can ask questions on direct. So you’re not allowed to engage in what we call leading questions where you’re suggesting an answer. So, you know, is it true that when you entered in that arrangement, you this this and that instead, you have to say, you know, kind of prompt the question to be open ended and more of a narrative style. And that’s where preparation, preparing the witnesses probably comes really play that you’ve not pulled them how to answer. But like you said, you’ve reminded them they’ve had a chance to think about they’ve reviewed these documents again, so that when you do ask the right question they. “Oh, yeah, I remember now.” And they’re not going to misunderstand the point of the question that you’re trying to get at. But that’s really, because I think that’s so important. So you start out that way. And that should be fairly other than any nerves that the witness may have. That should be fairly easy for the witness to
28:51
get through. And then we get to cross examination. And from the attorneys point of view, you’re switching the way that you ask those questions. So now you get to ask leading questions, and you should be in control of the tempo of the questions that you’re asking the speed with which what you do. And many times the question is kind of the star of the show, the answer doesn’t even matter.
29:15
It’s always be interested to get Troy your answer are your thoughts on this? You know, I think we’ve all heard
29:23
the attorneys don’t ever ask a question that you don’t know the answer to. But it can be really tempting sometimes, or are you really not, you know, you kind of have to get a position on either side.
29:40
But, but anyway, you really want to think about that in terms of the way you’re allowed to ask questions- to is good at what they do if we’re talking about expert witnesses who have testified before they know what their job is and they know who’s paying their bills. So when you ask a question, they might not give you just that yes or no that you know they’re going to advocate for their
30:00
aside, yeah, with the so you want to be able to control that. Right. Excellent. Yeah. What do you think about that? Totally. You don’t know the answer? Well, I wouldn’t do it.
30:12
So here’s a good contrast. So, preparation, nothing substitutes for it. Yeah. So this is a trial a few years ago, and the plaintiff was on the stand, and I was representing a large company as the defendant.
30:28
And during the direct examination of the plaintiff, I mean, he was eloquent and responsive and was telling his story to the jury. And then when I started cross examination, which is rapid fire, and it’s yes or no, he just wilted
30:48
to the point where
30:51
I didn’t feel sorry for him. But it’s like, wow, this is just ridiculous how much he’s Welton? Yeah. And you know, I’m a small guy, he was like six foot five. And so I sit down, and the his lawyer on redirect. I’ve never seen this before, but it’s, and this is unusual that she started asking him questions about my cross examination style. And she said that when you were answering my questions, you were very clear and coherent cross examination. And I don’t know that she used these words. But basically, she said, You fell apart. And his response was, he makes me say things that are true. No.
31:32
I mean, that’s a good Perry Mason moment, because the jury was like, come on. Yeah. But
31:39
obviously, maybe he was uncontrollable, to prepare anyway, there. That’s an example where you need to put your client or your witness, during the preparation, on role play in terms of, I’m going to ask you 10 minutes of cross examination, and you’re probably not going to do very well, that we’re going to work on, right, if they understand. So oftentimes, if they understand what the attorneys job is, and why you don’t want to help him do that job, and that helps them control their emotions, as they feel like they’re being attacked. Yeah. And I agree with you. The most challenging cross examination is a professional witness. Because they’ve been there, they’ve done it.
32:25
They’re getting paid to be defensively eloquent. Yes. Right. Yeah, absolutely. Right. That’s their job.
32:33
Right, certainly. So you talked a little bit about presenting witnesses, and I want to talk next about evidence. But before we do, I want to really quickly go back to your opening statement. And, and, you know, I think, really, you’ve said some things that you’re sort of laying out the story and which which witness is telling which part of the story. And Troy, how important is that to you that in your opening statement, you sort of thread the needle between telling the jury this roadmap, what you’re going to do what the evidence is going to be, and then not, you know, boring them with extra details and take too long as I perceive it to be sort of an art to keep their attention for however long you’re there, but tell them what they need to know. So unless you know, that’s the OJ Simpson trial, your opening statement should not be very long,
33:15
10-15 minutes, that’s about the attention span of somebody who’s being forced to sit and listen to,
33:23
which is what it is.
33:25
The thing that I was trying to do, is when listening to the other side’s opening statement, writing down everything they told the jury that they’re gonna prove. And then on closing, which we’ll get to remember he said, even if she said she was gonna get to this, did you hear that? Right? Where was this evidence, right, didn’t come out.
33:48
The other thing, you know, and I, I never forgot this as, as a young prosecutor, they make you go through prosecutor boot camp, as we call it. And they did a whole segment on opening statements. And I think this is a really helpful way to think about opening statements is you want to give them in a quick snap, and
34:12
you don’t want to get to themey. You know, you can get a theme. And it’s a little bit, you know, try it or whatever it may be, but you want to give them because it is like you said use your term, it’s a roadmap, you’re giving them a roadmap to follow.
34:23
But give them in kind of a nutshell, some kind of statement or short description of the case that they’re going to carry with them that will set the framework through which they see all the evidence. And so the quick example that they gave, which wouldn’t be pertinent in civil cases, but you get the idea is he bought a knife to a gunfight, you know, all you need is that to tell you and you know, you can go on in your opening statement, but that frames all the evidence that you’re going to hear and those expectations. So if you can find in a case, you know, what encapsulates the message I’m trying to get
35:00
get across in a sentence or two and then go on with how you’re going to establish that in the road roadmap of what your evidence is going to be. I think that’s really helpful. Because if it’s really, really, it’s really something that clicks with them or their everyday experience, if you’re talking about like a fight with an insurance company, or any way that you can kind of get them to grasp
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your viewpoint, as they hear all the evidence is going to help them
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kind of see your point of view, I think. No, that’s excellent. So let’s let’s go on and right off of that, you’re telling the jury what the evidence is going to be. So let’s talk about presenting evidence. Right, we talked about a little bit about direct and cross examination of witnesses. But you know, talking about talk first about evidence in the trial, how do we get it in to use the term of how does the evidence get in front of the jury? What sort of evidence is important? And just a little bit about your thoughts on that? You know, it’s interesting, kind of, as a corollary to that. In terms of evidence, I think there’s another piece of prep work, that’s kind of important. And it just brings to mind. It was a case that had been in the news with I don’t know if you guys are familiar with Meghan the Stallion. She’s a rapper who was shot by another rapper. And one of the things that kind of blew up was another famous rapper had submitted
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a
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what do you call a letter in support at sentencing, and one, a reporter had ended up getting a copy of that letter and publish it online. And this rapper had submitted this letter and evidence was very upset that it was made public and said, I thought this was for the judges eyes only, which brings you to kind of before you get to that trial stage,
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when you’re talking about things that are going to be
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submitted for evidence, depending on what the case is about, it could involve medical information, medical records, it could be personal financial information, it’s important that your client understands what’s going to be involved, what’s going to be disclosed, who can stay in that courtroom when that stuff’s presented, because they may care about that. So it’s just kind of an interesting little piece that is good to talk about and manage expectations. Before you get to that stage where you’re actually presenting evidence, it’s going to be heard by other people, it’s an interesting experience, to have part of your life opened up to some strangers who are going to make decisions about, you know, your life or your, your lawsuit. But in terms of presenting evidence, I think, a lot, again, a lot more prep work in terms of understanding what type of evidence it is, and what are the foundation rules that you have to lay to get that piece of evidence in, you can’t just say, you know, well, here’s the documents, I want you all to consider it. You know, and it is funny, and I wish it were that simple. But but you know, you’ll get a lot of times from your client,. You know, well, I don’t understand why can we just tell them this? Why can’t you know, and there are rules of hearsay, you know, have you, you know, can you satisfy the foundation rules for entering a text message in or an email. So a lot of the basics. It’s, it’s, I’ve been in trials where my opponent has not understood how to get a piece of evidence. And then while you’re glad it’s not you, it’s painful to watch, and you can feel for him.
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And so you don’t ever want that to be the position you’re in. So understanding, first of all, how you’re going to establish the reliability of the evidence you putting in so that it’s going to be admitted. And then, depending on what it is, I think hearsay is one of the most misunderstood
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objections to evidence. And I know we’re not talking about objections yet, but in terms of what evidence you’re going to be putting on. People, including lawyers, don’t always understand a hearsay objection. Hearsay is an out of court statement presented for the truth of the matter asserted. I’ve seen where somebody has a witness on the stand. And because that person is the individual who made the statement. They think they can just say what they said. But there’s rules is that person, a party opponent, it was at you know, in criminal law, it’s if they’re defendant, their statements coming. But so, it really is important to understand how to get evidence in, because if you are up there and your surprise, and something that was really critical to establishing your case, it doesn’t come in. It can be a game changer. Yeah. So the way I look at it, and I try to explain it to non-lawyers, is evidence is the meal. So if you invite somebody over to your house and you show them or you tell him, Hey, you’re gonna have this great meal tonight, here’s what it’s going to consist of, but I don’t deliver it to you. Then watch the purpose. So and all too often, especially because TV and films, there
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is no case in this country where they’re going to trial. So they’ve gone all the way through the process of they go to trial, and they’re taking a two inch folder with them to the court.
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That just isn’t reality.
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Again, I feel like grandfather time, when I first was trying cases, we literally would have to bring in a dolly with boxes into the courtroom. Now, most of it is electronic. Almost certainly Maricopa County, at least, the courtrooms are all electronically configured. Same is true with the Federal District courthouse here. So, there’s less paper.
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And you still have to have the paper available for the juror jurors to review. And the other thing that I don’t think people appreciate is that, you know, 90% of the effort is done pre trial. And that’s governed by what’s called the rules of civil procedure.
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In that, you’ve got to be a master of that, then at trial, it’s just from the rules of civil procedure, to the rules of evidence. Right. You got to be a master of that. Then after the trial, it shifts back to the rules of civil procedure.
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It’s a, it’s fraught with all the, you know, million different rules. If you mess one up, you know, really, he said, If you don’t get your evidence in that you need it in, it could be fatal to the case. So well, I’m not gonna
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bring up something else, which is so important. And I think maybe for,
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you hate to say like the younger people coming up, not as big of a deal. But you have to understand electronics, you have to be able to work with a computer and you have to be able to show, you know, you have to be able to interface. And if you’re not sure, check with a core and see if you can come in and practice if you’re going to be doing a PowerPoint, if your evidence can be photographs that you want displayed on a screen to show the jury, you know, understand what AV equipment your courtroom uses, what they require you to use and make sure you have the tools to interface with their equipment, and that you understand how it works. And don’t be afraid to set up a practice time. Because again, if it did, it hinders your performance, your ability to get a piece of evidence in there. You know, it can it can be super detrimental. Yeah. Well, I know we’re getting close to our time. And there’s so much more we could talk about about, you know, witnesses and evidence and objections that we mentioned a little bit and closing arguments, I just sort of want to wrap up, you know, you present your evidence presenting your case, the defense does you give your closing argument, which you know, Troy, you mentioned in your closing argument, you’d say, Hey, did they prove everything they said to prove they didn’t? And we sure did. Here’s the 10 things you’re going to prove. And then you know, they deliver it you get to a verdict, where you just talk to our audience for just a little bit about the verdict stage, what happens, then, you know, what might it mean for the client. And then of course, there’s other things that could happen after that we may have to get into later, right. So real quickly, once all the evidence has been presented, and the closing statement has been delivered by both parties, then the judge reads to the jury what’s referred to as jury instructions. And it’s how they’re supposed to deliberate when they go back into the jury room. And that includes, what they can consider what they can’t consider.
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And so they go back, and they’re obviously it’s more complicated than that. They go back into the jury room, and then you so, rule of thumb, it’s really just a role of guessing.
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If you’re the defendant, and the jury comes back, within a couple hours, that usually means they’re going with the plaintiff.
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If they’re in there for more than a day or so, that means they can’t reach a consensus. And so that’s usually better for the defendant. But it’s like reading tea leaves, you don’t know. That’s where I’ve seen it work both ways.
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So they’ll reach a verdict, they’ll come back. And I’ll just show you real quick here. In civil cases, what many people may not know is it doesn’t have to be unanimous. Correct? Like you said,
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I was thinking I should have said that. But in federal court, it does have to be unanimous, but in state court does not in a civil case. And so the read the verdict, or the bailiff, well, and then the other side is that whoever loses can challenge it and they, “I want to pull the jury,” and like somehow, some member of the jury is gonna say, “I didn’t get
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it right. I just wanted to go home.”
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And so then you’ll get go out of the courtroom, whoever’s the
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prevailing party will submit a form of judgment that takes a few days than the other side objects to it. If it’s a breach of contract case, then the prevailing party may apply for their attorneys fees and costs. So that can go on for several months before you get a final judgment. And then once you get a final judgment, the other side might appeal it. And
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that’s welcome two years onto the year if you’ve waited, but once again, many cases settle. And one thing while we close, so I’m sure we’ve all heard somebody say this, “My lawyers a pit bull.
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Just wait till you get him in the courtroom.” Yeah, well, I was probably a pit bull when I
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first started but pit bulls aren’t good in the courtroom.
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They annoy jurors. They annoyed the judge. They annoy the judges staff. Yeah. And the jurors see that. Right. So again, it’s supposed to be a stoic place where you can be persuasive. You can be a little aggressive, but always be professional. I remember that. The jurors, they’re there because they get subpoenaed.
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Yeah. Right. They’re not there because they want to be there.
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That’s right. I agree.
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It’s, it’s been for me an excellent discussion. Very informative. We hope it has been for our audience as well. Thank you both for being here. And we thank the audience for listening to Episode six. So the It’s Law Podcast presented by FR Law Grup. Thanks for Richie. Thank you.