Archive for the ‘conventional trials’ Category

Use of Depositions During Closing Argument

I was recently in a Trial in which the opposing Counsel began to read portions of my client’s Deposition in his closing argument which had not been introduced during the evidentiary portion of the Trial. I objected to the use as inappropriate and the Judge agreed with me and instructed the Jury to ignore any information not introduced into evidence during the Trial.

I knew the Judge and I were right….it just didn’t pass my smell test – but I needed to know why and researched the issue after the Trial. Opposing Counsel advised that his use of portions of the Deposition during closing that were not introduced into evidence during the Trial was proper based on NRCP 32(a)(2) which states:

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

As we know, the rules cannot be looked at in a vacuum and need to be examined in the universe of the Court’s Rules and case law. Finding no case law on point in Nevada, I turned to the Federal Rule which has substantially similar language and found a case known as Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir. 1960) which allowed a party to read in portions of an adverse party’s Deposition after that party had testified. It is important to note that this was done during the evidentiary phase of the Trial. This makes sense as the portions of the Deposition that have been read are “in evidence” and can be objected to during the evidentiary phase.

There are several Nevada Pattern Jury Instructions which confirm the Judge’s ruling that Deposition testimony of a party cannot be introduced for the first time during Closing Arguments.

Instruction 1.03 states (in pertinent part):

The evidence which you are to consider in this case consists of the testimony of the witnesses, the exhibits, and any facts admitted or agreed to by counsel.

Instruction 1.05 states:

Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.

Instruction 2.01 states :

In determining whether any proposition has been proved, you should consider all the evidence bearing on the question without regard to which party produced it.

Instruction 2.03 states:

Certain testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given in Court.

Putting this all together it is clear that the Jury is only to consider evidence that was presented during the evidentiary phase of the Trial. There is one more Rule that comes in to play here which prevents a party from practicing Trial by ambush (or, in this case “Argument by ambush.”) NRCP Rule 16.1(a)(3) (Pretrial Disclosures states, in pertinent part:

(3) Pretrial Disclosures. In addition to the disclosures required by Rule 16.1(a)(1) and (2), a party must provide to other parties the following information regarding the evidence that it may present at trial, including impeachment and rebuttal evidence: . . .

(B) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; . . .

This, of course, allows the other parties to prepare for, and object to, portions of Deposition being read into evidence before the Jury is exposed to, what may be, inappropriate evidence. Allowing a party to read portions of a Deposition to the Jury for the first time during closing argument is unfair to the other parties and principles of fairness and is not allowed by the Rules.

Going to the Courthouse (Part 3 – Being a Witness)

If you are going to “take the stand” as a witness (whether or not a Party to the case), you should be prepared to do so. This is your best opportunity to present yourself in a good light. It can also be the biggest opportunity for an Attorney to make you look bad in the Jurors’ eyes.

In civil Trials, any Party may request the Judge to invoke the Exclusionary Rule. When invoked, the Rule requires witnesses (other than expert witnesses and the Parties themselves) to remain outside of the courtroom prior to the completion of their testimony. I believe the reason for this Rule is to prevent a non-party, non-expert witness from changing his/her testimony based upon what he/she hears during the Trial. By doing so, it keeps pre-trial discovery, such as disclosure of witnesses and the Deposition of that witness more meaningful.

The Bailiff advises the witnesses whether or not they should remain outside the Courtroom until they are called and is responsible for bringing the witnesses into the Courtroom when they are called by a Party. If you are waiting your turn to be called, make sure you are available outside the Courtroom while Court is in session.

Parties are entitled to call witnesses in the order they deem appropriate. Different Attorneys have different approaches on the order they choose to call their witnesses and the order may vary from case to case. Courts may also allow Parties to call their witnesses during the presentation of another Parties case for the convenience of the witnesses. I have seen this done where a Defendant’s medical doctor needs to be called during the Plaintiff’s case so that the doctor will be able to perform surgery on another patient.

When called to the stand by a Party, you will go to the witness stand where you will remain standing to be sworn in or affirm to tell the truth. Then you will be seated and questioned. Feel free to ask for water or pour some water. You may need it during the questioning. If you are on the stand for a long time and need a break let the Attorneys and/or the Judge know you would like one.

Typically, a witness is examined by the Party calling him who is using that witness to support its case. This is called Direct Examination. Certain Rules apply to Direct Examination such as NRCP 50.115(3)(a) which, generally, prevents a witness to be asked leading questions on direct examination. If done properly, the Attorney presenting the witness asks questions that allow the witness to tell her story in her own words.

During Direct Examination, the Attorney should be like a conductor asking questions allowing the witness to tell her story in an efficient and effective manner. The testimony should not sound rehearsed or a mere parroting of the Party’s position as seen through the Attorney’s eyes.

I never write down all of my questions or go over any witnesses testimony line by line. I believe that this makes the testimony sound less credible to the Jury and can harm the case. I also believe that if I am reading my questions or looking for the next question I am not listening to the Answers. If I am not paying attention to the witness, the Jury is less likely to do so. Also, I may miss something important in the answer, such as the witness mis-stating his testimony and not take the time to correct right away.

After the witness has testified on direct, he can be cross examined by the other party in the case. This is called cross examination. A major purpose of cross examination is to poke holes in the witnesses testimony by showing bias, prejudice, the lack of competence, the lack of personal knowledge or perception of events or other reasons for the Jurors not to believe the witness.

An Attorney should ask leading questions on cross. The idea is to score points by getting the witness to agree that there are weak points in his testimony. The Attorney should require the witness to Answer Cross examination questions with a “yes” or “no” and, if necessary, ask the Court to instruct the witness to answer the questions appropriately. If the Attorney is doing his job right on cross examination, the

If you are a Party and the Party that called you is on the other side of the case, the Attorney may request the Court to be allowed to examine you as a hostile witness. What this means is that the Attorney will be allowed to ask leading questions and approach you as if she were cross examining you.

Sometimes a question is asked and the witness does not know, or does not recall, the answer to the question. If either is the case, do not be afraid to simply say “I don’t know” or “I don’t recall” if that is, in fact, the case. I can tell you there are many things I never knew about accidents I was involved in. For instance, I was broadsided in a parking lot by a car I never saw before the accident. If asked about that car’s speed, I can only state “I don’t know” since I have never had any personal knowledge about the speed. On the other hand, if asked who was the doctor who treated me for that accident more than 20 years ago I would have to answer “I don’t recall”since I knew his name at one time, but don’t recall it any more.

If you answer “I don’t know” or “I don’t recall” Parties may be allowed to “refresh your recollection” by having you look at a document. In my case, they may have found a medical record from the doctor who treated way back then. If I were to look at it I might recognize the doctor’s name, address, or something else in the document that would make me recall that this was, in fact, the doctor who treated me for that old accident. In that case, I would state that I did recall that this was the doctor and the testimony would go on from there.

We’ve all seen TV shows and movies showing in Court testimony and objections being made by Attorneys on behalf of their clients. Such Objections include: “leading the witness” (when the witness is being asked questions on direct examination); “calls for hearsay”; “the question has been asked and answered”; and others. Objections are made for various reasons: some technical and some tactical. As a witness, you should merely wait until the Judge rules on the Objection and do as instructed. If you are instructed to Answer the question, but have forgotten it during the time the Attorneys argued about whether or not it should be answered, ask for the question to be repeated.

If you’ve read my blog posts, you’ll know that I believe Juries’; decisions are, at least, influenced by whether or not they like the Party or Parties in the case and, by extension, whether or not they like the Attorneys for those Parties. Attitude can be everything. I understand that as a witness, especially if you are a Party, you don’t like being attacked by an Attorney on the witness stand in front of a Judge or Jury. However….how you react to the Attorneys in the Courtroom can influence the outcome of a case. This is true for expert witnesses supporting one side as well as Parties and lay witnesses.

I tell my clients to treat the other Attorney the same way they treat me. If they understand and answer all of my questions then they better do the same when they are being asked questions by any other Attorney in the case. Imagine being on a Jury and seeing a witness (especially a Party) having a flowing testimony without interruption with one Attorney then suddenly not being able to understand questions from the other Attorney or not answering them in a direct manner. As a Juror you would have to wonder what’s going on here? What is this guy hiding? Jurors who get that impression will tend not to believe the witness.

I’m not saying that a witness should sit there and take abuse from any Attorney. The other Attorney (especially if it is our Attorney) and/or the Judge should object if the Attorney asking questions is not behaving properly. Also, the Jurors can take offense if an Attorney is being argumentative or nasty when the witness is answering the questions. The Jurors will also understand and sympathize with a witness who is being bullied by an Attorney if they show anger or displeasure after being attacked for no good reason.

I also tell my clients and witnesses I am calling to Answer to the Judge in a Bench Trial or Jurors in a Jury Trial. In other words, pay attention to the Attorney while she is asking questions then turn to the Judge or the Jury to give your answer. The same holds true if the Judge is asking you a question in a Jury Trial. It is becoming more common for the Jurors to be allowed to ask questions of the witnesses if they believe some information is missing. In those cases, the Judge will ask the Jurors if they have any questions after the Attorneys have finished asking their questions. If so, the Judge will be given written questions that he may ask if he, with the input of the Attorneys in the case, feel it is appropriate to do so. Listen to her questions then Answer to the Jury.

In the end, a witness’ job on the stand is to answer questions. The Attorneys ask questions, make objections and ask questions on direct, cross, and redirect in order to clarify the meaning of the testimony in the case. At the end of the case, the Parties, through their Attorneys, will lay out how your testimony fits in to their theories of the case. The Jurors will look to how you acted on the stand as well as what you said while on the stand in making their final ruling. Therefore, you should listen to the questions, answer them honestly and to the best of your ability, ask for clarification if you don’t understand the question, and tell the Jurors you don’t know the answer if you don’t have the information to answer it.

Sounds simple enough. Yeah, right!

Going to the Courthouse (Part 2)

You’ve arrived at the Courthouse, survived the line, and found the right courtroom (hopefully, before your scheduled appearance.)  What now?  It depends on why you are there and who you are with.  Today, I am only going to discuss what to do if you are a party (as an individual or representative of a party) at Court for a Civil, non-family court, Trial.
The types of cases I am talking about include personal injury cases, employment cases, cases involving property tights and other issues, cases involving issues between partners or owners of other business entities, and breach of contract cases.  A party is a person or entity (such as a corporation, governmental agency, or trust) named in a lawsuit.  All Parties’ names should be mentioned in the case caption and should be located at the calendar boards on the ground level of the Regional Justice Center and at the entrance to each Courtroom.
If you do not have an attorney (and I recommend having an Attorney whenever possible when you are in Court), you should make sure to check in with the Bailiff or th Court Clerk so the Court will know you are present for your matter.  From there, you’re on your own.  The Court will call your case and expect you to be prepared to present your case at Trial.
If you do have an attorney, you should find him or her to discuss any issues that may need to be discussed before the Trial.  Do not talk to the other Parties or their attorneys about the case outside the presence of your attorney.  You can be cordial and discuss the whether and similar matters, but not the case.  You should also not discuss the case loudly at anytime in the Courthouse as other Parties, their Counsel, or Jury members may be present.
Your Attorney should tell you where to sit.  My preference is to sit at my table nearer the middle of the Courtroom so I have easier access to the middle of the Courtroom or the Judge’s bench should I need to get up to speak.  We’ve all seen the Bailiff say “all rise” when the Judge comes into the Courtroom.  Make sure you give the Judge that Courtesy. The same holds true for the potential and chosen Jurors in the case.  Parties and their attorneys should always rise when the Jurors come and go.  As a Party, you should always wait until the Jurors have left the Courtroom before leaving.  It is important not to have any discussions with potential or actual Jurors about anything or discuss the case in their presence during the Trial.  If this happens, your case may have to be retried at some time in the future.
I provide my clients with a pencil and paper during the Trial for them to write down notes or issues they need to address.  There are microphones throughout the Courtroom.  They are very sensitive and will pick up a whisper.  If you don’t want comments being heard by the other side, the Judge or the Jury write them down, discuss them outside of the Courtroom or make sure the microphone at your table is off before you speak.  Your Attorney may not have the opportunity to discuss an issue with you right away – especially if it does not need to be addressed at that time.  Don’t be offended if he or she does not address your concern at that moment – attention may be focused on the court’s proceedings that need to be addressed to protect your rights.
In my experience, whether or not the Jury likes a Party (and particularly Plaintiffs who are to be given money) is an important factors in the Jury’s decision making process.  Civil Juries in Nevada typically range from 4 Jurors in short Trials to 6 or 8 Jurors in Short or Conventional Trials.  Believe me when I tell you that, as a group, he Jurors miss nothing.  Every action you take, every expression, every statement will be noticed by one or more of the Jurors.  As a result, clients and their attorneys should do everything to avoid making any statements or actions that will make Jurors see them in a bad light.  This has to be considered at all times when you are in and around the Courthouse.
The fact is that Jurors do consider whether or not they like the Parties in a case in making their final decisions and coming to a verdict.  I, as an attorney representing my clients, become an extension of them in the Jurors’ eyes.  My demeanor, actions and statements can effect how a Jury feels about my client as well as the client’s statements may effect the Jury’s decision.  Judges expect proper decorum in their courtrooms as well as respect for themselves, the Jurors, witnesses and opposing Parties and their counsel.  They are human and will react to any lack of respect they see.  As you can see, it is important to present yourself properly anytime you are near the Courthouse so as not to place yourself in a bad light in front of any potential or actual Jurors.

You’ve arrived at the Courthouse, survived the line, and found the right courtroom (hopefully, before your scheduled appearance.)  What now?  It depends on why you are there and who you are with.  Today, I am only going to discuss what to do if you are a party (as an individual or representative of a party) at Court for a Civil, non-family court, Trial.

The types of cases I am talking about include personal injury cases, employment cases, cases involving property tights and other issues, cases involving issues between partners or owners of other business entities, and breach of contract cases.  A party is a person or entity (such as a corporation, governmental agency, or trust) named in a lawsuit.  All Parties’ names should be mentioned in the case caption and should be located at the calendar boards on the ground level of the Regional Justice Center and at the entrance to each Courtroom.

If you do not have an attorney (and I recommend having an Attorney whenever possible when you are in Court), you should make sure to check in with the Bailiff or th Court Clerk so the Court will know you are present for your matter.  From there, you’re on your own.  The Court will call your case and expect you to be prepared to present your case at Trial.

If you do have an attorney, you should find him or her to discuss any issues that may need to be discussed before the Trial.  Do not talk to the other Parties or their attorneys about the case outside the presence of your attorney.  You can be cordial and discuss the whether and similar matters, but not the case.  You should also not discuss the case loudly at anytime in the Courthouse as other Parties, their Counsel, or Jury members may be present.

Your Attorney should tell you where to sit.  My preference is to sit at my table nearer the middle of the Courtroom so I have easier access to the middle of the Courtroom or the Judge’s bench should I need to get up to speak.  We’ve all seen the Bailiff say “all rise” when the Judge comes into the Courtroom.  Make sure you give the Judge that Courtesy. The same holds true for the potential and chosen Jurors in the case.  Parties and their attorneys should always rise when the Jurors come and go.  As a Party, you should always wait until the Jurors have left the Courtroom before leaving.  It is important not to have any discussions with potential or actual Jurors about anything or discuss the case in their presence during the Trial.  If this happens, your case may have to be retried at some time in the future.

I provide my clients with a pencil and paper during the Trial for them to write down notes or issues they need to address.  There are microphones throughout the Courtroom.  They are very sensitive and will pick up a whisper.  If you don’t want comments being heard by the other side, the Judge or the Jury write them down, discuss them outside of the Courtroom or make sure the microphone at your table is off before you speak.  Your Attorney may not have the opportunity to discuss an issue with you right away – especially if it does not need to be addressed at that time.  Don’t be offended if he or she does not address your concern at that moment – attention may be focused on the court’s proceedings that need to be addressed to protect your rights.

In my experience, whether or not the Jury likes a Party (and particularly Plaintiffs who are to be given money) is an important factors in the Jury’s decision making process.  Civil Juries in Nevada typically range from 4 Jurors in short Trials to 6 or 8 Jurors in Short or Conventional Trials.  Believe me when I tell you that, as a group, he Jurors miss nothing.  Every action you take, every expression, every statement will be noticed by one or more of the Jurors.  As a result, clients and their attorneys should do everything to avoid making any statements or actions that will make Jurors see them in a bad light.  This has to be considered at all times when you are in and around the Courthouse.

The fact is that Jurors do consider whether or not they like the Parties in a case in making their final decisions and coming to a verdict.  I, as an attorney representing my clients, become an extension of them in the Jurors’ eyes.  My demeanor, actions and statements can effect how a Jury feels about my client as well as the client’s statements may effect the Jury’s decision.  Judges expect proper decorum in their courtrooms as well as respect for themselves, the Jurors, witnesses and opposing Parties and their counsel.  They are human and will react to any lack of respect they see.  As you can see, it is important to present yourself properly anytime you are near the Courthouse so as not to place yourself in a bad light in front of any potential or actual Jurors.

Going to the Courthouse (Part 1)

If a case doesn’t settle by agreement, arbitration, or mediation after a lawsuit is filed, the Parties end up at the Courthouse for a Trial. There are several courthouses in Clark County. The “main” Courthouse in downtown Las Vegas is called the Regional Justice Center. It is actually three Courts in one: Las Vegas Municipal Court, Las Vegas Justice Court and the Civil and Criminal Divisions of the Eighth Judicial District Court for Clark County, Nevada.

The Courthouse is divided into five main areas (located, roughly on the floors as listed): Municipal Courtrooms on the 5th and 6th floors; Las Vegas Justice Court Courtrooms on the 6th, 7th and 8th floors; Eighth Judicial District Court for Clark County on the 10th through 16th floors, Nevada; the Nevada Supreme Court (17th floor); and administration (the rest of the building). The floors are approximate due to the rapid expansion in Clark County Nevada and do not include some Courtrooms that are in the Phoenix Building across the street from the Regional Justice Center. There are four courtrooms per floor, designated “A” – “D”. I suggest checking the Courtroom’s location before getting on an elevator.

The Court Rooms in the Regional Justice Center have two basic set ups – each set up is a mirror of the other. Some Judges have modified the set up to better serve the legal process for their particular Courtrooms. A typical set up at the Regional Justice Center looks like this:

A Rough Drawing of an Average  Regional Justice Center Court Room.

The Gallery is where anyone interested in watching Trials, Motions, or other activity in the Court Room sits. It’s also where Attorneys sit waiting for their turn to be called into the main part of the Court room. The line in the middle of the drawing is called “the bar” and is the entrance to the remainder of the Court Room – the part where all of the action takes place. This includes the witness stand, the Jury box, the Judge’s bench, the bailiff’s station, and the area where I work, including the Parties’ tables and the open area where I, as an Attorney, stand to address the Court, the Jury and the witnesses.

Other than the Judge and his or her staff, everyone enters from the back of the Court Room into the Gallery. No one is allowed beyond the Bar without the permission of the Court. Lawyers are “members of the Bar” since we work in the area beyond the bar. Where the Parties sit in the Court Room is established by tradition. In a Civil Trial, the Plaintiff normally sits closer to the Jury than the Defendant. In a Criminal Trial, the Defendant sits closer to the Jury than the Prosecution. The witnesses – whether they are Parties, lay witnesses who have factual information, or expert witnesses – testify from the witness stand. Witnesses address their answers to questions to the Judge if it a Bench Trial or the Jury if it is a Jury Trial.

I will continue this discussion in my next post.|


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