Inside the 3L Litigation Immersion – Motions and Trial Prep
Hannah Shtein is a 3L from Milwaulkee, Wisconsin. She’s blogging about her experience in W&L’s fall litigation skills immersion, one of the key components of the School’s innovative third-year curriculum.
Monday – Motion Hearings
After the easing in of week one, week two is more focused on the actual trial: how it will be structured, how we are to conduct ourselves, and how we will present our cases. Monday is the first time we have to go in front of a “judge” (small section professor) for a motion hearing.
Over the weekend, we were assigned to draft either a motion to exclude certain testimony, or a memo in opposition to the other side’s motion. In my case, the defendant filed a motion to exclude the testimony of a witness who, like my client, claimed that she had caught defendant illegally fixing prices while working for him. I of course wanted evidence that corroborated my client’s similar claim, so I filed a memo in opposition to defendant’s motion to exclude.
Once the memos and motions were in, we were scheduled for thirty-minute time slots to argue our motions in front of our judges. As I mentioned in an earlier post, I am not the strongest public speaker (and by “not the strongest,” I mean “not good at public speaking at all”), so I was naturally nervous to argue the motion in front of the judge, who happened to be my small section professor, Professor Perkins. Surprisingly, though, the motion hearing ended up being less scary than I had expected. Because I had had a chance over the weekend to familiarize myself with the material I would be arguing, as well as the defendant’s case, I didn’t feel like I was speaking in gibberish when I walked up to the podium to present my arguments and respond to Professor (Judge) Perkins’s questions.
Our homework for tonight is to prepare opening and closing arguments for the trial, which is coming up on Friday (!!).
Tuesday – Opening and Closing Arguments and Direct Examination Presentation
8:00am-1:00pm – Practice Opening and Closing Arguments
Tuesday’s morning session consists of presenting the opening and closing arguments we wrote on Monday night in front of our small section instructors and classmates.
As each student presents, we offer commentary to one another on what we can improve in terms of substance, and also in terms of performance and presence. I find this a helpful way to receive feedback on my arguments before I present them at trial, and it gives me a couple of days to work the suggestions into my opening and closing, so I don’t feel crunched for time.
As students present, Professor Perkins spends some time talking about the different approaches to opening and closing arguments. An opening statement should not be argumentative, and its purpose is to lay out the facts of the case and outline what the evidence will aim to show.
The opening is also the time for us to weave in the “theme” of the case that we talked about earlier in the week, to attempt to hook the jury with a persuasive narrative. For instance, we may want to say in our opening: “plaintiff is a hardworking woman who was punished for attempting to do the right thing. You will hear testimony demonstrating that her supervisor fired her for an impermissible purpose.” (I’m still new at this! I need to work on my psychological hooks).
The closing, on the other hand, allows the lawyer a little more leeway to be argumentative, and is also a good time to restate the elements of the claim and summarize how the evidence has shown that these have been met. For example, my closing should point to the parts of my evidence that have shown that the defendant had knowledge that plaintiff was encouraging customers to report defendant to the Consumer Fraud Agency, and that defendant’s belief in plaintiff’s reporting him caused him to fire the plaintiff.
Tomorrow and Thursday, we practice direct and cross-examination and finish preparing for trial. I’m nervous, obviously.
10:00am-11:45am – Cross-Examination Presentation and Exercises
Wednesday morning, we listen to a brief presentation about cross-examination, and then break up into small groups to practice cross examining our instructor.
Cross-examination, unlike direct examination, allows the attorney to ask the adverse witness “leading” questions in order to control the narrative. As Professor Belmont tells us in her presentation, it essentially allows counsel to testify and the witness to confirm. In order for cross-examination to be most effective, we should ask questions as narrowly as possible, and proceed in “baby steps” to get the witness to confirm or deny what we want him/her to. For example, “wasn’t there an investigation on May 20?” followed by “didn’t you fire plaintiff on May 24?” is better than “didn’t you fire plaintiff soon after the Consumer Fraud Agency inspected your gas station?”. The less room the witness has to change the story, the better (for counsel).
We practice this technique in our small groups by cross-examining Professor Perkins on her outfit, and work on making our questions as pointed and narrow as possible: “isn’t it true you’re wearing a necklace with three strands” is better than “are you wearing jewelry today?”. You get the point.
12:30pm-3:00pm – Practice Direct Examination
In the afternoon, we practice direct examination for our actual cases. Our homework for the previous night included writing these questions out, and we now go in front of our small section with a volunteer witness to practice our questioning.
In direct, we are dealing with our own witness, so we have less room to “lead” them with certain questions, and are supposed to focus on more open, journalistic who/what/where/when/why/how questions (otherwise, opposing counsel may object). So, “where did you work last year?” is appropriate, while “didn’t you work at FastGas last year?” is not.
We again have an opportunity to give and receive feedback from our small section professors and classmates, which gives me a better idea of how to change my direct examination for Friday’s trial, and makes me feel a little less like I have no idea what I’m doing. Every little bit counts!