Tuesday, March 21, 2023

HUMOROUS CROSS-EXAMINATION: Beware of Open-Ended Questions


Don't shoot yourself in the foot. Use leading questions on cross. Open-ended cross-examination questions can have repercussions.

The following is an actual courtroom cross-examination exchange between a defense attorney and a farmer with a bodily injury claim. It came from a Houston, Texas insurance agent.

Q: "At the scene of the accident, did you tell the constable you had never felt better in your life?"

A: "That's right."

Q: "Well, then, how is it that you are now claiming you were seriously injured when my client's auto hit your wagon?"

A: "When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I've never felt better in my life."

Thursday, March 16, 2023

Learning by Watching Podcast


Recently, Marilyn Berger & I were on the Aspen Leading Edge podcast with Dean Patty Roberts to discuss the future of law schools and our new Pretrial and Trial Advocacy books. Click here to listen to the broadcast now.

Tuesday, March 7, 2023

New Book Launch: Trial Advocacy: Planning, Analysis, and Strategy 5th Edition


The new edition of Trial Advocacy has just been launched and Aspen Publishing's announcement is as follows:

Trial Advocacy, Fifth Edition equips trial lawyers, students, and professors with a complete set of tools for practicing the art of trial advocacy, including explicit instructions on planning, strategy, and performance for each phase of a trial from jury selection to closing argument with illustrations of both criminal and civil trial activity.  An accompanying movie features trial demonstrations by veteran trial lawyers; a regularly updated website provides articles, supplemental materials, downloads, and links to additional resources.

New to the Fifth Edition:
Case law and rules of procedure, evidence, and professional responsibility are updated to reflect the latest changes. 
The COVID pandemic has had a big impact on litigation practice. The Fifth Edition tracks these developments in trial advocacy today: 
o Jury selection procedures and strategies for online trials. 
o Preparing witnesses to testify online. 
o Direct and cross-examination of witnesses online. 
o Introducing and displaying exhibits online.
o Advancements in technology for creating persuasive visuals in the courtroom or online.
This new edition is now available in print and on the popular Casebook Connect online platform. 
This new edition keeps pace with the advancements in technology, particularly electronic visuals. 
Foundations for testimony have been added, giving the new edition comprehensive coverage of evidentiary foundations for admissibility along with illustrative transcripts of predicate questions. 
Chapter 15 “The Cases and Assignments” containing 79 trial advocacy performance assignments is added to the book. 
Teaching Materials: 
Checklists for each chapter for easy teachability 
Both civil and criminal case files for the performance assignments 
Actors’ Guide for the performance exercises 
Teacher’s Manual with course syllabus 
Videos of jury trial demonstrations 
Companion website: CasebookConnect.com 

To learn more about this title or view the detailed table of contents, 
please visit our website.

To access teaching materials for this title once they are available, you will need a validated professor account on AspenPublishing.com. If you do not yet have a validated professor account, you may register at AspenPublishing.com/my-account/register. Account validation may take 1-2 business days. Once validated, you may log into your account using your own personal login, go to the product page for this title or any Aspen Publishing title, and scroll down to access the Professor Resources once they have been made available on the site.

Wednesday, March 1, 2023

NEW BOOK: Eradicating American "Prosecutor Misconduct"


Just published is Eradicating American "Prosecutor Misconduct”: A Handbook for Prosecutors, Criminal Defense Attorneys and Others Interested in Criminal Justice. It covers all phases of prosecution including cross-examination. This short yet comprehensive Handbook is designed for both prosecutors and defense counsel alike. Its modest goal is to eradicate what is called “prosecutor misconduct”. While this Handbook may serve as a guidebook for prosecutors, it also arms defense counsel with information that can be used to ensure that their clients receive a fair trial. 

An example of how the Handbook simultaneously guides prosecutors and arms defense counsel is that it spells out what a prosecutor is prohibited by law and ethical rules from saying in trial. By identifying what a prosecutor is not permitted to say in trial, it not only tells prosecutors what not to do but also provides defense counsel with grounds and legal authority for either an objection, a motion for mistrial, or an appeal if the trial judge overrules the objection or denies the motion. 

This Handbook is also intended for anyone who wants to understand the real roles and functions of the American prosecutor.  There is a wide-spread public misunderstanding (even among lawyers, law professors, and law students) of the prosecutor’s roles and functions.  These misconceptions are to a significant degree caused by movies, television shows, and books that cast prosecutors as antagonists in their narratives. 

Eradicating American "Prosecutor Misconduct" traces the unique character of the American prosecutor from its origins to today because only by understanding that history can the roles and functions of a modern prosecutor be fully appreciated.  

This Handbook is an outgrowth of Continuing Legal Education presentations on prosecutor professionalism that I delivered across the nation. It offers engaging and educational examples of prosecutor error along with the words from a cross-section of state and federal appellate courts describing both what and why certain prosecutorial conduct is prohibited. In sum, it offers learn-by-example lessons of what a prosecutor should not do in pretrial and trial.