Planning Your Final Argument
List the legal elements of every claim or
Good trial preparation starts with your final
argument because it is the aspect of the trial
most similar to storytelling because you can:
-suggest conclusions
-articulate inferences
-present theories as an uninterrupted
whole
By planning your final argument at the
beginning of the preparation, you will be able to
plan the balance of your case in such a ways
that ensures the record contains every fact that
you will need for summation
Questions to ask:
a. What do I want to say at the end of the
case?
b. What evidence must I introduce or elicit in
order to be able to say it?
The answer will give you the broad outline of
your case
Planning Your Case-In Brief
Your goal in your Case-in-Brief is to persuade
the trier of fact to the correctness of your
theory.
To accomplish this you have 4 basic tools:
1. Jury address, consisting of opening
statement and final argument.
2. Testimony on direct examination
3. Introduction of exhibits, including real and
documentary evidence
4. Everything else you do in the courtroom
Consider your Potential Witnesses and Exhibits
1.
defense you hope to establish
2. List the evidence you have available to
support each such element.
Because most of the evidence are witnesses,
you need to Evaluate Each Witness Individually
Ask questions like:
-What does this witness contribute to
my theory
-What positive facts may I introduce
Assemble all positive information about each
witness
Also imagine your final argument after each
witness you might call to stand
Factual Weakness-
Are there likely to be gaps in their testimonies
Does this witness have damaging information
that is likely to be asked on cross-examination?
How to minimize: Resolve inconsistencies by
reevaluating your theory
Evidentiary Problems
Do not assume that every evidence or
testimony you introduce becomes admissible.
Always state positive theory o admissibility
To prepare for objections :Ask how would I keep
this information out of evidence and then plan
counter-argument
Credibility Problems
How is the witness likely to be attacked?
How to minimize: Structure your direct
examinations so as to avoid or minimize these
problems.
Deciding which Witness to Call
After evaluating strength/weakness of witness,
you can decide which to call
• Main concern is that all your necessary
evidence is admitted, and that any
witness who is the sole source of crucial
piece of information.
• Non-essential witnesses must be
evaluated according to their strengths
and weaknesses.
• Eliminate those whose testimony is
repetitive (to avoid damaging
contradictions.)
Arranging Witness in an order most helpful to
your case
-Retention--evidence must not only be
heard, it must also be retained. Judges and
juries tend to best remember evidence heard
first and last. Start fast and end strong. Call your
most important witness first and next most
important witness last.
-Progression-- some witness provide for
the necessary foundation for the testimony of
others (may also arrange in chronological order)
-Impact --maximize dramatic impact
and bury impeachable and unsavory witness
Calling the criminal defendant as the last
witness of the defense
Why it works?
A.) postpones until the last possible moment
the time when the lawyer must decide whether
to call the defendant to the stand and allow her
to be subjected to cross
B.) Calling the defendant last allows them to
hear all of the other testimony before
testifying( other witnesses are excluded from
the courtroom but defendant has constitutional
right to be present).
Planning your Cross-Examination
1. List every potential adverse witness and
prepare for the worse
2. Consider keeping witness off-stand for
every statement, imagine all evidentiary
objections.
3. Factual Weakness of opposing witness.
Are there inconsistencies that can be
exploited? Also catalog all favorable
information from opposing witness
Re-evaluate every aspect of your case
You must be able to answer these questions:
-Do your direct examination fully support and
establish your theory?
-Do they leave any logical gaps?
-Are you satisfied that all your necessary
evidence will be admissible?
-Do potential cross-examinations raise issues
with which you cannot cope?
Also rework your final argument to be
consistent with the facts. Make maximum use
of uncontroverted facts and eliminate
arguments that rest on evidence that will be
severely contested.