Online CLE Anatomy of a Trial 1.5 Oregon Practice and Procedure credits From the Oregon State Bar CLE seminar Fundamentals of Oregon Civil Trial Procedure, presented on September 26 and 27, 2019 © 2019 Dennis Rawlinson. All rights reserved. ii Chapter 9 Anatomy of a Trial1 DENNIS RAWLINSON Miller Nash Graham & Dunn LLP Portland, Oregon Contents I. Strategy—What Is My Goal? . 9–1 A. Opening Statement . 9–1 B. Be Aware of the Jury’s Presence . 9–1 C. Be Organized, Neat, and Prepared . 9–2 D. Present Witnesses Logically. .9–2 E. Be Polite and Professional. .9–2 F. Do Not Overtry Your Case . .9–2 G. Closing Argument . 9–3 II. The Trial Notebook . 9–3 A. Organization . 9–3 B. Depositions in a Notebook. .9–3 C. The Exhibit List and Exhibits. .9–4 D. Witness Testimony . .9–4 III. Use of Depositions in Trial . 9–4 IV. Demonstrative Evidence . 9–5 A. The Visual Connection. .9–5 B. Tell Them—Show Them . 9–5 C. Trial Toys. .9–5 V. Testimonial Evidence . 9–5 A. K.I.S.S. the Jury . 9–5 B. Never Argue with a Witness . 9–6 C. Always Allow a Witness to Escape Gracefully . .9–6 D. Cross-Examination. .9–6 VI. Trial Memorandums. .9–6 VII. Resources. .9–7 VIII. Motions Before or at the Commencement of the Trial . 9–7 A. View of Premises by Jury (ORS 10.100) . 9–7 B. Motion to Exclude Witnesses (OEC 615) . 9–8 C. Motion to Limit Evidence (Motion in Limine) . .9–8 D. Motions Against Pleadings or to Reconsider Pretrial Rulings . 9–9 1 This chapter includes materials prepared in prior years by Gregory A. Smith, James L. Dumas, David K. Miller, James D. Huegli, Carole A. Hewitt, Judge John Jelderks, Thomas V. Dulcich, Barry M. Mount, Jeffrey Kilmer, Peter A. Ozanne, Jeffrey Foote, and Lawrence Wobbrock. The authors thank and acknowledge these individuals for their extensive contributions to this chapter—particularly, Peter Ozanne for his willingness to allow the use of materials from prior years on civil trial motions and Larry Wobbrock and Jeffrey Foote for their extensive contributions on jury instructions, verdicts, findings, and judgments. Elana Flynn, a third-year certified law clerk, wrote the materials entitled “Special Considerations When PIP Is Involved.” Chapter 9—Anatomy of a Trial Contents (continued) E. Request for Findings of Fact (In a Court Trial). .9–9 IX. Motions During the Presentation of Evidence. .9–9 A. Motions to Strike Evidence, Objections, and Offers of Proof . 9–9 B. Motion for Mistrial . 9–10 C. Motion to Produce Documents. 9–10 X. Motions at the Close of Your Opponent’s Case and at the Close of Evidence . 9–11 A. General Considerations . 9–11 B. Motions to Dismiss or to Strike Pleadings . 9–11 C. Motion for a Directed Verdict in Jury Trials (ORCP 60) . 9–11 D. Motions for Judgment of Voluntary and Involuntary Dismissal . 9–12 E. Motion to Strike or to Dismiss Portions of Claims (Or Motion to Withdraw Issues) . 9–12 F. Amendments to Conform to the Evidence (ORCP 23 B) . 9–13 XI. Corrective Motions at the Close of Evidence . 9–13 A. Motion to Reopen Case . 9–13 B. Motion for a Jury Poll (ORCP 59 G(3)) . 9–13 C. Motion to Correct Verdict (ORCP 59 G(4)) . 9–14 XII. Jury Instructions. 9–14 A. Formulation . 9–14 B. Instructing the Jury. 9–16 C. Exceptions . 9–16 XIII. Verdicts and Findings . 9–17 A. Verdicts . 9–17 B. Findings . 9–21 XIV. Judgments . 9–22 A. Definition. 9–22 B. Judgment for Fewer than All Claims and Parties . 9–22 C. Form . 9–23 D. Submission . 9–23 E. Relation to Appeals . 9–23 F. Default Orders and Judgments . 9–24 Example . 9–25 1. Sample Nonuniform Jury Instruction. 9–25 Appendixes. 9–27 A. Presentation Outline . 9–27 B. Selected Articles from the Litigation Journal . 9–29 C. Sample Motions . 9–57 D. “A Civil Action” Versus “Improper Argument”. 9–61 E. Limiting the Number of Experts . 9–63 F. Sample Plaintiff’s Special Jury Instructions . 9–65 G. American Bar Association Civil Trial Practice Standards (2007). 9–73 H. Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court . 9–127 Presentation Slides. 9–147 Fundamentals of Oregon Civil Trial Procedure 9–ii Chapter 9—Anatomy of a Trial I. STRATEGY—WHAT IS MY GOAL? A. Opening Statement Many of the most successful trial lawyers in the United States believe that a lawsuit is won or lost at the time an opening statement is made. The opening statement controls the focus of the case at the outset. It should be carefully planned and rehearsed. An opening statement is not merely an opportunity for one lawyer or the other to tell the jury “what the case is about.” It is an opportunity to set the pace and the mood of the jury. It is critical in opening statement to be concise, confident, and pleasant. On the other hand, it is also necessary to give the jury enough information so that by the time your opening statement is concluded, you have established your credibility and convinced at least some jurors that you should win, even before they’ve heard the evidence. It provides an opportunity to establish your themes that you will use throughout the case. Be completely confident in your knowledge of the law that will be relevant to the jury’s decisions, and emphasize the evidence that will persuade the jury to resolve the legal issues in your client’s favor. The opening statement is also an opportunity for the accomplished trial lawyer to create some degree of suspense in the minds of the jury. It’s important not to tell the jury all the facts of your case. Keep a few facts back. Tantalize them. Make the trial fun for the jury. Remember, the jurors usually don’t want to be there any more than the parties do. For example, call the jury’s attention to the testimony of Mr. Smith. The statement might go something like this: “On the third day of trial, we will be calling Mr. Smith. You will find when Mr. Smith testifies that it would have been impossible for the plaintiff to have been at the scene of the accident at the time she stated.” B. Be Aware of the Jury’s Presence The jury is watching you and your client every minute in court. When you get up and move around, when your client speaks with you, when you walk in and out of the courtroom, when you are in the elevator, when you are in the hallway, when you are getting into your car, you are under the constant view of the jury. The way you and your client dress and behave can and will affect the jury’s opinion of you and your client, and the outcome of your case. Trials are not funny matters. Do not laugh and giggle in the elevators. Do not tell jokes. Act appropriately both in the courthouse and outside in the parking lot or anywhere else the jury might observe you and your client. If you are a plaintiff’s attorney and drive a fancy car and the jury sees you get in and out of the fancy car, it could affect the outcome of the case. Not long ago, after a jury was interviewed regarding an extremely low verdict, one of the jurors commented that the plaintiff’s attorney had driven away in a brand-new Porsche. The jurors determined that they were not going to buy that lawyer another “new hot rod” and kept the verdict down for that reason. Dress appropriately. A courtroom is a place of dignity. Both you and your client should dress conservatively but not so formally as to intimidate the jury. Remember, few of the jurors will have coats and ties on. Likewise, you must strike a balance between their dress and “overkill.” Your client likewise should not stand out but should blend in with the rest of the people in the courtroom, if at all possible. Keep your client from taking notes and talking to you throughout the trial. Otherwise, it appears that you are not prepared or organized and that your client knows more about the Fundamentals of Oregon Civil Trial Procedure 9–1 Chapter 9—Anatomy of a Trial case than you do. It is also extremely distracting to the jury, the judge, and the other witnesses. Furthermore, it appears to the jurors that you and your client are trying to either “hide something” or put something over on them at the last moment. Insist that your client not demonstrate emotion when either good or bad testimony is presented by the witnesses or when the court rules on motions or objections. C. Be Organized, Neat, and Prepared Organization and preparation are the key to any trial victory. Before any testimony is presented, you should know what the answers will be and what the purpose of the testimony will be. As a general rule, a lawyer who fumbles around at his or her desk, has papers spread all over the desk, and appears absentminded at trial is not well received by a jury. If you have trouble following your preparation and presentation of evidence, you can be assured that a jury will as well. D. Present Witnesses Logically Ordinarily, the plaintiff and the defendant should be called first. Remember, you are telling a story from start to finish.