Course Evidence in the Courtroom (LAW 804C LS1) Professor Wes Reber Porter Term Spring 2013 Class meetings Fridays, 10 - 11:40 am *(NO class on January 11 and March 15 for spring break)
Professor’s Contact Information
Office Phone & Email (415) 442–6663, [email protected] Office Location Room 2342 Office Hours Tuesdays and Fridays, 3-4 pm, or e-mail for an appointment Teaching Assistant Aseil Mohmoud, [email protected]
General Course Information
Course Overview The rules of evidence dictate the manner of criminal and civil trials. Understanding evidence impacts the questions attorneys ask, the exhibits and testimony that the jury considers, the quality of the advocacy and, even, the outcome at trial. This course connects the rules of evidence to skills within litigation and trial advocacy. Students will learn how arguments under the rules of evidence and evidentiary rulings play out in the courtroom. Students will write and argue motions in limine, write disclosures and notices, conduct examinations, make offers of proof, and argue evidentiary objections and responses, as well as decide as trial judge. This course will focus on the litigation and advocacy skills rooted in understanding evidence, including disclosures, motions in limine, evidentiary foundations, modes of impeachment, and making a record for appeal.
Course Objectives This course was specially designed by the Litigation Center to meet the following learning objectives: Students will better understand the rules of evidence. Students will learn how the rules of evidence play out during litigation and at trial. Students will write, argue and issue written orders for motions in limine. Students will learn and practice evidentiary objections, responses, and arguments. Students will learn and exercise case strategy options available under the rules. Students will write disclosure letters required under the rules. Students will train in laying the evidentiary foundations for the admission of different forms of evidence at trial. Students will practice the modes of impeachment to impact witness credibility.
GGU School of Law Page 1 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Required Materials (1) Evidence in the Courtroom (EIC). This is a custom–designed (free!) reader for this course. It will be available on TWEN in electronic copy before classes and I will distribute a hard copy on the first day of class. (2) Federal Rules of Evidence (FRE). The FRE is available at http://www.law.cornell.edu/rules/fre/ **NOTE: Congress adopted NEW “re– styled” rules on Dec. 1, 2011 (3) California Evidence Code (CEC). The CEC is available online at www.leginfo.ca.gov/cgibin/calawquery?codesection=evid&codebody=&hits=20 (4) Your outline, notes or other materials from Evidence.
Suggested Materials (5) A Student’s Guide to Trial Objections, West (Charles B. Gibbons). In Law Library on open reserve with call number KF8935.Z9 G46 2010 (6) Evidentiary Foundations, Vol. 1, 8th Ed. LexisNexis (Edward J. Imwinkelried). ISBN 9780769847696 Currently: Law Open Reserve Kf 8935 I45 2012 (7) Point Made (Ross Guberman) In Law Libary Law Open Reserve KF251 .G83 2011
Web–enhanced This course includes handouts, assignments, examples, videos, and other information Elements available on–line as follows: (1) GGU Litigation Center website, http://www.ggulitigation.com, particularly the “Handouts & Videos” tab: http://ggulitigation.com/blog/handouts/; (2) Prof. Porter’s YouTube channel: http://www.youtube.com/user/wporterable; (3) TWEN: http://lawschool.westlaw.com/twen with password: Porter Students must regularly visit TWEN as part of this course, including posting on “Forums” and weekly submissions in “Assignment Drop Box.” You will need your Westlaw account information; if you do not have a Westlaw account or have lost your password, please see Jodi Collova in the Law Library, [email protected].
Pre–requisites Evidence is a pre–requisite. Does this course satisfy any Specialization This class satisfies 2 units towards the Specialization Certificate in Litigation. requirements? This course does NOT satisfy (i) the upper division writing requirement; nor (ii) the Other Law School experiential learning requirement. Requirements While this course is NOT a California Bar Exam subject, this course will assist in your understanding and analysis of Evidence and California Evidence.
GGU School of Law Page 2 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Course Policies Attendance, Attendance and preparation are mandatory for this course. I will take attendance at the Preparedness, and beginning of class. If a student will not be able to attend class, will be late to class, or will Class Participation be unprepared for class, then the student must either notify me (1) by email before the start of class (preferred) or (2) by note before class begins. I may excuse absences, tardiness or unpreparedness only if, and not until, I have been notified in advance about a serious reason and the student has satisfied all requirements from the missed class. Failure to abide by the attendance, tardiness and class preparation rules may negatively affect a student’s final grade. Specifically, a student who has an unexcused absence, is late, is unprepared, or fails to complete assignments on time will be subject to having his or her final grade reduced by one grade step (e.g., from A to A–, B– to C+), more than one step, or may not be allowed to complete the course, at the professor’s discretion.
Computer and Internet **Using laptops during class meetings is not permitted.** Policy We will print out the student’s submitted assignments before class and, for purposes of your presentations and exercises, only a 1-page, bullet point outline is permitted. Listening, participating and understanding during class will be the most valuable to you – a transcript of this class will not be useful. Students instead should use their laptops to review of the materials on–line, including participating in class discussion on TWEN, before and after class meetings throughout the semester.
Accommodations Golden Gate University School of Law seeks to provide reasonable and necessary accommodations to students with disabilities. Please meet with the Disability Service
Coordinator in Room 3339 or email [email protected] for information on how to receive accommodations. All communications with the Disability Service office are confidential.
The GGU Advocate All that we do in the Litigation Center is aimed toward the student’s development as a trial advocate, attorney, and professional. The GGU Advocate represents our defined standard of excellence in the courtroom.
THE GGU ADVOCATE . . .
... thinks creatively, with mastery of the facts ... communicates persuasively and clearly ... presents with confidence, poise and flexibility ... has command of the law and rules of evidence, and ... above all else, is courteous, professional and ethical.
GGU School of Law Page 3 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Grading in this course will be based upon four parts: (i) written assignments; (ii) participation in exercises, both in–class and outside of class; (iii) a “final exercise”; and (iv) an individual assessment and improvement throughout the Grading Method & semester. The percentage of the final grade is indicated below in parenthesis. Final Exercise i. Written Assignments (30%) Students will be required to submit on TWEN a written assignment in advance of most class meetings. Written assignments may include motions, responses, orders, outlines for witness examinations, evidentiary arguments and disclosures. Students must also post “lessons learned” on Forums by topic on TWEN. Written assignments will be graded and evaluated based upon its timeliness, accuracy, persuasiveness, and quality. ii. Exercises (30%) Students will be required to perform exercises during class meetings and outside of class. Students will argue the admissibility of specific evidence at trial. Students will also present witness examinations, evidentiary arguments and make offers of proof. Each exercise will be graded and evaluated based upon the students’ understanding of the rules and skills, presentation, persuasiveness, and quality. iii. Individual Assessment and Improvement (10%) I will evaluate students based upon the knowledge of the rules of evidence and exercising that knowledge in the courtroom. We will hold meetings with students to discuss this assessment and areas for improvement. Students must also post takeaways on Forums on TWEN between classes. A portion of your grade will relate to if, and how much, you have improved in the areas identified. iv. Final Exercise (30%) Students will be required to perform a "final exercise." The final exercise may incorporate the topics taught throughout the semester. Students will be required to file written portions of the final exercise related to, but in advance of, the oral portion of the final exercise. The final exercise will be discussed in more detail towards the end of the semester and will likely be scheduled outside of our class meeting time.
Final Exercise There is no proctored, final examination for this course. Instead, there is a final exercise. The final exercise includes both a written and oral component. As described above, your grade in this course will be based upon four factors: (i) attendance and participation in exercises; (ii) written assignments; (iii) individual improvement, and (iv) the final exercise.
GGU School of Law Page 4 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Assignments & Academic Calendar * The following schedule is set forth below for your planning purposes only. I reserve the right to change the schedule depending on the class’ progress and provide a revised syllabus through TWEN.
Before Review, generally, the handouts, videos and other materials on TWEN for EIC & the Litigation Center Our 1st TWEN, YouTube: youtube; and www.GGUlitigation.com Class Review the Federal Rules of Evidence *(NEW re–styled rules adopted on Dec. 1, 2011)
Review closely Articles I (preliminary matters), IV (relevance & character) and VIII (hearsay)
Read Chapter 1 of our Evidence in the Courtroom reader (EIC) Review your (an) outline or study materials from your Evidence course
Week Class Discussion & Assignments & Workshops Demonstration
Intro to EIC Read EIC, Chaps. 1 & 2, Intro & The Four Ways 1 Evidence Review Review FRE 401-403 / CEC 352 Discuss: the role of EIC & “the ASSIGNMENT 1: Four Ways” that evidence Before class deadline: draft a FRE 403 fact pattern from a case, movie plays out in litigation and trial clip or other source (cited in a footnote).
EXERCISE 1: “Arguing the Scales” Exercise & arguments in class
Motion in Limine I Post on TWEN Forums - “Motions in Limine” 2 Evidence Review Review FRE 404-406 & character evidence videos on youtube Discuss: relevance, unfair Review the MIL organization video on youtube prejudice & character evidence Read EIC, Chap 3 - MILs Demonstrate: MIL organization ASSIGNMENT 2 & 3 and arguments Before class deadline (#2): Written motions in limine and responses After class deadline (#3): court order EXERCISE 2: Oral MIL arguments in class
Motion in Limine II Post on TWEN Forums - “Motions in Limine” 3 Evidence Review Review FRE 801–807 & MIL & hearsay videos on youtube Discuss: hearsay objections, Re–read EIC, Chap 3 – MILs responses & arguments ASSIGNMENT 4 & 5 Demonstrate: MILs & Before class deadline (#4): Written motions in limine and responses responding to the court’s questions After class deadline (#5): court order EXERCISE 3: Oral MIL arguments in class
GGU School of Law Page 5 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Motion in limine III Post on TWEN Forums - “Motions in Limine” 4 Evidence Review Review FRE 801–807 & MIL & hearsay videos on youtube Discuss: deferred ruling & Read EIC, Chap 3 – Objections & Responses alternate remedies ASSIGNMENT 6 & 7 Demonstrate: sidebar and trial Before class deadline (#6): Written motions in limine and responses objections versus motions in limine After class deadline (#7): court order EXERCISE 4: Oral MIL arguments in class; playing trial judge & asking questions of MIL opponents
Evidentiary Sensors I Post on TWEN Forums - “Motions in Limine” and “Objections” 5 Objections Review Review objections videos on objections & responses on youtube Discuss & Demonstrate: form Review categories of form & evidentiary objections (handout) versus evidentiary objections; Re–read EIC, Chap 4 – Objections & Responses objecting & responding at trial ASSIGNMENT 8 & 9 Before class deadline (#8): Written motions in limine and responses After class deadline (#9): court order EXERCISE 5: Transcript reading, “objections lab” and court rulings
Evidentiary Sensors II Post on TWEN Forums - “Objections”\ 6 Objections Review Re–read EIC, Chap 4 – Objections & Responses Discuss: when and how to ASSIGNMENT 10 object at trial Transcript exercise: insert objections, responses & court ruling Demonstrate: most common EXERCISE 6: Transcript read through & object objections & responses at trial “Objections lab” and court rulings for all class **Distribute EIC Trial Problem for future weeks
Case Presentation Options & Post on TWEN Forums - “Objections” and “Case Presentation” Strategy 7 Review case presentation handout and exhibit videos on youtube Read your assigned EIC Trial Problem ASSIGNMENT 11 Draft assigned a case presentation outline with alternatives EXERCISE 7: senior partner/supervisor meetings
** Spring Break (March 11-15) **
GGU School of Law Page 6 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Evidentiary Foundations & Post on TWEN Forums - “Case Presentation” and “Evidentiary Avoiding Objections I Foundations” 8 Executing You Game Plan Review evidentiary foundation and exhibit videos on youtube Discuss & Demonstrate: Read EIC, Chap 5 – Evidentiary Foundations evidentiary foundations for Re-read EIC Trial Problem questions and exhibits at trial ASSIGNMENT 12 Draft assigned direct examination outline with foundation in BOLD EXERCISE 8: present direct examinations and exhibits and “objections lab” for all class
Evidentiary Foundations & Post on TWEN Forums - “Evidentiary Foundations” Avoiding Objection II 9 Re-review evidentiary foundation and exhibit videos on youtube Discuss: using exhibits & Re-read EIC Trial Problem Demonstratives at trial Read EIC, Chap 6 – Exhibits Demonstrate: using a demonstrative at trial during ASSIGNMENT 13 witness exam & then in closing Draft (re–draft) assigned direct examination with foundation in BOLD EXERCISE 9: present direct examinations and exhibits and “objections lab” for all class
Impeachment Modes I Post on TWEN Forums - “Exhibits” and “Impeachment” 10 Discuss: modes of impeachment Review FRE Article VI & memory, perception, bias, etc. (handout) and the rules affecting cross Review modes of impeachment and prior inconsistent statement videos examination on youtube Demonstrate: questions on Re-read EIC Trial Problem cross examination Read EIC, Chap 7 – Modes of Impeachment ASSIGNMENT 14 Draft cross exam outline & identify available modes of impeachment EXERCISE 10: present cross examinations and “objections lab”
Impeachment Modes II Post on TWEN Forums - “Exhibits” and “Impeachment” 11 Discuss: modes of impeachment Re-review FRE Article VI & memory, perception, bias, etc. (handout) and the rules affecting cross Re-review modes of impeachment and PIS videos on youtube examination Re-read EIC, Chap 7 – Modes of Impeachment Demonstrate: questions on cross examination and other ASSIGNMENT 15 evidentiary issues Draft cross exam outline & identify available modes of impeachment EXERCISE 11: present cross examinations and “objections lab”
GGU School of Law Page 7 Evidence in the Courtroom The Litigation Center Porter Spring 2013 Notice & Disclosure Post on TWEN forums – “Notice” 12 Discuss: notice and disclosures Review FRE 404(b), 807, 609 and other notice rules in FRE review of witnesses, Read EIC, Chap 8 – Notice and examples of notice foundations & impeachment ASSIGNMENT 16 Draft assigned notice letter EXERCISE 12: evidentiary arguments (based upon notice letters) **Distribute EIC Finals Problems and questions
13 **FINAL EXERCISES** (to be scheduled)
Experts Post on TWEN forums – “Notice” 14 Discuss: expert disclosures, Review Article VII, FRCP 26 & FRCrP 16 re: experts reports, discovery, testimony Read EIC, Chap 9 – Experts & handouts and opinion EXERCISE 13: TBD, DAUBERT MOTION (based upon disclosure)
GGU School of Law Page 8 Evidence in the Courtroom The Litigation Center Porter Spring 2013