Judge Charles G. Crawford, 18th UNETHICAL Judicial Circuit Or UNCIVIL: The best and worst litigation tactics

Kelly A. Swartz, Chief Legal Officer Brevard Family Partnership Presentation Overview 01 02 03 04

Cross Opening/Closing Overview Examination Professionalism arguments 01 Overview

Topics of Discussion INTRODUCTI The subjectON of this presentation is how to succeed in trial. • We will provide you with tips on: - advocacy - presentation of witnesses - handling exhibits - general courtroom behavior

• We will use hypothetical and real case examples.

• Each element of trial will be viewed from the perspective of the Attorney, Judge & GAL.

• At the end of the workshop each participant will better understand the elements of trial in Dependency Court, and how to be professional….even when others aren’t.. Learning Objectives 0 0 0 1 2 3

Cross examination opening/closing Professionalism • How to cross examine • Waive opening and wave your case • Why you should always be effectively. goodbye. Bring the drama. professional, even when others aren’t. • Learn critical questions to admit • How to effectively allow the the most common pieces of Judge to hear the facts again in • Where to go to find Professionalism evidence. closing. Resources.

• Take home your own Evidentiary • How to open and close without • Email and remote hearing Predicate Questions Manual. having to read it verbatim. etiquette. 02 Cross-Examination

How to Effectively Question a Witness My Cousin Vinny Witness examination Cross Examination

Title VII: EVIDENCE Chapter 90: EVIDENCE CODE Mode and Order of Interrogation and Presentation.

(1) The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses and the presentation of evidence, so as to:

(a) Facilitate, thorough effective interrogation and presentation, The discovery of the truth.

(b) Avoid needless consumption of time.

(c) Protect witnesses from harassment or undue embarrassment.

(2) Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.

Fla. Stat. § 90.612 (2019) Cross Examination

Mode and Order of Interrogation and Presentation.

(3) Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony.

Ordinarily, leading questions should be permitted on cross-examination.

When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

The judge shall take special care to protect a witness under age 14 from questions that are in a form that cannot reasonably be understood by a person of the age and understanding of the witness, and shall take special care to restrict the unnecessary repetition of questions.

Fla. Stat. § 90.612 (2019) Cross Examining an RestatingExpert the expert’s answers on direct is not an effective cross.

• Ask leading questions that only net a yes or no answer.

• You will not win an argument with the expert on their opinion of the subject matter.

• Point out if an expert witness is a hired gun or has bias.

• Tie your questions to your theory of the case.

• Cross on the other possibilities associated with their “conclusions”.

- Get whatever concessions or admissions you can.

- Do not ask “why”. Cross Examining an Expert • For experts cross on any tests or procedures he or she did not perform or follow.

• Confront on any lack of information needed to form their opinion.

- Did they not have certain facts about the case when they formed their opinion.

• Just do the best you can, do not simply repeat what was already stated on direct. You are only emphasizing the expert’s opinion to the Judge.

• You are not going to win this part of the trial, do your best to minimize the damage. 03 Opening & Closing arguments

How to Convincingly Summarize Your Case And Justice for all Closing Arguments Closing & Opening

ARgumentsOpening Arguments • Never, ever, EVER, waive an opening argument.

• It’s Your opportunity to give the judge a synopsis of your case.

• Helps frame your issues

- If you don’t know them by opening, there is a BIG problem.

Closing Arguments • Your chance to convince the judge of your case.

• Opportunity to sum up and summarize your points.

• Do not read your closing, do not simply repeat, bring the drama. Effective Closing A closing argumentArguments should attack the problems in a case and put them in the most favorable light for the judge. Your closing argument begins during your opening statement. More than Have a theme Be Preemptive Poke Holes REview

Keep connected talking Know the facts and tackle Discuss the other sides Simply reviewing the points in mind. Know your the unfavorable ones head weaknesses. Be specific evidence without closing argument, don’t on. Make inferences that when reciting important attacking, analyzing, or simply read it verbatim. make sense. evidence. Don’t attack giving your theory of the opposing counsel but real issues in the case will expose witness credibility. not be effective.

Use Case Law Use Diagrams No Objections Practice

Explain how the case law Use Charts and Graphs, Don’t object, it is closing Practice, practice, practice applies to the facts of the make copies for everyone. argument not evidence. and never waive the case. Provide copies to the Percentages have a huge Unless it is really closing! Judge before you start your impact. objectionable, and you just closing argument. can’t help it. Highlighting is acceptable. 04 Professionalism

How to Uphold Court Decorum “Always do right. This will gratify some people and astonish the rest.”

— Mark Twain Professionalism

Candor Timing Deference Respect REsponsibility Maintain your Give the judge a Don’t argue your point Ask to approach the Be prepared and be on credibility with the realistic estimate of after ruling. Ask for a court, witness, or clerk time.

court. how long the case or proffer. (Some judges may only have you ask witness will take. once - find out their preference). How the Bar Investigates Disciplinary Complaints

STEP 1 STEP 2 STEP 3 STEP 4 STEP 4

If alleged conduct may Once at correct branch, a Case closed with closeout If probable cause found, Initial complaint sent to Bar constitute a violation, send Bar counsel reviews facts letter, or must appear case sent to court. If minor for investigation. it to one of the 5 branches and conducts independent before grievance infraction, alternative of the bar. investigation of conduct. committee. discipline can be taken. Possible Sanctions

Disbarment: Most severe sanction. Reserved for gross lapses in integrity. Can usually seek readmission after 5 years.

Disciplinary Revocation: Attorney does not contest charge and surrenders license. Also called “disbarment on consent.”

Suspension: For non-rehabilitative, an attorney is suspended for 90 days or less and immediately reinstated afterwards. For rehabilitative suspension, an attorney is suspended for 91 days to 3 years, and must prove rehabilitation before readmission.

Felony or Emergency: Immediate suspension if convicted of a felon Possible Sanctions

Public Reprimand: Public reprimands are reported with other Florida Supreme Court decisions in the Southern Reporter, and published in the News.

Probation: Can be ordered in connection with discipline. Can include mandatory meetings, audits by an accountant, mental health professionals, drug and alcohol testing, reporting requirements, or more.

Admonishment: Lowest form of discipline.An admonishment can be contained in a Supreme Court order, or may be issued by a grievance committee or the Board of Governors.

Other measures: Any additional sanctions can be ordered, including but not limited to, ethics school, stress management workshops, lawyers assistance referrals, trust and accounting classes, etc. 2015- 2016- 2017- 2018- 2019- 2016 2017 2018 2019 2020

Total Bar Population 103,010 104,676 109,095 107,131 108,615 Lawyer Disbarments 54 46 42 37 42 Suspensions 194 179 129 124 136 Discipline Public Reprimands 67 50 37 33 32 Statistics Disciplinary Revocation 24 38 29 35 40 Admonishments 48 30 33 23 35

Probations 32 33 42 21 9

Injunctions 0 0 0 0 0 The Florida Bar Creed of Professionalism

I revere the law, the judicial system, and the legal profession I will conduct myself to assure the just, speedy and and will at all times in my professional and private lives uphold inexpensive determination of every action and resolution of the dignity and esteem of each. every controversy.

I will further my profession’s devotion to public service and to I will abstain from all rude, disruptive, disrespectful, and the public good. abusive behavior and will at all times act with dignity, decency, and courtesy. I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits I will respect the time and commitments of others. and will at all times be guided by a fundamental sense of honor, integrity, and fair play. I will be diligent and punctual in communicating with others and in fulfilling commitments. I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not improperly permit my silence I will exercise independent judgment and will not be or inaction to mislead anyone. governed by a client’s ill will or deceit.

My word is my bond. Best practices for electronic communication

The Oath of Admission to The Florida Bar includes a pledge of “fairness, integrity and civility, not only in court, but also in all written and oral communications.”

This includes electronic communications.

Texting Etiquette

• Keep it short, if they’re longer than 160 words, call or email instead.

• Be aware that tone is hard to convey.

• Spell out all words to avoid confusion.

• Be sure you have permission to text who you’re texting. Best practices for electronic communication

Email Etiquette • Never leave the Subject Line blank and fill in Recipient last.

• Use a salutation, and make sure sign off is consistent.

• Don’t use ALL CAPS, and appropriately use “cc” and “bcc”

• Evaluate email importance and label accordingly. Social Media • There is no exception of privacy on the internet.

• Do not disparage or seek to humiliate the judicial system, judges, opposing counsel, clients, or others via social media (See Rules 4.82 and 4.8-4(d)).

• Do not make dishonest, inappropriate, unprofessional, or misleading posts. Additional References

CREDITS: This presentation template was created by Slidesgo, including icons by Flaticon, and infographics & images by Freepik.