Discover The Territory:

Becoming Familiar With The Arena

 

“Great events ever depend but upon a single hair.  The adroit man profits by everything, neglects nothing which can increase his chances; the less adroit, by sometimes disregarding a single chance, fails in everything…” 

— Napoleon 

“A pint of sweat saves a gallon of blood…” 

— General George S. Patton 

“Now the general who wins a battle makes many calculations in his temple ere the battle is fought. The general who loses a battle makes but few calculations beforehand. Thus do many calculations lead to victory, and few calculations to defeat: how much more no calculation at all! It is by attention to this point that I can foresee who is likely to win or lose.”

— Sun Tzu 

This chapter will equip you to:

 

• Familiarize yourself with the Courtroom, who sits where
• Knowing when to speak and to whom – courtroom etiquette
• Organize a concise and complete portable notebook for all your case information
• Prepare witness testimony outline
• Prepare exhibits for court

Introduction

Reading this book is great and will go a long way toward helping you prepare and present a winning case in court. But even after you’ve worked through every page of How To Win Your Case In Court, and perhaps other books like it, your knowledge will never be more than instructive theory until you wake up one morning, get yourself dressed and haul yourself downtown to the courthouse to see for yourself.

What general would venture his troops into combat before he had seen the battlefield for himself, firsthand? What restaurateur would plunk down hard-earned investment dollars on an eatery he’d never set foot in? Likewise, before your day of trial comes and you walk into court with your trial notebook bulging with facts and exhibits, you need to visit the courtroom yourself. In fact, no pro se should wait until the day of trial to become familiar with a courtroom – and not just any courtroom, but ideally the courtroom where your case will be heard, and where your judge presides. Take your time, listen to some cases, jot down notes. This will be some of the most instructive time you spend preparing for trial.

The Importance Of Seeing The Court

Dropping in to observe court proceedings is an eye-opening experience. The speed of trial almost never fails to surprise and even discourage some visiting would-be litigants. They watch a room full of plaintiffs and defendants sitting idle and waiting in patience until the judge or the bailiff calls their case. Some disputes are over almost before they begin, with the judge acting almost like a mediator, issuing a few pointed questions to the parties about the particulars of the case, and ruling almost immediately after the answers are heard. Other cases take longer with formal exhibits and testimony.

Courthouses often seem to buzz with activity not unlike a beehive or ant colony; lawyers and witnesses, and litigants and judges and law clerks, court attendants and court reporters; all rushing in and out, excusing themselves from this case so they can appear at that one. Some judges routinely interrupt one case to allow litigants and lawyers from another to approach the bench and briefly be heard to speed up the process of justice.

Courtroom Diagram

Courtroom Etiquette

Ideally, your reconnoitering efforts will cut through some of this fog and familiarize you with the conventions and protocols practiced in the arena where your dispute will be decided. Schachner in his book, How And When To Be Your Own Lawyer (Avery publishing, 1993) likens these conventions to an actor’s “stage presence – that unspoken combination of demeanor and mannerisms, that magical something that articulates the aura of being special – [and] is important to capturing the audience’s respect and attention.”

“In the theater of the courtroom, presence adds to the jurors’ respect for you and indirectly benefits your case.” [1]

Put another way, your poise and self-confidence will benefit you as you become more familiar with the nuances and conventions of trial. Fortunately, most of the conventions of politeness and common courtesy will translate over to the courtroom. Parties are expected to be courteous to each other and the court.

• Always show up on the day your motion or hearing is scheduled (even if you intend to ask for a continuance) and ALWAYS be on time. If you intend to seek a continuance or postponement, try to work one out ahead of time. You can’t just call in to court on the day of trial and say you can’t make it. If you can’t make it due to some illness or emergency, try to send someone in your place.

• Parties should speak only to the judge or to witnesses they are examining during the course of trial. They should not address court clerks, bailiffs or other court personnel without the approval of the judge, nor should they address witnesses they are not examining (direct, cross, re-direct). Parties should not speak with each other during trial, but address all inquiries, objections, motions etc., to the judge.

• Always stand when you address the court and when responding to the court. It demonstrates proper respect for the court and proceedings and signals that you are self-composed and comfortable.

• Since the judge is the official presiding officer of the court, he, more than your opponent or even the jury is your audience, so always begin any address with “your honor.” When introducing a witness say “Your honor, I’d like to call Jane Doe…” or during your opening argument “Your honor, the preponderance of evidence will show that my opponent is clearly liable for my injuries…” Always end your exchanges, even those in which you’ve been speaking exclusively to another party – as when examining a witness, or presenting your closing argument to the jury – with “Thank you, your honor.”

• Also, request permission to move about the courtroom such as to request a sidebar conference, “Your honor, may we approach?” Or when you need to move closer to a witness, “Your honor, can I approach the witness?”

• When you need to address the jury, begin with “May it please the court…”

• During questioning, remember that witnesses can sometimes be unpredictable. Avoid hammering or appearing to badger or mistreat any witness, yours’ or your opponents’. When a witness nods or mumbles or shakes his head, be the first to ask the witness to speak up so the court can hear. And make sure your not just speaking or asking questions to fill up some awkward silence. Make sure you know what you want to say, before you begin speaking.

Find out as much as you can about the judge who is assigned to preside over your case. Try to sit in on a few of his cases to develop a better feel for his demeanor and professional style. Every judge is different. Some respond patiently to irritations others might not put up with at all. Inquire about his or her temperament likes and dislikes during your intelligence gathering trips to the courthouse. Talk to a law clerks and lawyers who know him. Introduce yourself and briefly ask one or two specific questions that may help you get a better bead on the personality of the person under the robes.

Organizing Your Trial Notebook

Your trial notebook will serve as your workbench during your pre-trial preparations, your chalkboard to organize your exhibits, your secretary for record keeping and your field medical kit when something inevitably goes terribly awry. As one who has watched lawyers of various abilities and educational backgrounds try cases of differing complexity, I can say without hesitation that few things make an advocate look less professional and less prepared than the guy who is fumbling through a pile of papers trying to locate a deposition for a witness whose testimony just took a wrong turn. I’ve seen street-hardened criminals slouch in their seats like embarrassed school kids while their disorganized attorneys wandered through a mound paperwork looking for some needed pleading or missing point of law.

All impressions aside, the success of your case – believe it or not – depends on your ability to get the right information introduced at the right moment. The importance of a well-maintained and thorough trial notebook then, should be obvious.

Your notebook can be as complicated or as simple as your organizational skills will allow. Keep in mind that you are not going to turn in your work, probably no one else will ever see the interior contents of your trial notebook so try to work within your natural gifts and tendencies. If you are a person who thrives on organization, who can’t sleep until every scrap of paper on your desk is neatly categorized and appropriately filed, feel free to expand on these basic guidelines until your sweet tooth for orderliness is sated, and pay no attention to the raised eyebrows and muttered comments from the slackers around you. You’re no more of a control freak than they are.

If on the other hand, you’re like most other mortal men, your level of organization is perhaps less than it could be, especially in a place as unfamiliar as a courtroom. For you, these guidelines will serve as a constructive roadmap. Try to adhere to this framework as you construct your trial notebook and resist the temptation to “gloss over” or “skim through” sections. Trying to shortcut your trial notebook is a bad idea.

The cover page of your trial notebook should have the litigants’ and lawyers’ names, the date of trial and the name of the presiding judge. It might look something like this:

Nelson (pro se) vs. O’Neill (Weintraub)

September 15, 2004

Circuit Court Judge William Hays, presiding

You also might want to include the driving theme of your case in a brief summary sentence. “I (Nelson) will offer evidence showing that Mr. O’Neill – by his own negligence as a custom deck-builder – caused the injuries and damages specified in the claim which resulted when the Nelson deck, constructed by ONeill collapsed last April.”

Inside the cover page you will want to keep your index. It is a good idea to sort your notebook material chronologically and by categories. Don’t wait until your notebook is complete before you add your index. A working index will be helpful to keep the items straight and available as time goes by. Since your index and notebook will increase rapidly, try to maintain your index on a computer and update the machine at least once a week if not more often to keep track of changes. And don’t forget to back up your work regularly. Your initial index should look something like this.

SECTION:      SUBJECT:

One:                Case & themes, (rationale and motives for filing, contact and schedule particulars)

Two:                Pleadings, (complaint & answer)

Three:             Facts & law, (legal claim outline, order of proof outline, points of law to prove)

Four:               Motions & evidence, (motions, evidence outline, witness list, rules of evidence)

Five:                Legal research, discovery (depositions, requests for admissions, interrogatories)

Six:                 Trial presentation, (opening remarks, plaintiff’s case, defense, closing remarks)

Seven:             Defense vs. opponent, (evidence to exhibit to undercut your opponents’ claims)

Eight:              Decision, (post-trial material, transcripts and anything else relevant at appeal)

Additionally, you will want to include written stipulations agreed upon between the parties, copies of any pre-trial motions in which the judge has reserved (postponed) ruling and copies of the rules of evidence particular to the jurisdiction. Copies of the actual rules covering the evidence you intend to introduce is best, with the pertinent sections highlighted. It is also a good idea to wade through those sections covering evidence your opponent intends to introduce.

Preparing Your Exhibits For Court

As you prepare your case for trial much of your energy will be focused on keeping orderly track of the exhibits you intend to present to prove your case. This process of orderly presentation and authentication of evidence is so critical to the outcome of trial – the verdict literally resting on its success or failure – and the rules governing that process so intricate, that almost invariably, pro se litigants trip up and fall short.

Typically, this process comes to a boil at trial as the judge interrupts a party attempting to introduce an exhibit to say that the item is inadmissible due to some procedural lack. The judge will then often explain the requirements patiently to the pro se and ask if he has prepared whatever steps are needed to make the exhibit admissible. Often the sad scene ends with the offending litigant stumbling through an explanation while the bench issues a disheartening ruling that the exhibit be set aside and orders the pro se to proceed with the rest of his case, if he still has one.

Judges too are probably more frustrated by this one shortcoming – the inability of self-represented litigants to admit and authenticate exhibits – than perhaps any other single area of inexperience. Judges aren’t only interested in the process; they’re in business to see justice done. Few things are as frustrating for the bench as having to deny some little guy litigant a critical exhibit that would no doubt lock down his claim because it can’t be authenticated or is otherwise procedurally inadmissible.

The litigant is under no obligation to introduce exhibits but there are some clear benefits that weigh in favor of doing so. Drawing back to what we learned about persuasion in Chapter 2, exhibits contribute to the overall persuasiveness of your case, giving you an opportunity to tangibly show the judge or jury instead of merely telling them about some crucial element of your claim. Pictures of an accident scene or damaged property, for example, are far more persuasive than reams of narrative testimony. Additionally, exhibits can be held and examined by the jury or judge at the point of decision-making, when oral testimony may have already been forgotten. Witnesses too can benefit from exhibits, even those called to authenticate the exhibit itself, because people are almost always more confident and credible when discussing objects of concrete, material substance over ideas things that exist only in theory or concept.

Simply put, exhibits are the tangible objects offered at trial to help convince the judge or jury of the merits of your claim. They may be letters, contracts and other documents, photographs, tools, clothing, whatever physical object connects your claim to the actual events in dispute.

The process of admitting an exhibit into evidence generally follows a three-step process:

Step 1.             Mark the exhibit for identification, allowing your opponent to examine it.

Step 2.             Identify and authenticate the exhibit, directing questions toward the witness to establish foundation.

Step 3.             Ask that the exhibit be entered into evidence.

As you bring each exhibit to the attention of the court, in order for the judge to allow it to be recognized and admitted into evidence, it must be authenticated, or proven through testimony (yours’ or your witness’s) to be relevant, material to the proceedings and competent, as we discussed in the earlier section on evidence. This process of authentication is also known as “laying a foundation” or “foundational testimony.” The judge will weigh the technical adequacy of your foundations to determine admissibility.

Think about it…

Reach as many pre-trial stipulations with your opponent as possible and be willing to work with him on his stipulations. Stipulations can help reduce the time at trial by permitting exhibits to be entered into evidence without the need for testimony and authentication. Get your stipulations in writing to prevent your opponent from suddenly losing his memory in court. They can be easily composed one-sentence agreements: “Plaintiff ____ and Defendant ___ hereby stipulate that the ______ may be admitted into evidence in our case ___ v. ___.” Make a place for both of your signatures with a line for the dates and submit your stipulations to the judge at the pre-trial conference.

Establishing foundation for your exhibits can be a complicated affair since there are almost as many different sets of requirements as there are types of exhibits. For example, signed contracts, check stubs, business records and letters are document types commonly introduced in trials. It is likely that your own case will include one or more such exhibits. Yet, each has different foundational requirements. Tangible object exhibits, photographs and film, sound and video recordings, diagrams and maps – all are common types of evidence with their own rules for foundational authentication.

As a starting place to help you prepare your exhibits, refer to the chart below for foundation requirements for different types of exhibits. Since we can only cover a few of all the very many different types of evidence, chances are good that you will want to include something not covered in the appendix. In that case you have to do some additional research to discover authentication foundations.

Type	Foundation Requirement	Critical Question For Witness
		(Remember, most courts allow leading questions to establish foundation)
Actual Evidence, Material Objects	Item must be what it is reported to be.	“Looking at the exhibit, is this item [what it is reported to be]?”
Photographs	Photo is an accurate reflection of the scene or situation on relevant date	“Looking at the photograph, does it fairly and accurately represent what you saw?”
Diagrams / Maps	Witness is familiar with the scene and diagram is fair representation of scene or event.	“Are you familiar with [place or situation depicted on the map / diagram]?” “Looking at the exhibit, does it fairly represent what you are familiar with?”
Signature documents, Letters, Contracts, Checks, Wills, Promissory notes, (Non-hearsay)	Establish that letter is the same as when the witness received or sent it. The signature must be that of the individual who appears to have signed it.	“Looking at the exhibit, do you recognize this as the letter you [sent or received]?” “Do you recognize the signature at the end of the letter?”
Business Records, Invoices, Government and Computer records, Telephone memos, etc., *	Establish that the witness is qualified to testify about the record. Establish that the record was created during the normal course of business. Establish that it was prepared around the time of the events in question. And establish that the way the business creates its records suggests the document is trustworthy.	“Are you employed by [the business which generated the record]?” “Did your company create the [business record] which is being offered as an exhibit and when did they create it?” “Can you explain how such records are generated by your firm and how those records are maintained?”
Copies	Establish that an executed original actually existed, that it is unintentionally lost or otherwise unavailable, that copies of that original were made and that the exhibit is a true and accurate copy.	“Your honor, the original version of this document is unavailable because …” (To the witness) “Looking at the exhibit, did you make this copy from the unavailable original?” “Did you have personal contact with the original document in question, and is this a fair and exact replica of that original?”

*(Refer to Federal Rule of Evidence 803 (6), New York Code of evidence § 803 (c) (5), California Evidence Code § 1271

Generally, introducing an exhibit begins with the party asking the court to admit whatever item is being considered as “exhibit number one.” Then, you will begin your questioning to establish foundation. Once that is complete – and usually if you have additional points to be made concerning the exhibit, such as marking a diagram to illustrate the timing of an auto accident – you will do those things at this time and close by asking that the exhibit be entered into evidence.

Remember to keep from running afoul of the other rules of evidence, (e.g., hearsay, best evidence) because at the end of your presentation, when you ask that your exhibit be admitted, the judge will likely ask your opponent if he or she has any objections. If your exhibit doesn’t square up with these requirements, it won’t be admitted.

If you lose track your train of thought during questioning or become stuck trying to authenticate an exhibit, settle down and try to recall the basic steps necessary in establishing evidentiary foundations:

• Show that the witness is familiar with the exhibit you are trying to introduce into evidence.
• Have the witness authenticate the item, validate that it is what it is purported to be.
• Demonstrate that the exhibit is directly relevant to the case.

Preparing Your Witnesses

“I am the LORD your God, who brought you out of Egypt, out of the land of slavery. … You shall not give false testimony against your neighbor.” 

—  Exodus 20:1, 16.

 

“Expect no trivial truth from me, unless I am on the witness stand.  I will come as near to lying as you can drive a coach and four.” 

—  Henry David Thoreau (1817–1862) 

Once you know what exhibits you’ll need to present at trial and have worked through what it will take to authenticate each item, you’ll want to begin preparing your witnesses to substantiate your claims in court. The best way to “recruit” favorable witnesses is with a subpoena, which is essentially an order from the court to appear and give testimony relating to the case. If you need your witness to produce documents, records, visual aids or other assisting exhibits, give the witness a subpoena duces tecum.

Since recollections fade and memories can change over time, you will want to approach your witnesses as early in the process as possible – the initial stages of your informal case investigation or the formal discovery period is best – and you will want to interview them pretty thoroughly to familiarize you both with their expected testimony.

Approach your critical witnesses first. Depose those witnesses with perishable memories. Witnesses who saw or heard something at some specific moment in time, like an automobile accident or an act of negligence that contributed to a broken bone, should be approached and subpoenaed before other witnesses, say expert witnesses or those establishing foundation for business records or other less time sensitive evidence.

Subpoena Your Witnesses. You can begin subpoenaing witnesses as soon as your case has been assigned a trial date and most litigants try to complete their witness lists about sixty days from trial. Don’t let the process creep inside the last thirty days or so before trial. Approaching people inside of that thirty-day window is risky at best and even with a subpoena, a key witness may have other commitments that he or she simply can’t escape. And if the judge finds out you have been trying to build your case at the last minute, he (the judge) is likely to excuse your witness and leave your case high and dry.

Subpoenas are free and usually issued by the court clerk. They have blank spaces to fill out the names of the parties and the dates involved. Subpoena all of your witnesses, even those who are eager to testify on your behalf. Some of your witnesses may need an official document to get off from work, while others, like police officers and other expert professionals will not appear without a subpoena. Also, unless you have issued subpoenas, the judge might not allow for a continuance if your witness is prevented from appearing due to personal emergency or illness.

Serving your witness a subpoena involves much the same process as serving summons on your opponent. Each state has fairly detailed instructions to properly render service of process, including filing proof of service forms that record the particulars of who was served, what legal papers were rendered and where the service took place as well as other similar details. Legal firms often employ process servers to deliver complaints, but you can, in most jurisdictions, have anyone (other than yourself as the plaintiff) serve court papers. The subpoena becomes legally binding upon proof of service to the court.

In most jurisdictions, you must offer (tender) witnesses fees to cover court attendance and mileage according to local statute. These and other related court fees are often recoverable if you win your case. Speak up and ask for court fees and costs if the judge neglects for some reason to order them once your case is over and judgment rendered.

Outline Your Questions. Take the time to outline a few of the major questions you will ask each of your witnesses in court. Do this in advance of your trial and let the outlines help you prepare for your opening remarks and direct examination. These outlines should be simple and straightforward ready references you can easily turn to during trial to refresh a lost line of thinking or train of thought. For that reason don’t overload them with every possible question asked from any potential angle. Direct examination of witnesses often unfolds in different directions than you may have intended. For that reason keep your outlines short, perhaps even small enough even to fit on a 3 x 5 card.

A good, short outline will include one or two bullets on the main point of the witness’s story, two or three bullets on the top tier questions you will want to ask, and a bullet or two on any exhibits that may be introduced with the witness.

Direct Examination Outline

• Witness name:
• Background information:
• Important evidence:
• Critical questions:
• Exhibits to be introduced:

[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.