Trial Handbook

Trial Objectives

To be successful in trial, you should know your Rules like the back of your hand. A trial attorney must be able to understand the Rules of Evidence and know how to use them. Failure to fully understand the Rules will place your client at a disadvantage and it helps your opponent while aggravating the judge in your case. The best way to learn the Rules is to read them, then apply what you have learned. This outline discusses some of the Evidence Rules, cases and trial objections that you should familiarize yourself with before starting trial.
A. Rulings on Evidence. Florida Statutes Section 90.104, DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den. 389 So.2d 1108 (Failure to object at trial contemporaneously with admission of contested evidence is waiver of right to appellate review of issue).
B. Judicial Notice. Florida statutes Sections 90.201-90.207, McDaniels v. State, 388 So.2d 259 (Fla. 5th DCA 1980) (Judicial notice may be taken of matters that are commonly known, but may not be used to dispense with proof of essential facts that are not judicially cognizable); Carson v. Gibson, 595 So.2d 175 (Fla. 2nd DCA 1992) (Stipulation alone does not provide evidentiary basis for judicial notice of evidence not otherwise properly before the court).
C. Presumptions. Florida Statutes Sections 90.301-90.304, Insurance Co. of State of Pa. v. Guzman’s Estate, 421 So.2d 597 (Fla. 4th DCA 1982) (Presumptions that affect the burden of producing evidence facilitate determination of issues and negate the necessity of proof absent contradictory evidence).
D. Relevant Evidence and Admissibility of Certain Types of Evidence. Florida Statutes Sections 90.401-90.410, Howard v. State, 616 So.2d 484 (Fla. 1st DCA 1993) (Relevancy determinations are within trial court’s discretion and absent clear abuse of discretion such rulings will not be overturned).
E. Privileges. Florida Statutes Section 90.501-90.510, State v. Castellano, 460 So.2d 480 (Fla. 2d DCA 1984) (Privileges in Florida are no longer creatures of judicial decision; rather, they are statutorily limited).
F. Witnesses Who May Testify; and Exclusion of Witnesses. Florida Statutes Section 90.601-90.616, Baker v. State, 674 So.2d 199 (Fla. 4th DCA 1996) (Competency of witness to testify is determination left to sound discretion of trial court, and absent abuse of discretion, trial court’s decision will not be disturbed).
G. Expert Witnesses. Florida Statutes Sections 90.701-90.706, State v. DuPont, 659 So.2d 405 (Fla. 2d DCA 1995)(Expert may base opinions on facts which are not necessarily admissible evidence, but expert witness may not be used as a conduit to introduce otherwise inadmissible hearsay).
H. Hearsay. Florida Statutes Sections 90.801-90.806, Peterka v. State, 640 So.2d 59 (Fla. 1994) (Hearsay rule prevents admission of out-of-court statements to prove fact through extrajudicial statements, but out-of-court statement may be admitted for a purpose other than proving truth of matter asserted if statement is relevant to prove a material fact and is not outweighed by any prejudice).
I. Authentication and Introduction of Documents and Photographs. Florida Statutes Sections 90.901-90.954, Mills v. Barker, 664 So.2d 1054 (Fla. 2d DCA 1995) (Authentication or indemnification of evidence is required as condition precedent to its admissibility; evidence may be authenticated either by using extrinsic evidence or by showing that it meets requirements for self-authentication).
J. Public Records. Florida Statutes Section 90.955, Tuten v. Gazan, 18 Fla. 751 (Fla. 1882) (Certified copies of public records and papers lawfully kept in the office of the Secretary of State are admissible without evidence as to the whereabouts of the originals).
II. FLORIDA EVIDENTIARY TRIAL OBJECTIONS
A. AMBIGUOUS. Confusing question in that it is capable of being understood in more than one sense. Fla. Stat. §90.612(1).
B. ARGUMENTATIVE. (a) Counsel’s question is really argument; or (b) excessive quibbling with witness. Fla. Stat. §90.612(1).
C. ASKED AND ANSWERED. Unfair to allow counsel to emphasize evidence through repetition. Fla. Stat. §90.612(1).
D. ASSUMES A FACT NOT IN EVIDENCE. Fact not testified to but contained in the question. Fla. Stat. §90.104(2); 90.612(a).
E. AUTHENTICATION LACKING. Proof must be offered that the exhibit is in fact what it is claimed to be. Fla. Stat. §90.901.
F. BEST EVIDENCE RULE. If rule applies, original document must be offered or its absence accounted for. If contents of document are to be proved, rule usually applies. Fla. Stat. §90.952.
G. BEYOND SCOPE (of direct, cross direct, etc.) Question unrelated to preceding examination by opposing counsel.
H. COMPOUND. More than one question contained in the question by counsel. Fla. Stat. §90.612(1).
I. CONCLUSION. Except for an expert, witness must testify to facts within personal knowledge. Fla. Stat. §90.604; §90.701.
J. CONFUSING AND UNINTELLIGIBLE. Unfamiliar words disjointed phrases or questions confuse facts or evidence. Fla. Stat. §90.612(1).
K. COUNSEL TESTIFYING. Counsel is making a statement instead of asking a question. Fla. Stat. §90.605.
L. CUMULATIVE. Repeated presentation of the same evidence by exhibits or by more witnesses. Fla. Stat. §90.612(1) §90.403.
M. FOUNDATION LACKING. No proper foundation for testimony or exhibit. Fla. Stat. §90.604; §90.612(1).
N. IMPEACHMENT BY IMPROPER MEANS. Methods of impeachment are limited and specific. Fla. Stat. §90.608.
O. IMPROPER CHARACTERIZATION. Counsel’s question or witness’s response has characterized a person or conduct with unwarranted argumentative, impertinent or conclusionary language. Fla. Stat. §90.404-405; §90.612(1).
P. IRRELEVANT. Would not tend to prove or disprove a material fact. Motion to strike may be appropriate. Fla. Stat. §90.401.
Q. LEADING. Form of question tends to suggest answer. Fla. Stat. §90.612(3).
R. MISQUOTING WITNESS. Counsel’s question misstates prior testimony of witness. Fla. Stat. §90.104(2).
S. NARRATIVE. Question is broad or covers such a large time period would allow witness to ramble and preserve hearsay or irrelevant evidence. Fla. Stat. §90.104(2); §90.612(1).
T. OPINION. Lay opinion which beyond the scope permitted by Fla. Stat. §90.701; personal knowledge lacking of expert witness has not been qualified such. Fla. Stat. §90.604; §90.701-702.
U. PREJUDICE OUTWEIGHED PROBATIVE VALUE. The probative value of the evidence is far outweighed by the prejudicial effect of the evidence. Must apply to exhibits as well as testimony. Fla. Stat. §90.403.
V. PRIVILEGED. Answer would violate valid privilege (lawyer-client, husband-wife, clergyman, etc.) Fla. Stat. §90.502-506.
W. SPECULATION AND CONJECTURE. Question allows witness who lacks personal knowledge to guess. Fla. Stat. §90.604, §90.701.
X. UNRESPONSIVE. Answer includes testimony not called for by the question. Especially applicable to voluntary response by hostile witness. Fla. Stat. §90.612(1); §90.104(2).
Y. HEARSAY. The following section Y 1-32 summarizes the relevant portions of the NITA Florida Evidence Code With Objections, 4th Edition handbook, by Davenport and Hirsch.
1. HEARSAY: GENERALLY

Response (Rule 90.801):

• The statement is not being offered for the truth of the matter asserted. Instead, it is offered to show the statement was made. The making of the statement in question is relevant to show:
o The effect on a person who heard the statement, or
o A prior inconsistent statement, or
o An operative legal fact or a verbal act, or
o The knowledge of the declarant.

2. HEARSAY: NON-HEARSAY PRIOR STATEMENTS

Responses (Rule 90.801(2)(a)-(c)):

• The statement is inconsistent with the testifying witness’s trial testimony, and was given under oath at an earlier proceeding or at a deposition, or
• The statement is consistent with the testifying witness’s trial testimony, offered to rebut an express or implied charge of recent fabrication, or improper influence or motive, or
• The statement by the testifying witness is one of identification of a person based on perception.
3. HEARSAY WITHIN HEARSAY

Response (Rule 90.802, 803, 804, 805):

• Both statements are admissible because each either comes within a hearsay exception or is non-hearsay.
4. HEARSAY EXCEPTION: ABSENCE OF ENTRY IN BUSINESS RECORDS

Response (Rule 90.803(6)-(7)):

• A business record exists, pursuant to Rule 90.803(6), and

• The matter not recorded is of a kind for which a record would regularly be made and preserved, and
• The source is trustworthy.
5. HEARSAY EXCEPTION: ABSENCE OF PUBLIC RECORDS OR ENTRY

Response (Rule 90.803(10)):

• A public agency or office regularly makes and preserves records of a particular kind of matter, and
• The document is self-certifying pursuant to Rule 90.902, and
• A diligent but unavailing search of such records failed to disclose a record, report, statement, data compilation, or entry, that no such entry exists.
6. HEARSAY EXCEPTION: ADMISSIONS

Response (Rule 90.803(18)):

• The statement was made by the party opponent, or
• The statement was made by a person and was adopted by the party opponent as the party’s own, and thus, is a vicarious admission of the party opponent, or
• The statement was made by an agent authorized to speak on behalf of a party opponent, and thus, is a vicarious admission of the party opponent, or
• The statement was made by an agent or servant of the party opponent concerning a matter within the scope of the declarant’s agency or employment, and was made during the existence of the declarant’s agency or employment, and thus, is a vicarious admission of a party opponent, or
• The statement was made by a co-conspirator of the party opponent during the course of the conspiracy and in furtherance of the conspiracy, and thus, is a vicarious admission of the party opponent.
7. HEARSAY EXCEPTION: EXCITED UTTERANCE

Responses (Rule 90.803(2)):

• The statement is admissible as an excited utterance pursuant to Rule 90.803(2).
• I have shown through the testimony of (insert name of witness) that the statement relates to a startling event or condition, and was made while the declarant was under the stress or excitement caused by the event or condition.
8. HEARSAY EXCEPTION: FAMILY RECORDS

Responses (Rule 90.803(13):

• This statement is admissible as a family record pursuant to Rule 90.803(13).
• I have shown through the testimony of (insert name of witness) that this is a statement of fact concerning personal or family history, contained in a family Bible, genealogy, or the like.
9. HEARSAY EXCEPTION: FORMER TESTIMONY

Responses (Rule 90.803(22):

• The statement is admissible as former testimony pursuant to Rule 90.804(2)(a).
• I have shown through the testimony of (insert name of witness) that:
 The declarant is unavailable pursuant to Rule 90.804(1), and the statement is testimony given at another hearing of the same or different proceedinig, or in a deposition in the course of the same or a different proceeding, and
 The party against whom it is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

10. HEARSAY EXCEPTION: JUDGMENT OF PREVIOUS CONVICTION

Response (Rule 90.610):

• This statement is evidence of a final judgment entered after a trial or upon a guilty plea adjudging a person guilty of a crime punishable by either death or imprisonment for more than one year or a crime involving dishonesty or a false statement regardless of the punishment.
11. HEARSAY EXCEPTION: MARKET REPORTS AND COMMERCIAL PUBLICATIONS

Response (Rule 90.803(17)):

• This statement is admissible as a market report or commercial publication pursuant to Rule 90.803(17). I have shown the document is a market quotation, tabulation, list, directory, or other published compilation, which is generally used and relied upon by the public or persons in particular occupations.
12. HEARSAY EXCEPTION: MARRIAGE, BAPTISMAL, And SIMILAR CERTIFICATES

Response (Rule 90.883(12):

• This statement is admissible as a marriage, baptismal, or similar certificate pursuant to Rule 90.803(12). I have shown through the testimony of (insert name of witness) that:
o This is a statement of fact contained in a certificate which shows the maker performed a marriage or other similar ceremony, and
o Was made by a clergyman, public official, or other person authorized by law or the practices of a religious organization to perform the act certified, and
o Which purports to be issued at the time of the act or within a reasonable time thereafter.
13. HEARSAY EXCEPTION: PUBLIC RECORDS and REPORTS

Response (Rule 90.803(8)):

• The document is a record, report, statement, or data compilation, of a public office or agency setting forth the activities of the office or agency, or
• The records (etc.) are of a public office or agency setting forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or
• The document is an affidavit containing the results of a test of the defendant’s blood and/or breath to determine its alcohol content.
14. HEARSAY EXCEPTION: RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY

Response (Rule 90.803(14)):

• The statement is admissible as a record of a document affecting an interest in property pursuant to Rule 90.803(14). I have shown through the testimony of (insert name of witness) that this is a record of a public office, and an applicable statute authorizes the recording of documents of that kind in such office.
15. HEARSAY EXCEPTION: RECORDED RECOLLECTION

Response (Rule 90.803(5):

• This statement is admissible as recorded recollection pursuant to Rule 90.803(5). I have shown through the testimony of (insert name of witness) that it is a memorandum of record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable him or her to testify fully and accurately, and was made or adopted by the witness when the matter was fresh in the witness’s memory so as to reflect that knowledge correctly.
16. HEARSAY EXCEPTION: RECORDS OF REGULARLY CONDUCTED ACTIVITY (Business Records)

Responses (Rule 90.803(6):

• Memorandum, report, record or data compilation,
• Recording acts, events, conditions, opinions, or diagnoses,
• Made at or near the time the acts or events took place,
• By or from information transmitted by one with personal knowledge of the event or act,
• Where such record is kept in the course of regularly conducted business activities, and
• It was the regular practice of the business to make such a record.
For computer-generated records, repeat the above steps and add:

• The computer and the program used are generally accepted in the field,
• The computer was in good working order at relevant times, and
• The computer operator possessed the knowledge and training to correctly operate the computer.
17. HEARSAY EXCEPTION: RECORDS OF RELIGIOUS ORGANIZATIONS

Response (Rule 90.803(11)):

• This statement is admissible as a record of a religious organization pursuant to Rule 90.803(11). I have shown through the testimony of (insert name of witness) that the statement is one of personal or family history, and is contained in a regularly kept record of a religious organization.

18. HEARSAY EXCEPTION: RECORDS OF VITAL STATISTICS

Response (Rule 90.803(9)):

• This out-of-court statement is admissible pursuant to Rule 90.803(9) as a record of a vital statistic in that it is a record regarding a vital statistic which records a report made to a public official required by law to keep such record.
19. HEARSAY EXCEPTION: REPUTATION AS TO CHARACTER

Response (Rule 90.803(21)):

• This statement is relevant because it is admissible as reputation as to character pursuant to Rule 90.803(21). I have shown through the testimony of (insert name of witness) that this is a statement of reputation of a person’s character within the witness’s community.
20. HEARSAY EXCEPTION: REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY

Response (Rule 90.803(20)):

• This statement is admissible as a statement of reputation concerning boundaries or general history pursuant to Rule 90.803(20). I have shown through the testimony of (insert name of witness) that:
o This statement is a statement of reputation concerning boundaries in a community,
o Arising before the controversy, as to boundaries of, or customs affecting, lands in the community, or
o As to events of general history important to the community or state of nation in which located.
21. HEARSAY EXCEPTION: REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY

Response (Rule 90.803(19)):

• The statement is admissible as a statement of reputation concerning personal or family history pursuant to Rule 90.803(19). I have shown through the testimony of (insert name of witness) that this is a statement of reputation among family members of one’s family, (or among one’s associates, or in the community) concerning a person’s adoption, birth, marriage, divorce, death, legitimacy, relationship by blood, adoption or marriage, ancestry, or other similar fact of personal or family history.
22. HEARSAY EXCEPTION: REQUIREMENT OF UNAVAILABILITY FOR RULE 90.804 HEARSAY EXCEPTIONS

Response (Rule 90.804(1)-(2)):

• The out-of-court statement meets (insert the appropriate Rule 90.804(1) description).
• The declarant is unavailable because declarant:
o Is exempted from testifying concerning the subject of the statement by ruling from the court on the ground of privilege, or
o Persists in refusing to testify concerning the subject of the statement despite a court order to do so, or
o Testifies to a lack of memory on the subject of the statement, or
o Is unavailable to testify at the hearing because of death or illness, or
o Is absent from the hearing and I have been unable to procure his or her attendance through process or other means.

23. HEARSAY EXCEPTION: SPONTANEOUS STATEMENT

Response (Rule 90.803(1)):

• This statement is admissible as a spontaneous statement pursuant to Rule 90.803(1). I have shown through the testimony of (insert name of witness) that the statement describes or explains an event or condition, and was made while the declarant was perceiving the event or condition, or immediately thereafter.
24. HEARSAY EXCEPTION: STATEMENT AGAINST INTEREST

Response (Rule 90.804(2)(c)):

• This statement is admissible as a statement against interest pursuant to Rule 90.804(2)(c). I have shown through the testimony of (insert name of witness) that the statement was made by a declarant who is now unavailable pursuant to Rule 90.804(1), and
o Was at the time of its making, so far contrary to the declarant’s pecuniary or proprietary interest, or
o So far tended to subject the declarant to criminal or civil liability, or
o To render invalid a claim by the declarant against another, and
o That a reasonable person in the declarant’s position would not have made this statement unless he or she believed it to be true, and
o (If the statement tends to expose the declarant to criminal liability and is offered to exculpate the accused) corroborating circumstances clearly indicate the trustworthiness of the statement.

25. HEARSAY EXCEPTION: STATEMENT IN ANCIENT DOCUMENTS

Response (Rule 90.803(16)):

• This statement is admissible as a statement contained in an ancient document pursuant to Rule 90.803(16). I have shown through the testimony of (insert name of witness) that the statement is contained in a document in existence twenty years or more, the authenticity of which is established.
26. HEARSAY EXCEPTION: STATEMENT OF CHILD VICTIM

Response (Rule 90.803(23)):

• This statement is admissible as a statement of a child victim under Rule 90.803 (23). The child is 11 years old or younger and the statement describes child abuse or neglect. Notice has been given to the defendant of at least ten (10) days and the court has held a hearing outside the jury’s presence on the admissibility of the statement.
27. HEARSAY EXCEPTION: STATEMENT IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY

Response (Rule 90.803(15)):

• This statement is admissible pursuant to Rule 90.803(15) as a statement in a document affecting an interest in property. I have shown through the testimony of (insert name of witness) that:
o The statement is contained in a document purporting to establish or affect an interest in property.
o That the matter stated was relevant to the purpose of the document, and
o That dealings with the property since the document was made have not been inconsistent with the truth of the statement or the purpose of the document.

28. HEARSAY EXCEPTION: STATEMENT OF PERSONAL OR FAMILY HISTORY

Response (Rule 90.804(2)(d)):

• The statement is admissible as a statement of personal or family history pursuant to Rule 90.804(2)(d). I have shown through the testimony of (insert name of witness) that:
o The declarant is now unavailable pursuant to Rule 90.804(1), and the statement concerns the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated.
29. HEARSAY EXCEPTION: STATEMENT FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT

Response (Rule 90.803(4)):

• This statement is admissible as a statement for purposes of medical diagnosis or treatment pursuant to Rule 90.803(4). I have shown through the testimony of (insert name of witness) that the statement was made:
o For purposes of medical diagnosis or treatment, and was made for describing medical history, or
o For describing past or present symptoms, pain, or sensations, or
o For describing the inception or general character of the cause or external source thereof and was reasonably pertinent to diagnosis or treatment.
30. HEARSAY EXCEPTION: STATEMENT UNDER BELIEF OF IMPENDING DEATH

Response (Rule 90.804(2)(b)):

• The statement is one made under belief of impending death pursuant to Rule 90.804(2)(b). I have shown through the testimony of (insert name of witness) that the statement:
o Was made by a declarant who is now unavailable pursuant to Rule 90.804(1), and
o Is offered in a criminal or civil action or proceeding, and
o Was made by a declarant while believing that his or her death was imminent, and
o Concerns the cause or circumstances of what the declarant believed to be his or her impending death.
31. HEARSAY EXCEPTION: THEN-EXISTING MENTAL OR EMOTIONAL CONDITION

Response (Rule 90.803(3)):

• This statement is admissible as a statement of a then-existing mental or emotional condition pursuant to Rule 90.803(3). I have shown through the testimony of (insert name of witness) that the statement:
o Is of the declarant’s then-existing state of mind, emotions, or sensation, and
o It is offered to prove the declarant’s state of mind or emotion which is at issue, or
o It is offered to prove or explain acts of subsequent conduct of the declarant, and
o It does not include a statement of after-the-fact memory or belief offered to prove the fact remembered or believed, or
o Even though it is a statement of memory or belief, it relates to the execution, revocation, identification, or terms of declarant’s will.
32. HEARSAY EXCEPTION: THEN-EXISTING PHYSICAL CONDITION

Response (Rule 90.803(3)):

• This statement is admissible as a statement of a then-existing physical condition pursuant to Rule 90.803(3). I have shown through the testimony of (insert name of witness) that the statement:
o Is of the declarant’s then-existing physical condition, and
o It is offered to prove the declarant’s physical sensation which his at issue, or
o It is offered to prove or explain acts of subsequent conduct of the declarant, and
o It does not include a statement of after-the-fact memory or belief offered to prove the fact remembered or believed, or
o Even though it is a statement of memory or belief, it relates to the execution, revocation, identification, or terms of declarant’s will.
III. IMPEACHMENT OF A WITNESS

One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements. This results in embarrassing situations for those attorneys. This section describes the proper method to impeach witnesses on the stand by the use of depositions and inconsistent statements.
A. Depositions
When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the depositions given before trial. You should then ask the following questions:
1. Do you remember having had your deposition taken on (state the date)?
2. Do you remember that a court reporter was present at your deposition?
3. Do you remember having been sworn in to tell the truth?
4. Did you tell the truth on that date?
5. (if applicable) Do you remember having your attorney present at your deposition?
After you have set the foundation for the impeachment, then you should ask the witness the following question: “Do you remember having been asked the following question and your giving the following answer.” At this point, you should read the question previously asked and the answer given by the witness in the deposition.
B. Use Of Inconsistent Statements In Documents
A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement, letter, etc. The trial attorney should first highlight the inconsistent trial testimony that will be impeached. Next, the lawyer should identify and authenticate the document that will show the inconsistent statement given by the same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:
1. Do you remember having given a statement to (person) regarding how the accident occurred?
2. Did you give that statement freely?
3. Who was present when you gave your statement?
4. When was the statement given?
The witness should then be shown the exhibit and asked the following question:
I show you what has been marked as Plaintiff’s Exhibit “A” for identification. Is this a copy of your sworn statement?
Finally, read the relevant portion of the statement that directly contradicts the trial testimony of the witness.
Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages, lose momentum, or lose control of the witness.
There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most “dangerous” witness at trial.
IV. IMPEACHMENT WITH AUTHORITATIVE TREATISES

An effective way of cross-examining expert witnesses is through the use of an authoritative treatise. This method of cross-examination is specifically authorized by Fla. Stat. Sect. 90.706 which states:
Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

The first step towards using a treatise for cross-examination is to establish the foundation for its authority. This is accomplished by either having the expert witness, another expert in the case, or the Court recognize the author of the treatise, periodical, book, dissertation, pamphlet, or other writing in question to be authoritative. Myron v. Doctors General Hospital, Ltd., 23 Fl. L.W. D105, D109 (Fla. 4th DCA 1997). Factors that the Court may consider in making its determination include the sworn statements of the other experts in the case that the materials are authoritative. Kirkpatrick v. Wolford, 23 Fl. L.W. D166, D167 (Fla. 5th DCA 1997); Chesterton v. Fisher, 655 So.2d 170 (Fla. 3d DCA 1995). You need not prove by a preponderance of the evidence that the literature is indeed authoritative. Kirkpatrick, 23 Fl. L.W. at 167. When the Court finds competent evidence that the materials are authoritative it should permit their use. Id.
In preparing for trial, you should read all articles, books, and journals that are related to your opposing expert’s field. Effective research will likely produce published positions from authoritative sources that are contrary to the opposing expert’s position. Also, making use of your own expert as a valuable resource in obtaining materials will ease the preparation necessary for the cross-examination of your opposing expert.
V. DOCUMENTARY EVIDENCE

Before documentary evidence may be introduced, certain foundations must be established. You may have the best “proof” in the world, but if it is not admitted evidence, it might as well not exist at all.
Regardless of the type of evidence, whether records, bills, photographs, letters, diagrams, or charts, you must lay the proper foundation before the documents may be introduced as evidence. This article offers some suggestions on how to establish the proper foundation for the admission of different types of evidence.
A. Business Records:
1. You should ask the following questions in order to lay the foundation for business records to be admitted into evidence and considered an exception to the hearsay rule:
a. Are you familiar with Exhibit “A” (business records) for identification?
b. Is it your company’s business practice to prepare these types of records?
c. Were these records prepared in the ordinary scope of the business of your company?
d. Were they prepared by someone with knowledge?
e. Were they prepared at or about the time the matters reflected in the records occurred?
f. Were these documents stored after they were prepared?
g. Where were these documents retrieved from?
h. Is it a regular part of your business to keep and maintain records of this type?
i. Are these documents of the type that would be kept under your custody or control?
j. Move the documents into evidence.
2. See Fla. R. Evid. §90.803(6).
B. Tape Recordings:
1. You should ask the following questions in order to lay the foundation for tape recordings to be admitted into evidence:
a. Have you had the opportunity to hear the voice of Mr. X before?
b. How many times have you heard his voice?
c. Tell us how you are familiar with Mr. X’s voice?
d. Have you heard the recording marked as Exhibit “B” for identification?
e. Do you recognize the voice?
f. To whom does the voice belong?
g. Move the recording into evidence.
C. Photographs:
1. You should ask the following questions in order to lay the foundation for photographs to be admitted into evidence:
a. I am showing you what has been marked as Exhibit “C” for identification. Do you recognize what is shown in this photograph?
b. Are you familiar with the scene (person, product, etc.) portrayed in this photograph?
c. How are you familiar with the scene portrayed in the photograph?
d. Does the scene portrayed in the photograph fairly and accurately represent the scene as you remember it on (date in question)?
e. Move the photograph into evidence.
D. Authenticating a Letter:
1. You should ask the following questions in order to authenticate a letter:
a. Are you familiar with the signature of Mr. Smith (person who signed the letter)?
b. How are you familiar with Mr. Smith’s signature?
c. Show the witness what has been marked Exhibit “D” for identification.
d. Do you recognize the signature at the bottom of this letter?
e. Whose signature is this?
f. Move the letter into evidence.
E. Diagrams:
1. You should ask the following questions in order to lay the foundation for diagrams to be admitted into evidence:
a. I am showing you what has been marked as Exhibit “E” for identification. Are you familiar with the area located at 16th Street and 12th Avenue in Dade County, Florida?
b. How are you familiar with this area?
c. Based on your familiarity with the area, can you tell us whether the scene depicted in this diagram fairly and accurately represents the area as you recall it on the date in question?
d. Move the diagram into evidence.
F. Refreshing Recollection:
1. To refresh an individual’s memory on a particular matter, you should first establish that the witness does not remember that matter. Then ask the following questions?
a. Did you at some time remember this?
b. Did you at any time prepare a document setting out what happened?
c. Would a review of this document assist you in remembering the matters that we are concerned about today?
d. I am handing you what has been marked Exhibit “F” for identification.
e. Please review it and tell me if it helps you to remember.
f. Does that document refresh your recollection?
g. Do you now have an independent recollection of the facts?
h. Tell us what happened.
G. Authenticating Handwriting in a Document:
1. You should ask the following questions in order to authenticate a handwritten document:
a. Are you familiar with the handwriting of Mr. Smith?
b. How are you familiar with Mr. Smith’s handwriting?
c. I show you what has been marked Exhibit “G” for identification.
d. Do you recognize the handwriting in this document?
e. To whom does it belong?
f. Move exhibit into evidence.
2. If you are “stuck” in attempting to introduce documentary evidence at trial and do not remember how to do it, just recall the basic steps necessary to establish an evidentiary foundation:
a. Show that the witness is familiar with the document that you are attempting to admit into evidence.
b. Have the witness authenticate the document.
c. Establish that the document is what it purports to be.
d. Demonstrate the document’s relevance to the case.
e. After you have accomplished the above steps, chances are that you have laid the proper foundation for the exhibit to be admitted into evidence. You should then boldly offer it as your next exhibit in the case.
Many experienced attorneys often stumble at trial when attempting to admit documents into evidence. It is important to review the necessary foundation before starting trial so that your presentation will go smoothly. You may consider putting a copy of this article in your notebook to refresh your recollection as needed.
VI. CONCLUSION
To be truly in control in trial, you must learn to master the Rules of Evidence. Once you learn how to effectively use the Rules of Evidence, you will be empowered in the courtroom and will be able to enjoy the confidence of knowing that you are able to take on any evidentiary challenge.

Trial Organization

One of the most important goals a trial attorney should have been the presentation of his or her case in a clear and orderly manner so that it may be easily understood by the jury. A trial attorney should strive to appear organized, in control, well prepared, and familiar with all aspects of the case. This is only possible if the organizational framework is created early in the litigation and well before the actual trial date. Every stage of the trial should be planned and organized several months earlier and the best way to do this is with a trial organizational system. There are two types — a trial notebook or trial folder — and they enable the trial lawyer to properly separate, outline and arrange all aspects of the case.

The first step is to create and develop a theme for the case. This is the central story or principle around which the case must develop and which will be supported by the witnesses and evidence. To that end, the trial attorney should prepare an outline establishing the theme of the case and setting out how the theme will be proven during trial. This outline should identify what witnesses and documents will be used, what issues will be addressed, and what will ultimately be proven at trial. Create a section in the trial notebook or folder system that includes the theme of the case as the first entry.

Next, prepare an “order of proof outline” which will set out the expected progression of the trial. Include the order in which each witness will be called to testify, as well as the documentary evidence that will be introduced at trial. The order of proof should identify all documents that will be introduced and should also describe how and through which witnesses the documents will be introduced. The order of proof outline should be flexible, inasmuch as the order of witnesses’ testimony may vary; nevertheless, the exercise of planning out how and when the evidence will be presented to the jury is very important.

The trial notebook or folder system should include sections with outlines for voir dire/jury selection, opening statement, direct examination for each witness, cross examination for opposing witnesses, legal research, motions in limine, jury instructions, verdict forms, and closing arguments divided by each issue relevant to the case. Each section should be separately divided within the trial notebook or folder system.

The jury selection section should contain a basic outline of the types of questions you intend to ask in order to select a fair and impartial jury. It should include a diagram of the jury box so that you may include the jurors’ names and comments about each prospective juror.

The opening statement and closing argument sections should include concise outlines laying out what will be said and in what order. These outlines will guide you in presenting the opening and closing. Try not to read from the outlines since reading will detract from the quality of your presentation.

The witness sections of your organization system should include an examination outline for each witness. These outlines will refer you to areas that you will cover during questioning. Direct examination outlines should generally highlight the key answers that are sought during questioning. The cross examination outline should pinpoint the specific areas of questioning where leading questions will be used to attack the witness’ credibility and/or testimony. Additionally, the witness sections should include copies of the documentary evidence that will be introduced or discussed with each witness, so that the document may be at your fingertips when needed.

The motions in limine section should contain the actual motions that you will argue at trial as well as relevant case law and statutes. Similarly, the legal research section should contain relevant case law, statutes, and memoranda on relevant issues in the trial. In your trial organizational plan, you should arrange documentary evidence chronologically in the order in which you intend to introduce them at trial. This will allow you to find what you are looking for when you need it. Having a document that you cannot find during trial is the same as not having the document at all.

You should also keep in mind that the trial organizational plan should help prove your theme of the case. The plan should contain everything that you need to successfully present your case.

During the trial, keep your counsel table clear except for a rule book, a legal pad, pen, and the particular notebook section or folder that pertains to that part of the trial that you are handling at a given time. You should not have books, papers, and pens thrown all over the table. This will send the wrong message to the jury. If you limit the materials on the counsel table to a specific folder and note pad, you are sending a clear message to everyone in the court that you are prepared, organized, and in control of the situation.

Using this system will force you to prepare properly for trial. You should adopt and incorporate an organizational plan into pretrial preparation. This will allow you to be better prepared, organized, and in control of your case.

Jury Selection

The Modern Jury Selection Philosophy

The purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial lawyers and recommended by jury psychologists throughout the country. The days of asking the prospective jury panel several limited, leading questions about their ability to follow the law and to be fair and unbiased are gone. The current jury selection process requires an open-ended, free discussion with the potential jury members about their feelings, life experiences, and opinions regarding the major issues in the case.

Voir Dire Goals

Jury psychologists have confirmed that the jurors come into the courtroom with preconceived opinions affecting the way they will view the case. These opinions have been formed as a result of their life experiences. Attitudes that stem from life experiences will probably not change despite excellent legal arguments. Accordingly, your primary goal in jury selection should be to properly screen the panel to determine which potential jurors are prejudiced against your case and your client. This will allow you to eliminate the problem jurors.

Your second goal should be to educate the potential jury on the issues in the case. This will allow you to determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors, because of their personal experiences, are better suited to sit on certain juries than others. For example, if one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous crimes, she may not be well suited to judge a case involving conversion.

In educating the jury, incorporate your case theme into your voir dire and introduce it at the first logical opportunity. Define the main issues that will be considered during the trial.

Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely honest with them. This also takes away the “shock” value of the problems with your case when your opposition raises it.

Your third jury selection goal should be to establish rapport with the jury. This will be the only time where the jury will be able to interact and speak with you. Use a conversational tone when addressing the jury. Make sure that your body language is sending the right message. Try to keep your hands out of your pockets. Prevent crossing your arms or rolling your eyes at any potential juror’s response. This type of body language may be interpreted by the jury members as an attack upon them.

Use The Open Forum Approach

In order to maximize the chances of achieving an open, honest discussion with the prospective jury, ask open-ended questions. The old voir dire questions that simply require the jury to follow along nodding their heads and saying “yes, we will be fair,” “no, we will not discriminate,” “yes, we will follow the law,” should be thrown away. Instead, approach jury selection as an open forum for discussion about the issues that will be presented in the case. Use the selection process to probe the jury’s feelings regarding those issues. Make sure to ask the jury how they feel about the matters raised. Find out what their personal feelings are.

Remind the jurors that there are no right or wrong answers in voir dire. Explain that you are seeking candid and complete responses. Encourage the jury to speak openly about their feelings and sincerely thank them when they are honest with you, even when you do not agree with them.

Do not be afraid that a potential juror will contaminate the rest of the panel by answering your questions in such a negative way that it will pollute the entire panel. You want to hear how the juror really feels about the things that will be addressed in the trial before that juror is actually empaneled. Make sure to allow the jurors to do the talking. This will be your only opportunity to hear what the jury has to say. You will be doing the talking the rest of the trial. Learn to become a very good listener when it comes to voir dire.

Once a juror candidly states his or her position on a matter, ask the rest of the panel, “How many of you agree with that juror?” Have the jurors that agree raise their hands, and then have them each explain what they believe. By going through this process, you will identify all jurors that have strong feelings about the important aspects of your case. You will then be able to ask the necessary questions to have the biased, prejudiced, or inappropriate potential jurors eliminated for cause without having to use one of your precious peremptory strikes.

To put yourself in the proper state of mind for this type of open forum jury selection, visualize yourself as a talk-show host discussing important matters that will be coming up in the show with the audience before the show begins. The discussion should invite the audience to comment about the topics that will be considered on the show. Go from audience member to audience member reinforcing the issues and seeking their opinions and beliefs.

Determine which audience members raise their hands, talk the most, and seem most informed. Take note of who looks mad, who looks at peace. Evaluate all of this information before exercising your peremptory strikes on the audience.

The Presentation

You will probably be somewhat nervous in the beginning of your voir dire. This is normal. If you are feeling exceptionally nervous, admit it, and explain that you are feeling nervous because the case is very important to your client. By being honest with the jury, you will give them an opportunity to reciprocate and be honest with you.

Consider using an outline that has all the key points you wish to discuss with the jury. This will prevent you from reading to them. Try not to deliver your entire voir dire presentation from behind the podium. Instead, use the podium only when you need to review your outline. The rest of the time, you should have nothing that is physically between you and the jury. Maintain a safe distance from the jury so that they do not feel that you are encroaching upon their space.

Many experienced trial attorneys and judges recommend that attorneys memorize the jurors’ last names before they address them. This is certainly very impressive. Nevertheless, if you feel you are too nervous, or you are unable to memorize all potential jurors’ last names before questioning them, create a chart where you place each juror’s name in the box that corresponds to the seat he or she has in the jury panel. This will allow you to look down occasionally at your jury chart and determine the correct name for each juror.

Trust your gut feeling. Many times, you will look at a juror and, for whatever reason, feel that you are not comfortable with that potential juror. Chances are good that the juror is not feeling comfortable with you, either. In that case, strongly consider using one of your peremptory strikes to eliminate that potential juror from being a decisionmaker in your case.

Jury selection is very challenging. During voir dire, you must ask proper questions, be a good listener, take note of relevant answers, keep track of what every juror said, evaluate the jurors’ body language, notice how the jurors interact with each other, consider how the jurors act towards your client, and then evaluate who may be the most dangerous to keep on the panel. Once that is complete, you must then prepare challenges for cause, decide who you will strike using your peremptory challenges, and preserve the record for appeal. Needless to say, jury selection requires proper preparation and thorough execution. Take whatever time is necessary to prepare physically and mentally to conduct a proper voir dire examination using the modern method of questioning. This will greatly increase the likelihood of your deselecting the right jury.

Assistance with Jury Selection

Always have someone assisting you in the jury selection process. Consider using an associate, paralegal, secretary, or friend to sit in the audience taking notes about how the jury reacts to you, your client, and the questions that you are asking. It may be difficult for you to evaluate the entire panel when you are questioning a particular juror. By having another person assisting you in observing the jury, you will be able to monitor the entire panel’s response and reaction to your questions.

Make sure to confer with your co-counsel or assistant before you move to strike a potential juror for cause or before you use your peremptory strikes. Speak with your client about his or her feelings regarding the jury. Many times a client will have strong feelings for or against individuals that you should take into consideration before making your final decision to exclude certain individuals from the jury.

Conclusion

Use the modern method of jury selection to improve your success rate at trial. Make sure to prepare for jury selection as thoroughly as you would for an opening statement or closing argument. By taking the voir dire selection process seriously, you will greatly enhance your performance in jury selection.

Opening Statement

A good opening statement paves the way for a successful trial. It represents the attorney’s first opportunity to persuade the jury in the client’s favor. A trial attorney should develop the entire case during the opening and show that the evidence will prove that his or her client should win the case. Many have described the opening as the most important part of the case.

First and foremost, prepare your opening so that it tells a complete and interesting story. Do your best to avoid a bland, boring discussion of what the evidence will show. The opening should be “alive,” well organized, and persuasive. The theme of the case should be clearly and concisely presented. Highlight who the important witnesses are and what they will say. Further, you should identify the important documents and demonstrate what they will prove.

Demonstrative evidence should be used during the opening. This will greatly increase the jury’s understanding of what the evidence will actually show. Moreover, it directs the jury’s attention to important evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of contract case, you should blow up the relevant portion of the contract around which the dispute developed. Show that portion of the contract to the jury and read it to the jury during the opening statement. The opposition has no valid basis to object to your doing this provided that the portion of the contract that you are showing to the jury will be accepted in evidence.

In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the incident occurred and what injuries were sustained by your client. Use the charts to explain the complex engineering and medical terms that will be heard throughout the case.

The opening is limited to what the evidence will show. It cannot be argumentative; however, this does not mean that you are prohibited from being interesting, persuasive or from having a little fun during your presentation. Quite the contrary, a successful opening statement should be entertaining and should leave the jury with a feeling that you are right and that your client should win. Deliver the opening with enthusiasm and conviction. Use rhetorical questions to make the jury think about your case. Bring the key issues in the case to the forefront by placing the jury in the controversy through the use of descriptive words and well-developed thoughts by painting a verbal picture of your case.

Fully develop the players in the case. Tell the jury who your clients are and what they are all about. Develop their personalities so that the jury will get to know them and understand them.

In organizing the opening statement, remember that jurors tend to remember best what they hear first and last. Thus, present the strongest evidence in that order. Near the end of your presentation, make statements that will leave the jury with an understanding of what your clients have gone through and what the jury may do to remedy the situation.

The opening statement should also be used to introduce the weak portions of your case and to defend against your opponent’s case. This will take the wind out of the opposition’s sail and will enhance your credibility because you are being open and honest with the jury. Use the opening to expose your opponent’s weaknesses. If you know that your opposition will call a witness whose credibility is questionable, you should mention the credibility problems during the opening. Once the tainted witness takes the stand, the jury will be ready to question the validity of that witness’s testimony even before your cross-examination begins. The “defensive” aspect of your opening statement should be sandwiched in the middle of your opening and should not take up more than 10% of your presentation.

If possible, move away from the podium and try to talk to the jury as if you were speaking to a group of friends. This will allow you to speak more freely, openly and relaxed. Do not read your opening. Use as few notes as possible. The opening statement should not resemble a scientific or academic forum. Speak to the jury about your case using easy to understand language.

The opening statement is one of the most crucial aspects of the trial. Accordingly, it should be fully developed and adequately prepared. Do not rush through the opening. Instead, speak in a manner that is relaxed, easy to understand, entertaining, and persuasive. A great opening statement may not win the case by itself; however, it will certainly set the stage for a successful verdict.

Trial Foundations

In order to succeed in cases, trial attorneys must present documentary evidence at trial. Before this type of evidence may be introduced, certain evidentiary foundations must be established. A lawyer may have the best “proof” in the world, but if it is not admitted into evidence, it will be of no use.

Regardless of the type of evidence, whether records, bills, photographs, letters, diagrams, or charts, a lawyer must lay the proper foundation before the documents may be introduced at trial as evidence.

Business Records:

You should ask the following questions in order to establish the foundation for business records to be admitted into evidence and be considered an exception to the Hearsay Rule:

Are you familiar with Exhibit “A” (business records) for identification?
Can you identify these documents?
Were these documents prepared in the ordinary scope of the business of your company?
Where are these documents stored after they are prepared?
Where were these documents retrieved from?
Is it a regular part of your business to keep and maintain records of this type?
Are these documents of the type that would be kept under your custody or control?

Move the documents into evidence. See Fla.R.Evid. § 90.803(6).

Tape Recordings:

You should ask the following questions in order to establish the foundation for tape recordings to be admitted into evidence:

Have you had the opportunity to hear the voice of Mr. X before?
How many times have you heard his voice?
Tell us how you are familiar with Mr. X’s voice?
Have you heard the recording marked as Exhibit “B” for identification?
Do you recognize the voice?
To whom does the voice belong?

Move the recording into evidence.

Photographs:

You should ask the following questions in order to establish the foundation for photographs to be admitted into evidence:

I am showing you what has been marked as Exhibit “C” for identification. Do you recognize what is shown in this photograph?
Are you familiar with the scene (person, product, etc.) portrayed in this photograph?
How are you familiar with the scene portrayed in the photograph?
Does the scene portrayed in the photograph fairly and accurately represent the scene as you remember it on (date in question)?

Move the photograph into evidence.

Authenticating a Letter:

You should ask the following questions in order to establish the foundation for a letter to be admitted into evidence:

Are you familiar with the signature of Mr. Smith (person who signed letter)?
How are you familiar with Mr. Smith’s signature?
Show the witness plaintiff’s Exhibit “D” for identification.
Do you recognize the signature at the bottom of this letter?
Whose signature is it?

Move the letter into evidence.

Diagrams:

You should ask the following questions in order to establish the foundation for diagrams to be admitted into evidence:

I am showing you what has been marked as Exhibit “E” for identification. Are you familiar with the area located at 16th Street and 12th Avenue in Dade County, Florida?
How are you familiar with this area?
Based on your familiarity with the area, can you tell us whether the scene depicted in this diagram fairly and accurately represents the area as you recall it on the date in question?

Move the diagram into evidence.

Refreshing Recollection:

To refresh an individual’s memory on a particular matter, you should first establish that the witness does not remember something. Then ask the following questions:

Did you at sometime remember this?
Did you at anytime prepare a document setting out what happened?
Would a review of this document assist you in remembering the matters that we are concerned about today?
I am handing you Exhibit “F” for identification.
Please review it and tell me if it helps you to remember.
Does that document refresh your recollection?
Do you now have an independent recollection of the facts?
Tell us what happened.

Authenticating Handwriting in a Document:

You should ask the following questions in order to establish the foundation for a handwritten document to be admitted into evidence:

Are you familiar with the handwriting of Mr. Smith?
How are you familiar with Mr. Smith’s handwriting?
I show you Plaintiff’s Exhibit “G” for identification.
Do you recognize the handwriting in this document?
To whom does it belong?

Move exhibit into evidence.

If you are “stuck” in attempting to introduce documentary evidence at trial and do not remember how to do it, just recall the basic steps necessary to establish an evidentiary foundation.

Show that the witness is familiar with the document that you are attempting to admit into evidence.

Have the witness authenticate the document.

Establish that the document is what it purports to be.

Demonstrate the documents relevance to the case.

After you have accomplished the above steps, chances are that you have laid the proper foundation for the exhibit to be admitted into evidence. You should then boldly offer it as your next exhibit in the case.

Demonstrative Evidence

Since the days of “show & tell”, demonstrative evidence has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone. Accordingly, demonstrative evidence should be used at trial to give the jury a better understanding of your case. The use of demonstrative evidence usually grabs the jury’s attention and often has them sitting at the edge of their seats when things like models and objects are being shown.

Demonstrative evidence consists of trial exhibits that are admitted in evidence or visual aids that will not be entered in evidence, but are simply used by a witness or by the lawyer to explain matters that are relevant to the trial. Demonstrative evidence includes models, medical devices, diagrams, photographs, sketches, and objects at issue, as well as a variety of other items.

Before a demonstrative exhibit may be used at trial, a witness should establish that the exhibit resembles and is substantially the same as the object or area in question. If using a model, make sure that it fairly and accurately represents the original and that it has been built to scale. You will need to establish this at trial before the use of the exhibit is allowed. This predicate must often be established through expert testimony. A witness intending on using an exhibit as an aid should first explain that the use of the exhibit will facilitate the presentation of the testimony to the jury. Pursuant to Florida Rule of Evidence, §90.901, “authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Thus, demonstrative exhibits must constitute an accurate and reasonable reproduction of the objects or matters involved in the actual case. Brown v. State of Florida, 557 So.2d 527 (Fla. 1st DCA 1989).

Before a demonstrative exhibit will be allowed to be shown to the jury, it must first be established by a witness that the model is a reasonably exact reproduction or replica of the object involved, that when viewed by the jury it causes them to see substantially the same object or scene as the original in question. Alston v. Shiver, 105 So.2d 785, 791 (Fla. 1958).

If a witness is not able to state that the demonstrative exhibit is in substantially the same condition and appears substantially the same as the object in trial, then such a deficiency will be fatal to the admissibility of the demonstrative exhibit and the court will generally not allow the exhibit to be used during trial. Gencorp, Inc. v. Wolfe, 481 So.2d 109, 111 (Fla. 1st DCA 1983).

If a trial attorney is attempting to keep an exhibit from being entered into evidence, the argument that should be made is that the exhibit does not truly and accurately portray what it purports to portray. Additionally, a trial attorney may argue that the exhibit is not necessary to assist the witness in explaining his/her testimony to the jury. Finally, if the model is of the type that may mislead the jury or cause confusion or undue prejudice, then a motion pursuant to Florida Rule of Evidence, §90.403, may be made that the probative effect of the model is greatly outweighed by its prejudice.

The determination as to whether an exhibit accurately represents the object or area in the case, is a matter decided by the trial court. Whether to allow the use of a demonstrative exhibit is a matter strictly within the trial court’s discretion. Brown v. State of Florida. 557 So.2d 527 (Fla. 1st DCA 1989); Federal Savings & Loan v. Wylie, 46 So.2d 396 (Fla. 1950).

A trial attorney who does not use demonstrative exhibits during trial is at a great disadvantage because chances are the other side will effectively use them. Demonstrative exhibits help to bring the case alive and keeps the jury interested and focused on what is being presented. Demonstrative exhibits should be used anytime the opportunity arises.

Photographs

A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel, and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful pieces of evidence. After all, “one photograph is worth a thousand words.” Before a photograph may be used at trial, it must first be admitted in evidence.

Photographs are admissible in civil trials if they are relevant. For a photograph to be deemed relevant, a trial attorney must argue that the photograph tends to prove or disprove a material fact in the case. See, Fla.R.Civ.Pro. Rule 90.401 and Fla.R.Evid. §90.401. Nevertheless, before a photograph is admitted into evidence, it must first be authenticated; thus, the proper foundation must be established.

Contrary to the belief of many practicing attorneys, the photographer does not need to be called as a witness before a photograph may be allowed into evidence. All that is necessary, is that a witness with knowledge, testify that the photograph fairly and accurately represents the condition, product, person or scene that it depicts. City of Miami v. McKorkle, 199 So.2d 575 (Fla. 1940). Once the witness authenticating the photograph establishes that the photograph correctly and accurately depicts what the witness has previously seen, then the photograph is admissible. If more than one photograph is shown to the witness for purposes of authentication, the lawyer must ask the witness to identify and authenticate each photograph before showing the photographs to the jury.

If the photograph was taken long after the incident in question, this does not mean that the photograph is inadmissible; however, the witness must establish that the conditions depicted in the photograph did not change from how they appeared at the time at issue. If the conditions in the photograph depict something different than what appeared at the time in question, then the photograph may be declared inadmissible if it lacks probative value as a result of the changes, or if the probative value is out-weighed by prejudice to the jury. Pensacola Inn, Ltd. v. Tuthill, 404 So.2d 1173 (Fla. 1st DCA 1981).Questions regarding who took the photograph, how it was taken, from what angle it was shot, what the lighting was like, the film quality and other matters do not go towards the admissibility of the photograph. Those matters are directed towards the weight and credibility of the evidence offered. Those types of questions are proper subjects for cross-examination. Channewacker v. City of Jacksonville Beach, et al., 419 So.2d 308 (Fla. 1982).

Gruesome photographs showing grotesque scenes, severely injured and bloody people, and other potentially offensive depictions are generally admissible on the same grounds as photographs depicting other matters if they are relevant. See Wilson v. State, 436 So.2d 908 (Fla. 1983). Gruesome photographs are admissible if they truly and accurately depict a material fact in question at the trial. Id. For example, the cause of death, the type of injury, the location of injury, the extent of injury, and the intent of the defendant among other related things. See Lewis v. State, 566 So.2d 270 (Fla. 2d DCA 1990).

Nevertheless, pursuant to Fla.R.Civ.Pro. Rule 90.403 and Fla.R.Evid. 403, a defendant may move to exclude a gruesome photograph on the basis that its probative value is greatly out- weighed by prejudice to the defendant. If it appears that the only reason the photograph is being used is to inflame, shock, or excite the jury, then the photograph should be excluded as more prejudicial than probative. Lewis, 566 So.2d at 272; Also See, Gore v. State, 475 So.2d 1205 (Fla. 1985).

Evidentiary photographs are extremely effective tools that will greatly assist the trial attorney in presenting his case. In order to ensure the admission of the desired photographs in evidence, the lawyer should decide early in the legal proceedings what photographs he intends to use during the trial, what order he intends on introducing them, and what witnesses will authenticate the photographs. The trial practitioner should also review all photographs that may be introduced at trial against him and, if possible, prepare a written motion in limine on the basis of prejudice to prevent the damaging photographs from being introduced at trial.

Direct Examination

A successful direct examination can be accomplished by controlling the witness without hampering her ability to testify freely, truthfully and honestly. This balance can only be reached by thoroughly preparing for the questioning.

Preparing For The Direct

To prepare the direct examination, you should: review the law; determine what essential elements must be proven through each witness; and list the facts and elements that will be established through the witness. Next, you should outline all of the key points that must come out through the testimony of each witness that you are presenting at trial. The outline should set up the foundation necessary for additional testimony, expert testimony or the introduction of exhibits.

You should prepare a file for each witness. The file should include your outline, copies of the exhibits that will be used with the witness, the relevant deposition, trial subpoena, return of process, and any working notes that you may have that relate to the witness.

Prepare to meet with the witness at least one week before the trial in order to evaluate the witness’s personality, ability to speak, and manner of dressing. Provide the witness with some suggestions on how she should dress at trial, and how she should handle herself before the jury. Go over the expected testimony with the witness so that you may cover the key points, the evidentiary foundations necessary to be established at trial as well as any problem areas that may be encountered during the case. If the deposition of the witness has been taken, give the witness an opportunity to read the deposition well before she takes the stand.

If you are going to ask a witness to work with an exhibit, chart, or other demonstrative aid, allow the witness to see the chart or model before the trial so that the witness will appear comfortable with the exhibit by the trial date. Make sure you show the witness any exhibits that will be introduced to her well before the witness takes the stand.

Establish a good relationship with the witness by being considerate and pleasant to work with. Make arrangements to meet with the witness again right before the witness takes the stand. During this second pre-trial meeting, you should briefly go over the essential points and answer any questions that the witness may have.

Anticipate evidentiary objections to your direct examination and research the law so that you may present a solid argument to defeat them. Be prepared to proffer the excluded testimony on the record outside of the presence of the jury if the objection is sustained.

Direct Examination at Trial

During the trial, develop the direct examination through the use of conversational language. Avoid reading questions to the witness. This will bore the jury and leave them with the feeling that the presentation was rehearsed. You may have your outline present, but use it only as a reference and not as a script. Remember to guide the witness through the testimony so that she does not ramble.

Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on the issues through the witness on the stand. Ask the types of questions that a reporter or investigator would ask to become fully informed of what happened in the case. This technique will allow you to view the case from the jury’s perspective. Remember you may know everything about the case, but the jury is hearing the testimony for the first time at trial.

The jury’s focus of the direct examination should be on the witness and not on you. Unlike cross-examination, you should limit your use of leading questions during a direct examination. The majority of questions should be open-ended allowing the witness to provide the answer. If you are having a hard time formulating a proper question, start your question with, who, what, why, when, where and how.

Although leading questions are generally not permitted on direct examination, there are many exceptions to this rule. See Florida Statute §90.612(3)(a). Leading questions may be used during a direct examination in the following situations: (1) preliminary matters such as a person’s name, address, and background; (2) undisputed facts, for example: “I would like to direct your attention to October 23, 1995, you were in Paris on that day were you not?”; (3) an adverse or hostile witness Rule 1.450 Fla.R.Civ.Pro.; (4) when a witness has difficulty in speaking; (5) when necessary to refresh a witness’s recollection Fla.Stat. §90.613; and (6) when encountering an unwilling, reluctant, or recalcitrant witness. See, D.R.P. v. Carrol, 438 So.2d 31 (Fla. 3d DCA in 1993).

Avoid repeating the witness’s answer, as well as the use of “habit” utterances such as “uh- huh”, “okay”, “alright”, etc. Try not to jingle your keys or pocket change when questioning. Do not play with your pen, curl your hair or create any other physical distractions that will take the jury’s attention away from the witness. Stay focused on the questions, listen to the answers and appear very interested.

Do not use a monotone. Instead, change the tone of your voice based upon the importance of the testimony. Highlight the key points of the testimony with the use of voice inflection. Avoid legalese, speak clearly and to the point. Use action words and “word pictures,” adjectives and adverbs in presenting your questions. Attempt to establish a rhythm with the witness and vary your pace so that the testimony is interesting to the jury. This will make your presentation powerful. Open and close the direct examination with the strongest testimony. Jury psychologists have established that jurors remember best what is heard first and last. Anticipate and isolate the troubling testimony in the middle of the presentation. Placing the difficult part of the testimony in the middle allows you to diffuse your opposition’s anticipated cross-examination.

At the end of the examination, thank the witness and sit down. Attempt to appear confident during the entire cross-examination.

Conclusion

A direct examination must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. Never underestimate the importance of the direct examination. Set aside enough time in your trial preparation to properly prepare for an effective direct of each witness you anticipate to call at trial. A strong direct examination is an important building block that will lead to your success at trial.

Cross Examination

Impeachment of A Witness

Depositions

When a witness makes a statement in trial that is inconsistent with his or her deposition testimony, you should first highlight the question that was answered differently at trial. Make sure that the trial testimony being impeached is a direct inconsistent statement with the deposition given before trial. You should then ask the following questions:

Do you remember having had your deposition taken on (state the date)?
Do you remember that a court reporter was present at your deposition?
Do you remember having been sworn in to tell the truth?
Did you tell the truth on that date?
(If applicable) Do you remember having your attorney present at your deposition?

After you have set the foundation for the impeachment, then you should ask the witness the following question: “Do you remember having been asked the following question and your giving the following answer.” At this point, you should read the question previously asked and the answer given by the witness in the deposition.

Use of Inconsistent Statements in Documents

A similar method may be used to impeach a person using an inconsistent statement in a document such as an affidavit, sworn statement or letter. The trial attorney should first highlight the inconsistent trial testimony that will be impeached. Next, the lawyer should identify and authenticate the document that will show the inconsistent statement given by that same witness. In order to establish the foundation necessary to impeach an individual with the use of an inconsistent statement, the witness should be asked the following questions:

Do you remember having given a statement to (person) regarding how the accident occurred?

Did you give that statement freely?
Who was present when you gave your statement?
When was the statement given?
The witness should then be shown the exhibit and asked the following question: I show you what has been marked as Plaintiff’s Exhibit “A” for identification. Is this a copy of your sworn statement?

Finally, read the relevant portion of the statement that directly contradicts the trial testimony of the witness.

Impeachment through the use of depositions or documented inconsistent statements should be accomplished in an organized fashion and should be performed smoothly and directly. The relevant pages and sections of the deposition should be marked and highlighted beforehand so as not to fumble through pages or lose control of the witness.

There is nothing more impressive than to see an attorney properly impeach a witness through the use of inconsistent statements in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will prove to be an effective means of cross-examining even the most “dangerous” witness at trial.

Expert Witness

At trial, there may be nothing more challenging and dangerous than cross-examining an expert witness. The lawyer about to cross-examine an expert witness needs to be very careful and very well prepared prior to cross-examining the expert. One of the problems that the trial practitioner encounters in attempting to effectively cross-examine an expert is that the expert usually controls the testimony by being very knowledgeable in the area he is testifying about. What makes it more difficult is that the lawyer usually is not as well versed in the subject as the expert. Nevertheless, an attorney may successfully cross-examine an expert witness by zeroing in on the weaknesses of the expert or of the expert’s testimony and exposing them to the jury.

A trial attorney preparing to cross-examine an expert witness should first read and summarize the deposition taken of the expert witness in the case or read and summarize prior depositions given by that same expert in other cases. You will probably find many helpful statements in the prior depositions that will assist you in your case. Additionally, research whether the expert has written any articles, books or editorials that may contradict his opinion in your case. Next, determine what school the expert has graduated from and see if any of the professors that taught the expert have different opinions that may be introduced and compared to the expert’s opinion at trial.

A trial attorney should be thoroughly prepared on the subject that will be the basis of the cross-examination. It is not advisable to directly challenge an expert within his or her field. However, it is always very helpful to be knowledgeable in the area so that if the expert’s testimony deviates from the accepted norm, you may expose him or her as an advocate or as a hired gun.

A trial attorney should always cross-examine an expert witness. There is nothing worse then allowing an expert witness to give his opinions without challenge. The jury may believe that by failing to cross-examine the expert you have accepted the expert’s opinion.

The most effective way of beginning cross-examination is to affect or attempt to affect the expert witness’s credibility. To do this, you should attempt to expose the expert’s. The expert witness will either be biased because of friendship, money or his relationship with the attorney or the attorney’s client. Bringing this out to the jury’s attention by using short precise leading questions will be very helpful. Attempt to point out, if possible, the disproportionate amount of time in court which the expert spends in comparison to the amount of time he spends in his given field of expertise. Additionally, point out the number of times that the expert witness has testified on behalf of the particular opposing lawyer or the lawyer’s law firm. Point out the number of times the expert has testified for parties that stand for similar things, for example, insurance companies, large manufacturers, or big businesses.

After you have exposed the expert’s bias, you should attempt to attack his qualifications. No matter how qualified an expert witness may be in a given field, there are probably levels in his field that the expert has not reached. For example, if the expert witness only has a masters degree, you may point out that he lacks a Ph.D. in his given field. Moreover, do not do this if your expert does not have a Ph.D. in his given field. If applicable, you should point out that the expert witness has not published any articles in his learned field, or has not held any teaching positions in colleges or universities. Obviously, you need to discover this information before cross examining the expert witness. One way of learning this background information is by obtaining the expert’s curriculum vitae or detailed resume well in advance of the trial. Another inexpensive way of attaining information on experts is by serving expert interrogatories on your opponent. See Fla.R.Civ.Pro. Rule 1.280(4)(1A).

Another way of effectively cross examining an expert witness is by making the expert your witness. If you are able to have the opposing expert testify as to general principles that are consistent with your theory of the case, you will have succeeded in your cross-examination. While this may be very difficult to accomplish if the expert is honest and if the questions that you are asking are basic leading question which cannot be denied, you have a good chance of prevailing as the expert will have to admit the facts suggested in your question or appear foolish.

Another way of successfully cross-examining the expert witness is by attacking the expert’s facts. You will always be able to point out that the expert received his facts and materials from the opposing attorney. Use this to your advantage and use hypothetical questions in order to change the facts so that they are consistent with your theory of the case; then, ask the expert controlled questions within the restricted scenarios that you have presented. This will allow you to tell your version of the case through the opposing expert. Be very careful when you do this so as not to allow the expert too much room when testifying. You should present the hypothetical question in long detailed factual patterns followed by a direct leading question relating to the factually restricted hypothetical. Even if the expert refuses to provide you with a favorable response, you have told the jury your story repeatedly by using the hypothetical question.

Although there are many ways to effectively cross-examine an opposing expert, you should only choose two or three areas of attack at trial. If you try all of them you will probably make the cross examination too lengthy or overly confusing. Moreover, the longer an opposing expert witness is on the stand, the greater the likelihood that the expert will hurt your case. Therefore, when cross-examining the opposing expert, be prepared, be thorough, hit your two or three areas of attack, expose the expert’s weak points, then politely thank the expert and sit down. Another way to successfully cross-examine the expert witness is by impeaching the expert with an article, journal or chapter of a book from his field. In your research, you will probably find positions and opinions that are contrary to the expert witness’s opinion. Attempt to have the expert witness agree that the author of the article, book, or treatise is authoritative or at least a well recognized expert in the field. Next, identify the article, and read the relevant portions that contradict the opinion of the expert. Finally, ask the expert if he agrees with the statement that you just read. It does not matter whether the expert agrees or disagrees, you have effectively demonstrated to the jury that other published experts do not agree with the opposing witness’s position.

Finally, if you consider yourself to be extremely knowledgeable and an expert in the opposing expert’s field, you may attempt to directly attack him. Be extremely cautious as this is very difficult and dangerous. You should only attempt this if you are sure that you will succeed, or if the expert has made an obvious error in his investigation or in his calculations. Before attacking an expert “head on,” you should confer with your own expert to make sure that the direct attack will be successful.

Trial By Ambush

The standard trial order entered by most trial judges in Florida normally states that forty- five (45) days before trial, the parties shall furnish opposing counsel with a written list containing the names and addresses of all witnesses, (impeachment, rebuttal or otherwise) intended to be called at trial. Generally, only those witnesses listed shall be permitted to testify at trial.

Despite the trial court’s order and your diligence in properly requesting the names of all witnesses in each deposition as well as in each interrogatory question, an opposing counsel may inform you during trial that he has just “found” a witness in your case that he intends to call to testify against you. In many instances, opposing counsel’s acts amount to “trial by ambush.”

Despite the trial court’s order, most judges will not allow any witness not previously disclosed or ever mentioned to even get near the courtroom, let along testify. Nevertheless, there are certain circumstances when a trial judge may be convinced that a witness should be allowed to testify even though they have not been listed prior to the trial. A trial judge may properly allow such witness to testify during the trial if the party presenting the previously undisclosed witness diligently attempted to find said witness and was unsuccessful due to the witness’ unavailability and if the attorney can show that the opposing side is not prejudiced, that the trial will not be disrupted, and the orderly and efficient trial of the case may continue. Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

In Binger, the Supreme Court of Florida held that a trial court may exclude the testimony of a witness whose name has not been disclosed in accordance with the trial court’s pre-trial order requiring disclosure of all witnesses when the opposing party is prejudiced, the opposing party does not have independent knowledge of the existence of the undisclosed witness, testimony by the undisclosed witness may disrupt the orderly and efficient trial of the case, and no diligence has been shown in attempting to find the witness prior to the actual trial of the case. Binger, 401 So.2d at 1314.

Prejudice should be demonstrated before the trial court exercises its discretion to exclude the testimony of a witness whose name has not been disclosed in accordance with a pre-trial order. Binger, 401 So.2d at 1313; Hilton, Vincent, Pipkin, et al. v. Robert T. Hamer, et al., 501 So.2d 1365 (Fla. 4th DCA 1987); William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987). (All cases affirms the trial court’s refusal to allow undisclosed witnesses to testify.)

It no longer matters that the undisclosed witnesses are being used simply for impeachment or rebuttal purposes at trial. After the Binger decision, the Florida Supreme Court specifically required that “all witnesses names should be exchanged before trial including rebuttal and impeachment witnesses when the pre-trial order so requires.” 401 So.2d at 1314.

Nevertheless, the trial court is afforded broad discretion in deciding whether an undisclosed witness should be allowed to testify. William Sayad v. James Alley, 508 So.2d 485 (Fla. 3d DCA 1987); Binger, 401 So.2d at 1313. The trial court will not be reversed unless the judge abused his or her discretion. The determination as to whether to allow an undisclosed witness to testify during trial largely will be decided if the party opposing the undisclosed witness can show that it will be prejudiced. Binger, 401 So.2d at 1314. Green v. Shoop, 249 So.2d 85 (Fla. 3d DCA 1970); See also, Fuller v. Rinebolt, 382 So.2d 1239 (Fla. 4th DCA 1980).

If you apply the above guidelines and rules to your case, you should succeed in convincing the court that it should not allow opposing side to try its case by ambush. Chances are you will succeed in preventing the undisclosed witness from testifying in any capacity unless it can be shown that the prejudice can be cured and the undisclosed witness will not substantially endanger the fairness of the proceeding, or disrupt the orderly and efficient trial of the case. Binger, 401 So.2d at 1314.

If you are successful in preventing the undisclosed witness from testifying at trial, you should also move in limine to prohibit any testimony, evidence or other mention of the undisclosed witness during the trial by the opposing counsel. This alone may taint the jury’s perception of your case.

When confronted with an opposing counsel’s surprise tactic during trial, remember to properly establish your client’s prejudice if the surprise maneuver is allowed to proceed during trial. Next, convince the court that the prejudice can not be cured and the matter will affect the fairness of the trial, as well as the orderly and efficient process of the case.

Closing Argument

The closing argument is one of the most important parts of a trial, as the entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney’s last minute attempt to persuade the jury to find in favor of his or her client.

During the summation, all of the evidentiary pieces should be brought together and the case should be presented in a strong, fluid, and persuasive manner. All points that help prove the elements establishing the theory of the case must be fully explained. The closing should be performed in a simple, yet precise way.

The podium should not be used. Instead, walk around freely. The use of a podium blocks communication and sends a message to the jury that there is something between you and them. Closing argument should be presented without notes or with as few notes as possible. If notes must be used, then use flash cards or very well organized papers so that you are not fumbling through documents when closing the case. Stand no closer than six feet from the jury. If you get too close, you will be encroaching on the jury’s comfort zone and may cause them discomfort.

Begin the closing argument with a basic greeting. Almost all trial attorneys will thank the jury for their patience and attention before formally beginning the summation. This should not be done in a patronizing way, but sincerely and honestly. You should also explain what the summation is all about. A road map should be given to the jury explaining what is going to be done and how it will be accomplished.

Use simple and plain English. Leave legalese at the office. Avoid using excessively flowery language or complex legal terms. If complex scientific, medical or legal terms must be used, make sure that those words and terms are completely explained and defined well before they are used in context during the closing argument.

Next, discuss the difference between a civil and criminal trial. The jury should understand that a civil trial is not conducted like a criminal trial and that at the end of the civil case, no one will go to jail or lose any privileges. The jury should understand that monetary damages are being sought.

After that, discuss the standard of proof. Compare and contrast the standard of proof in civil cases from that of criminal cases. Examples of how the standard of proof works in civil cases should be provided. For instance, the trial attorney should explain that the greater weight of the evidence is like the scale of justice. That is, if the scale tilts to one side just a little bit, that is enough to be considered the greater weight of the evidence. Other examples may be used,such as the difference between 51% and 49%. These examples will help the jury understand the standard of proof and how to decide the case.

Follow that discussion with a complete and interesting explanation about the basis of the lawsuit. A short summary of the theory of the case and the establishing evidentiary facts should be presented to the jury at that point. Deliver this portion of the closing as if telling a story.

After the general picture has been fully illustrated, break down the case by elements in the order that they will be presented to the jury in the instructions. For example, in a negligence case, the attorney should explain what the elements of liability are and how the elements were met or not met in the case. Show how the evidence supports the theory of the case.

The testimony of the witnesses and the documented evidence supporting the claim should be discussed at that point as well. It important not to rehash all the evidence presented during trial. If the entire case is presented during closing, this will become too boring and the jury will be put to sleep. Instead, point out the highlights of the testimony and the key pieces of the evidence in the trial.

Never misstate the evidence or your position in the case. Jurors do not forget these things, and collectively remember everything that happens in the trial. Jurors can and will forgive a lawyer if he is kind and honest, but if they think the lawyer is lying to them or misstating the evidence or the law, the jury will never forgive that lawyer and the client may suffer as a result.

Make sure that demonstrative evidence is used when explaining the key points in your case. The jury will need to see and hear the important parts of your argument. The use of demonstrative evidence greatly increases the effectiveness of the closing argument. It will allow the jury to fully understand the case.

It is important to anticipate the arguments that may be made by the other side. Prepare to rebut those arguments before they are made. Nevertheless, avoid attacking the other side’s attorney directly. Juries do not appreciate this type of argument and it often backfires. Under all circumstances, do not engage in a personality battle with the opposing party or counsel.

After completely discussing the elements of the case and your client’s right to prevail in the lawsuit, move on to discuss damages. This is extremely important and cannot be rushed or discussed in a haphazard or unorganized way. At least 35% of the time allotted for closing argument should be devoted to a thorough discussion of the damages. After the damages presentation, the jury should be fully convinced that your client has sustained significant harm and should be compensated. If properly presented, a significant verdict may result. Conversely, if representing the defense, the argument should focus more on the liability aspect of the case.

The defense should discuss damages in a pure logical and mathematical way. The defense should remind the jurors not to reward the plaintiff, but solely to compensate the Plaintiff and only if liability exists. Some defense lawyers believe that no particular amount should be discussed during closing argument when defending damages. This has proven to be effective for many defense attorneys, but it is also a very dangerous practice. If the jury plans to award the plaintiff a compensatory award, and the defense does not discuss specific amounts, the jury may feel obligated to award the amounts suggested by the plaintiff’s attorney. Instead, a defense attorney may want to argue that no damages should be awarded, but that if damages are awarded, the amounts should be based on realistic figures. A sincere and conservative discussion of damages should then follow.

After damages are discussed, you should conclude the closing argument with a strong ending. The heart of the case should be proclaimed, followed by a request that the jury find in favor of your client. Thank the jury for their attention, then sit down at counsel table and appear confident that justice will be served.

Always remember to deliver the summation convincingly, clearly, and in an organized manner. Great closing arguments are rarely spontaneous. They require proper preparation, organization, practice, and inspiration. If delivered properly the closing may make all the difference in the result of the trial. Thus, you should devote sufficient time and effort to properly prepare the closing argument.

Personal Beliefs Should Not Be Asserted During Closing Argument

When presenting closing argument to the jury, you should never assert your personal belief about the facts in the case or about anyone’s credibility at trial. A trial lawyer who states what she thinks about the case or about the witnesses’ credibility during closing arguments will violate the law. Such conduct may even require reversal of the case as discussed in more detail below. A lawyer may not vouch for the credibility of a witness or even opine that a witness should be believed or not believed based on counsel’s statement to the jury that the witness was telling the truth. Sequin v. Hauser Motor Co., 357 So.2d 1089 (Fla. 4th DCA 1977). It is also improper for a trial lawyer to state that she believes that her client was seriously injured during an accident. Albertson’s, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1989). Further, it is forbidden to state a personal belief during closing as to whether a party acted reasonably or unreasonably in causing the accident being litigated. See Moore v. Taylor Concrete & Supply Co., Inc., 553 So.2d 787 (Fla. 1989).

A trial lawyer must never state her opinion of the opposing party or opposing counsel during closing argument. In cases where the plaintiffs’ attorneys have verbally attacked the opposing attorney and opposing parties as being liars, despicable and guilty of committing fraud upon the court and the jury, the Third District Court of Appeals has consistently reversed the cases and granted new trials. Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409 (Fla. 3d DCA 1995); Kendall Skating Center, Inc. v. Martin, 498 So.2d 1137 (Fla. 3d DCA 1989); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990).

Rather than alleging that the opposing party, opposing counsel and the opposing party’s witnesses are liars, a trial lawyer should simply point out the inconsistencies in the opposing side’s testimony, the bias and lack of credibility that the evidence has shown, followed by a simple question presented to the jury focusing on who the jury should believe. The plaintiff’s witnesses appear credible and have good qualifications and backgrounds, and if the defendant’s witnesses have made inconsistent statements or have questionable motives for testifying the way they did during trial, the plaintiff’s attorney should then compare and contrast the testimony of the plaintiff’s witnesses against the defendant’s witnesses and ask the jury “who they are going to believe.” By handling the credibility problem of the opposing side in this fashion, the attorney may highlight what the problems are with the opposing side’s witnesses without basing it upon the attorney’s own opinion.

During closing argument, remember to keep your personal beliefs out of the presentation. Instead, direct your comments to the evidence and the law and explain to the jury what conclusions should be reached without stating what “you believe.”

Teach the jury, use logic, tell stories, but do not provide the jury with your personal opinions about the case. If you do, your case may be reversed.

The Golden Rule

During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant’s attorney needs to immediately object and move for a mistrial since this would be considered a violation of the “Golden Rule”.

If an argument strikes at that sensitive area of financial responsibility and requests the jury to consider how much they would like to receive under similar circumstances, then the argument violates the “Golden Rule”. Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992). Trial attorneys may not ask the jury to measure the plaintiff’s pain and suffering by putting themselves in plaintiff’s shoes. Schreidell v. Shoter, 500 So.2d 288 (Fla. 3d DCA 1986), rev. denied. 511 So.2d 299 (Fla. 1987. The jury should not be asked to mentally go through the same pain and suffering that the plaintiff went through in deciding what damages should be awarded. National Car Rental System, Inc. v. Bostic, 423 So2d 915, 917 (Fla. 3d DCA 1983); State Farm Mutual Automobile Ins. Co. v. Curry, 608 So2d 587 (Fla 4th DCA 1992).

On the other hand, it is permissible to ask the jury to consider what damages the plaintiff has suffered. It is also proper to ask the jury to place themselves in the position of compensating the plaintiff for the injuries the plaintiff sustained. Simmonds v. Lowery, 563 So.2d 183 (Fla. 4th DCA 1990). In Simmonds, the plaintiff’s attorney during closing argument requested that the jury “think about what you would pay someone for one day of what you hear she [plaintiff] has to go through and for the rest of her life.” There, the court found that the argument was not a “Golden Rule” violation since it simply requested the jury to consider how much they would pay the plaintiff for damages, rather than asking the jurors to how much they would want to recieve if it was their case. The court found that plaintiff’s counsel merely asked the jury to do what jurors are required to do – that is, compensate the plaintiff for injuries sustained once a finding of liability has been made. Id.

If the argument is not directed towards damages, the argument may not constitute a “Golden Rule” violation. In Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla. 3d DCA 1992), an automobile rear end collision negligence case, the appellate court found that it was permissible for the defendant’s counsel to discuss the possibility of the jurors driving a car and realizing that they were about to hit a car in front of them that had suddenly and unexpectedly stopped. The Fifth District Court of Appeals found the argument to be permissible because it was not directed to damages. Id.

In order to preserve an objection to a “Golden Rule” violation, defense counsel must immediately object to the argument. Schreidell, 500 So2d at 233. The motion for a mistrial should also be made at the time that the improper argument is made. If it is not made contemporaneously with the statement in question, the objection may be waived unless it constitutes a fundamental error. Newton v. South Florida Baptist Hospital, 614 So.2d 1195, 1196 (Fla. 2nd DCA 1993). Schreidell, 500 So.2d at 233. If the error is so fundamental as to extinguish a party’s rights to a fair trial, then a new trial me be warranted even in the absence of a timely objection or motion for mistrial. Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

A contemporaneous motion of mistrial should be made to preserve an appeal on any objection to an improper “Golden Rule” comment made during closing arguments. Griss v. Griss, 526 So.2d 697 (Fla. 3d DCA 1988). The motion for mistrial may be made when closing argument is finished, but must be made before the jury begins to deliberate. Id. Nevertheless, it is recommended that the objection and motion for mistrial be made contemporaneously with the objectionable statement to avoid any inadvertent waiver of the issue.

When making closing arguments to the jury, it is important that the trial attorney not ask the jury to place themselves in the litigant’s shoes. Instead, refer to the “reasonable person” or explain that if the word “you” is said during closing argument, that it does not mean the “jury” but only means people in general. See Metropolitan Dade County v. Zapata, 601 So.2d 239, 241 (Fla 3d DCA 1992). If a “Golden Rule” violation occurs, the opposing party must immediately object to the impermissible statement; otherwise, the objection may be deemed waived.

Trial Objectives

Trial Organization

Jury Selection

The Modern Jury Selection Philosophy

Voir Dire Goals

Use The Open Forum Approach

The Presentation

Assistance with Jury Selection

Conclusion

Opening Statement

Trial Foundations

Business Records:

Tape Recordings:

Photographs:

Authenticating a Letter:

Diagrams:

Refreshing Recollection:

Authenticating Handwriting in a Document:

Demonstrative Evidence

Photographs

Direct Examination

Preparing For The Direct

Direct Examination at Trial

Conclusion

Cross Examination

Impeachment of A Witness

Depositions

Use of Inconsistent Statements in Documents

Expert Witness

Trial By Ambush

Closing Argument

Personal Beliefs Should Not Be Asserted During Closing Argument

The Golden Rule

Press Releases