University of St. Thomas School of Law Advanced Trial Advocacy SYLLABUS Spring Semester 2010 Professor Robert Brabbit Professor Mary Moriarty

CONTACT INFORMATION Robert Brabbit Brabbit & Salita, P.A. 100 South Fifth Street Suite 450 Minneapolis, MN 55402 (office) 612.371.9800 (direct) 612.455.3352 (cell) 612.220.4428 [email protected]

Mary Moriarty Office of the Public Defender Hennepin County 701 4th Avenue South, Suite 1400 Minneapolis, MN 55415 (office) 612.348.8349 (cell) 612.360-4452 [email protected]

We will not have designated regular office hours at the law school. However, we encourage students to contact us to schedule a meeting if you have questions or wish to discuss an issue.

COURSE OBJECTIVES AND FORMAT: This three hour course will begin where basic trial advocacy left off. In this course, the students will take the basic skills learned in trial advocacy and apply them to different scenarios. It will allow students to practice, in a more refined way, the skills that were surveyed in the beginning class. The course will also explore in more detail some of the ethical issues that are unique to litigators.

READINGS: Tentative reading assignments are indicated below, subject to later revision. Students are expected to complete the assigned reading prior to each class for which the assignment is listed. Students are only required to complete the exercises within the reading that are specifically assigned. Failure to be prepared for class will result in a grade reduction.

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ASSIGNMENTS: Students are required to prepare and present demonstration exercises in every class. Additionally, throughout the semester, there may be written assignments. Failure to be prepared for class will result in a grade reduction.

WRITTEN WORK: Though written assignments will be relatively infrequent in this course, when so called for, they must be presented in a professional manner. Accordingly, all documents students submit should be treated as if they are being submitted to a court. Written work may not contain spelling, citation, or typographical errors. All citations must conform to the rules set forth in the ALWD Citation Manual.

GRADING: COMPONENTS: Grades will consist roughly of: 50% final trial, 50% weekly class preparation, performance and participation, written assignments and trial observation. Additionally, the following factors may affect any student’s final grade: Tardiness, Trial Observation, Absences. Attendance is mandatory in this course. Unless extreme and unusual circumstances exist, a student that misses more than one class period will not pass this course. We will take roll at the beginning of each class. When necessary to miss a class, the student is responsible for all materials, assignments, and announcements covered in that class. TARDINESS: We hold students to the same standards as the courts. Tardiness is not acceptable in court, nor is it in law school. We understand that there may be times when tardiness is unavoidable. If a student must be late for class, please notify us in advance. CELLPHONES & PAGERS: MUST BE TURNED OFF DURING CLASS CLASS PARTICIPATION: Class preparation and participation are essential for efficient learning. Class participation also includes satisfactory completion of all assigned reading and preparation for those topics covered each class. DEMONSTRATIVE AIDS: During the semester, students are required to incorporate the use of demonstrative aids into the small section demonstrations where appropriate. COMPUTER DEMONSTRATION: During the semester, students are required to incorporate the use of a computer generated demonstrative aid into one of their small section demonstrations. More on this issue in class.

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WATCH TWO HOURS OF A TRIAL: Each student must submit a one page single spaced summary of your observations. The summary should include case name, case type, date, jurisdiction and docket number. The summary can be submitted any time during the semester but no later than the end of class on March 24, 2010. Courts do not allow late filings. Late submissions will result in a grade reduction.

MISCELLANY: CLASSROOM ASSISTANCE: If students need special physical assistance in the classroom, please let us know. Students with special needs should also contact Scott Swanson at (651) 962-4857. ADDITIONAL READINGS OR ASSISTANCE: If students feel the need for additional readings or background material on any topic, or for other academic or non-academic assistance, please check with us.

TEXTS: Required Texts: a)

J. Alexander Tanford, The Trial Process: Law, Tactics, and Ethics , 4th ed. published by LexisNexis;

b)

J. Alexander Tanford, Trial Practice Problems and Case Files , 3d ed. published by LexisNexis

c)

Evidentiary Foundations, Seventh Edition, by Edward J. Imwinkelried, published by LexisNexis.

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ASSIGNMENTS: Class #1, January 13: Introduction/Brainstorming/Themes/Theory/Issue Framing 1)

Required Reading Assignment: The Trial Process, Chapter 1 & 2

2)

Pick and read one of the following articles on Theme: D. Kendall, Advocacy: Need for Theme, 22-JUN Champion 14 (June 1988); D. Carlson & D. Graeven, The Development of Trial Themes in Catastrophe Losses, 31-SUM Brief 21 (Summer 2002).

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Discussion regarding Theme, Theory and Opening Statements

Recommended reading: 1)

The Trial Process Supplement, Review State v. Hunter and Kesler v. Burnside.

Class # 2, January 20: Theme/Theory, Opening Statements 1)

Problems A-1; A-2; A-3; A-4

2)

Bring two copies of your written case theory; prepare and perform an opening statement for ONE case, A-1, 2, 3 or A-4, based on your theory. (10 min. max)

3)

Reading Assignment: The Trial Process, Chapter 4

4)

Discussion regarding Objections

Class # 3, January 27: Objections 1)

Problems: D-1; D10

2)

Prepare and perform ONE 15 minute (max) direct of witness identified in a problem loaded with objectionable questions. Document why the question is objectionable and cite rule of evidence if appropriate.

3)

Reading Assignment: The Trial Process, Chapter 5 The Trial Process, Appendix pp. 457-465 Evidentiary Foundations, Chapter 10, Chapter 2 §2.03

4)

Discussion regarding Direct Examination/Demonstrative Aides 4

Class # 4, February 3: Direct/Demonstrative Aides 1)

Problems: E-2; E-8

2)

Prepare and perform ONE direct examination with visual demonstrative exhibit. (15 minutes max.)

3)

Reading Assignment: The Trial Process, Chapter 6.

4)

Irving Younger Tape – Cross Examination

Class # 5, February 10: Cross Examination 1)

Problems: G-7; G10

2)

Prepare and perform cross-examinations as assigned.

3)

Reading Assignment: The Trial Process, Chapter 7 Cross Examination Skills for Law Students, Posner & Dodd, Chapters 1, 2, & 10 (On reserve in UST law library)

4)

Discussion regarding Impeachment

Class # 6, February 17: Impeachment 1)

Problems: Scenarios provided by professors.

2)

Prepare and perform impeachment for each problem.

3)

Reading Assignment: Review The Trial Process, Chapter 7 Review Evidentiary Foundations, Chapter 10 Cross Examination Skills for Law Students, Chapter 8 (On reserve in UST law library)

4.)

Discussion regarding Experts.

5)

Designate final trial choice-civil or criminal

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Class #7, February 24: Experts 1)

Problems: H-1

2)

Prepare and perform direct and cross of expert as assigned. (15 minutes max.)

3)

Reading Assignment: The Trial Process, Chapter 8 Fry v. United States, 293 F. 1013 (D.C. Cir. 1923) Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) Evidentiary Foundations, Chapter 4 §4.07- 4.09

4)

Discussion regarding discovery.

Class # 8, March 3: Discovery: Depositions/Interrogatories/Requests for Production of Documents/Requests for Admisssons 1)

Prepare interrogatories, and requests for production of documents as assigned.

2)

Prepare to depose and defend deposition as assigned. (10 minutes max)

4)

Reading Assignment: Articles TBA

5)

Discussion regarding Closing Argument.

Class # 9, March 10: Closing Argument 1)

Prepare and perform closing argument for final trial.

2)

Reading Assignment: The Trial Process, Chapter 9 & 10.

3)

Motions In Limine due for final trial –served on opposing counsel and both professors via email by 6 p.m. today.

Class # 10, March 17: Oral Argument - Motions In Liminae 1)

Be prepared to argue Motions in Limine for final trial (15 minutes max)

2)

Discussion regarding Voir Dire.

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Class # 11, March 24: Voir Dire 1)

Prepare and perform Voir Dire for final trial.

2)

Reading Assignment: The Trial Process, Chapter 3.

March 27-April 5: SPRING BREAK NO CLASS

Class # 12, April 7 and Class # 13, April 14: Final Trials There will be no regular class meetings these weeks. Instead final trials will be run during this time. Each final trial, jury deliberation and critique will last approximately 4 hours.

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