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2013년 7월 7일 일요일

Civil Plain English Comparison

Civil Jury Instructions Resource Center

Plain English Examples

BAJI 2.00 reads:
Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.
The comparable Judicial Council instruction (number 202) reads:
Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.
BAJI 2.21 reads:
Failure of recollection is common. Innocent misrecollection is not uncommon.
The latter sentence is stated in triple negatives. The comparable Judicial Council instruction (number 107) reads:
People often forget things or make mistakes in what they remember.
This is an example of the use of basic English language principles to make instructions simpler.
BAJI 2.60 reads:
“Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.
These are familiar words to lawyers. But the task force had to ask whether the average juror ever used the noun “preponderance” and, more pointedly, the verb “preponderates.” The comparable Judicial Council instruction (number 200) reads:
A party must persuade you, by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as "the burden of proof."
BAJI 3.36 reads:
The amount of caution required of a person whose physical faculties are impaired is the care which a person of ordinary prudence with similarly impaired faculties would use under circumstances similar to those shown by the evidence.
Most judges and attorneys understand that sentence. But the phrase “person of ordinary prudence” is not normally in the vocabulary of a tenth grader. Nor does the same tenth grader speak of people whose “physical faculties are impaired.” The comparable Judicial Council instruction (number 403) reads:
A person with a physical disability is required to use the amount of care that a reasonably careful person who has the same physical disability would use in the same situation.
BAJI 6.00.2 reads:
A psychotherapist has no duty to warn third persons of a patient’s threatened violent behavior, nor any duty to predict such behavior or to protect third persons from such behavior, unless the patient has communicated to the psychotherapist a serious threat of physical violence against [a] reasonably identifiable potential victim[s]. If a patient has communicated such a threat to a psychotherapist, the psychotherapist then has a duty to warn and to protect the reasonably identifiable potential victim[s]. If you find a psychotherapist had this duty, it is satisfied and there is no liability if the psychotherapist made reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency.
The comparable Judicial Council instruction (number 503 A) breaks the cause of action into clear elements and identifies the parties by name:

[Name of plaintiff] claims that [name of defendant]’s failure to protect failure to protect [name of plaintiff/decedent] was a substantial factor in causing [injury to [name of plaintiff]/the death of [name of decedent]]. To establish this claim, [name of plaintiff] must prove all of the following:
  1. That [name of defendant] was a psychotherapist;
  2. That [name of patient] was [name of defendant]’s patient;
  3. That [name of patient] communicated to [name of defendant] a serious threat of physical violence;
  4. That [name of plaintiff/decedent] was a reasonably identifiable victim of [name of patient]’s threat;
  5. That [name of patient] [injured [name of plaintiff]/killed [name of decedent]];
  6. That [name of defendant] failed to make reasonable efforts to protect [name of plaintiff/decedent]; and
  7. That [name of defendant]'s failure was a substantial factor in causing [[name of plaintiff ’s injury/the death of [name of decedent]].
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tria advocacy

trial advocacy

From Wikipedia, the free encyclopedia
Trial advocacy is the branch of knowledge concerned with making attorneys and other advocates more effective in trial proceedings. Trial advocacy is taught in primary, secondary, and undergraduate schools (usually associated with a mock trial elective).[1] It is taught as an essential trade skill for litigators in law schools and in continuing legal education programs.

Contents

  [hide] 

History[edit]

Like most legal skills, trial advocacy evolved through the apprenticeship and practice of attorneys. Even after 1900 (when the education of attorneys shifted to law schools[2] most law schools offered little education in advocacy.[3][4] In 1969, in response to criticism within the judicial system that law schools were not properly preparing attorneys for trial practice, a group of lawyers and law professors combined to form the National Institute for Trial Advocacy (NITA).[5] Since then, many law schools have added or improved their instruction in trial advocacy, and numerousContinuing Legal Education organizations have offered classes surveying the subject area, and on specific topics within the field. Currently nearly one dozen law schools in the United States offer Master of Law (LL.M.) degrees in trial advocacy.[6] Trial advocacy originally focused on individual actions within the trial, proposing methods for improved selection of jurors, delivery of argument, and direct and cross examination. However, in the 1970’s, NITA advanced the concepts of theme and theory as methods of integrating the various components into a cohesive whole.[7] More recently, litigation strategy has blossomed with the importation of concepts from economic game theory, complexity theory, Gestalt psychology, and the application of maneuver warfare as a means not only of integrating the various actions within the trial into a comprehensive case, but also as a means of gaining a decisive advantage over opposing counsel.[8]

Topics in trial advocacy[edit]

The topics commonly encompassed within Trail Advocacy are:

Jury selection or voir dire[edit]

Main article: Jury selection
Main article: Voir dire
The selection of jurors that will be receptive to the argument the attorney intends to make.[9]

Opening statement[edit]

Main article: Opening statement
Presenting a non-argumentative overview of what the jury will see, often in the context of the attorney’s theme, theory and story.[10]

Direct examination[edit]

Main article: Direct examination
Eliciting evidence from one’s own witnesses through non-leading questions. Because studies have shown that people best remember the first and the most recent (last) information heard (methods referred to as primacy and recency), the preferred method is to start with an engaging and favorable topic, move through more mundane matters, and to finish on a strong, favorable point.[11]

Cross examination[edit]

Main article: Cross examination
Working with witnesses offered by the opposing party who may be hostile or uncooperative.[12]

Closing argument[edit]

Main article: Closing argument
Using argument to create within the jurors a perception of what they have seen and heard that influences them to find in favor of the attorney’s client.[13][14]

Persuasion[edit]

Main article: Persuasion
The general principles that enable an advocate to make the jurors more receptive to his claims.[15]

Mock trial[edit]

Main article: Mock trial
In mock trial, students take responsibility for the prosecution/plaintiff or defense case in a trial presented using fabricated evidence, and role-players as witnesses and faculty or volunteers as judge or jury. It evaluates the participants’ skills in argument, evidence handling, and examination of witnesses, but omits jury selection and strategic matters. Mock trial differs from moot court in that moot court practices appellate argument, and so involves no handling of witnesses or evidence, but rather is an exercise in legal research and oral advocacy.[16]

Basic trial strategy[edit]

Main article: Litigation strategy
The means of organizing a case into a clear and complete presentation.
  • Case Diagrams: In which the attorney charts the elements he / she intends to prove (or attack) and the evidence that will support each. These ensures the case is comprehensively addressed.[17]
  • Theme and Theory: The theme is a sound bite that captures the emotional appeal of the case, and the theory is an explanation of events. These serve as strategic focal points, allowing individual actions (opening, examination of each witness, etc.) to be united with a common focus, and in a way that clarifies and reinforces the perception of the case the attorney wants the jury or judge to adopt.[18]

Advanced trial strategy[edit]

Main article: Litigation strategy
The means of organizing the case to maximize the combined impact of every element, and to overwhelm or outmaneuver the opposing counsel while presenting a clear, decisive argument to the jury (or judge, in the case of bench trials).[19]
  • Maneuver strategy An alternative to arguing the evidence or the law, maneuver strategies pursue solutions such as redirecting the focus of the trial, reshaping the way events are perceived, or disrupting or surprising the opposing counsel, rendering him ineffective at responding to unfolding events.[20] While these methods are practiced widely, even by advocates not educated in strategy, some object to this as improper even when practiced ethically, as it subordinates the importance of the evidence and the law in determining a trial's outcome. One proponent of maneuver strategy, however, has noted that regardless of whether the attorney intends to leverage the tools of maneuver strategy, the attorney must understand the methods or she will be ill-equipped to identify and counter them.[21]
  • Gestalt psychology This branch of psychology focuses on how things are perceived in whole as opposed to how individual components appear. It aids in ensuring the jury (or judge, in bench trials) perceives events as the attorney desires, and it offers a means of shaping the way witnesses and opposing counsel will perceive the problems an attorney raises for them during trial. When coupled with game theory, shaping perception allows an attorney to influence or shape the actions the hostile witness or counsel take.[22]
  • Game theory Game theory offers models of how people make decisions. In trial practice, game theory is useful in predicting the likely actions witnesses will take when presented with a decision. Because decisions are framed according to how they perceive a situation, when game theory is coupled with Gestalt psychology, attorneys can present problems to witnesses or opposing counsel in a way that increases the likelihood of them making decisions about their responses that improve the attorney's strategic position.[23]
  • Lines of effort In the way a case diagram matches evidence to elements, the line of effort matches actions to specific effects the attorney intends to the various results that achieve her or his goal.[24]

References[edit]

  1. ^ Adamson, John E. Law for Business and Personal Use p. 104
  2. ^ Harno, Albert James (2004), Legal Education in the United States p. 95
  3. ^ Kutcher, Edward A.; Lee, Robert B. (1962) The Deterioration of Trial Advocacy-Are the Laws Schools Responsible?
  4. ^ American Bar Association (1967) The Law School Curriculum and Advocacy Training
  5. ^ NITA website
  6. ^ Owens, Eric, Princeton Review (2013) The Best 168 Law Schools
  7. ^ Lubet, Steven (2004) Modern Trial Advocacy
  8. ^ Dreier, A.S. (2012) Strategy, Planning & Litigating to Win
  9. ^ see e.g. Lubet, p. 529 et. Seq.
  10. ^ see e.g. Lubet, p. 8 et. Seq.
  11. ^ see e.g. Lubet, p. 45 et. Seq.
  12. ^ see e.g. Lubet, p. 83 et. Seq.
  13. ^ see e.g. Lubet, p. 467 et. Seq.
  14. ^ Dreier, A.S. (2012) Strategy, Planning & Litigating to Win p. 79
  15. ^ See e.g. Lubet, p. 16, 32 et. Seq.
  16. ^ Korzen, John (2010) Make Your Argument: Succeeding in Moot Court and Mock Trial
  17. ^ see, e.g. Indiana Law School web site [1], accessed March 8, 2013
  18. ^ see e.g. Lubet, p. 411 et. Seq.
  19. ^ Dreier, A.S. (2012) Strategy, Planning & Litigating to Win pp. 1–7
  20. ^ Dreier p. 20
  21. ^ Dreier, pp. 86–8
  22. ^ Dreier pp. 37–40, 83–4
  23. ^ Dreier pp. 62–8
  24. ^ Dreier pp. 47–65

Bibliography[edit]

  • Dreier, A.S. Strategy, Planning & Litigating to Win. Boston MA: Conatus, 2012. ISBN 9780615676951
  • Korzen, John Make Your Argument: Succeeding in Moot Court and Mock Trial. New York NY: Kaplan 2010. ISBN 9781607144953
  • Lubet, Steven Modern Trial Advocacy. South Bend IN. NITA, 2004. ISBN 1556818866
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