HOW TO PRESENT
YOUR CASE AT TRIAL
By: Richard S. Dellinger
Orlando, Florida
www.lowndes-law.com
Orlando, Florida | www.lowndes-law.com
“Next to the ministry, I know of no more
noble profession than the law. The
object aimed at is justice, equal and
exact, and if it does not reach that end
at once, it is because the stream is
diverted by selfishness or checked by
ignorance. Its principles enable and its
practice elevates.”
-William Jennings Bryan
How to Present your Case at Trial
2
Orlando, Florida | www.lowndes-law.com
Presentation Outline
• Opening Statement
• Evidence Presentation
• Direct Examination
• Expert Direct Examination
• Cross Examination
• Expert Cross Examination
• Closing Argument
How to Present your Case at Trial
3
Orlando, Florida | www.lowndes-law.com
• "ON TRIAL: LEE HARVEY OSWALD"
(PART 2)(G. SPENCE'S OPENING
STATEMENT) - YouTube
How to Present your Case at Trial
4
Orlando, Florida | www.lowndes-law.com
OPENING STATEMENT
The most successful trial lawyers are often
master storytellers, making their cases
come to life for their jurors. The reason is
that stories matter ... stories are the
deepest and most obvious way that
humans organize, communicate, receive,
and digest facts.
G. CHRISTOPHER RITTER, Powerful
Deliberations
How to Present your Case at Trial
5
Orlando, Florida | www.lowndes-law.com
OPENING STATEMENT
 Preparation, Preparation,
Preparation, Preparation
 Introduce the theme
 Be a “truth-teller”
 Be a story teller
 Party introductions
 Conversational
 Eye Contact
How to Present your Case at Trial
6
Orlando, Florida | www.lowndes-law.com
Opening Statement
 Move around courtroom
 Leave some mystery
 Don’t over promise
 Don’t argue or insult
 Be positive
 Be inspirational
 Inflection/ Pause for
Emphasis
 Acknowledge weakness
How to Present your Case at Trial
7
Colorado
Orlando, Florida | www.lowndes-law.com
OPENING STATEMENT RULES
 No argument
 No discussion of the
law
 No exhibits that are
not admissible
 Exchange exhibits in
advance
How to Present your Case at Trial
8
Miami
Orlando, Florida | www.lowndes-law.com
EVIDENCE INTRODUCTION
Good trial lawyers are like
writers with heavily plotted
stories and sharply defined
characters. They lay out each
detail precisely to create an
illusion of seamless
inevitability, leaving no room
for doubt, no possibility for an
alternate ending.
ELYSSA EAST, Dogtown
How to Present your Case at Trial
9
Orlando, Florida | www.lowndes-law.com
EVIDENCE PRESENTATION






Map the elements from jury instructions and tie to direct exam
Theory and Theme
Primacy and Recency
Chronological
Foundation First
Script Theory – harmonize pieces of evidence into pre-existing
picture Putting the puzzle pieces on the table before putting them
together
How to Present your Case at Trial
10
Orlando, Florida | www.lowndes-law.com
DIRECT EXAMINATION
Successful trial lawyers are like
heat-seeking missiles carrying
payloads of information prejudicial
to their opponent's case,
constantly looking for the chance
to unload their cargo, right up until
the final moments of trial.
DAVID BERG, The Trial Lawyer
How to Present your Case at Trial
11
Orlando, Florida | www.lowndes-law.com
DIRECT EXAMINATION
PREPARATION
 Review the testimony and exhibits
once or twice
 Show the witness the courtroom,
the witness chair and the jury
 Explain all the participants
 Review deposition transcripts
 Do not give summaries or outlines

Luzerne Co, Pennysylvania
How to Present your Case at Trial
12
Orlando, Florida | www.lowndes-law.com
DIRECT EXAMINATION
 Mock direct exams pay off in
trial
 Slow down, jury’s first time
 Repetition for Emphasis
 Pausing for Emphasis
 Reflective Questioning
(speed to establish intensity)
• Headlines and Transitions
Morristown
How to Present your Case at Trial
13
Orlando, Florida | www.lowndes-law.com
ADMISSION OF DEMONSTRATIVE
AND DOCUMENTARY EXHIBITS
 Demonstrative “Evidence” is not evidence until admitted.
Authentication
 Recognize the document.
 What is it?
 What are the circumstances where you have seen the document before?
 Is that your signature?
 Is that an original or a true and accurate copy of the original?
 Admit into evidence

Still subject to 401/402/403
How to Present your Case at Trial
14
Orlando, Florida | www.lowndes-law.com
401, 402, 403 Analysis
Probative?
How to Present your Case at Trial
Unfairly
Prejudicial?
Relevant?
15
Orlando, Florida | www.lowndes-law.com
DIRECT EXAMINATION QUESTIONS
 Introduce the person (name,
occupation, relationship to
others)
 Lay foundation (present and
able to observe)
 Key observations
 Short and not compound
 Chronological if possible
 Defensive exam by anticipating
cross
 Look at the jury

How to Present your Case at Trial
Nottinghamshire
16
Orlando, Florida | www.lowndes-law.com
DIRECT EXAMINATION PROBLEMS
 Forgetfulness and refreshing
recollection.
 No passion because over
prepared.
 No eye contact with the jury.
 Wilting to cross.
 Explains too much or too
little.

How to Present your Case at Trial
Wisconsin
17
Orlando, Florida | www.lowndes-law.com
EXPERT DIRECT
EXAMINATION
Source: http://www.all-about-forensicscience.com/vintage-science.html
How to Present your Case at Trial
18
Orlando, Florida | www.lowndes-law.com
EXPERT WITNESSES
Consulting Experts – Expert who will not testify – Confidential/ Work
Product.
• Federal Rule 26(b)(4)(D)
• Florida Rule 1.280(b)(4)(B)
How to Present your Case at Trial
19
Orlando, Florida | www.lowndes-law.com
CONSULTING EXPERTS-PART OF
THE LEGAL TEAM
 Jury Consultants
 Forensic Accountants
 Construction Defects
 Doctors/ Psychiatrists
 Private Investigators-learn facts, interview witnesses
 Document Presentation Experts
How to Present your Case at Trial
20
Orlando, Florida | www.lowndes-law.com
TESTIFYING EXPERTS – EXPERTS
WHO WILL TESTIFY AT TRIAL




Accountants-Damages,
valuations, analyze/ summarize
bank records
Construction Defect-Tell where
the problem is
Accident Reconstruction
Handwriting – signature experts
for comparision, document
dating, ink dating
Firearms/Ballistics
DNA document testing/ saliva
Dog Sniff evidence

Nuremberg



How to Present your Case at Trial
21
Orlando, Florida | www.lowndes-law.com
Expert Testimony







Instruct expert by phone or
meeting.
No billing contingent on
results.
Have Expert sit through all
testimony and testify last.
Expert is “closer” and final
summary witnesses.
Expert can help you cross
examine the other expert.
Expert can deliver your
closing before you deliver it.
London, Old Bailey
How to Present your Case at Trial
22
Orlando, Florida | www.lowndes-law.com
CLASSIC EXPERT DIRECT
EXAMINATION
 Introduction
 Occupation
 Teaser
 Background
 Tender of Expert/Voir Dire
 Summary of opinion
 Work done to come up with
opinion
 Final Opinion

Carbon County
How to Present your Case at Trial
23
Orlando, Florida | www.lowndes-law.com
GATEKEEPING/EXPERT STANDARDS
Federal – Daubert/Kumho Tire
(Koo-Moe)– Rule 702
 Sufficiently based on
facts/data
 Reliable principles and
methods
 Methods applied to the case

How to Present your Case at Trial
Old US Supreme Court at US Capitol
24
Orlando, Florida | www.lowndes-law.com
Federal Rule 702—“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.”
 Need a basis in sufficient facts and data
 Need reliable principles and methods
 Need methods/ principals to be applied reliably
How to Present your Case at Trial
25
Orlando, Florida | www.lowndes-law.com
HISTORY
 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) – general
acceptance within scientific community
 Rule 702 adopted in 1975 – general acceptance not mentioned –
more relaxed approach
 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)–
because of 702 – need only be “grounded” in scientific methods and
relevant
How to Present your Case at Trial
26
Orlando, Florida | www.lowndes-law.com
History (cont)
 General Electric Co. v. Joiner, 522 U.S. 136 (1997) – analyze both
the methodology but also the ultimate conclusions to make sure
methodology applied appropriately.
 Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) – 702 analysis
applies to all expert testimony – not just scientific.
 Burden of Proof – challenging party bears burden of showing that
that the evidence is unreliable then the proponent must defend the
expert’s opinion.
How to Present your Case at Trial
27
Orlando, Florida | www.lowndes-law.com
“Fit”/”Relevance” Analysis – Controversial Joiner analysis as to
whether the Court “applied the principles and methods reliably”—
• Some courts assess the evidence and determine whether
the expert can prove what the expert purports to prove
(e.g., nicotine expert testify about impact of nicotine on
health, toxic tort expert and causation).
• Other courts simply analyze scientific methods and do not
make the litigants prove it to court before proving it to
jury City of Tuscaloosa v. Horeros Chems Inc., 158 F.3d
548 (11th Cir. 1998).
How to Present your Case at Trial
28
Orlando, Florida | www.lowndes-law.com
FLORIDA EXPERT ADMISSIBILITY
Florida Rule 90.702—“Testimony by experts.--If scientific,
technical, or other specialized knowledge will assist the trier of fact
in understanding the evidence or in determining a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education may testify about it in the form of an
opinion; however, the opinion is admissible only if it can be applied
to evidence at trial.”
How to Present your Case at Trial
29
Orlando, Florida | www.lowndes-law.com
FLORIDA EXPERT
ADMISSIBILITY
Florida applies the Frye test to new or novel scientific evidence and
requires that scientific evidence be generally accepted in the
scientific community to be admissible. Stokes v. State, 548 So.2d
188 (Fla. 1989)
 Even though Rule 90.702 did not codify the Frye test, the
Frye test still applies in Florida because the Courts are not
laboratories and they should not be the place to test new
scientific theories. Hadden v. State, 690 So.2d 573 (Fla.
1997).
How to Present your Case at Trial
30
Orlando, Florida | www.lowndes-law.com
EXPERT REPORT
ADMISSIBILITY
 Reports are cumulative pursuant to Rule 403 of the expert’s
testimony and are not admissible if the expert testifies.
 Federal--Reports are hearsay and cumulative. Sommerfield v. City
of Chicago, 254 F.R.D. 317 (N.D. Ill. 2008).
 Blackwood v. State, 777 So.2d 399 (Fla. 2000); McElroy v. Perry,
753 So.2d 121 (Fla. 2d DCA 2000).
 Can stipulate or admit without objection.
How to Present your Case at Trial
31
Orlando, Florida | www.lowndes-law.com
Inadmissible Evidence Conduit

Although an expert can rely
upon technically inadmissible
evidence “when the facts and
the data are the type
reasonably relied on by
experts on the subject”, the
witness may not be used as a
conduit
for
inadmissible
evidence. Gerber v. Ivengar,
725 So.2d 1181, 1185 (Fla. 3d
DCA 1998).

Expert can rely on hearsay but
cannot be used as a conduit to
introduce it. Erwin v. Todd,
699 So.2d 275 (5th DCA
1997).
How to Present your Case at Trial
32
Orlando, Florida | www.lowndes-law.com
CROSS EXAMINATION
How to Present your Case at Trial
33
Orlando, Florida | www.lowndes-law.com
OBJECTIONS





Questions that assume facts
not in evidence are not
admissible.
Lay witnesses cannot provide
opinions (Rule 701).
A witness cannot be expected
to respond to a compound,
confusing or unintelligible
question.
Character for truthfulness can
only be admitted after
impeachment of the same
Character (Rule 608).
Jefferson County, Missouri
How to Present your Case at Trial
34
Orlando, Florida | www.lowndes-law.com
OBJECTIONS





How to Present your Case at Trial
Leading is only appropriate for cross
examination or hostile witnesses
(Rule 611), but preliminary matters
are ok.
Cross must be inside the scope of
direct examination (Rule 611(b)).
Argumentative questions are not
appropriate.
Questions that are asked and
answered are unduly repetitive
under Rule 403.
Essex County, NJ
35
Orlando, Florida | www.lowndes-law.com
401, 402, 403 Analysis
Probative?
How to Present your Case at Trial
Unfairly
Prejudicial?
Relevant?
36
Orlando, Florida | www.lowndes-law.com
Rules 401, 402, and 403
 Prejudicial value outweighs prohibitive value
 Not relevant
 Confusing
 Misleading
 Undue delay
 Waste of time
 Cumulative
How to Present your Case at Trial
37
Orlando, Florida | www.lowndes-law.com
HEARSAY
Statement
or writing?
How to Present your Case at Trial
Prove
TOMA
Not
Witness’
Own
Statement
Subject to
Cross
Not Party
Opponent’s
Admission
38
Orlando, Florida | www.lowndes-law.com
HEARSAY EXCEPTIONS
Present Sense
Impression
How to Present your Case at Trial
Excited
Utterance
State of Mind
Business
Record
Learned
Treatise for
Cross Only
39
Orlando, Florida | www.lowndes-law.com
HEARSAY EXCEPTIONS
(Declarant Unavailable)
Party’s Former
Testimony
How to Present your Case at Trial
Statement Against
Pecuniary Interest
Statement of
Personal or
Family History
40
Orlando, Florida | www.lowndes-law.com
http://www.youtube.com/watch?v=_EK9SL
LlObk
How to Present your Case at Trial
41
Orlando, Florida | www.lowndes-law.com
CROSS EXAMINATION







Prepare every single question without
regard to the answer.
Preparation can be done without a
witness.
Highlight and tab exhibits.
Highlight and tab deposition transcripts
Take exam in small pieces.
Be professional and do not attack.
Start and end strong.
Be nice and sympathetic to witnesses.

Ft. Smith National Park

How to Present your Case at Trial
42
Orlando, Florida | www.lowndes-law.com
ATTACKING COMPETENCE
 Everyone is competent under
Rule 601.
 Even those who lack mental
capacity.
 Even spouses.
 Even those who have an
interest in litigation.

How to Present your Case at Trial
Territorial Hawaii
43
Orlando, Florida | www.lowndes-law.com
TESTING PERSONAL
KNOWLEDGE
 Make sure the witness has
personal knowledge of the facts.
 No personal knowledge if a
failure to see, hear, experience or
be involved in the circumstances.
 If personal knowledge is not
established ask for the predicate.
 If the predicate is non-admissible
hearsay, object.
How to Present your Case at Trial
44
Orlando, Florida | www.lowndes-law.com
IMPEACHMENT BY
DEPOSITION/ STATEMENTS
 Rule 613 – prior
inconsistent statements.
 Extrinsic evidence
admissible if given the
opportunity to explain or
deny.

How to Present your Case at Trial
Monroeville, AL To Kill Mockingbird
45
Orlando, Florida | www.lowndes-law.com
EXPERT CROSS
EXAMINATION
How to Present your Case at Trial
46
Orlando, Florida | www.lowndes-law.com
ATTACK CREDENTIALS/VOIR
DIRE

Before opinion is admitted,
elicit
weaknesses
in
qualifications.

Show limits/non-liability
advocate/training.

Show lack of experience.

Juxtapose against your expert.

Criticize lower certifications.

Osceola County Courtroom
How to Present your Case at Trial
of
47
Orlando, Florida | www.lowndes-law.com
EXPERT TESTIMONY OUTSIDE
EXPERTISE
How to Present your Case at Trial

Expert cannot testify outside their field of
expertise – not an expert. “[I]t is not
enough that the witness be qualified to
propound opinions on a general subject;
rather he must be qualified as an expert
on the discrete subject on which he is
asked to opine.” Goodyear Tire and
Rubber Co., Inc. v. Ross, 660 So.2d
1109, 1111 (Fla. 4th DCA 1995).

Learn the letters behind the names; Find
out what they mean and how obtained;
Do not allow testimony outside of
expertise (e.g. Business valuation/ real
estate values)

Pioneer Courthouse, Portland, Oregon
48
Orlando, Florida | www.lowndes-law.com
TESTIMONY ULTIMATE ISSUE
 Expert can testify about the
ultimate issue in the matter. Rule
704 and Florida Rule 90.703.
 But long line of Florida cases say
an expert can not invade the
province of the jury. Schneer v.
Allstate Indemnity Co., 767 So.2d
485 (Fla. 3d DCA 2000) (private
investigator takes the next step
and says there was insurance
fraud).
How to Present your Case at Trial

FL Wright, Marin Co, CA, near SF
49
Orlando, Florida | www.lowndes-law.com
LEARNED TREATISE

For Federal, a statement in a learned treatise may be read into evidence, but not
introduced as an exhibit.

Rule 803(18)--Learned treatises. To the extent called to the attention of an expert
witness upon cross-examination or relied upon by the expert witness in direct
examination, statements contained in published treatises, periodicals, or pamphlets
on a subject of history, medicine, or other science or art, established as a reliable
authority by the testimony or admission of the witness or by other expert testimony or
by judicial notice. If admitted, the statements may be read into evidence but may not
be received as exhibits.

But note the argument that it is cumulative (Rule 403).

In Florida, A treatise on direct is hearsay and improper bolstering. Green v.
Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993); Bolberg Costano v. Agency Rent A
Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).
How to Present your Case at Trial
50
Orlando, Florida | www.lowndes-law.com
CROSS WITH LEARNED
TREATISE
 Can impeach using treatise cannot use on direct Bolberg Costano v.
Agency Rent A Car, Inc., 560 So.2d 265 (Fla 4th DCA 1990).
 Expert can admit it is authoritative or trial court can determine it is
authoritative Farel v. Houghey, 727 So.2d 1033 (Fla. 5th DCA
1999).
 Know your material – have book with you.
 Be careful because expert likely knows more than you.
How to Present your Case at Trial
51
Orlando, Florida | www.lowndes-law.com
VOIR DIRE OF METHODOLOGY
 Florida--If no factual basis provided on direct examination, expert
can be voir dired and methodology tested before the opinion is
given. Rule 90.705 and Myron v. South Broward Hospital District,
703 So.2d 527 (Fla. 4th DCA 1997).
 Federal—expert can testify without providing the factual basis for the
expert opinion. Rule 705—ample opportunity for discovery/
challenge prior to trial.
How to Present your Case at Trial
52
Orlando, Florida | www.lowndes-law.com
CROSS EXPERT FOR LIMITED
ANALYSIS




No site visit.
Limited time spend on case.
Only looked at what they told you to look at.
Missed something important (depo).
How to Present your Case at Trial
53
Orlando, Florida | www.lowndes-law.com
CROSS WITH A FOCUS ON
STRENGTHS
 Ask if he considered testimony of X that is favorable.
 Show him favorable exhibit and make sure reviewed.
How to Present your Case at Trial
54
Orlando, Florida | www.lowndes-law.com
CROSS FINANCIAL
INCENTIVES/PRO EXPERT





Amount of time not testifying.
Amount of money paid to date/retainer letter.
Higher rate for trial.
Check for contingency/financial interest in litigation.
If delinquent need a win so expert can be paid.
How to Present your Case at Trial
55
Orlando, Florida | www.lowndes-law.com
Cross for Attorney Manipulation
 Email correspondence.
 Initial memo/later memos.
 Preliminary opinions?
 Revisions to preliminary opinions?
 Inconsistency with report/prior
reports.

How to Present your Case at Trial
Fairfax
56
Orlando, Florida | www.lowndes-law.com
CROSS EXPERT TESTIFYING
OUTSIDE EXPERTISE
 Break down opinions into
cross of expertise and areas
where no expertise.
 Confirm that no training/not
expert in some area.

Bristol, UK
How to Present your Case at Trial
57
Orlando, Florida | www.lowndes-law.com
CLOSING STATEMENT
How to Present your Case at Trial
58
Orlando, Florida | www.lowndes-law.com
http://youtu.be/RF3TzsEEZbI
How to Present your Case at Trial
59
Orlando, Florida | www.lowndes-law.com
Closing Arguments
 Remember time limits.
 Save rebuttal time.
 Permission to move around
the courtroom.
 Get a break to collect your
thoughts.
 Use exhibits.
How to Present your Case at Trial
 Use jury instructions.
 Tie in the opening
statement and the witness
testimony.
 Contrast and Apposition.
 Verdict form.
60
Orlando, Florida | www.lowndes-law.com
How to Present your Case at Trial
61