TRIAL ADVOCACY
USING THE FEDERAL RULES
OF EVIDENCE (USA)
SYLLABUS, MATERIALS &
ASSIGNMENTS FOR ADVOCACY
CLASSES & CONFERENCES &
COLLOQUIA
STEPHEN MICHAEL EVERHART
PROFESSOR OF LAW
STETSON UNIVERSITY COLLEGE OF LAW
FORMER U.S. CHINA FULBRIGHT PROFESSOR
LAW SCHOOL - BEIJING NORMAL UNIVERSITY
BEIJING, P.R.C.
6/15/2012 - 7/5/2012
IN MEMORY OF JUDGE JERRY R. PARKER
AND WITH SPECIAL THANKS TO
ALL OF MY TEACHING ASSISTANTS OVER THE LAST 20 YEARS
WHO HAVE HELPED ME CO-TEACH THIS COURSE
PROFESSOR EMERITUS BILL ELEAZER
STETSON UNIVERSITY COLLEGE OF LAW
CHIEF CIRCUIT JUDGE DAVID DEMERS
AND THE MANY LAW STUDENTS AND LAW GRADUATES THAT HAVE
BROUGHT JDUGE PARKER’S BIGPOND CASE TO LIFE
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CLASS 1
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-5-
Stephen M. Everhart
Professor of Law
B.A., Florida State University
J.D., University of Florida
Courses:
Chinese Legal System Seminar, Evidence, Professional
Responsibility, Trial Advocacy
Stetson University College of Law Professor and 2004-2005 US-China Fulbright Professor
Stephen M. Everhart teaches and lectures in the areas of world-wide Comparative Clinical Legal
Education, The Practical Training of Lawyers and Judges, Practical Professional Responsibility,
Legal/Judicial Ethics, Civil and Criminal Law and Procedure, Trial Advocacy, and
Administrative/Mediation/Arbitration/WTO Advocacy. As a U.S. China Fulbrighter, he spent the 20042005 academic year in China where he lectured and trained Chinese law students, academics, and
government and business leaders at all of the top law schools in China from Beijing to Shanghai, Xiamen,
Shantou, Shenzhen, Hong Kong, Macau, Hainan, Wuhan, and Chengdu in areas of the law pertaining to
evidence law and trial/arbitration advocacy in civil business and criminal dispute resolution.
Professor Everhart helped Stetson become the number one law school in the United States in the
teaching of trial advocacy. He co-coached three different Stetson trial teams to three straight national
championships. He has run all of Stetson’s civil and criminal legal practice clinics, and he has published
articles in the areas of civil and criminal litigation, dispute resolution, and written and published a book in
both Chinese and English, and he is the recipient of Stetson’s Homer and Dolly Hand Prize for
Outstanding Faculty Scholarship, and one of his articles made the “Worth Reading” list of the National
Law Journal. He has also taught at Temple Law School in the Tsinghua-Temple China LL.M. program
where he taught lawyers, judges, police officers, law professors, and prosecutors from the People’s
Republic of China, and he has also taught in Temple’s Civil Litigation LL.M., where he received the
highest evaluation Temple’s supervisor of that program had ever seen.
He has also taught a basic Trial Advocacy course at Temple. Professor Everhart is a former
prosecutor and criminal defense lawyer (where he handled death penalty cases) and he practiced law in
his own firm, Blews & Everhart, with Bill Blews, the former president of The Florida Bar and the
Academy of Florida Trial Lawyers, in a high stakes personal injury trial firm handling medical
malpractice, products liability, and other high-end civil litigation.
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He was also appointed by the Governor of the State of Florida to the bench as a Judge of
Industrial Claims where he presided over the administrative dispute resolution of worker’s compensation
cases. He is also the former chair of the Criminal Law Section and the Criminal Procedure Rules
Committee of the Florida Bar (a committee that works directly with the Florida Supreme Court in rule
making proceedings). Professor Everhart represented The Florida Bar in rule-making proceedings as to
the adoption of Rules of Criminal Procedure pertaining to the trial of death penalty cases in Florida. He
has trained practicing prosecutors and criminal defense lawyers for The Florida Bar (which lawyers had
handled at least 50 jury trials). He is a member and former officer of many civil and criminal trial lawyer
groups. He has a degree in Asian Studies and has been trained in Buddhist monasteries and as a martial
artist and is a life-long student of the world’s generally and Asia in particular’s socio-economic, political,
legal, cultural and spiritual traditions.
Professor Everhart has served as an officer or director in the Chinese Chamber of Commerce
Tampa Bay and the National Asian Pacific American Bar Association Tampa Bay Chapter
(NAPABATB) (founding member and 1st Secretary), and he is a member of the Southern Association of
Chinese Americans (SACA).
Professor Everhart has either taught courses, spoken at conferences, given lectures, or trained law
students, academies, police, government and business officials more than 100 times in China. Below are
some of the courses/presentations he has given. See his faculty bio on the Stetson Law website for
additional teachings/trainings Professor Everhart has done in China in the last eight years.









Sino-American Economic Relations and Their Effects on Chinese and American Legal, Clinical,
Business, and Professional Education;
China’s Move to the Rule of Law: Answering Her Critics and Moving On;
The Pros and Cons of the American Adversarial Dispute Resolution System;
Comparing and Contrasting Practical Legal Education in China, the U.S. and the World;
Comparing and Contrasting China’s Legal System with Western Legal Systems;
China, WTO, Transparency, and Independent Dispute Resolution; litigating in the WTO:
Controlling The Use And Abuse of Expert Testimony through the use of using The Federal Rules
of Evidence and Everhart’s Advocacy Techniques;
The Past, Present and Future of Clinical Legal Education in China;
How Lawyers Can Make a Difference in a Dispute Resolution System;
Plea Bargaining in America: Skewing a Skewed System.
http://www.law.stetson.edu/faculty/everhart-stephen-m/
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CLASS
1
ASSIGNMENTS
1.
2.
3.
4.
5.
6.
7.
PAGES
READ MY RÉSUMÉ ………………………………………………..6-7
READ THE SYLLABUS .................................................................... 10-13
READ THE BIGPOND CASE FILE .................................................. 17-70
DISCUSS CASE ANALYSIS, PERSUASION AND
STORYTELLING
READ MATERIALS ONTAINED HEREIN
BEGINNING ON PAGES .......................................................... .…..71-103
DIRECT EXAMINATION, CROSS-EXAMINATION,
IMPEACHMENT, FOUNDATION FOR INTRODUCTION
OF EXHIBITS
PRACTICE THE ABOVE SKILLS
DIVIDE INTO TEAMS
8.
PRACTICE DIRECT AND CROSS EXAMINATION OF ETHAN
BIGPOND; READ/USE BIGPOND DEPOSITION ........................... 36-41
AND SAMPLE DIRECT AND CROSS-EXAMINATION
OF ETHAN BIGPOND ................................................................... 105-110
______________________________________________________________________________
2
DIRECT AND CROSS OF DANA AUSTIN
READ/USE AUSTIN DEPOSITION .................................................. 42-45
AND SAMPLE DIRECT AND CROSS EXAMINATION
OF DANA AUSTIN ........................................................................ 115-122
______________________________________________________________________________
3
DIRECT AND CROSS OF JORDAN PARKS
READ/USE PARKS DEPOSITION ................................................... 46-51
AND SAMPLE DIRECT AND CROSS EXAMINATION
OF JORDAN PARKS ...................................................................... 127-131
______________________________________________________________________________
4
DIRECT AND CROSS OF CODY ADAMS
READ/USE ADAMS DEPOSITION .................................................. 52-55
AND SAMPLE DIRECT AND CROSS EXAMINATION
OF CODY ADAMS ......................................................................... 137-145
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CLASS
ASSIGNMENTS
PAGES
5&6
OPENING STATEMENTS (MATERIALS AND SAMPLE
OPENINGS) READ PAGES IN THESE MATERIALS ........................ 149-167
______________________________________________________________________________
7&8
VOIR DIRE; READ PAGES IN THESE MATERIALS ....................... 171-206
______________________________________________________________________________
9 & 10
CLOSINGS (MATERIALS & SAMPLE CLOSINGS)
READ PAGES IN THESE MATERIALS ............................................... 211-234
______________________________________________________________________________
11
PRELIMS, DV=S, FINAL TRIAL MATERIALS; READ PAGES...... 239-303
______________________________________________________________________________
12
1ST MOCK TRIAL .............................................................................................305
______________________________________________________________________________
13
2nd MOCK TRIAL .............................................................................................307
______________________________________________________________________________
14
3rd MOCK TRIAL .............................................................................................309
______________________________________________________________________________
FINAL TRIALS ......................................................................................... 311-315
SE/dc/Trial Using the Fed. Rules of Evid. (USA)-Assignments Schedule-Summer 2012
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SYLLABUS & MATERIALS
TRIAL USING THE FEDERAL RULES OF EVIDENCE (USA)
SUMMER 2012
PROFESSOR EVERHART
Trial Advocacy is a “learning by doing” course. We will study – and individually
exercise – trial advocacy skills in a simulated courtroom environment. The course will include
jury selection, opening statements, direct and cross-examination of witnesses, making and
meeting objections, and closing arguments. We will also cover oral motions, handling exhibits,
examination of expert witnesses, impeachment methods and techniques, and the Trial Notebook.
During the last week of the course, each student will participate in a 4-hour simulated trial,
presided over by one of the Circuit or County Court Judges from Pinellas or Hillsborough
County or a well-known Civil Trial Lawyer.
This course is for only 3 hours credit, so realistically, I cannot expect all students to be
“outstanding trial lawyers”, at the end of the course; however, I will be disappointed if there are
not at least a few well on the way. I will also be disappointed if all are not at least sufficiently
competent in trial skills to perform adequately in most of the situations lawyers face every day in
our trial courts.
We can accomplish these goals only by maximum (i.e., 100%) class attendance and
thorough class preparation. You are expected to be in class each day the section meets, on time
and prepared for the day’s exercise. While students are, by school rules, entitled to one
unexcused absences (i.e., 1 4-hour class period in the course), such absences are discouraged, as
the absence of any student generally adversely affects the assignment for the day. If you have
more than two absences you may not receive credit for this course. If you fail to attend class on
the date that you are assigned a role, either as advocate of witness, without prior approval from
me, your grade may be reduced up to 1.0, no matter what your assigned role (advocate or
witness). The only exceptions to this rule are (a) documented illness of you, your child, or other
dependent; (b) verifiable death in your family; or (c) an emergency created by forces of nature
beyond your control. You must contact me in the event of any of the above emergencies as soon
as possible. If absent, you nevertheless are responsible to arrange for a substitute if you are
scheduled to act as a witness or an advocate. If you know in advance that you will not be able to
attend, please notify me in advance so that adjustments to the schedule can be made. It is your
responsibility to keep track of your absences. I will not warn you. Attendance will be taken at
the beginning of each class. If you are late - you will be considered absent. It is your
responsibility to verify with me or the Teaching Assistant that your attendance has been noted.
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CLASS PARTICIPATION:
In addition to regular class attendance, students must come to class prepared and must
actively participate. Your class participation will include your role as advocate, witness, judge,
and evaluator. When not actively participating in an exercise, you are expected to give your full
attention to your classmates while they are performing and to participate in the critiquing
process. You may not do other work during this class. Learning a new skill requires observation
as well as performance. If you do other work during this class time, you will receive a 0.0 for
your grade in this course. There are 14 regular class participation sessions of what some call 4
hours, plus the final trials, as indicated in this syllabus. I have found that the students prefer to
complete all “final trials” before the start of final exams. The final trials are usually held on
weekday nights or on Saturdays mornings, but sometimes they can be held during the day on a
weekday. Each student will be required to attend another final trial in a support role, playing the
part of a bailiff, clerk or videographer. While in a support role, each student will be required to
bring 2 or 3 persons to serve as jurors, or as indicated below and announced in class. This
requirement pertaining to the bringing of jurors if necessary, are minimum requirements; a grade
of 2.0 or better cannot be earned in this course if you do not bring jurors if that is the option I
choose for the final trial. We must have jurors for our final trials, if that is the option I choose.
There are no exceptions to these requirements.
REQUIRED COURSE MATERIALS:
Everhart, Syllabus & Materials; Available in the bookstore (hereinafter cited as
“materials”)
ASSIGNED MATERIAL:
The assignments for each class are contained in this Syllabus and the material that must
be read for each class and the materials for each class are separated by a sheet of colored paper.
Students will be responsible for reading the appropriate text material in the Lubet text and the
documents in these materials for each class.
TEACHING ASSISTANT:
A student who has completed trial practice may serve as a Teaching Assistant for the
class.
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GRADING:
This is a three (3) credit course. Stetson’s grading policy for elective courses applies to
this class. The grades in this course will be based on the following factors:
A.
B.
C.
D.
E.
Preparation and performance of the assigned
exercises (both as advocate and witness)
Class participation in critiquing performances
Written assignments, if any
Demonstration of appropriate courtroom decorum
and professionalism
Preparation and Performance of a Final Trial;
Demonstration of Trial Skills Learned
A WORD CONCERNING DRESS:
I am sure each of you is aware that dress requirements exist in most federal and state
courts. In order to effect some realism in our Trial Advocacy course, students are required to
dress professionally in appropriate courtroom attire for each class.
Appropriate courtroom attire (which includes coats and ties for men and professional
clothing for women) will be required when you are in the role of an attorney or in a support role
in both the mock trials near the end of the course and the final trials, and when videotaping jury
selection, opening statements and closing arguments.
COURTROOM DECORUM:
During the course, specific rules of courtroom decorum and etiquette, as well as trial
procedure, will be outlined. Among these rules is the rule against food, drink, or chewing gum
in the courtroom. This applies both when class is “in session” and “out of session.” Remember,
no food or drink, etc. in the courtroom.
Generally, class will proceed without a break. If you find it necessary to leave the
courtroom during this time, please do so quietly and with as little disruption as possible, and
return as soon possible.
AUDIO/VIDEO RECORDING OF CLASSES:
There will be no audio or videotaping, or recording of any kind of the class sessions
or final trials, except as directed and indicated in these materials, and authorized by me.
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LAST WEEK OF COURSE:
As indicated in the Assignments set forth above, Final Four-hour trials will be assigned.
Each student will act as counsel in one trial and in a support role in another trial. Counsel will
provide their own witnesses for their trials. While in a support role, each student will bring 2 or
3 jurors and will serve as bailiff, clerk, or video-operator.
CONFERENCES/SPECIAL HELP:
I am available almost every day. No appointment is necessary, but if you want one, you
may make one after class, or call me at work, 562-7860, or on my cell phone (which number I
will give you the first day of class) and you may call me on either line at any reasonable time day
or night to talk to me.
VIDEO TAPING:
When it is your turn to do opening statements, jury selection, and closing arguments,
each student must bring a DVD. We will videotape/record those sessions. By having your own
tape, you may play it back at your convenience. You will thus see yourself as the jury sees you,
which will enable you to work on improvement of your techniques and style.
SE/dc/Trial Using the Fed. Rules of Evidence (USA) Syllabus-SU2012
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TRIAL ADVOCACY
USING THE FEDERAL RULES
OF EVIDENCE (USA)
MATERIALS & ASSIGNMENTS
STEPHEN MICHAEL EVERHART
PROFESSOR OF LAW
STETSON UNIVERSITY COLLEGE OF LAW
FORMER U.S. CHINA FULBRIGHT PROFESSOR
LAW SCHOOL - BEIJING NORMAL UNIVERSITY
BEIJING, P.R.C.
6/15/2012 - 7/5/2012
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Class #1
Direct & Cross-Examination
REFERENCE:
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
See Handout on exhibits – Materials – Pages 78-102, selectively.
For this assignment, we will work on the direct and cross of Ethan Bigpond.
Be sure and read Lubet, Chapter 10 (foundations) and review all of the Bigpond
materials. Prepare the direct and cross for Ethan. Prepare to introduce the exhibit(s)
during the direct or cross. Be prepared to act as either counsel for Bigpond or Shrimp
& Ale and be prepared to do either the direct or cross and get the exhibits into
evidence. Also be prepared to act as Ethan Bigpond.
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Class #1
Direct & Cross-Examination
REFERENCE:
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
See Handout on exhibits – Materials – Pages 78-102, selectively.
For this assignment, we will work on the direct and cross of Ethan Bigpond.
Be sure and read Lubet, Chapter 10 (foundations) and review all of the Bigpond
materials. Prepare the direct and cross for Ethan. Prepare to introduce the exhibit(s)
during the direct or cross. Be prepared to act as either counsel for Bigpond or Shrimp
& Ale and be prepared to do either the direct or cross and get the exhibits into
evidence. Also be prepared to act as Ethan Bigpond.
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CLASS 2
DANA AUSTIN
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Class #2
Direct & Cross-Examination
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
For this assignment, the emphasis will continue to be on proper direct and
cross-examination, but this time we will do the direct and cross of Dana Austin.
Be prepared to do the direct and cross of Dana Austin.
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CLASS 3
JORDAN PARKS
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Class #3
Direct & Cross-Examination
REFERENCE:
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
Handout of Exhibits (Materials):
For these assignments, we will begin doing directs and cross-examinations of
the defense witnesses in Bigpond. We will start with the direct and cross of Jordan
Parks with diagrams/exhibits created by the direct examiner. The direct examiner is
to offer the diagram into evidence, but thereafter it may be utilized by either counsel.
Consider the size of the diagram and how it can be best utilized to educate the jury.
(Should it be made larger? The answer is likely to be “Yes.”) The diagrams are
contained in each problem.
Prepare to do the direct and the cross of Parks and be prepared to play the part
of Parks.
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CLASS 4
CODY ADAMS
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Class #4
Direct & Cross-Examination
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
For this assignment, we will continue with cross-examination and direct
examinations. This time the direct and cross of Cody Adams. Diagrams/Exhibits are
to be prepared and used in each problem. The direct examiner is to offer the diagram
into evidence, but thereafter it may be utilized by either counsel. Consider how the
diagram can be best utilized to educate the jury. (Should it be made larger? The
answer is likely to be “Yes.”).
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CLASS 5
OPENINGS 1
CLASS 6
OPENINGS 2
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Class #5 & #6
Direct & Cross-Examination
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
OPENING STATEMENTS
Opening Statements are toe be from 4 to 5 minutes in length. You must not
“read” the opening statement and must avoid the obvious use of notes. If you wish,
you may have available (on the lectern) an outline, on one side of a single sheet of
paper, with key words on it. This single sheet of paper is to be used only as
necessary. Do no “plan” to use it as “lecture notes.” Whether you decide to take the
outline to the lectern with you or not, you must prepare one. It will be turned in to the
teaching assistant at the end of the class, on the date you make your opening
statement.
You are to give the opening statement for the case assigned below.
P=Plaintiff’s Counsel. D=Defense Counsel. The first half of the class will give their
Opening Statements on. The remainder will give their Opening Statements on. Come
dressed in appropriate courtroom attire to make your opening statement; you will be
video-taped. Don’t forget to bring your own tape.
NAME
For
1.
12.
2.
11.
3.
10.
For
4.
9.
5.
8.
6.
7.
PARTY
CASE FILE
P
D
P
D
P
D
Bigpond
P
D
P
D
P
D
P
D
Bigpond
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Bigpond
Bigpond
Bigpond
Bigpond
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CLASS 7
VOIR DIRE 1
CLASS 8
VOIR DIRE 2
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Class #7 & #8
Jury Selection
REFERENCE:
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
(1)
(2)
Refer to Lubet’s Text
Assigned case for Final Trial
During jury selection you should be prepared to conduct 8-10 minutes of voir dire. You
will be selecting a jury for the case that you have been assigned for your Final Trial. Since your
voir dire will be limited in time, spend only a few minutes of your time with standard “boiler
plate” questions, such as marital status, children, prior jury service, etc. Spend most of voir dire
time asking questions specifically pertinent to your particular case and side.
For this assignment, write out your questions, either verbatim or in summary form. They
will be turned in at the end of the class. (Of course you do not have to write out all the questions
you would be asking in a “real case”, but you must write out a “representative sample.”) Please
keep in mind that although you will be writing out your questions for this assignment, you
should strive to obtain a rapport with the members of the jury, and this is not possible if you
merely read to them the questions you have written. Concentrate on maintaining eye contact and
interest in your jurors.
In addition to your voir dire questions, you must prepare a jury profile of favorable and
unfavorable jurors. Turn this profile in with your “representative sample” of voir dire questions.
Note: Bring your videotape.
NAME
CASE
For
For
PARTY REPRESENTED
P
D
P
D
P
D
P
D
P
D
P
D
P
D
P
D
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CLASS 9
CLOSING 1
CLASS 10
CLOSING 2
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Classes #9 & #10
(1)
Trial Using The Federal Rules of Evidence (USA)
Professor Everhart
Assigned case for Final Trial
Closing arguments are to be approximately 8 minutes in length. You must not “read” the
closing argument. While you should have available a “key word” outline, or a check list of
points to be covered, you must not rely on your notes except to refresh your memory—in the
unlikely case they are needed. Remember that eye contact is essential to an effective closing
argument. Use of notes detracts from your presentation.
You are to give the closing argument for the case assigned for your “Final Trial.” You
are to assume that all relevant and admissible evidence was presented and admitted.
Appropriate courtroom attire is to be worn for closing arguments. Make sure you bring
your video tapes. Your “key word” outline will be turned in.
NAME
For
CASE
PARTY REPRESENTED
P
D
P
D
P
D
P
D
For
P
D
P
D
P
D
P
D
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CLASS 11
PRELIMINARY MATTERS/PRE-TRIALS
MOTIONS IN LIMINE
MOTIONS FOR DIRECTIVE VERDICTS (DV)
TRIAL NOTEBOOK
FINAL TRIAL INSTRUCTIONS
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FINAL TRIAL
(Professor Everhart)
Sample Assignments
Group 1 – (Example) Thu. Jun. 28 at 6:00 pm
Group 2 – Tue. June 26 at 6:00 pm
CASE: BigPond
CASE: BigPond
COURTROOM: Sebring
COUTROOM: Carey & Florin
Roger
P
Chad
P
Bob
D
D
Danny
P
P
Jason
D
D
Support Group
Support Group
Bailiff
Clerk
Video
Bailiff
Clerk
Video
-
Danny
Danny
Jason
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-
Chad
Roger
Bob
JURY VERDICT FORM
WE, THE JURY, FIND THE DEFENDANT ______________________________
1. GUILTY
2. NOT GUILTY
OF THE OFFENSE CHARGED.
SIGNATURE _______________________
(Jury Foreman)
DATE ______________________________
em 9/21/92
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CLASS 12
MOCK TRIAL 1
VIDEO REVIEW
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CLASS 13
MOCK TRIAL 2
VIDEO REVIEW
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CLASS 14
MOCK TRIAL 3
VIDEO REVIEW
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FINAL TRIAL # 1
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FINAL TRIAL # 2
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FINAL TRIAL # 3
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