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Federal Practice Manual for Legal Aid Attorneys: 6.4.6 The Public Interest

Plaintiffs will also have to establish that preliminary relief is in the public interest.2875 While the Supreme Court in Winter cautioned that “[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”,2876 courts often find that enforcement of federal law is in the public interest.2877 Plaintiffs should also be able to demons

Federal Practice Manual for Legal Aid Attorneys: 6.4.9 Security Requirement

Federal Rule of Civil Procedure 65(c) requires an applicant for a TRO or preliminary injunction to post security for the issuance of preliminary relief in the event that the court later finds that the opposing party was wrongfully enjoined.2915 The mandatory nature of the security requirement is mitigated by language in the Rule stating that the security should be “in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”

Federal Practice Manual for Legal Aid Attorneys: 6.6.2 Whether to participate in Mediation

Regardless of whether mediation is mandated or voluntary, litigants must seriously consider its advantages and disadvantages. Even jurisdictions mandating mediation typically provide some mechanism to petition the court for exemption or removal.2994 Therefore, it is essential that litigants compelled to mediation engage in the same critical weighing of their participation as those provided with voluntary mediation.

Federal Practice Manual for Legal Aid Attorneys: 6.6.3 Timing of ADR

As previously discussed, depending on the ADR procedure adopted by any given district court, a plaintiff may have some discretion as to when to pursue mediation. Given that choice, the plaintiff must carefully consider the advantages and disadvantages of either expediting or delaying mediation at the outset of litigation. Moreover, this determination should not be made once and never revisited. As a case evolves, the litigants too must evolve in their thinking.

Federal Practice Manual for Legal Aid Attorneys: 6.6.4 Developing a Demand

Having a clear sense of objectives and the prospects for settlement early on is important because the Rule 26(f) conference requires the parties to discuss and assess the prospects for settlement.2997 However, developing a settlement offer requires counsel for the plaintiff to consider carefully the objectives of the lawsuit and to ensure that the client fully understands their interests and priorities as well as the costs and benefits of settlement.

Federal Practice Manual for Legal Aid Attorneys: 6.6.5 Successful Use of ADR

Once a case is referred to ADR, the parties will likely be required to submit at least one settlement conference statement. There is no commonly employed format for settlement conference statements; they may not even be uniform within the same district. The local procedure may call for exchanging these statements, followed by filing a confidential letter or supplementary statement given only to the mediator, or it may call for submission of confidential statements to the mediator only.

Federal Practice Manual for Legal Aid Attorneys: 6.7.4 Preparation for Trial

Simply stated, the keys to a successful trial are thorough preparation and excellent organization. This also puts the advocate in a better position to deal with the unexpected events that invariably occur during all stages of a trial, including those resulting from witnesses (yours or your adversary’s), as well as the court.

Federal Practice Manual for Legal Aid Attorneys: 6.7.5 Pretrial Procedures

Federal Rule of Civil Procedure 16(e) authorizes the court to “hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence,” that is “held as close to the start of trial as is reasonable.”3012 The final pretrial conference is designed to narrow the issues for trial and promote judicial efficiency.

Federal Practice Manual for Legal Aid Attorneys: 6.7.6 Jury Selection

Civil jury trials in federal court must begin with at least six members of the jury, and no more than 12.3019 Unless excused, each juror must participate in the verdict.3020 After the jury panel has been sworn, voir dire commences to determine the selection of prospective jurors who will be seated in the jury box.

Federal Practice Manual for Legal Aid Attorneys: 6.7.7 Opening Statement and Closing Argument

Opening statements and closing arguments serve different purposes and make different demands on the advocate. Each is a form of art requiring careful analysis and preparation. Opening statements and closing arguments should be delivered in a well-paced and well-modulated manner, with minimal reference to notes and much eye contact. In a jury trial, do not patronize the jurors or insult their intelligence; it must be clear that you believe in and respect them. When addressing a jury directly, be yourself.

Federal Practice Manual for Legal Aid Attorneys: 6.7.8 Opening Statement

The opening statement must be tailored to your audience. Judges presumably read pretrial briefs and are familiar with the issues, but juries certainly will not. From the jury’s perspective, trials are like impromptu theater, and you are on stage at all times. In your opening and throughout the trial, you must tell a story that rings true and resonates with the jurors’ own life experiences.

Federal Practice Manual for Legal Aid Attorneys: 6.7.9 Closing Argument

Although you must review the key evidence in your closing argument, the purpose of the closing is not merely to summarize the evidence. It is a one-way conversation designed to persuade. An outline of the closing should be prepared before the trial begins and should sound the same theme introduced in the opening statement, the direct examinations, the cross-examinations, and the jury instructions. As the trial progresses, you should add to your outline, making notes about the actual proof that is entered into evidence and how it relates to your argument.

Federal Practice Manual for Legal Aid Attorneys: 6.7.11 Direct Examination

Most attorneys try to appear to be friendly and not aggressive in direct examination of their own witnesses. Effective direct examination requires (1) that you elicit basic facts in a way that makes them understandable to people who are unfamiliar with them; (2) that you maintain continuity despite objections and interruptions; (3) that the witness convey their belief in their testimony and not appear rehearsed, as well as allowing them to express appropriate emotion; (4) that the rules of evidence be observed; and (5) that a clear record be created in the event of an appeal.

Federal Practice Manual for Legal Aid Attorneys: 6.7.12 Cross-Examination

Before you cross-examine a witness, you must listen to and make notes about their testimony on direct. You must also decide whether to object during direct examination when a rule of evidence is being violated. Objections and interruptions should be minimized in jury trials. This view seems paradoxical because the rules of evidence are more stringent and rigorous in a jury case. However, a jury that is trying to understand the issues and evidence is apt to resent objections.

Federal Practice Manual for Legal Aid Attorneys: 6.7.13 Jury Instructions

Before trial begins, counsel should draft proposed jury instructions that include citations to supporting authority. The instructions must be an accurate, clear, and plain statement of the legal and factual issues in the case. Instructions should cover all tried material issues supported by competent evidence.3050 They should relate the law to the evidence that has been introduced rather than merely state abstract propositions.

Federal Practice Manual for Legal Aid Attorneys: 6.7.14 Remote Trials

Significant changes occurred in trial practice in all state and federal courts as a result of the Covid-19 pandemic. Jury and bench trials and motion hearings were suspended, although remote motion hearings began as soon as remote capability began to evolve. Criminal trials took precedence over civil trials, and civil trials were postponed.3072 With the advent of remote capabilities, non-jury remote trials began, and many litigants had to make the hard decision of waiving a jury in order to reach the trial stage.

Federal Practice Manual for Legal Aid Attorneys: 6.8.2 Assisting the Trier of Fact

Under Daubert and Kumho Tire, only relevant and reliable expert opinion testimony is admissible. The requirement that the testimony will assist the trier of fact, under Daubert, “goes primarily to relevance.”3088 “Expert opinion testimony is relevant if the knowledge underlying it has a ’valid . . . connection to the pertinent inquiry.’”3089 “Relevancy simply requires that ‘[t]he evidence ...

Federal Practice Manual for Legal Aid Attorneys: 6.8.3 Reliability Principles and Methods

District courts are required to make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”3095 The purpose of the inquiry into reliability is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."