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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."

Federal Practice Manual for Legal Aid Attorneys: 6.8.6 Expert Testimony Has to Assist the Trier of Fact

Federal Rule of Evidence 702 requires that the evidence offered by the expert must “assist the trier of fact either to understand the evidence or to determine a fact in issue.”3158 The requirement that the opinion evidence assist the trier of fact “goes primarily to relevance.”3159 Expert testimony assists the trier of fact when it addresses issues that are typically matters that are beyond the understanding of the average lay person.3160 Exp

Federal Practice Manual for Legal Aid Attorneys: 6.8.7 Expert Reports

A party must disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.”3162 Unless ordered by the court of otherwise stipulated between the parties, under Federal Rule of Civil Procedure 26(a)(2)(B), this disclosure “must be accompanied by a written report – prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.”

Federal Practice Manual for Legal Aid Attorneys: 6.8.8 Protection of Communications with Experts

Federal Rule of Civil Procedure 26(b)(4) protects drafts, regardless of the form, of any expert reports or disclosures required by Rule 26(a)(2).3181 Communications, regardless of their form, between the attorney and any expert required to provide a report, are generally protected from disclosure with limited exceptions.3182 An opposing party may only seek disclosure of communications between the attorney and the expert if it relates to the expert’s compensation; the facts and data that the

Federal Practice Manual for Legal Aid Attorneys: 6.8.9 Challenging the Admissibility of Expert Testimony

As a function of the court's duty to expeditiously manage trials by eliminating inadmissible evidence, the United States Supreme Court has stated that courts have the inherent power to provide for filing of motions in limine and deciding such motions.3184 Federal Rule of Evidence 103(d) provides, in cases tried to a jury, that a court should, “to the extent practicable,” prevent inadmissible evidence from being suggested to the jury.3185 Motions in limine provide the trial

Federal Practice Manual for Legal Aid Attorneys: 6.8.10 Expert Discovery

The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case….”3193 Relevance encompasses any matter that “bears on,” or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case.3194 District courts have broad discretion to determine relevancy for discovery purposes.

Federal Practice Manual for Legal Aid Attorneys: 6.9.2 Issues and Procedures

Concerns about whether to appeal often mirror the questions raised when litigation is first contemplated, while the process of appealing differs greatly from district court litigation. This section focuses primarily on the procedural aspects of an appeal, with some attention paid to the internal inquiry regarding the strategy of appealing. The substantive aspects of brief writing and oral argument are not discussed in this Section.3203

Federal Practice Manual for Legal Aid Attorneys: 6.9.6 The Course of an Appeal

Most appeals are resolved after full briefing and, if granted, oral argument, with each court having different policies and procedures for those activities.3302 The content and form of the briefs and of the appendix to the briefs are set out in detail in Federal Rules of Appellate Procedure 28, 30, and 32, and local rules of court.3303 Because local practice often differs on these important aspects of appellate practice, they are not discussed here.330