Trial Advocacy

Course: 6640-22, Spring 2006

Professor Marian Blank Horn

Compiled by: Sahar Saqib

Journal Entries: Table of Contents

Assignment 1: Direct Examination of Officer Russell – assigned 1/12/2016,

conducted 2/2/2016

Assignment 2: Cross Examination of Officer Russell – conducted 2/2/2016

Assignment 3: Direct Examination of Officer Russell – never conducted

Assignment 4: Cross Examination of Dr. Liu – assigned 2/9/16, conducted 3/8/16

Assignment 5: Jury Voir Dire of Paves, assigned 3/8/2016, conducted 3/22/2016

Assignment 6: Use of exhibits in Paves, assigned 3/15/2016, conducted 3/29/2016

Final Trial: The Commonwealth of Washington v John Blue, conducted 4/5/2016

Journal Entries

First impressions: Because I am a common law lawyer, I feel I will benefit from the course

primarily through placing myself in a court room situation where I must learn to think on my

feet. The US system is different from how we conduct court hearings at home primarily because

we lack a jury system. I am not a public speaker, although last semester in Negotiations I learnt

that I can pretend to be confident about my assertions even though I may not feel that to be true.

I missed the first class as I arrived in D.C. one week late. I enjoyed the introduction and my peers

appeared very friendly. I look forward to learning more, and I am happy my friend Sara had

decided to take this course with me.

In class we discussed expectations of this course, and some students conducted their direct

examinations which were assigned to them last week. I collected my case pack to prepare and

conduct my direct examination in the next class. I learnt from observing the students and

gathered that they were all good speakers, and resolved to push myself to be just as good.

I learnt that it is possible to re-direct, or conduct a second examination in chief even after the

cross examination has occurred. I did not receive this well initially because to me it defeated the

purpose of a cross examination, if the opposing side would get a second chance to restate their

position.

Assignment 1 and 2: Direct Examination and Cross Examination of Officer Russell

– conducted 2/2/2016

We discussed the case of People v James Sturgess, this time with emphasis on witness handling

as well as direct and cross examination techniques in class today. I have some experience from

having conducted mock trials during my LL.B but the rules are different with respect to leading

questions. We are absolutely not allowed to use leading questions irrespective of whether we are

conducting an examination in chief (or direct examination) or cross-examination. I find the U.S.

system to be interesting in that we have more liberties to speak freely in the court and not worry

about the judge striking your question or the other parties countering your remarks by saying

they are suggestive, or leading, and that until you are stopped, the judge will let you continue

your line of argument.

I conducted my first direct examination. I learnt how to alert the witnesses to evidence by asking

if it they recognized the item in question that I would hold up for them. It was also my first time

speaking in the class and I was met with some warm remarks after class.

I was the last person to conduct the direct as most everyone had participated the week prior. I

was however the first in the class to conduct a cross examination and it was a little nerve

wracking because although I knew what a cross examination entailed, I was very unsure of the

rules. The court room etiquette is different with relation to cross examinations because although

we can cut off a witness as they speak, the judge will frown at this aggressive behavior, because

it is also perceived as not letting the witness elaborate their point. Usually the questions asked in

cross examination are different, or talk about a different element in a new light, and so the

witness should be able to express their thoughts on it. But we are encouraged to curtly end the

discussion with the witness, which is new and refreshing because I feel it gives me more power

to handle the witness to give exactly the answer I want.

I conducted a cross examination and received feedback that I did well. I was not careful with the

dates and so I confused my witness by asking her to recount the wrong event on the wrong day.

I also prepared to be the witness Greg Young but did not get called on to volunteer as witness.

Assignment 4: Cross Examination of Dr. Lui – assigned 2/9/16, conducted 3/8/16

In today’s class we discussed the Hyde case and I learnt how to call witnesses in the order that

would best suit your case and client’s story. We learnt how to discredit a witness, particularly an

expert witness by wondering aloud if they were even shown any reports, or asking how many

articles they had written.

I was unable to conduct my cross examination for Dr. Lui in the manner that I had prepared it. I

had brought in evidence which I would have used to discredit him and his expertise, but I

realized after the class that cross examination is better done when your questions are not so

presumptive and air tight. I could not ask them in the manner I would have done a direct

examination, which was my first mistake. I felt I prepared the questions too specifically and with

the view that the doctor would perhaps assert that he was a specialist or would insist that it was

not a suicide. The fact that this was not the line of reasoning chosen during the examination in

chief really threw me off. I failed to notice that the Doctor’s statement does show that he denies

being a psychiatrist, but I was unsure how the Petitioners would tackle this witness.

I should have objected to their being entered in as an expert witness, but I was unsure how to

argue at that point in the trial that he was not only a medical expert and not a psychiatrist. Due to

my heavily formatted line of questioning, I was very disoriented as the main point I wanted to

establish was already professed by the witness. As a result, I asked a handful of general questions

and had the Doctor repeat that he was not a psychiatrist. Had I not fixated so much on my line of

questioning and addressed the issues raised by the Plaintiff, I feel I would have performed better

on the cross examination.

Cross Examination: Dr. Sid Lui

May I proceed, your Honour?

My name is Sahar Saqib, cross examining Mr. Liu for the Defendant, Beneficial Life Insurance

Company.

Mr. Lui, you have been practicing family medicine in Petersburg for about 13 years now,

correct?

Could you please repeat your qualifications? [only if haven’t been asked, or repeat for emphasis]

How many years have you known the Hyde family? [only if hasn’t been asked]

- shortly after he arrived in Petersburg

I have your deposition before me. You have said multiple times that you were worried for Mr.

Hyde and that you thought he was depressed?

You prescribed an anti-depressant for him, I believe it was Prozac, correct?

But Frank refused to take it, neglecting your orders, right?

You even called Mrs. Hyde telling her you thought Frank was depressed, is that not so?

And is it also true that Frank had not come to see you for at least 4 years since the last time you

met him?

You must have been distraught to hear about Frank’s valium incident.

Would you, in your professional opinion, agree that it was akin to a form of increased substance

use and also an effective means of self harm?

You mentioned that Frank was worried about his ability to take care of himself and his family. Is

that not so?

Your Honour, I’d like to include this chart as a part of the evidence. May I show counsel the

exhibit?

Mr. Lui, this is a print out of a diagram I attained from a suicide prevention website which you

might have noticed I was marking as I questioned you. I have indicated all the factors that match

Frank’s depression that lean towards suicide, based on your testimony today.

Your Honour, may I approach the witness box to show the witness the exhibit?

Your Honour, may I now also show the exhibit to the Jury?

Just a few more questions, Dr. Lui.

What is your area of specialization, Doctor?

Were you, at any point in your affiliation with Mr. Hyde, treating him as a psychiatrist?

Would you be able to explain to the jury about all the symptoms and warning signs of a suicidal

patient?

Lastly, Doctor, if your car ran off the road and you can see that it’s going to crash into a tree;

would you try to stop it?

How would you do that? By applying the brakes?

Were you aware that there were no skid marks made by Mr. Hyde’s car before he crashed?

[this may be objected on grounds of speculation but worth it to plant into the jury’s mind]

Witness Preparation

Greg Young

28 yrs old.

Live in Petersburg

Sell insurance for Beneficial Insurance Company

I am the Petersburg agent

Sold Frank Hyde a life insurance policy on Sept 15th 2013, valued $250,000.

Mrs. Georgia Hyde was named beneficiary.

Double indemnity if he died in an accident. Not payable if he committed suicide

I delivered the policy to him at his work

Mr. Hyde signed a doctor patient privilege and a release of all medical records in connection with the policy.

We contacted Dr. Lui examined his medical records and issued the policy.

Told him he now had more coverage than anyone in town – your family will have nothing to worry about if anything happened to you

He seemed normal to me

I heard he died in a car crash – on October 2nd 2014.

Mrs. Hyde claimed her rights as beneficiary

We spoke to the police officer who investigated the accident

We spoke to Ralph Savon about the night of the accident

We talked to Philip Morris and discovered he was fired just before the accident

We denied payment – because – we concluded it was a suicide

I knew Mr. Hyde only as a client.

Knew he had a wife and 4 kids.

3/22/2016

Assignment 5: Jury Voir Dire of Paves, assigned 3/8/2016, conducted 3/22/2016

Jury Voir Dire

In today’s class I conducted the jury voir dire for the Paves case twice, on account of the

Plaintiff’s side not being present for the second group. I was lucky to do this particular exercise

twice, since jury voir dire was the most unique lesson for me, seeing as how we do not have a

jury system in Pakistan.

Both exercises were useful in learning which jury members to strike out and which to keep. In

general I seemed to have made the right assumptions based on feedback from my peers in the

jury box as to who would be a good juror for the Plaintiff Paves. Using the chart was extremely

useful to make quick notes on, but I noticed it was very difficult to listen and make notes

simultaneously, especially when the Defendant’s side would be questioning the jurors. Most of

my assessments I seemed to be making while standing before the jurors, and making notes when

I reached my seat.

I received feedback that I do not always have to keep asking whether they had lived in

Fredericksburg since that is a fact that would have been available on the jury information sheet. I

was also advised to let jurors volunteer information rather than directing my questions to

individual jurors. I learnt that more talkative or willing jurors were easier to gather information

from, since the quiet jurors may not have volunteered to answer. It would also be a strategic

move to keep a juror you would know would influence the jurors unwilling to participate.

Jury Voir Dire

Case: John Paves v P.D. Johnstone

Counsel for the Plaintiff: Sahar Saqib

Your Honour, permission to move around the courtroom?

Good evening ladies and gentlemen of the jury, my name is Sahar Saqib and I am representing the Plaintiff, Mr. Paves, in this litigation.

Q. How many of you personally know the Plaintiff, Mr. Paves?

- If yes – How are you acquainted?

Q. How many of you know the Defendant, Mr. Johnstone?

Q. How many of you know or are acquainted with the Judge?

Q. How many of you live in Fredericksburg?

- If yes – How long have you lived here?

Q. How many present today have a high school education?

Q. College? Advanced degree?

If yes – do you have a degree in architecture? A technical/mechanical degree?

Q. Does anyone close to you, like your significant other, have such a degree?

Q. Do you work in the city?

- If yes – what do you do?

Q. How many of you have had any experience with renovation?

If yes – Has that proven to be a positive experience for you/any hurdles?

Q. Would anyone here have any connection to the Criminal Justice System?

Q. Has anyone here ever been sued?

If yes – If you don’t mind my asking, what was the suit about?

Keep in mind – who is a jury member for the Defense and if they should be struck out.

Use of exhibits in Paves

Unfortunately, I misunderstood the assignment and prepared questions for the wrong witness. I

found out near the end of the class that I would have to conduct a cross examination I was

unprepared for, but luckily due to having prepared the case well, I was able to conduct a

successful and short cross examination of the Plaintiff Paves. I asked whether qualification and

experience were important factors for the witness. The main questioning in the direct emphasized

how the witness Paves was very experienced, but my client Johnstone had considerably more

experience than he. I was given feedback that it was an effective and interesting approach to

have taken. My only follow up question was why Paves had submitted an incomplete diagram of

the building to the council.

Examination in Chief – Defendant Johnstone

Good evening Your Honour.

My name is Sahar Saqib appearing on behalf of the Defendant, Mr. Johnstone.

Good evening Mr. Johnstone. Thank you for being here today. Could you please state your full name for the court?

What is your profession?

How many years of experience do you have in this field?

How many projects have you undertaken?

What is your education?

Did you start your practice immediately after you graduated?

What is your experience with municipal buildings?

How long have you practiced architecture on Fredericksburg?

When did you first hear about the city hall project?

Did you submit a proposal?

What was your fee for the proposal?

I would like to introduce Exhibit A, which is in the record, pages 35-37

After you submitted your proposal, did you hear from the city?

Did anyone from the city council call you?

What transpired in the meeting?

Did you discuss the fee?

Have you ever had a personal grievance or argument with Mr. Paves?

Did you only hear of him from the newspaper?

Introduce exhibit B pg 11-12

No further questions, your Honour.

Final Trial: The Commonwealth of Washington v John Blue

Reflections on the Final Trial: April 5th, 2016

The road till the final trial was long and arduous but very worthwhile and personally rewarding. I

had a very cooperative and willing partner who always encouraged me and some of my ideas.

We were lucky to have witnesses agree to work with us very early on. One witness backed out

one day before the trial but with another stroke of luck, we quickly found a willing substitute.

Working with the witnesses taught me how difficult real trials must be when preparing not only

your theory of the case, but each and every witness’ statement as well as categorizing evidence

and anticipating opposing arguments. We encountered the entire course load of lessons and more

during this trial.

My partner and I decided early on how to divide the workload in a fair manner, and I opted to

conduct two cross examinations to address my weakness in cross examining. I also opted to do

the opening statement to try to address our theory of the case. I also volunteered to have the

Defendant as my witness for direct and redirect.

We were assigned to have our case heard by Judge Corcoran in Courtroom 6, Room 507 of the

Federal Court of Claims. We were the last team to arrive, which the Judge took note of and

occasionally penalized us for.

The Plaintiffs opened their case with statements we expected, and we had guessed and

anticipated their case theory to quite some extent. I gave the opening statement on behalf of the

Defendants, and the Judge had noted in the end that the Defenses’ opening was good.

While our opposing counsel were doing the direct examination of both Sargent Purple and Dr.

Brown who I had to cross examine, I made sure to make several objections, primarily hearsay,

relevance and leading. The Judge did not sustain them all but in the end he mentioned that

objections are important even if the current Judge does not agree because it may be an appealable

matter later.

When it came time to do the cross examination of Dr. Brown, it was very odd to have had the

Plaintiffs address the inconsistencies in her report but a strategic move on their part. I could not

really question her on anything substantial as that is what I had planned on pointing out. For both

the Sargent and the Dr. I ended up conducting short cross examinations which showed some

inconsistencies in their statements and testimonies, but nothing that could have impeached them.

Our opposing counsel used the courtroom’s technical equipment quite effectively, which is

something my partner and I had not considered but which I am sure in a jury trial would have

made a big impact. At the end of the trial, Judge Corcoran left us with many points to ponder on.

His evaluation was fair and he managed to give everyone an equal opportunity in entertaining

objections as well as helpful instructions all throughout the trial. He mentioned that he

appreciated both teams’ level of professionalism. He raised some very crucial points as to what

was not accomplished in the trial by either party. The Defendants were unable to prove the real

relevance of inviting Dr. White because they did not establish in direct that the self-defense

defense went hand in hand with CID. The Defendants also did not emphasize that the second

instance of Red’s intrusion was very important to establish self-defence. This was one of the

points that we forgot to raise during the trial which proved nearly fatal to our defense.

The Plaintiffs were unable to impeach Mr. Blue, mainly in part by the excellent role played by

the witness themself, who managed to make a report inadmissible without needing the Defense’s

help. The Defense was warned that the Defendant’s character was not the issue at trial, and that

during a jury trial it would have been more pertinent to have played up the Defendant’s

character. The Judge noted that the court determines the applicable law and not the counsel, so

the jury will disregard any law that was dictated by the Plaintiffs during closing arguments.

The Defendants’ testimony did not establish self-defense very clearly. At times we would

characterize what we wanted our witnesses to say, rather than ask them short questions to draw

out what they said or heard. I feel we could have made our case stronger if we had emphasized,

as we had planned to, our theory that the intention to defend himself carried on past the CID

incident, thus making it a more possible defense. Neither of us recollected to raise this crucial

point during the trial, for which we suffered in proving evidentiary matters.

Overall, the trial and the process that went behind it was an enjoyable experience. I have learnt

and grown this semester. I feel more confident knowing that I was able to keep up with my

American colleagues and learn from their example as well as through my own mistakes and

experiments. I am yet unsure as to whether trial advocacy is the litigation branch that is for me,

but I now at least have the requisite basic skills to transition into it should I decide to.

Final Trial: The Commonwealth of Washington v John Blue, conducted 4/5/2016

Preparation as Counsel for the Defendant Mr. John Blue

Cross examination of Plaintiff’s witness, Sgt. Frank Purple: Sahar Saqib

Cross examination of Plaintiff’s witness, Coroner Ellen Brown: Sahar Saqib

Cross examination of Plaintiff’s witness, Miss Fran Yellow: Mary Youssef

Opening: Sahar Saqib

Examination in chief of Missy Blue: Mary Youssef

Examination in chief of Dr. White: Mary Youssef

Examination in chief of John Blue: Sahar Saqib

Direct Examination of Mr. John Blue – conducted 2/2/2016

Closing: Mary Youssef

Opening Statement – Sahar Saqib

This is a case about self-defense. We are gathered here today because a man has

been put on trial for a crime he did not commit. As the facts of this case will

unravel, it will be made clear, with expert witness testimony as well, that the man

known as Mr. John Blue did not do the heinous crime alleged today.

It is the jury’s duty to determine that, without a reasonable doubt, the mental and

physical elements of the crime, or the actus reus and mens rea, had been met and

satisfied the charge of second degree murder, and whether there was any motive

for the Defendant to harm Mr. Red in any way. It will also be up to the jury to

determine whether there even existed a premeditated intent that is required under

the second degree murder charge.

We ask the jury to consider the particulars of this case. Whether it is reasonable for

a man to arm and protect himself when an aggressive intruder threatens him and

his family. Whether it is reasonable for an elderly citizen to reach for a gun

because he anticipates a violent attack and he knows he cannot reason with his

assailant. Whether on October 5th 2015 my client was justified in the actions he

took to secure his safety and the safety of his wife, especially since he had no other

choice but to act in the way and manner that he did.

As the facts of the case will unravel, the jury will have to deliberate whether the

facts could suggest with reasonable certainty that Mr. Blue could be capable of

what he is accused of having done.

The Defense would call three witnesses: Mrs Missy Blue, Dr. Grey White and Mr.

John Blue. We ask the jury to find the defendant not guilty in light of the

mitigating factors that evidence and testimony will show to prove him innocent.

Direct Examination of Defendant, Mr. John Blue

If I may proceed, Your Honour.

May it please the Court, my name is Sahar Saqib appearing on behalf of the

Defendant, Mr. John Blue.

Thank you for being here, Mr. Blue.

Q. Could you please state your full name for the sake of the court?

Q. Where do you live, Mr. Blue?

- [1732 South Wooster Street]

Q. How long have you lived in that neighborhood?

Q. Do you live alone, Mr. Blue?

Q. Are you currently employed?

- [Executive Vice President of University Defense, not on task force - back injury]

Q. Do you know why you have been called here in court today?

Mr. Blue, I’m going to ask you to recall some of the key events from last year.

Q. Where were you on Sunday, October 5th, 2015?

Q. What were you doing that day?

Q. What kind of a day was it?

Q. How would you describe your relationship with the Red family?

Q. Is it not true that you would also employ the Red children on occasion?

Q. Mr. Blue, please state in your own words what had happened when you heard

someone pounding on your door later that day.

Q. How much bigger was Red from you, if you don’t mind my asking?

Q. Mr. Blue, what kind of a gun did you have?

[SIG Sauer P230 .380.]

[introduce evidence, picture of gun]

Q. If I’m not mistaken, that’s a semi-automatic pistol, correct?

Q. How is it like pulling the trigger on a semi-automatic?

Q. How many instances prior have you had to use your gun, Mr. Blue?

Thank you, Mr. Blue.

Mr. Blue, I’m going to ask you to read a few sentences from the 911 call that

Missy placed.

Your Honours, permission to introduce exhibit B from the Defense to opposing

counsel.

Your Honours, permission to move around the court.

Mr. Blue, please read your statements on the transcript in the order that you said

them.

Thank you, Mr. Blue. No further questions, your Honour.

Anticipated cross examination points

Information about your gun:

Mini 8mm SIG Sauer P230 .380 ACP caliber single action semi-automatic pistol

It is easier to pull the trigger as it has less resistance than a double-action gun.

It is a holster gun that can be concealed easily.

According to Sgt Purple’s report, you loaded bullets into your gun.

No- there were bullets in the gun already. I did not load them inside. I would not even had time to figure out which gun still had bullets in it. I took the one that I found and that was the one I used to intimidate.

What were the other guns you had?

1. 1965 Mossberg .410 bore gauge shot gun2. .308 Ruger American Revolution bolt action with a Redfield American 3-9x rifle scope = sniper

riffle3. 1875 .44 caliber Colt revolver, and three others, including the pistol you held.

Why do you have so many guns?

I’m a collector. Some of them are not functional.

What do you mean by ‘he made me do it’

Had he not aggravated me I would not have had to protect myself by reaching for my gun, just to scare him away. He escalated it to a point where I had to point my gun at him.

Mrs. Red states that she heard you say ‘you should be a better father’.

That’s not true. I did not say anything to him as he left. I waited for him to leave. Why would I incite him into coming back and attacking me. If I wanted to kill him I would have gone for my gun the first time.

There were 4 incident reports that you made against the Red family children

- July 3rd 2015: skateboarding on public street - July 5th 2015: bike riding through flower bed [trespass]- Sept. 6th 2015: bike riding on a lawn [trespass]- Oct. 4th 2015: tossing firecrackers onto porches

Ellen Brown cross examination points

Ms. Brown, did you write this report?

Did anyone help you in writing this report or was this your own original work?

Would you please read this sentence aloud for the court? Pg 6 [pg 1 of autopsy report]

Could you now read how far you’ve said the bullet wound was in your drawing?

Would you oblige us by reading this sentence

‘The undersigned can not further refine the distance without the sweatshirt’

Without the sweatshirt you allege that the distance itself could not be properly calculated.

You have stated that no pictures were taken. Why would you consider this important to note in your autopsy report?

You state that an orderly had made the drawing for you. Did you not check to see the accuracy?

Why have you signed one drawing and not the other? Did you not overlook both?

Even if you had 4 autopsies that day that does not excuse hurried work

Sargent Purple cross examination points

Why was the sweatshirt not recovered during the investigation?

Why were no photos taken at the scene of the crime?

Sgt, this is the preliminary examination that had taken place on January 29th in which you testified.

Please read your statement on page 14 [3] “He rested his head…”

Please explain what semi-automatic and single action entail

[reaffirm that it was easy to have shot the gun and not realized that you had]