UNETHICAL Or UNCIVIL:

The best and worst litigation tactics

Judge Charles G. Crawford, 18th Judicial Circuit

Kelly A. Swartz, Chief Legal Officer

Brevard Family Partnership

OverviewCross

ExaminationOpening/Closing

argumentsProfessionalism

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Presentation Overview

Overview

01

Topics of Discussion

INTRODUCTIONThe subject of this presentation is how to succeed in trial.

• We will provide you with tips on:

- advocacy

- presentation of witnesses

- handling exhibits

- general courtroom behavior

• We will use hypothetical and real case examples.

• Each element of trial will be viewed from the perspective

of the Attorney, Judge & GAL.

• At the end of the workshop each participant will better

understand the elements of trial in Dependency Court, and

how to be professional….even when others aren’t..

Learning Objectives

Cross examination

• How to cross examine

effectively.

• Learn critical questions to admit

the most common pieces of

evidence.

• Take home your own Evidentiary

Predicate Questions Manual.

opening/closing Professionalism

• Waive opening and wave your case

goodbye. Bring the drama.

• How to effectively allow the

Judge to hear the facts again in

closing.

• How to open and close without

having to read it verbatim.

• Why you should always be

professional, even when others

aren’t.

• Where to go to find Professionalism

Resources.

• Email and remote hearing

etiquette.

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01

03

Cross-Examination

02

How to Effectively Question a

Witness

My Cousin Vinny

Witness examination

Cross Examination

Title VII: EVIDENCE Chapter 90: EVIDENCE CODE

Mode and Order of Interrogation and Presentation.

(1) The judge shall exercise reasonable control over the

mode and order of the interrogation of witnesses and

the presentation of evidence, so as to:

(a) Facilitate, thorough effective interrogation

and presentation, The discovery of the truth.

(b) Avoid needless consumption of time.

(c) Protect witnesses from harassment or undue

embarrassment.

(2) Cross-examination of a witness is limited to the

subject matter of the direct examination and matters

affecting the credibility of the witness. The court may,

in its discretion, permit inquiry into additional matters.

Fla. Stat. § 90.612 (2019)

Cross Examination

Mode and Order of Interrogation and Presentation.

(3) Leading questions should not be used on the direct

examination of a witness except as may be necessary to

develop the witness’s testimony.

Ordinarily, leading questions should be permitted on

cross-examination.

When a party calls a hostile witness, an adverse party,

or a witness identified with an adverse party,

interrogation may be by leading questions.

The judge shall take special care to protect a witness

under age 14 from questions that are in a form that

cannot reasonably be understood by a person of the age

and understanding of the witness, and shall take special

care to restrict the unnecessary repetition of questions.

Fla. Stat. § 90.612 (2019)

Restating the expert’s answers on direct is not an

effective cross.

• Ask leading questions that only net a yes or no answer.

• You will not win an argument with the expert on their

opinion of the subject matter.

• Point out if an expert witness is a hired gun or has bias.

• Tie your questions to your theory of the case.

• Cross on the other possibilities associated with their

“conclusions”.

- Get whatever concessions or admissions you can.

- Do not ask “why”.

Cross Examining an Expert

• For experts cross on any tests or procedures he or she

did not perform or follow.

• Confront on any lack of information needed to form

their opinion.

- Did they not have certain facts about the case

when they formed their opinion.

• Just do the best you can, do not simply repeat what

was already stated on direct. You are only emphasizing

the expert’s opinion to the Judge.

• You are not going to win this part of the trial, do your

best to minimize the damage.

Cross Examining an Expert

Opening & Closing arguments

03

How to Convincingly Summarize

Your Case

And Justice for all

Closing Arguments

Opening Arguments

• Never, ever, EVER, waive an opening argument.

• It’s Your opportunity to give the judge a synopsis of your case.

• Helps frame your issues

- If you don’t know them by opening, there is a BIG problem.

Closing & Opening ARguments

Closing Arguments

• Your chance to convince the judge of your case.

• Opportunity to sum up and summarize your points.

• Do not read your closing, do not simply repeat, bring the drama.

Effective Closing Arguments

Have a theme

Keep connected talking

points in mind. Know your

closing argument, don’t

simply read it verbatim.

Be Preemptive

Know the facts and tackle

the unfavorable ones head

on. Make inferences that

make sense.

Poke Holes

Discuss the other sides

weaknesses. Be specific

when reciting important

evidence. Don’t attack

opposing counsel but

expose witness credibility.

Use Case Law

Explain how the case law

applies to the facts of the

case. Provide copies to the

Judge before you start your

closing argument.

Highlighting is acceptable.

Use Diagrams

Use Charts and Graphs,

make copies for everyone.

Percentages have a huge

impact.

No Objections

Don’t object, it is closing

argument not evidence.

Unless it is really

objectionable, and you just

can’t help it.

A closing argument should attack the problems in a case and put them in the most favorable light for the judge.

Your closing argument begins during your opening statement.

More than REview

Simply reviewing the

evidence without

attacking, analyzing, or

giving your theory of the

real issues in the case will

not be effective.

Practice

Practice, practice, practice

and never waive the

closing!

Professionalism

04

How to Uphold Court Decorum

— Mark Twain

“Always do right. This will

gratify some people and

astonish the rest.”

Professionalism

Candor

Maintain your

credibility with the

court.

REsponsibility

Be prepared and be on

time.

Deference

Don’t argue your point

after ruling. Ask for a

proffer.

Respect

Ask to approach the

court, witness, or clerk

(Some judges may only have you ask

once - find out their preference).

Timing

Give the judge a

realistic estimate of

how long the case or

witness will take.

How the Bar Investigates Disciplinary Complaints

STEP 1

Initial complaint sent to Bar

for investigation.

STEP 2

If alleged conduct may

constitute a violation, send

it to one of the 5 branches

of the bar.

STEP 3

Once at correct branch, a

Bar counsel reviews facts

and conducts independent

investigation of conduct.

STEP 4

Case closed with closeout

letter, or must appear

before grievance

committee.

STEP 4

If probable cause found,

case sent to court. If minor

infraction, alternative

discipline can be taken.

Possible Sanctions Disbarment: Most severe sanction. Reserved for gross

lapses in integrity. Can usually seek readmission after 5

years.

Disciplinary Revocation: Attorney does not contest

charge and surrenders license. Also called “disbarment

on consent.”

Suspension: For non-rehabilitative, an attorney is

suspended for 90 days or less and immediately

reinstated afterwards. For rehabilitative suspension, an

attorney is suspended for 91 days to 3 years, and must

prove rehabilitation before readmission.

Felony or Emergency: Immediate suspension if

convicted of a felon

Possible Sanctions Public Reprimand: Public reprimands are reported

with other Florida Supreme Court decisions in the

Southern Reporter, and published in the News.

Probation: Can be ordered in connection with

discipline. Can include mandatory meetings, audits by

an accountant, mental health professionals, drug and

alcohol testing, reporting requirements, or more.

Admonishment: Lowest form of discipline.An

admonishment can be contained in a Supreme Court

order, or may be issued by a grievance committee or

the Board of Governors.

Other measures: Any additional sanctions can be

ordered, including but not limited to, ethics school,

stress management workshops, lawyers assistance

referrals, trust and accounting classes, etc.

Lawyer Discipline Statistics

2015-

2016

2016-

2017

2017-

2018

2018-

2019

2019-

2020

Total Bar Population 103,010 104,676 109,095 107,131 108,615

Disbarments 54 46 42 37 42

Suspensions 194 179 129 124 136

Public Reprimands 67 50 37 33 32

Disciplinary Revocation 24 38 29 35 40

Admonishments 48 30 33 23 35

Probations 32 33 42 21 9

Injunctions 0 0 0 0 0

The Florida Bar Creed of Professionalism

I revere the law, the judicial system, and the legal profession

and will at all times in my professional and private lives uphold

the dignity and esteem of each.

I will further my profession’s devotion to public service and to

the public good.

I will strictly adhere to the spirit as well as the letter of my

profession’s code of ethics, to the extent that the law permits

and will at all times be guided by a fundamental sense of

honor, integrity, and fair play.

I will not knowingly misstate, distort, or improperly exaggerate

any fact or opinion and will not improperly permit my silence

or inaction to mislead anyone.

I will conduct myself to assure the just, speedy and

inexpensive determination of every action and resolution of

every controversy.

I will abstain from all rude, disruptive, disrespectful, and

abusive behavior and will at all times act with dignity,

decency, and courtesy.

I will respect the time and commitments of others.

I will be diligent and punctual in communicating with others

and in fulfilling commitments.

I will exercise independent judgment and will not be

governed by a client’s ill will or deceit.

My word is my bond.

Best practices for electronic communication

The Oath of Admission to The Florida Bar includes a pledge of

“fairness, integrity and civility, not only in court, but also in all

written and oral communications.”

This includes electronic communications.

• Keep it short, if they’re longer than 160 words, call or email

instead.

• Be aware that tone is hard to convey.

• Spell out all words to avoid confusion.

• Be sure you have permission to text who you’re texting.

Texting Etiquette

Best practices for electronic communication

• Never leave the Subject Line blank and fill in Recipient last.

• Use a salutation, and make sure sign off is consistent.

• Don’t use ALL CAPS, and appropriately use “cc” and “bcc”

• Evaluate email importance and label accordingly.

Email Etiquette

Social Media

• There is no exception of privacy on the internet.

• Do not disparage or seek to humiliate the judicial system, judges,

opposing counsel, clients, or others via social media (See Rules 4.82

and 4.8-4(d)).

• Do not make dishonest, inappropriate, unprofessional, or

misleading posts.

Additional References

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