Thursday, September 12, 2013

Pretrial Guide

What Is Pretrial?
Pretrial is a brief and very formal conversation between the judge and a representative from each team, intended to handle a variety of simple preliminary matters, including:
·         “appearances”: introducing the attorneys and any party representative witnesses to the judges
·         Tendering informational materials to the bench
·         Entering exhibits (when they’ve been stipulated to or there are other unusual circumstances).
·         Constructively excluding witnesses in accordance with Rule 615
·         Determining the presiding judge’s preference for movement about the well
·         Determining the presiding judge’s preference for swearing in witnesses.
·         Ensuring objection arguments will be constructively held outside the presence of the jury
How does pretrial begin?
The judges will typically need a few moments to settle in and prepare their ballots after arriving. Once they’re ready, the presiding judge will usually ask something like “Are both parties present and ready to proceed?” A representative from each team should stand, but remain at counsel table, and answer “Yes, Your Honor.” The judge will usually then ask, “ Are there any pretrial matters?” and pretrial has begun.
Sometimes the judge will do something off-the-wall, whether that’s forgetting pretrial exists and asking for opening statements straightaway or some even less typical beginning. The correct response is to very politely request a chance for pretrial, by saying something like “Your Honor, the plaintiff has a few pretrial matters before we begin.”
Notice that I said “the plaintiff” above: that wasn’t a random choice of side. The plaintiff or prosecution should go first in pretrial. That order isn’t worth fighting over if the defense’s representative insistently begins pretrial, but if you’re the plaintiff/prosecution’s representative, expect to initiate pretrial and be assertive about it. If you’re the defense’s representative, expect to defer to the prosecution/plaintiff. If the plaintiff/prosecution representative fails to begin pretrial, then assert yourself: “Excuse me, Your Honor, the defense has a few pretrial matters before we begin.”
The Order of Events
A request to make appearances should always be the first matter taken care of in pretrial. That’s really the only element of pretrial that has a chronological component; the rest of the items can be taken care of in any order. Tradition seems to have evolved around having tendering documents be second and done in close conjunction with entering evidence, if that’s necessary. At all parts of the pretrial conference, both representatives should be standing.
This is the traditional first step in pretrial. The plaintiff/prosecution will ask the judge, “May I make appearances?” Some judges will say no- they prefer appearances be made during opening statements. This is relatively rare. We prefer it be done in pretrial because doing during opening statements eats the opener’s time. If the judge accedes to appearances during pretrialer, the plaintiff/prosecution representative will say “Good morning/afternoon/evening, Your Honors. My name is [their full name], and together with [full name of teammate] and [full name of other teammate], and together we represent the prosecution/plaintiff/people/state in today’s case.” “People” and “State” are both synonyms for “prosecution.” As their representative introduces them, the co-counsel being named will rise, make eye contact with, and smile at the judges. They sit back down after their representative finishes making that introductory statement, but the representative remains standing. If there’s a party representative witness sitting at the counsel table, the plaintiff’s representative should instead say “together we represent the prosecution/plaintiff/people/state, represented by [name of the witness’s character] today.” Note that it is the name of the witness’s character that is stated, not the name of the person playing the witness. None of the other witnesses are introduced. That witness should also stand, make eye contact with and nod at the judge, and resume sitting once that introductory statement is finished.
After the plaintiff/prosecution finishes their introductions, appearances can play out a couple of different ways. Some judges will turn to the defense expectantly (and sometimes defense attorneys will interrupt and request permission to do introductions as soon as the plaintiff finishes with theirs. Don’t do that). If the judge is telegraphing that they want the defense to do introductions, the defense should request permission to and then do their introductions in the same manner. The prosecution/plaintiff will then resume their pretrial. Some judges will not indicate such a desire, however, in which case the prosecution/plaintiff should simply proceed with pretrial. The defense will do their introductions at the beginning of their pretrial, in the same manner as the defense.
Tendering Informational Materials
Both teams will generally want the judges to have access to certain information, mainly for use during objection arguments. Common items to tender are (some are college-only):
·         The complaint (in a civil case)
·         The answer to the complaint (in a civil case)
·         The indictment (in a criminal case)
·         Case law
·         Orders on motions in limine
·         Stipulations
·         Rules of Evidence
·         Statutes
College mockers might notice that the AMTA Rulebook and the Special instructions are missing from that list. These materials are different from those above because they break the “fourth wall” of a trial, and acknowledge that this is a fictional trial being run in a framework designed by AMTA. There are two downsides to making that acknowledgement: 1) Very rarely, judges don’t like it. 2) It muddies the waters of objection arguments. The remedy for special instructions and AMTA rules violations doesn’t have anything to do with the judge- those are issues to be taken up with the tournament director or AMTA representative. It’s inaccurate to behave otherwise.
The plaintiff/prosecution should usually tender about everything on that list except the answer to the complaint. The defense should tender everything on that list that the plaintiff/prosecution doesn’t, except the complaint or the indictment. As you might imagine, this often leaves the defense with substantially fewer documents to tender to the bench. That’s not a problem.
Tendering items to the bench is usually the second step in pretrial. The representative will state: “Your Honor, we have a few items we’d like to tender to the bench for your use during trial.” They then briefly list off the items. The judge will either express a willingness to accept those items immediately, or will ask opposing counsel if they have seen these items. They may also ask if opposing counsel has any objections. Provided opposing counsel has seen those items, there’s no objection they can make. Notice the word choice on the request- the attorney did not say “enter.” Those items are not being entered into evidence (given to the trier of fact), they’re being offered to the judge for his use (given to the trier of law). The difference is important: there are requirements that have to be fulfilled before an exhibit can be entered into evidence, and opposing counsel can object to the entering of an exhibit under any of the rules of evidence. Don’t ask to “enter” any item when you only mean to tender it.
Once the judge has signaled that they will receive those items, the representative should ask permission to approach and tender, and then do so once granted the permission. Opposing counsel does not need to be shown those documents on the way from counsel table to the bench- they’ve already seen them prior to trial.
Entering Evidence
Entering evidence during pretrial is almost always either impossible or a bad idea. In order for it to even be an option, all objections to a particular exhibit must have been waived, including lack of foundation. You should also only do it when there’s some strategic advantage involved. It’s an unfamiliar procedure for many judges, and making the judges think you’re doing something off-the-wall isn’t a good thing. You’re also likely depriving your team of an easy opportunity to demonstrate that they know how to handle evidence, and demonstrating that ability can be useful.
If you decide to enter a piece of evidence in pretrial, doing so is fairly simple. The party representative simply tells the judge what they’re intending to do and that all objections to that action have been waived. So it usually looks something like: “Your Honor, we also offer Exhibit A into evidence at this time. All objections to this document were waived in Stipulation [_].” (Sidenote: see why it’s useful to tender informational documents to the bench first? Now they have the ability to look up that information, rather than believing one attorney or the other’s word.) The judge will usually again look to opposing counsel to see if they have seen that document and if they have objections. Usually opposing counsel won’t, since, after all, all objections have been stipulated away. What they might do is object to lack of foundation. They can make that argument even if that objection has been explicitly waived, since that objection is waived for a particular document- and no foundation has been laid to show that the document being entered is that document. An attorney’s word can’t lay foundation- attorneys can’t testify. This is usually unnecessarily combative, but you might see it. If you do and the judge seems inclined to entertain that objection, I would honestly recommend simply offering to put It in through a witness- be the laid-back, classy person who is flexible while they’re getting uptight over technicalities. If for some reason it’s important not to do that, the only real tactic is simply to emphasize once again that all objections to the document have been waived, including lack of foundation.
Opposing counsel could also simply request that the evidence be entered “when the record is open” or “during Counsel’s case-in-chief.” They’re not objecting- they’re just asking the judge to make you enter the exhibit during your case-in-chief or their case-in-chief (after the openings, when witnesses are being called). There’s no real basis for this request in Mock Trial. There’s no rule governing when the record is open in Mock Trial, or even defining what it means for the record to be open.
Constructive Exclusion of Witnesses
Rule 615 provides that, upon a motion from either side, the judge must constructively exclude all witnesses with the possible exception of a party representative of each side. This used to be called constructive sequestration- you may hear judges or opposing counsel referring to it that way still. In the real world, witnesses aren’t allowed to hear each other testify. This prevents one witness’s testimony altering another’s in ways that harm the pursuit of truth- for instance, in a criminal trial, witnesses might “get their stories straight” if they overheard each other testify. The corresponding practice in Mock Trial is to pretend that the witnesses are removed from the room whenever they’re not testifying. Actually removing them would be very boring for them and rob them of whatever education watching the round can give, so we only exclude them “constructively”- that is, we pretend.
This step of pretrial can be performed by either party- but should only be done once, not by both parties. The representative invoking the rule will say. “Your Honor, at this time we’d like to invoke Rule 615 and ask that all witnesses with the exception of a party representative of each side be constructively excluded. Our representative will be [name of character],” with a gesture to the person playing that character as they say the name. The judge will typically then turn to the other party and ask if they have a party representative. If they don’t, their pretrialer should politely assert themselves and say “Your Honor, our party representative will be [name of character],” again with an appropriate gesture. The judge will accede and usually say something like “All witnesses with the exception of the party representatives will be considered constructively excluded.”
Movement about the Well
There are two parts to this step. The first is determining the judge’s preference for how you use the well during examinations. Very occasionally judges will prefer you stay well away from the judge’s table, or away from opposing counsel. Sometimes they have weirder orders, like “stay behind counsel table during examinations.” This step enables you to find out about those and abide by them. The second is finding out who the judge wants you to ask to approach- the bench, witnesses, or opposing counsel. Someone at each counsel table- not the pretrial representative- should write down those preferences and all attorneys should abide by them.
You accomplish this step with a simple question: “We’d also like to inquire about Your Honor’s preferences for movement about the well? Should we ask to approach opposing counsel, the witnesses, and the bench?”
Other Matters
The next two items on the list aren’t all that important- they can very reasonably be skipped. If you want to be very thorough or don’t feel like you’ve said enough yet for whatever reason, you may as well include them, but there’s no requirement.
There’s a rule in college mock trial that prescribes that witnesses are presumed sworn. Some judges don’t know this, and a very few will decide to swear witnesses individually to screw with the attorneys (I’ve seen this exactly once, in high school, in a scrimmage). Asking the judge “We’d further like to ask about your preferences for the swearing in of witnesses- will they be assumed sworn or sworn individually” gives everybody a bit of a warning about that happening.
In a similar vein, it can be widely and safely assumed that objection arguments will be constructively held (we’re pretending that they’re held) outside the presence of the jury, but very rarely judges won’t realize that or will prefer that be made explicit. Simply asking, “Will objection arguments be constructively held outside the presence of the jury?” clarifies the point.

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