EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, June 14, 2011

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

Well, let's start with the goal of the book. According to the authors,

The goal of this book and the Freck Point Trial movie is to fill the need that law students and lawyers have for practical skills instruction on how to apply evidence in professional settings: in motion practice (motions in limine); during depositions; in alternative dispute resolution and in trial. Generally, traditional law school evidence courses teach legal doctrine, but not how evidence law works in real world practice. As a consequence of the lack of skills training on evidence, new lawyers are ill equipped for pretrial litigation and in trial settings....

Evidence Skills, Strategies & Assignments provides practical pretrial and trial advocacy experiences which teach evidence skills. By including a movie that shows the skills of experienced trial lawyers working with evidentiary issues, the book is a ground-breaking way of providing a model of performance skills.  

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is broken down into 6 chapters: (1) Chapter 1. Introduction; (2) Chapter 2. Objections:  Skills and Strategies; (3) Chapter 3. Motions:  Skills and Strategies; (4) Chapter 4. Exhibits:  Skills and Strategies; (5) Chapter 5. Assignments; and (6) Chapter 6. Morgan’s Evidence Handbook

The book is accompanied by a a DVD with the 135 minute Freck Point Trial, a simulated trial that Professor Clark describes on the Pretrial, Trial, Appellate & Evidence Blog as follows:

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the subject of renowned true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial.

I've had a chance to watch the entire DVD, and it really provides an excellent tool for students to learn how to conduct a trial from start to finish.  The trial is a civil wrongful death case in which the plaintiff claims that the defendant-husband murdered his wife and the defendant claims that his wife was killed by an intruder. The simulated trial is broken down into 6 chapters: (1) Jury Selection; (2) Opening Statement; (3) Direct & Cross of Plaintiff's Witness; (4) Direct & Cross of Expert Witness; (5) Direct & Cross of Defense Witness; and (6) Closing Argument. Most chapters have one of the attorneys (actual veteran trial lawyers) in the case initially describing the importance of each stage of the trial and the strategy that they use. We then see each attorney putting this strategy into practice as they strike jurors, make objections, and use visual demonstrations to drive home their points.

You can see a preview of the simulated trial by clicking here. The trial is accompanied by a CD which contains a case file with exhibits, witness statements, legal documents and other things pertinent to the case. The simulated trial and this case file are then integrated into the book through readings and assignments. For instance, in Chapter 4, students are given a sample stipulation that might have been used in the Freck Point Trial. And, in Chapter 5, students are asked to file motions as if they were one of the attorneys in the trial Here is one example:

As your instructor directs, defense counsel will either make a motion in limine or object to Montgomery’s following testimony and prosecutor/plaintiff’s counsel responds to the defense motion or objection:

1.   Testimony that Homicide Unit’s Sergeant Kameron called him at home and told him that patrol officers had just arrived at a house in the Freck Point neighborhood in response to a 911 call placed by the home owner Sam Griffith. Kameron said that a patrol officer found Sam Griffith’s wife stabbed to death in the bedroom of the house. According to Montgomery’s testimony, Kameron told him to go to the Griffiths’ house.

Director Richard Linklater, who taught himself how to make movies, once directed the movie, It's Impossible to Learn to Plow by Reading Books. The point of Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is that it is impossible to learn how to conduct a trial by (just) reading books. Instead, it let's students see a simulated trial that is, in a sense, even better than the real thing. And then it asks them to role play, to step into the shoes of the lawyers in the Freck Point Trial, to make motions, to question witnesses, to make opening and closing statements. It is highly recommended.

-CM 

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