Deck 18: Preparation for Trial

Question 1

How does "trial strategy" differ from a party's legal theory of the case?

Answer 1

A party's legal theory focuses upon the cause of action the party has chosen to rely upon to prove the other party had a legal duty which that party breached and caused injury or some other loss. A trial strategy focuses on the develop- ment and presentation of evidence to prove the legal theory and to counter the opponent's evidence.

Question 2

Define
subpoena

Answer 2

A subpoena is a document issued by a court and served upon a person to require that person to appear before the court for purposes of the particular case. A court may issue a subpoena to require a person to testify in a deposi- tion at a specified time and place. A person who has been subpoenaed must comply with the subpoena's provisions or be subject to court penalties.

Question 3

A trial lawyer has no recourse against a witness who fails to show up but has not been subpoenaed.

Answer 3

True

Question 4

It is up to the parties to initiate the scheduling of a pretrial conference.

Question 5

The lawyer is responsible to have a witness in court at the time he or she is needed after the lawyer has caused a subpoena to be served upon the witness.

Question 6

Anything said between a lawyer or paralegal and a witness in preparation for trial is subject to discovery.

Question 7

If parties do not agree on the application or effect of certain evidence and exhibits they must also contest the foundation for the evidence and exhibits.

Question 8

Witnesses do not have any legal duty to cooperate with the parties and their lawyers outside court.

Question 9

Define
calendar call

Question 10

The plenary power of the court enables the court to order amendments at the pretrial conference though no party served a notice of motion to amend.

Question 11

Most courts have scheduling conferences and pretrial conferences which eliminates the need for:

A) depositions.
B) motions.
C) calendar calls.
D) settlement negotiations.

Question 12

Define
scheduling conference

Question 13

A party who prosecutes a frivolous claim or defense is subject to which of the following sanctions or disciplinary actions:

A) assessment of costs.
B) order striking the party's pleadings.
C) an award of judgment in favor of the opposing party.
D) none of the above.

Question 14

Though not required by court order or subpoena, the client should plan to attend every minute of the trial.

Question 15

Define
day certain

Question 16

Define
pretrial order

Question 17

Define
pretrial conference

Question 18

It is unethical to compensate a witness who is not an expert witness for his or her lost income in connection with trial preparation and/or appearing in trial.

Question 19

If a case is stricken from the calendar by the court in response to a stipulation by the parties, it may be reinstated by:

A) stipulation that leads to the appropriate court order.
B) motion made by the defendant.
C) motion made by the plaintiff.
D) all of the above.

Question 20

With respect to the preparation of witnesses for trial:

A) you may tell a witness what to say and how to say it.
B) you may tell a witness what to say, but you may not tell a witness how to say it.
C) you may not tell a witness what to say; you may tell a witness how to say it.
D) you may not tell a witness what to say and you may not tell a witness how to say it.

Question 21

What three principal items tend to dictate a party's trial strategy?

Question 22

What recourse is available to a lawyer if a witness he or she has subpoenaed for trial fails to appear as scheduled?

Question 23

When is a claim or defense considered to be frivolous?

Question 24

What two things could a party do if the party wants to be sure that the opposing party will attend the trial at a particular time so that the opposing party will be available for cross-examination?

Question 25

If a party finds new evidence while the trial is in progress, may that party introduce the new evidence?

Question 26

Is it permissible for lawyers to try to influence the court concerning the appli- cable law by submitting proposed jury instructions that contain the lawyer's ideas about the law?

Question 27

What should the trial team advise the client to do if a client has given an incorrect answer on the witness stand?

Question 28

What may a party do if a scheduling order has set a trial date pursuant to Rule
16 and one or more of the parties determine that the schedule is not realistic?

Question 29

Under the calendar call system, what could a party do if a case has problems that require the case to be tried at a certain time?