Mock Trial Rules and Concepts (copy)

Deposition

Spoken, oral testimony under oath that is made before trial; in Mock Trial, witnesses with depositions can make things up so long as it doesn't contradict what is already in the affidavit (this year, those witnesses are the "representatives" for both sides, Ari Felder and Casey Koller)

Affidavit/Expert Report

written declaration made under oath, often before trial; in Mock Trial, witnesses with an affidavit or expert report cannot make stuff up at all, they must stick to the information in their affidavit (note: if it is something minor to add character, such as what you do for fun, this is allowed)

Sustained

Judge agrees with objection and evidence or testimony is not allowed

Overruled

Judge disagrees with objection and the evidence or testimony is allowed

Probative Value

Refers to how strong evidence's tendency to prove is. If it has low probative value, the evidence proves very little; if it has high probative value, it proves a lot; remember that prejudicial is basically the opposite of this

Prejudicial

When evidence is considered prejudicial, it proves very little and causes the jury to make a decision solely based off of passion, emotion, or bias; remember that probative is basically the opposite of this

"goes to weight rather than admissibility"

People say this phrase when they mean that the evidence does not break a rule and that opposing counsel should just take it up on cross. Basically, just because you have an opinion that the evidence is weak and doesn't prove much doesn't mean it is objectionable.

Plus, if it is weak, if you are an attorney, you look so much better when you show the witness' weak evidence on cross examination rather than attempting to get it thrown out entirely. If you do, it allows you to highlight the witness' bias or weakness, not hide it

IRAC

Acronym for the format of an objection/objection response.

I - Issue - "What type of objection is it?"
R - Rule - "What rule does it fall under?"
A - Analysis - "How does the evidence break/follow a rule?"
C - Conclusion - "How do you want the judge to rule? Is it admissible or inadmissible?"

Proffer/Offer of Proof

"Proffering" or making an offer of proof is when you tell the judge what the witness will testify to later on. Sometimes you need to make an offer of proof in order to argue that the evidence is admissible. To make an offer of proof, say "If I may proffer, Your Honor, ..." or "May I proffer?"

Example: let's say witness is talking about going to a bar and the other side objects to relevance before the witness even gets to the fact that they met the defendant at the bar. You may need to make an offer of proof to let the judge know that it is relevant because they will testify later to how they met the defendant at the bar.

Limiting Instruction

You ask for a limiting instruction when you want the jury to know that evidence can only be used for a limited purpose;

example: it is typically not admissible to use a prior crime such as drug dealing as evidence they did it another time, but if the prosecution/plaintiff is using it to prove knowledge (i.e they know how to make drugs) then it might be let in. If you're on the defense, you can ask the judge for a limiting instruction so that the evidence only used to prove knowledge and not that they would be a drug dealer again

Relevance

1. Makes a fact in the case more or less probable (likely)

2. That fact is "of consequence" (is valuable) in determining whether the action (in this case, negligence) occurred

NOTE: you need both of these elements in order for evidence to be considered relevant; however, most of the time direct examinations start with where the witness is from and what they do for a living. The judge will usually let that slide, so don't bother objecting to that

Elements of negligence

1. Duty of care

2. Breach of that duty

3. Harm

4. Causation

Duty of care

the defendant has a duty/responsibility to treat the person or people involved with caution and attention

Breach of duty

The defendant breached the duty of care by failing to act with care or failing to do something in the face of danger

Harm

The result of the defendant's alleged wrongdoing

Causation

Contains both direct and proximate cause (both must be proven)
Direct Cause - The harm was the direct result of the defendant's conduct (not anything else) AND
Proximate cause - the defendant could have foreseen that their conduct would cause harm (the defendant should've known better, basically)

Note: proving that the defendant could have foreseen the harm does not mean the defendant had to know what EXACTLY their conduct would cause; the Plaintiff just has to prove that the defendant was acting recklessly and knew it could be a DANGER