Pretrial
Which side goes first in pretrial?
Plaintiff
During Kirby Doolittle’s direct, defense counsel asks, “Can tell us everything about your internship?” Do you object? If so, what do you object to?
Yes, calls for narrative answer.
During Riley Winter's direct exam, Riley testifies to the conversation that took place with Austin Perez as they were being fired (lines 71-76 of Riley Winter's deposition). Opposing counsel objects to Riley Winter's three statements. Why are two of these statements not hearsay?
Two of the three statements are questions, and therefore do not assert any truth value. They do not meet the definition of hearsay.
On the direct of Sawyer Shaw, you try and enter exhibit 2 (Sawyer . Opposing counsel objects to hearsay. Which 803 rule would you use as a response? How would you word your response?
803(3). Exhibit 2 describes Sawyer Shaw's intents/plans for TBD and therefore counts as a then-existing state of mind.
On direct examination, Riley Winter testifies "Dr. Kramer told me that I have PTSD from being fired." Do you object? If so, what is your objection? How do you word your objection?
Yes, object to relevance (since you are not pursuing damages in this trial). Objection your honor, this is not relevant. The fact that Riley Winter allegedly has PTSD does not make it more or less likely that they were fired from TBD due to their age.
What are the pretrial matters that you can bring up as the plaintiff?
Answers may include: Introductions, rule 603, rule 615, stipulations, case law, movement.
Describe rule 611 in your own words.
Rule 611 does not allow leading questions, that is to say, questions that suggest the answer in the substance of the question, on direct examination.
The plaintiff wishes to enter exhibit 1 (TBD's interrogatories). Defense objects to hearsay. Which case law establishes that this document can be entered under 801? According to that case law, what is the specific rule number the plaintiff can use to enter this document?
Katelyn vs. Reynolds, 801(d)(2)(B)
You are directing Adrian Edwards, and you enter exhibit 16 (the email from Adrian Edwards to Sawyer Shaw). Opposing counsel objects to hearsay. What exception would you use to enter the email? How would you word your response?
803(3). Something like: Your honor, this is an exception to hearsay as it describes a then existing mental, emotional, or physical condition. The sentence that starts with “I am livid” describes Adrian Edward’s current emotional state, and the sentence that starts with “[u]nless Riley Winter is fired immediately” describes the plan for Adrian Edwards to pull advertising.
803(2). Something like: Your honor, this is an exception to hearsay as it is an excited utterance. Adrian Edwards previously testified how angry he was about Riley Winter’s article. He was still influenced by this strong emotion when he wrote the email to Sawyer Shaw.
On direct examination, Kirby Doolittle says "My friends were pretty jealous when they heard I got an internship at TBD." You stand up and you object. What is your objection? How do you word your objection?
Relevance. Your honor, how Kirby Doolittle’s friends felt about them getting an internship at TBD does not make it more or less likely that Riley Winter was fired from TBD due to their age.
Lack of personal knowledge/speculation. Jealousy is an emotion. Kirby Doolittle cannot testify to how their friends felt without saying what they observed that allowed them to draw this conclusion.
Explain rule 603 in your own words.
Something like: Rule 603 allows the judge to assume the witnesses have been sworn in before the trial in order to save time during the trial.
On the cross examination of Austin Perez, plaintiff’s counsel asks, “After Sawyer Shaw took over, TBD’s overhead costs declined and TBD’s profits increased?” Would you object? If so, what would you object to?
Yes, object to compound question.
Explain the difference between 801(d)(2)(A) and 801(d)(2)(D) in your own words.
801(d)(2)(A) refers to statements made by the party opponent themselves, whereas 801(d)(2)(D) does not. Those who make the statements under 801(d)(2)(D) are not the party opponent themselves, but rather an employee acting on behalf of the party opponent.
You try and enter exhibit 3 (the people policy) on the direct examination of Sawyer Shaw. Opposing counsel objects to hearsay. Which 803 response could you use for this document?
803(6). Since Sawyer Shaw is the CEO of TBD and has owned many businesses in the past, they can lay the foundation for who made the document, whether that person had the necessary information to make the document, whether having an HR policy is a regular business practice, and whether making HR policies is normal for HR departments to do.
Plaintiff’s counsel tries to enter exhibit 6 (Sawyer Shaw’s email about TBD’s 50th Anniversary Party). You object to 403. Why?
Exhibit 6 confuses the issues. This email refers to an anniversary party, not to Riley Winter. This email has the potential to mislead the jury into attributing these statements from Sawyer Shaw to Riley Winter when that is not the case.
Explain rule 615 in your own words.
Something like: The court will pretend that Bobbie Lin, Austin Perez, Adrian Edwards, and Kirby Doolittle are not in court during the trial (even though, in reality, they will remain in the courtroom). However, Riley Winter and Sawyer Shaw can see/hear everything that happens during the trial since they are party representatives.
On the cross examination of Riley Winter, counsel asks the following questions: “You didn’t agree with Sawyer’s vision for TBD?” “You didn’t like Sawyer’s TBD?” “You thought Sawyer’s TBD was bad?” and “You hated what Sawyer did with TBD?” Would you object? If so, what would you object to?
Yes, asked and answered. Even though each question is different, the substance is the same: Riley Winter didn’t like what happened to TBD after Sawyer Shaw took over.
You are directing Riley Winter. During direct examination, Riley Winter says "Management told me 'you are the highest paid employee other than Sawyer Shaw.'" Opposing counsel objects to hearsay. Which 801 rule do you use to respond? How do you word your response?
801(d)(2)(D). Your honor, this is not hearsay under rule 801(d)(2)(D). Our party opponent today is TBD. The management of TBD, regardless of who it is, is an agent of TBD. Since management was discussing salary with Riley Winter, the statement falls within management's work duties.
You are directing Adrian Edwards. During direct, the following quote from Sawyer Shaw is elicited: "We're going after the exact same people you are, and I'd love to have TURNTable as a partner." Opposing counsel objects to hearsay. What exception would you use? How would you word your response?
803(3). Something like: Your honor, this is an exception to hearsay as it describes a then existing mental, emotional, or physical condition under rule 803(3). In this quote, Sawyer shaw describes his plan for TBD magazine, and then identifies how he would feel if TURNTable advertised with TBD.
Opposing counsel tries to enter exhibit 8 on Riley Winter’s direct examination. You object to relevance to the statements of Kate and Sandy. What case law do you cite for the relevance objection?
Lucas vs. Karabatakis
Rule 615 allows you to question Sawyer Shaw and Riley Winter about something about which you cannot question other witnesses. What is it?
The testimony of witnesses who testified in trial before Riley Winter and/or Sawyer Shaw.
Plaintiff’s counsel asks Adrian Edwards, “You called Sawyer Shaw that night, didn’t you?” Do you object? If so, what do you object to?
No objection. Adrian Edwards is a defense witness, so if plaintiff’s counsel is questioning Adrian Edwards, is it for cross examination. Leading questions are allowed on cross examination.
You are directing Bobbie Lin, and you try and enter exhibit 8 (the birthday card). Opposing counsel objects to hearsay. You respond using 801(d)(2)(D). Opposing counsel responds by saying that the TBD agents/employees were not acting within the scope of the business relationship because this card was for a birthday party. How do you respond?
Something like: The employees of TBD were acting within the scope of their job duties at the time, because it was a party held for an employee during the work day.
You try to enter exhibit 22 under rule 803(6), arguing that the declaration page meets the foundational requirements. Opposing counsel argues that the notice requirements under 902(11) have not been met, as 902(11) states "the proponent must give an adverse party reasonable written notice of the intent to offer the record." Which stipulation do you use to respond?
Stipulation 13, which states that all requirements of rule 902(11) have been met.
During Bobbie Lin’s direct examination, you ask about the TBD employees who did not get fired for misconduct as defined by the People Policy. Opposing counsel objects to relevance, saying that this case is about TBD’s actions against Riley Winter, not the other employees at TBD. Which case law would you use to respond?
Kriegel vs. Mina or Berman vs. Ortiz