Chapter 11: Ch01 Planning To Win Effective RIEHL EDITS

Effective advocacy begins with planning the persuasion architecture: an advocate sequences primacy and recency, reasonable repetition, and the rule of three so the fact finder absorbs the case as a coherent story aligned with the decision maker's values.

Chapter 1

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Advocating a Case

A. Scope

Trialbook provides an effective and efficient system to learn, review, and apply advocacy strategies, tactics, procedures, techniques, and theories involved in judicial, administrative, and arbitration forums. This text and the accompanying AI platform contain suggestions, ideas, and methods that work successfully for advocates. And, these sources provide a structure to add your own customized approaches to develop and maintain as a resource on a laptop, in a desktop computer, or on printed or written pages in a binder. You can make these materials your very own Trialbook for all your cases.

Other sources can help develop your case preparation and presentation skills. Law school advocacy and clinical courses taught by talented professors can provide a foundation. Experienced trial lawyers, colleagues, and other legal professionals can further enhance your skills. Another valuable mentorship tool, introduced in the Preface, appears at www.trialbook.org, a proprietary interactive advocacy system.

LLMs (Large Language Models) and GenAI (Generative AI) have ingested vast amounts of the world’s recorded knowledge—including cases, statutes, regulations, and legal strategies—so you may consider AI to be your “most well-read lawyer friend.” Additionally, AI’s multi-modal capabilities enable interactivity, such as jousting with AI witnesses, negotiating settlements with unreasonable AI-simulated opposing counsel, arguing before AI jurors, and parrying with AI judges as a “hot bench.” Beyond simulations, AI can also critique your performance, suggesting methods of improvement. (Throughout these materials, generic references to AI, LLMs, and GenAI are used interchangeably.)

B. The Professional Advocate

1.01 Why Be an Advocate?

Our goal is to win. Keep this goal in perspective, for the end does not justify all means. Successful advocates use all reasonable tactics and techniques to present a case while promoting the best interests of clients and being governed by rules, ethics, common sense, and the public good.

1.01.1 How to Be an Advocate

An effective advocate acts as a counselor, investigator, facilitator, negotiator, dreamer, artist, psychologist, historian, and theater director. Creativity, imagination, intuition, reasoning, logic, discipline, and the ability to predict what may happen are critical skills.

1.01.2 Characterizing the Advocate

Character and personality influence the approach to advocacy. Essential elements include trust, integrity, intuition, honesty, compassion, a sense of justice, and respect for others. An advocate who can be trusted will be effective.

1.01.3 Enjoying Advocacy

Live a balanced life and enjoy the work of being an advocate. Reflect on the reasons for taking a case and develop realistic expectations. Maintain a proper relationship with the client, and don’t worry about matters that can’t be altered. Monitor workload, expect disruptions, share feelings with family, exercise, avoid alcohol and drugs, discuss the case with a colleague, and celebrate the end regardless of the outcome.

1.01.4 Maintaining Client Relations

Your clients have placed their legal fate with you, and they expect you to be proficient, skillful, accessible, talented, caring, and reasonably affordable. Expectations about a case evolve. It’s wise to maintain continuing communications with your client so they know what you are doing and you know what they are thinking.

1.01.5 Developing Collaborative Relationships

Advocates need to develop collaborative relationships. Collaborators may include an associate, or a staff, or a team of professionals. Cooperation and coordination lead to efficient procedures and successful outcomes.

C. How to Be Persuasive

1.02 Convincing Advocacy

Several approaches and methods can enhance an advocate’s influence.

1.02.1 Primacy and Recency

People generally remember best what they hear first and last. Recency bias is real and powerful. The doctrine of primacy and recency applies to all case stages. Begin and end strong—with your best evidence and strongest arguments.

1.02.2 Reasonable Repetition

The more often someone perceives something, the more likely they will remember and believe it. Evidence and arguments that are repeated a reasonable number of times increase the chances of recall and belief. What constitutes “reasonable” depends on the circumstances.

1.02.3 The Rule of Three

Trials, arbitrations, and administrative cases allow three opportunities to tell the story: outline what happened (opening statement), explain what happened (evidence), and summarize what happened (summation). Say what you’re going to tell them, tell them, and say what you told them.

1.02.4 Enriching the Senses

Studies demonstrate that people remember a much larger percentage of what they both see and hear, compared to what they just hear. People remember more if they participate in the decision-making process. To understand and make a decision, people need to be actively engaged. Combining images from exhibits with testimonial words and bringing a case to life helps decision makers understand and remember key facts and points.

1.02.5 Requiring Analysis and Adoption

Judges, arbitrators, hearing officers, and jurors absorb the case presentations and analyze the facts. They should conclude that favorable witnesses are telling the truth and that the arguments presented reach the right conclusion. If they reach these conclusions on their own—shepherded by the advocate—they will adopt them as their own.

1.02.6 Enhancing Appropriate Emotions

A case’s inherent emotions should be effectively leveraged. Advocates can create an atmosphere that elicits appropriate emotional reactions from the fact finder at the right time. Every case involves human interactions. The more the decision makers sense and feel the human dimensions involved, the more they will comprehend and remember—and the more likely they will understand what happened.

1.02.7 Utilizing Impact Words

Descriptive words (e.g., “mashed,” “huge,” “shrieked”) are more persuasive and memorable than less-graphic words. Impact words should be selected carefully for their impact and should accurately reflect a position.

1.02.8 Creating Images

Trials and hearings provide several opportunities to provide information visually. Real evidence can establish facts supporting or opposing oral testimony. Demonstrative evidence can bolster the story being portrayed. Modern technology provides alternative ways to introduce, explain, and highlight facts. For example, an image-generation AI or video-generation AI overlaying a case’s relevant map or image can “show, not tell” your client’s story. Of course, such demonstrations should clearly note their provenance: Just as advocates should disclose an expert’s recreation of a scene, advocates should similarly disclose the role of AI. These methods can help present a case efficiently and effectively. But, their overuse or misuse may overly complicate or unduly lengthen a presentation.

1.02.9 Augmenting Imagination

As counsel presents the case, the fact finders form images about events. The more realistic and detailed the advocate portrays critical images, the more the fact finders will resonate with the story being revealed and the proposed outcome.

1.02.10 Considering What Is Presumed

Trials or hearings never include enough time to introduce everything relevant. Common sense presumes that fact finders know a lot about common events without introducing explanatory evidence. Counsel needs to rely on what the fact finders presume from their general knowledge and life experiences that supplements what the evidence establishes.

D. How to Tell a Story

1.03 Storytelling Techniques

Advocates are storytellers, and the more convincing the story, the more likely a victory. Techniques employed in literature may be adapted to a case. Creating an attention-getting moment, setting a memorable scene, maintaining suspense, and providing a clear structure—these are important techniques to develop and sustain the fact finder’s attention.

1.03.1 Compelling Images

Persuasive advocates astutely use words and descriptions to create images that describe the story accurately and vividly. The fact finder should understand the story in a captivating and convincing way through depictions. People understand events through the pictures they form in their minds. Technologies including AI tools can help craft and display images and re-create events.

1.03.2 Understandable Language

Clarity of expression is critical. Understandable language surpasses legalese. Advocates should not talk down, or up, to the listener.

1.03.3 Understandable Explanations

If an explanation is straightforward and simple, then listeners will more readily accept it as true. The challenge is to present confusing or complicated events so clearly and comprehensibly that fact finders can readily understand them.

1.03.4 Avoiding Contradictions

The theory of a case must be explained cohesively and congruously. Advocates must avoid presenting contradictory positions. Alternative explanations may be appropriate, as long as they’re not inconsistent.

1.03.5 Developing Interest

Every case involves relationships, transactions, and events. These circumstances need to be presented through compelling testimony, exhibits, and illustrative aids. Effective communication techniques, impact language, and visual and linguistic images can significantly boost interest.

1.03.6 Active Involvement of the Fact Finder

Fact finders who become emotionally and mentally engaged in a case are more likely to be interested in the outcome—and more likely to remember evidence. The advocate must actively engage the fact finder to ponder, absorb, and accept the story being conveyed.

E. How to Be Convincing

1.04 Attention Span

Audiences have limited attention spans. Presentations should be interesting, reasonably paced, concise, and well delivered. Captivating case deliveries can enhance attention. Advocates need to continually observe the listeners to ensure their attention and to adapt when necessary to retain that attention.

1.04.1 Crafting a Realistic Story

An imperfect story is more likely to be believed than one that is perfectly remembered and artificially told. Witnesses naturally and normally fail to recall everything that happened or was said. Fact finders will more likely conclude that a story is real if witnesses are real—and do not have rehearsed presentations and perfect recalls.

1.04.2 Presenting an Almost Complete Story

It may seem more effective to leave out the weak points, telling only the good parts of a story that support the case. Witnesses may believe that they should only relate helpful events, ignoring or forgetting unhelpful circumstances. But an honest, candid, complete story is more likely to be credible, sensible, and compelling.

1.04.3 Establishing Realism

The advocate’s role parallels that of the playwright and director. Fact finders should believe that they’re observing a real event unfolding before them. So, advocates should attempt to actively involve fact finders’ minds, feelings, hearts, and emotions.

1.04.4 Avoiding Confusion and Weariness

Choosing and presenting the best issues and facts can be quite difficult. Cases often contain so much information that it’s challenging to winnow it down to those essential facts and issues that support the best path to victory. This can become a problem for advocates who prepare extensive and overly-thorough presentations. Usually, concise and precise presentations outshine complex, lengthy diatribes that confuse fact finders.

1.04.5 Balancing the Presentation

Incorporating technology into presentations can be a double-edged sword. If improperly used, tech can make presentations long and confusing. If underused, the advocate may lose an excellent opportunity to tell the most compelling and complete story. The key is to have a balanced presentation focused on the key issues, persuasive evidence, and compelling exhibits—enhanced by technological and AI tools.

1.04.6 Identification with Fact Finder

Fact finders are more likely to believe witnesses and parties that they identify with. Similarities between fact finders and witnesses or parties help form this identification. Advocates can select factual and other connections and interweave them in the case presentation.

F. How to Approach Advocacy

1.05 Focusing on the Decision Maker

It may seem obvious, but advocates must focus, focus, and focus on influencing the decision makers. Cases must be presented in a way that will leave the decision makers wanting to help the client and provide the warranted and right outcome.

1.05.1 Identify Decision Makers’ Values

All decision makers have a set of principles, beliefs, and norms that guide their professional and personal lives. These values may be identified in the jury selection process or by studying and asking questions (research) about the judge, arbitrator, or hearing officer. Decision makers are more likely to issue a favorable verdict, order, or award if the client’s position is consistent with their values and tenets.

1.05.2 Match Values to the Theory of the Case

Case theories, factual conclusions, persuasive positions, and compelling arguments should match and uphold the tenets and beliefs that guide the decision maker. The thrust of the presentation needs to reflect the principles and norms the decision maker believes in. To the extent possible, successful advocates match the values inherent in or attendant to the case with those of the decision maker.

1.05.3 The “Right” Approach

Many advocates believe that they must convince the fact finder of the correctness and righteousness of their client’s position by attempting to “sell” a position. Others believe that the advocate provides the fact finder with information that would lead reasonable people to reach only one conclusion. The first approach (sales) is persuasive, but may appear inappropriately biased or manipulative; the second approach (inevitable conclusion) allows the fact finders to reach their own conclusions based on the information the advocate presents, but may appear uncertain and unsure. The most-effective approach combines the benefits of both.

1.05.4 Being Influential

Some argue that during a case, advocates should not emphasize their professional beliefs, while others argue that it is critical to properly establish these beliefs. The common principle is that no matter what, the decision makers must understand that the advocate sincerely believes in the client and the case.

1.05.5 Being Objective

The advocate has a dual nature: both a partisan and an objective participant, resulting in an “objective partisan.” The advocate must be perceived as being fair and presenting relevant facts and accurate law.

1.05.6 Being Trustworthy

The advocate who is sincere, honest, and trustworthy has a greater chance for success. Trust must be cultivated and nurtured through a case. Advocates need not be liked by everyone, but they should be respected.

1.05.7 Making Mistakes

Advocates make mistakes. Their reaction to those mistakes increases or decreases the chances of winning. Counsel cannot let mistakes unduly affect the presentation. Effective advocates do not embarrass the client or witness when they make a mistake. The noblest advocates assume responsibility for errors.

1.05.8 Understanding the Fact Finder

Decision makers likely harbor some biases and prejudices, and they may be partial to one side or the other. Every fact finder develops an initial reaction to the case, and the degree to which these initial impressions develop into a firm opinion varies among fact finders. The better the advocate understands the lack of open-mindedness, the more likely the advocate can shape the presentation to overcome those perceptions.

1.05.9 Understanding Witnesses

When the advocate understands the witness and knows strengths and weaknesses, the witness can be presented in a realistic, believable way and not be called on to do too much or too little.

1.05.10 Understanding the Clients

The case’s nature and client type will dictate the resultant advocate-client relationship displayed to the fact finder. The advocate must demonstrate an authentic belief in the client and the case. This demonstrated relationship will impact how the decision makers consider whether the client deserves to win.

1.05.11 Recollections of Clients and Witnesses

Clients and witnesses will have varying degrees of accuracy recalling events and details. And they may have different levels of honesty. Clients may craft a story that serves their self-interest; witnesses may not recall something they prefer not to admit. Clients may be prone to add information that favors them; witnesses may be inclined to forget some memories as they are too painful or difficult to recall. Advocates need to consider the impact of psychological reactions and experiences as they reveal the facts of what actually happened. Advocates also need to focus on why client and supportive witnesses are believable and more credible than the opposing party and their witnesses.

G. How to Get an Ovation

1.06 Be a Good Person

An effective orator is a “good person who speaks well.” An effective advocate must be a person who displays good sense, good will, and good character.

1.06.1 Exude Confidence

Successful advocates appear confident and in control of the case. Decision makers should be able to readily accept what is presented as valid and viable and not suffer doubts about the case because counsel appears uncertain.

1.06.2 Speak Well

Effective speakers focus on the ideas and images they wish to express and evoke. A speech that is simply read from a prepared text is rarely interesting or convincing. An advocate needs to tell a story through witnesses and exhibits that hopefully captivates the fact finders.

1.06.3 Talk Well

Tone, pace, volume, and modulation of delivery affect the listener’s ability to pay attention. Sometimes the best thing to say is nothing. Silence or pauses can effectively highlight points, gain attention, or create transitions.

1.06.4 Present Well

Exhibits should be selected or crafted to best present your story. Initial and ongoing choices identify the real and demonstrative evidence that can be used—and how to present that evidence most efficiently and effectively. Traditional and contemporary methods should both highlight and enhance the issues and facts. See Chapter 4, § 4.01.

1.06.5 Look . . . Well

Eye contact establishes credibility and persuasion. Good speakers speak to the audience and avoid using ineffective notes that hinder effective eye contact. Exhibits should enhance and not detract from the presentation. Visual aids that require a fact finder to unnecessarily multi-task may be too confusing to be understood. The tasks of a fact finder are to listen to oral testimony, observe the witness testifying, and consider the contents of exhibits—all while comparing those to other evidence. The advocate needs to make these tasks doable and manageable.

1.06.6 Bearing

Body language can impact the communication process—and should match what the advocate intends. Counsel must be constantly conscious of how they stand, sit, and move and present themselves.

1.06.7 Mannerisms

Advocates need to act naturally and authentically. Appropriate gestures make a presentation more effective. Keeping hands steady, controlling arm movements, and averting odd physical behavior avoids distractions and disconcerting gesticulations.

1.06.8 Look Good

Throughout a case, counsel needs to attend to appearance. A speaker’s look often affects a listener’s perceptions. Comfortable, appropriate dress should conform to the jurisdiction’s established or expected customs—or its rules of decorum. Clothing, hair style, and jewelry should not detract attention from the presentation.

1.06.9 Use Variety

Advocates must employ variety in their presentations. Too much of the same thing can result in boring, monotonous, and unpersuasive efforts. Counsel should review the previous sections and adopt and adapt various effective techniques to enhance their advocacy.

H. Be Better than Good

1.07 Professional Rules of Conduct

The rules of professional conduct and ethical lawyering norms provide a set of rules and guidelines for advocates that establish standards and impose restraints on behavior. The Model Rules of Professional Conduct, available at the ABA website, guide lawyer conduct and behavior: http://www.abanet.org/cpr/mrpc/mrpc_toc.html.

1.07.1 Abide by Client’s Decisions

Model Rule 1.2(a) states that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued.” The U.S. Supreme Court has approved this rule and the following standard: “[A]n attorney’s duty is to take professional responsibility for the conduct of the case after consulting with a client. [S]trategic and tactical decisions are the exclusive province of the lawyer after consulting with the client.” [Jones v. Barnes](https://www.westlaw.com/Document/I0a471ff79bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_753+n.6" \o “https://www.westlaw.com/Document/I0a471ff79bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_753+n.6)[, 463 U.S. 745, 753 n.6 (1983)](https://www.westlaw.com/Document/I0a471ff79bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_753+n.6" \o “https://www.westlaw.com/Document/I0a471ff79bf011d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0&fragmentIdentifier=co_pp_sp_780_753+n.6). Similar standards govern behavior in arbitrations and administrative hearings.

1.07.2 Competent Representation

The advocate must provide competent representation and act with reasonable promptness and diligence. Competency is reflected by community legal standards and expectations concerning what is acceptable and what is not acceptable representation.

1.07.3 Confidentiality

What a client tells a lawyer and the advice a lawyer gives to a client is confidential and may not be revealed unless that information is known by others, the client consents, or certain specific situations permit or require disclosure. If a lawyer is to gain their clients’ trust, those clients must understand that certain communications are absolutely confidential.

1.07.4 Conflict of Interest

If representing a client will compromise, or be compromised by, the lawyer’s responsibilities to another client or to a third person, then that lawyer may not represent that client. And if the lawyer’s own interests conflict, the case should similarly be referred elsewhere. Common sense coupled with specific regulations explained in Model Rules 1.7 and 1.8 provide the standards for determining and dealing with conflicts.

1.07.5 Good Faith

Model Rule 3.1 states that: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” [Federal Rule of Civil Procedure 11](https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N71274E70B96011D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules contain a similar standard.

1.07.6 Expediting the Case

An advocate must make reasonable efforts, consistent with the legitimate interests of the client, to expedite a case and not delay proceedings for improper reasons. Most clients want their dispute resolved as promptly as possible, and lawyers should strive to be punctual and responsive.

1.07.7 Evidence

Model Rule 3.3(a)(3) states that: “A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false. If a lawyer . . . has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures . . . .” Model Rule 3.4(a) further states that: “A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” As AI-backed deepfakes become easier for clients to produce, adherence to Model Rules 3.3 and 3.4 grows increasingly vital.

1.07.8 Professional Assertions

Professional statements must have a factual or legal basis; counsel must avoid making personal proclamations. Model Rule 3.4(a) provides: “A lawyer shall not. . .assert personal knowledge of facts. . .or state a personal opinion as to the justice of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” In other words, advocates cannot “vouch” for someone or something based on their own personal views or beliefs.

1.07.9 Disclosing Controlling Authority

Model Rule 3.3(a)(2) states that: “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” And justice and fairness support this common sense standard.

1.07.10 Influencing an Official

An advocate may not seek to influence a judge, juror, or other judicial or administrative official by means prohibited by law and may not communicate ex parte with such persons unless permitted by law.

1.07.11 Abide by This

Model Rule 3.4(c) states that: “A lawyer shall not knowingly disobey an obligation under the rules of the tribunal except for an open refusal based on an assertion that no valid obligation exists.”

1.07.12 Do Not Do This

The most egregious and outrageous misconduct by an advocate will be handled through a contempt citation. Misconduct may prompt a reprimand or other sanction from a professional responsibility board or office. As such, it’s critical for advocates to develop and maintain reputations of integrity: being honest, trustworthy, ethical, and professional.

1.07.13 Constraints

Clients have limited resources. This lack of sufficient funds and time makes it impossible to do everything that could be done in a case. The client and the facts will limit what should be done to prepare and present a case. The advocate and client must set priorities, working within these limitations.

Planning Before the Case

A. How to Select a Case Theory

There are several stages of case planning. These include: creating a case theory, preparing a strategy, considering a settlement outcome, choosing a forum, scheduling the case, deciding on a decision maker, assessing burdens of proof, managing a complex case, and resolving problems.

Throughout this process, AI can help and jumpstart case planning by honing sharper theories and cleaner strategies. For example, GenAI and LLMs can ideate potential claims, defenses, and missing allegations from intake notes and pleadings, then map facts to elements—to expose proof gaps. LLM-backed tools can help draft competing narrative hypotheses tied to duty, breach, causation, and harm, then stress-test themes against a hostile judge or opponent.

LLMs can also tighten demonstrations of proof. They can help create a burden-and-standard matrix, anchoring each claim and defense, while an element-evidence map can link needed exhibits and testimony. AI can help sequence witnesses and documents for maximum effect, flagging hearsay or foundation problems—and propose potential cures. For settlement, AI can help draft mediator briefs, and it can also run what-if concessions—to adjust potential numbers and terms.

LLM-backed tools also tame complex litigation and institutionalize learning. An issue-party graph can track claims, cross-claims, indemnity chains, and overlapping facts, while another LLM workflow can align definitions across complaints and answers and generate potential RFPs, interrogatories, RFAs, and deposition outlines. In MDL litigation, GenAI can help choose bellwether cases, ranking cases for representativeness and trial-readiness.

In short, AI can help at every stage of the case-theory process discussed below.

2.01 Crafting a Case Theory

A “theory of the case” provides the decision maker with a succinct statement explaining why a client is entitled to win. A case theory consists of the legal theories and a summary of the essential facts. A theory of the case may be constructed by selecting the most effective legal positions and persuasive facts. The theory provides the decision maker with concise and convincing reasons why a client is entitled to a decision, and why the decision maker will readily want to find in favor of a client. This exhortation should be a succinct, precise declarative statement that is credible, coherent, and compelling.

2.01.1 What Is a Legal Claim or Defense?

A legal theory consists of the elements of a claim or defense supported by the facts of the case. The legal claims or defenses are based on existing law or a good-faith argument extending, modifying, or attempting to change existing law.

2.01.2 How to Select a Legal Theory

Legal theories are fashioned by researching law, assessing the strengths and weaknesses of alternative approaches, matching the best legal position with the facts, and selecting the most likely successful legal theory or theories that support the case.

2.01.3 What Is a Factual Summary?

A factual summary is a description of what happened: it is based on the evidence that is available and admissible in a case. Factual summaries must be selected from reasonable interpretations and favorable inferences drawn from the evidence.

2.01.4 How to Compose a Factual Summary

The factual summary must contain sufficient information to survive a motion for summary judgment, judgment as a matter of law, or dismissal. It must be supported by the evidence and overcome any proof problems.

2.01.5 How to Present Case Theories and Summaries

The selected legal theory and factual summary can be presented as a case statement story. It can be enhanced with the addition of real or demonstrative evidence that helps explain it concisely and understandably.

2.01.6 Considerations That Apply to Legal Theories and Factual Summaries

The following factors apply to developing legal theories and factual summaries:

 Assert affirmative positions.

 Present as much favorable evidence as reasonably feasible.

 Include evidence adverse to the opposition.

 Craft approaches based on common sense.

 Select positions that fact finder will identify with.

 Use an approach that results in a fair and just decision.

 Avoid taking positions that require difficult choices.

 Compose a summary containing the most-compelling legal issues and facts.

 Test the approach with colleagues and, perhaps, a law based AI platform.

B. How to Develop a Strategy

2.02 Strategy Construction

Developing a strategy involves discerning and evaluating the issues and evidence.

2.02.1 Identifying the Issues

Counsel needs to ascertain what issues the fact finder must decide to reach a favorable decision. Effective advocates put themselves in the place of the fact finder who have to decide:

 Which story to believe.

 Whether a witness is credible.

 What reasonable inferences may be drawn from the evidence.

 How best to apply the law to the facts.

2.02.2 Determining the Evidence

To be admitted, evidence must both be relevant and have sufficient foundation. Evidence may be presented through:

 Witnesses

 Real evidence

 Demonstrative evidence

 Visual aids and technology-backed evidence

 Stipulations

 Admissions

 Former testimony

 Judicial, arbitral, and administrative notice

2.02.3 Assessing What the Fact Finder Knows

In every case, the advocate presumes that fact finders understand certain information, and so refrain from introducing evidence that explains the obvious. Fact finders will know certain elemental facts based on common life experiences. To prove them would be a waste of time and insulting. Advocates must make common-sense determinations about which facts must be explained and which can be assumed to be known by all.

C. How to Plan for Settlement

2.03 How to Settle

Settlement requires compromise. The vast majority of civil cases settle, and a greater percentage of criminal cases are settled by plea agreements. The most common form of settlement is when the advocates and parties negotiate the resolution themselves. This result allows the participants to decide and control the outcome of the dispute. Various cases require the judge to approve a settlement, e.g., criminal cases and civil class actions.

2.03.1 Settlement Strategies

Effective settlement strategies, tactics, and techniques increase the opportunity for a successful resolution. Advocates can smartly:

 Have an overall case plan and trial strategy to properly evaluate a case.

 Develop settlement approaches and positions to obtain the best settlement.

 Craft a case presentation to identify strengths and weaknesses.

 Describe thorough and comprehensive case preparation to impress the opponent.

 Identify and rely on productive settlement strategies and techniques.

 Consider other available alternatives in case efforts to compromise fail.

2.03.2 Mediation

An effective way to resolve a dispute is through mediation. If the parties cannot settle it on their own, they can engage the services of an expert mediator who facilitates a compromise resolution. Mediators have no power to force settlements, but they can use myriad approaches to encourage the parties to settle. Some courts mandate mediation and require the parties to work with a mediator before proceeding with the case to trial.

2.03.3 Fact Finding and Minitrials

An experienced neutral can assist parties in settling by offering their own opinion as to the case’s value. They can conduct fact finding to identify and evaluate the disputed facts. And they can also conduct a minitrial, in which they serve as an advisory “judge” and render an opinion as to the case’s outcome. The parties can then rely on this information to reach a settlement.

2.03.4 Summary Jury Trial

A panel of prospective jurors can also issue an advisory verdict. The parties and their lawyers present a condensed version of the case to mock jurors, who deliberate and render a decision that the parties can then use as a basis for settlement discussions.

2.03.5 Collaborative Law

Collaborative law employs a balanced approach to resolving disputes. Experienced professionals work with the parties to develop their own process to settle a case, and they then proceed to follow that process to a resolution.

2.03.6 Court Appointed Neutrals

Expert professionals can serve as court-appointed neutrals (CAN) to assist parties, lawyers, and judges in resolving disputes. [FRCP 53](https://www.westlaw.com/Document/NB4F126F0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NB4F126F0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) allows judges to appoint special masters to serve in a variety of roles to achieve a responsive and fair outcome. See www.courtappointedneutrals.org.

2.03.7 Settlement Documents

In civil cases, settlement documents typically include a written settlement agreement and a stipulated dismissal with prejudice or a proposed order that requests a dismissal with prejudice. There are a variety of settlement forms the parties can use for specific tort or contract settlements.

D. How to Choose a Forum

2.04 Available Forums

If the parties and their advocates are unable to settle a dispute on their own or through the services of a mediator, they will need to have someone else decide who will win. Some cases should not be settled because parties ought not compromise. It is these cases that will be decided in an adversarial proceeding. There are three primary available forums:

 Courts where a judge or jury decides the case,

 Arbitrations where an arbitrator issues a final award

 Administrative proceedings where an administrative law judge (ALJ) or hearing officer determines the outcome.

2.04.1 Who Should Decide the Case?

One critical early question an advocate must answer is who can and who should decide the case. An advocate may be able to choose the forum and select whether the case will be decided by a judge, jury, arbitrator, or ALJ.

There are several factors to consider in determining who is more desirable as the fact finder:

Nature of factual issues. If a case involves emotional or sympathetic issues, advocates may prefer a trial before a jury.

Type of client. The client’s personality and nature may be very appealing to a jury, while that personal appeal might not favorably affect a professional decision maker.

Scope and methods of discovery. The type of discoverable information may influence who should decide the case. Court rules typically allow broad discovery; arbitration rules usually allow for reasonable discovery; and administrative rules limit available discovery.

Nature of legal theory. If a case involves specialized legal issues, a professional decision maker may be more knowledgeable and able to render a fair result.

Complexity of the case. A jury may not be able to understand and decide complex cases as well as a professional decision maker. Extremely difficult matters may be better left to an expert, or not.

Presentation of the case. Trial procedures are lengthier in a jury trial and the rules of evidence are more strictly enforced than in other forums. In arbitration and administrative cases, case presentations are usually more compact and concise.

Advocate’s experience. Whether the advocates on either side are more effective before an ALJ, arbitrator, a judge, or a jury may influence the decision.

Client’s preferences. The client may prefer a decision reached by jurors or may prefer a judge/arbitrator/ALJ.

Type of professional decision maker. Some cases may be better decided by a neutral and independent private judge, experienced arbitrator, or an expert ALJ than a judicial judge.

Availability of successful appeal. Appellate courts are much less likely to overturn the factual findings of a jury than those of a trial judge or ALJ—because the standards of review are higher in a jury case. The grounds for an appeal from an arbitrator’s decision are limited.

Timing of the outcome. Generally, a jury trial usually takes the longest amount of time to be completed, and an arbitration the shortest.

2.04.2 Who Could Decide the Case?

In criminal and most civil trial cases, the parties have a right to a trial by jury or may prefer a judge in a bench trial. In arbitration, parties must agree to submit a claim or dispute to arbitration through a written predispute arbitration clause or a post-dispute agreement. In administrative cases, a statute or regulatory rules may require parties to proceed before an administrative judge or body.

2.04.3 A Jury

In federal court cases, the Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial. Similar state constitutional provisions or rules guarantee that same right in state cases. Jurisdictions vary on how a party may demand a jury trial. [Federal Rule of Civil Procedure 38(b)](https://www.westlaw.com/Document/N2AD34040B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2AD34040B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) states that a party may make a jury demand at any time after commencement of an action and within fourteen days after the close of the pleadings. In federal courts and state courts that impose a time limit for the jury demand, a party waives the right to a jury trial unless the party complies with the applicable rule.

2.04.4 Advisory Jury

In cases where there is no right to a jury, a judge may empanel an advisory jury to render a suggested verdict. See, e.g., [FRCP 39(c)](https://www.westlaw.com/Document/N41EFB1A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N41EFB1A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). While advisory juries are rare, judges may use them when lay person jurors can assist the court in finding the facts.

2.04.5 Role of Judge and Jury

In a jury trial, the judge administers the trial, manages the attorneys and the participants, rules on motions and the admissibility of evidence, instructs the jury regarding the law, issues orders, and enters judgments. In a jury trial, the jury is the fact finder. The jurors apply the law given them by the judge to the facts and render a verdict.

In a bench trial, a judge is the finder of facts, applies the law to the facts, and issues an order for judgment.

2.04.6 Role of Arbitrator

The arbitrator is like a judge in a bench trial. A neutral and impartial arbitrator conducts the hearing, finds the facts, applies the substantive law, and issues an award based on the merits of the case.

2.04.7 Role of Administrative Judge

The power and authority of an administrative judge depends on the type of administrative hearing. Some administrative judges act similarly to judicial judges; others have a broader or a more restrictive role.

2.04.8 Role of Support Staff

Judicial personnel assist with the case’s progress. Personnel include court administrators, court reporters, law clerks, judicial assistants, and bailiffs. Judicial administrators are court clerks; court reporters record a case. A law clerk may research the law and help the judge draft memoranda and orders. A judicial assistant performs clerical duties. The bailiff enforces order in the courtroom and is responsible for tending to the jury.

Arbitration providers commonly provide administrative support in an arbitration. They accept cases for filing, process the case, and appoint or provide clerical support to the arbitrator. They perform similar functions to court clerks. The American Arbitration Association www.adr.org), Arbitration Forum (www.adrforum.com), and JAMS (www.jamsadr.com) are national arbitration organizations.

Clerks in administrative agencies typically help process an administrative law case. They also perform functions very similar to court clerks.

E. How to Schedule a Case

2.05 Procedural Rules and Regulations

Rules, orders, customs, and procedures govern a case’s scheduling.

2.05.1 Scheduling a Trial

The rules of civil procedure that apply in the jurisdiction govern how an attorney places a civil case on the trial calendar. Typically, this requires a written demand for a jury or court trial, after which the administrator or clerk of court places the case on the trial calendar. Criminal cases are scheduled by the office of the administrator or clerk.

The assignment of a judge depends upon the type of calendar used by the court. There are three primary types of calendar systems: a master calendar system in which judges are assigned on a rotating basis; an individual calendar system with the entire case being assigned to an individual judge (also known as the block system used in federal court); and a combination of these two systems.

2.05.2 Scheduling an Arbitration

The arbitration organization typically schedules the arbitration proceedings and hearings with a specific beginning and concluding time. The hearing occurs on a date and time certain. Because there is no crowded court calendar, the hearing can be set promptly after discovery has been completed.

2.05.3 Scheduling an Administrative Hearing

Administrative hearings are typically scheduled for a specific, limited period of time by an administrator from the administrative agency. The extent of the docket depends on how soon and when a case is set for a hearing.

F. How to Remove/Disqualify

the Decision Maker

2.06 Applicable Rules

The rules and procedures of the forum determine the process of removing or disqualifying the professional decision maker.

2.06.1 Removing a Trial Judge

Federal and state codes of judicial conduct and statutes determine when a judge must be disqualified. Typical grounds of disqualification include personal bias, personal knowledge of disputed evidentiary facts, and personal interests. A judge may also be disqualified due to illness or physical disability.

2.06.2 Removing a Judge for Cause

In cases where judges do not remove themselves, all jurisdictions allow attorneys to request that a judge be removed from a case for cause. Counsel can file a motion describing the supporting grounds, and the assigned judge or a colleague judge decides the motion. Some jurisdictions permit counsel to remove the judge initially appointed without cause.

2.06.3 Removing a Judge Without Cause

In cases where parties can remove the first judge assigned to a case without showing cause, attorneys do so in hopes that the successor judge will be less biased or more favorable. In this procedure, the lawyer files a notice of removal or similar document, which must be filed promptly.

2.06.4 Removing an Administrative Judge

The procedures for challenging an administrative judge will be established by statute or administrative rules. These options are usually limited and available only if substantial cause exists.

2.06.5 Removing an Arbitrator

Parties may be able to choose the arbitrator mutually. An arbitration provider may also appoint a neutral, impartial arbitrator. Parties have an opportunity to refuse, remove, or challenge an appointed arbitrator. The arbitration organization provides the parties with a relevant resume, and the parties may refuse to accept an arbitrator if a conflict of interest exists or the appointed person has objective prejudice or bias or insufficient expertise.

2.06.6 Removing a Juror

See Chapter Five, Section 1 (J).

G. Determining the Burden of Production

and Proof and Presumptions

2.07 What Is the Burden of Production?

The burden of production (also known as the burden of going forward) requires that a party produce sufficient evidence so that a reasonable fact finder could find on behalf of that party. An opposing party challenges the sufficiency of the evidence presented by bringing a motion for a directed verdict in a jury trial or a motion to dismiss in a bench, arbitration, or administrative trial. The opposing party may also challenge the sufficiency of the evidence through cross-examination, presenting evidence, and in final argument.

2.07.1 What Is the Burden of Proof/Persuasion?

The burden of persuasion—also known as the “burden of proof” or the “risk of nonpersuasion”—requires a party to introduce evidence sufficient to win. There are three types of burdens:

Preponderance of the Evidence. In civil cases this burden requires a party, usually the plaintiff, to prove that it is more probable than not that the party’s facts are true. A non-controlling rule of thumb: approximately 51%.

Clear and Convincing. This is a standard of proof that applies to some issues in some civil cases that involve a higher burden of proof. To satisfy this burden, a party must establish proof greater than the preponderance of evidence. A rule of thumb: approximately 75%.

Beyond a Reasonable Doubt. This is the highest of the three burdens of proof. It is the burden of proof in criminal cases. All jurisdictions have jury instructions that define proof beyond a reasonable doubt. A rule of thumb: 90% to 99%.

2.07.2 Who Has What Burden?

Each jurisdiction’s law allocates the burden of production and the burden of proof for each issue between the plaintiff and defendant—in four ways:

 The plaintiff has both burdens.

 The plaintiff has the burden of production, and the defense has the burden of persuasion.

 The defense has the burden of production, and the plaintiff has the burden of persuasion.

 The defendant has both burdens.

Even within a jurisdiction, for any particular claim and issue, those burdens’ allocations—between the parties—can be varied.

2.07.3 Why Care About Burdens?

The advocates care because the allocation of the burdens affects the order of the presentation of evidence and the amount of evidence necessary to win. The judge cares because burdens affect the instructions given to a jury. The fact finders care because the allocation of burdens affects how they view the evidence and how the law is applied to the evidence. The judge in a bench trial as well as an arbitrator and administrative law judge care because the application of the burdens may determine who wins or loses if the evidence is equally balanced.

2.07.4 What Are Presumptions?

A presumption is the conclusion a fact finder must reach unless contrary evidence of that conclusion has been presented. There are hundreds of legal presumptions established by statute or case law in each jurisdiction. Presumptions have different meanings. A “trial” presumption is a rebuttable presumption. A “substantive” presumption is irrebuttable. A presumption is not the same as an inference. The difference in their effect is that an inference is permissive and a presumption is mandatory.

2.07.5 Effect of Burdens and Presumptions

Presumptions may influence the burden of production and the burden of persuasion. The precise effect depends upon the law of the respective jurisdiction. The law and proper jury instructions to be given in a case depend on the applicable law regarding presumptions and burdens.

H. Managing Complex Cases

2.08 What Is Complex?

Cases are complex for myriad reasons: the factual and legal issues are complicated; there are a lot of parties and lawyers; the case is a class action; or numerous individual cases proceed in different jurisdictions.

2.08.1 Planning for Complex Cases

When planning for complex cases, counsel:

 Analyze and define issues

 Create a team

 Design a communication system for the team

 Have regular remote meetings and conference calls

 Establish a budget

 Have an operation headquarters

 Craft an information management system

 Monitor agreements preserving evidence

 Develop an organization and computer system

 Create systems for filing documents electronically

 Identify electronically stored information (ESI)

 Retain technology experts for advice and counsel

 Craft a discovery plan

 Create a plan to manage motions

 Cooperate with insurance carriers

 Develop ways to deal with the media and public relations

 Maintain a diary with relevant notes

 Make appropriate preparations for travel and lodging

 Make efforts to settle all or parts of the litigation

 Have the judge appoint a court appointed neutral

 Prepare for trial

2.08.2 Manual for Complex Cases

The Federal Manual for Complex Litigation may govern federal cases. It can be a guide in state actions. The manual provides procedures by which complex cases can be managed effectively and proceed efficiently.

2.08.3 Multi-District Litigation

The Federal Judicial Panel on Multi-District litigation considers motions to transfer cases pending in different federal judicial districts and resolves related issues. See [28 U.S.C. Sec. 1407](https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), et seq. Once multidistrict cases are transferred, all pretrial matters including discovery and motion proceedings are conducted by the transferee court. If the cases are not resolved or settled, they are remanded to the original court for trial.

2.08.4 Coordinating Committees and Liaison Counsel

A coordinating committee with lead counsel administering the litigation and organizing work assignments helps organize complex litigation. Liaison counsel can coordinate communication among the court, opposing counsel, and co-counsel. Additional committees may be composed of both plaintiff and defendant lawyers to comply with “meet and confer” rules and to provide judges with proposed stipulated orders.

2.08.5 Joint Party Privilege Agreement

This agreement assures work that is shared among all the same parties (i.e., all defendants) remains privileged. No information that is exchanged among participants in the agreement can be disclosed outside the group without a written waiver.

2.08.6 Document Management Systems (DMS)

A document management system must effectively and efficiently provide ready access to relevant documents. Document depositories are typically composed of electronically stored information and documents that have been scanned into or made part of a computer-based system. A search protocol makes it feasible for the advocates to locate and review relevant documents.

In creating a document management system, counsel:

 Issue a litigation hold to clients and client representatives to retain potentially relevant documents and evidence.

 Monitor the litigation hold to make sure it has been communicated to the appropriate employees.

 Review client document preservation policies to assure preservation.

 Advise clients of the possible discovery of newly created documents.

 Make sure documents are not being improperly destroyed or deleted.

 Ascertain what paper documents exist and their location.

 Determine what electronically stored information (ESI) exists.

 Identify the native format of ESI and what metadata may exist.

 Identify who has custody, copies of, or access to documents and ESI.

 Select a law firm to oversee gathering and preserving documents.

 Select a company that creates and supports an electronic discovery depository.

 Arrange for document security.

 With in-house and outside counsel, review documents for privilege.

 Determine what materials may or may not be trial-preparation materials.

 Make sure proper logs are maintained for work product information.

 Request that the judge assign a court appointed neutral to assist with case management and settlement options.

2.08.7 Depositories for Discovery Documents

Discovery documents must be kept in a secure repository administered by professionals. All parties and advocates can have access to this repository via credentials (e.g., username, password, multi-factor authentication). These repositories include physical or cloud-based systems with electronically stored information and documents and might also include rooms with file cabinets.

2.08.8 Discovery Plans in Complex Cases

A specific, detailed plan based on factual and legal issues must be developed. The Manual for Complex Litigation or a discovery protocol from a previous case can be a guide. Plaintiff and defense lawyers typically work together and prepare a mutually acceptable plan offered to the judge as a stipulated order.

2.08.9 Confidential Discovery Responses

[Federal Rule of Civil Procedure 26](https://www.westlaw.com/Document/NE63C0540AB7211F0B510F442B3B6E2EB/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NE63C0540AB7211F0B510F442B3B6E2EB/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules protect against improper disclosures. The discovery information is commonly only available to the lawyers and parties who have a reason to have access to the information. A confidentiality order typically prohibits third parties from access to discovery responses.

2.08.10 Depositions in Complex Cases

A planned protocol should address the following deposition issues:

 Scheduling/postponements

 Locations

 Simultaneous deposition

 Procedures for audio and video recording

 Who may be present

 Which lawyers take the deposition

 Which lawyers attend

 Duration

 Documents to be used

 Printed or electronic copies of documents

 Objections and instructions not to answer

 Judicial supervision or court appointed neutral

 Reading, signing, and filing

 Preserving/indexing transcripts

 Location of deposition depository

2.08.11 Settlement of Complex Cases

Complex cases may be categorized as single or multiple situs. Single-situs cases involve many people at one place and time. Multiple-situs cases involve many people at a number of places over a period of time.

Single-situs cases may be more likely settled on a mass basis because resolution of a representative case may resolve many cases due to related liability issues, similar damages, and other common factors. Multiple-situs cases involve more diverse liability and damage issues and more complex settlement methods based on liability and damage formulas.

The type of case will influence settlement approaches and techniques. Computer models and uniform settlement plans can assist in reaching settlement. Multi-district litigation procedures pursuant to [28 U.S.C. Sec. 1407](https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N646D8181B21C11EDBC6599A3CD663210/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), class procedures pursuant to [FRCP 23](https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC687F790B96311D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), or similar state procedures control settlements.

2.08.12 Case Proceedings in Multi-Issue Cases

Complex case trials often require resolution of multiple issues—and the parties often rely on one or more “bellwether” cases to resolve those issues. Commonly, a representative case or series of representative cases are tried, and these resolutions determine the outcome of similarly situated cases.

2.08.13 Court-Appointed Neutrals (a/k/a Special Masters) and Judicial Adjuncts

A judge may appoint a special master to serve several functions. See § 2.08.6. In complex cases, a court-appointed neutral may serve as a discovery master to resolve discovery disputes, or as a mediator to help settle a case, or as a judicial adjunct to help manage procedures. FRCP 53 lists the types of court-appointed neutrals and the process used to appoint them. Explanations of the use and availability of neutrals and judicial adjuncts appear at courtappointedneutrals.org.

I. Problems, Problems, Problems

2.09 Problem Decision Makers

Occasionally, a decision maker creates problems for the advocates and parties. Any inappropriate behavior or comments should be noted on the record of the hearing or trial when they occur or in affidavits supporting a motion challenging the behavior.

2.09.1 Problem Advocates

And perhaps more often, opposing advocates create problems. Opponents may be controlled by objecting to improper conduct and seeking relief from the judge. It is best to avoid arguing with the opponent or getting drawn into similar inappropriate behavior.

2.09.2 Problem Witnesses

Advocates must be responsible for controlling their own witnesses. Proper witness preparation should eliminate or reduce the likelihood of a problem witness. If necessary during a hearing or trial, the decision maker may admonish or direct a witness to behave properly.

2.09.3 Problem Evidence

Evidence problems may arise regarding the storage and accessibility of paper and electronic documents. The native format of electronically stored information and its metadata may create preservation and introduction issues that need to be monitored or resolved. Destruction of relevant evidence—or its metadata—might result in case-altering sanctions.

Preparing the Case

A. Effective Preparation

Experienced advocates share similar approaches and systems in preparing a case. This chapter summarizes commonly used effective methods.

As with most legal work, AI can also help prepare in case preparation. For example, GenAI can help advocates convert raw records into trial plans. LLMs can also run comprehensive case reviews that project an opponent’s best story, surface alternate inferences, and mark evidentiary gaps. If provided with relevant statutes, pattern instructions, and binding precedent, the AI tool can sharpen theory selection—creating element-to-fact correlations, revealing which claims and defenses lack requisite facts. LLM-backed tools can also assemble motions—targeted in limine requests, JMOL or directed-verdict drafts, and proposed orders—with human-validated or LLM-validated quotes checked against source texts.

LLMs can also accelerate witness preparation and examination. If fed a witness’s prior statements, transcripts, and exhibits, GenAI can outline directs keyed to elements and impeachment points—and also simulate crosses that pressure-test credibility. LLM-backed tools can also draft and iterate clean visuals that bolster oral arguments.

AI can also reduce trial risk and time. LLMs can build scenarios estimating the best, likely, and worst outcomes—and optimize witness order for most-logical storytelling. In short, GenAI can help build a living case book that updates as evidence accumulates, driving strategic and consistent choices—from voir dire to summation.

3.01 Develop a Case Book

Preparation for a case includes the creation of a tailored and customized trial or hearing book, which may include:

 Summary of case theory

 Pleadings

 Discovery

 Motions

 Chambers discussions

 Trial brief

 Objections and applicable rules of evidence

 Jury selection

 Opening statement

 Witnesses

 Real and demonstrative exhibits

 Electronically stored information and documents

 Direct examination

 Cross-examination

 Jury instructions and verdict forms

 Summation

 Expenses, including costs, bills, timesheets

 Trial or hearing errors

3.02 Begin with the Final Argument

Summation occurs at the end of the case, but its composition is the first step in a thorough case preparation. See Chapter 2, § 3.01. The outline and content of the final argument provides a form and structure for the creation and presentation of the entire case. A summation developed early in case preparation will undoubtedly undergo change as the case progresses.

3.02.1 Be Objective

Facts and law must be assessed objectively. Advocates must put themselves in the place of the fact finder who assesses the facts, determine the credibility of witnesses, accept inferences, and evaluate arguments.

3.02.2 Analyze the Opponent

An opponent’s strong and weak points affect the advocate’s case presentation. Information about an opponent can be obtained from colleagues, lawyers from other firms, individuals who know the opponent, and search engines. Information includes: extent of experience, skill level, overall demeanor, deserved reputation, advocacy habits, and experience with tribunal.

3.02.3 Analyze the Decision Maker

Familiarity with the strengths and weaknesses of the judge, arbitrator, or hearing officer helps an advocate present a case. Factors that should be considered include:

• How does this decision maker usually handle proceedings?
• How does this decision maker make rulings?
• What demands or expectations does this decision maker have of advocates?
• How does this decision maker apply the rules of evidence?
• How has this decision maker tried similar cases?
• What is the educational and professional background of this decision maker?
• What is the judicial philosophy of this decision maker?

3.02.4 Analyze the Case

When planning a presentation, counsel need ask:

 What is the most effective theory of the case?

 What are the elements of the claim or defense?

 What facts prove the elements in the case?

 What are the significant issues?

 How will the facts be proven?

 What is the most effective strategy?

B. Stages of the Case

3.03 Stages of a Civil Jury Trial

The sequence and stages of a civil jury trial include:

• Pretrial conference
• Chambers discussion
• Jury selection
• Opening statement by the plaintiff
• Opening statement by the defense (may be reserved until defense case)
• Plaintiff’s case
• Defendant’s motion for judgment as a matter of law
• Defendant’s case
• Plaintiffs rebuttal
• Motion for judgment as a matter of law
• Removal of alternate jurors (or may stay for deliberations)
• Summation by plaintiff, followed by defendant’s final argument, followed by plaintiff rebuttal (in some jurisdictions defense argues first, followed by the plaintiff, with no rebuttal by the defense)
• Charge/instructions to the jury
• Jury deliberations
• Verdict
• Post-trial motions
• Notice of appeal

3.04 Stages of a Criminal Jury Trial

The sequence and stages of a criminal trial:

• Pretrial conference
• Chambers discussion
• Jury selection
• Remarks to jury by judge
• Opening statement by the prosecutor
• Opening statement by defense (may be reserved to defense case)
• Prosecution’s case
• Defendant’s case
• Defendant’s motion to dismiss or for acquittal
• Prosecution rebuttal
• Renewal of defendant’s motion for acquittal
• Removal of alternate jurors (or may stay for deliberations)
• Summation by prosecution followed by the defense final argument with prosecution rebuttal (in some jurisdictions, the defense proceeds first, followed by the prosecution with no defense rebuttal)
• Charge/instructions to the jury
• Jury deliberations
• Verdict
• Post-trial motion
• Notice of appeal

3.05 Stages of a Bench Trial

The stages of civil and criminal bench trials are the same as jury trials, except that there is no jury selection, jury instruction, jury deliberation, or verdict. Instead, there are findings of fact, conclusions of law, and an order for judgment entered by the judge.

3.06 Stages of an Administrative Hearing

The type of administrative case determines its process. Some administrative hearings are identical or similar to a bench trial. Other formats allow the administrative law judge to act as an active participant by questioning witnesses. Another type of administrative case involves regulatory law, with the hearing officers receiving evidence in a variety of ways.

3.07 Stages of an Arbitration

There are two types of arbitration hearings—document hearings and participatory hearings. In a document hearing, the parties submit their case in writing to the arbitrator who issues an award after a review of the written submissions. A participatory hearing resembles a bench trial. Parties attend the hearing and present their evidence through witnesses and exhibits and make arguments, with the arbitrator conducting the hearing and issuing an award after its conclusion.

C. Preliminary Procedures

3.08 Pretrial/Prehearing Statements

Some judges, arbitrators, and hearing officers require advocates to exchange written pretrial/prehearing statements that summarize aspects of the case. Pretrial/prehearing statements typically include:

• Identity of client
• Identity of attorney/advocate
• Identity of any insurance carriers
• Summary of pleadings
• Triable Issues
• Claims or defenses
• Description of discovery requests and responses
• List of pretrial/prehearing motions
• Identity of witnesses
• Concise statements of parties version of facts
• List of all exhibits
• Stipulations regarding facts, procedures, evidence
• Elements of law
• Citations to relevant statutes
• Itemized list of special damages
• Estimated length of trial or hearing
• Jury instructions

3.09 Pretrial Conference

Sometime before trial, the judge will order—or a party will request—a pretrial conference. See [FRCP 16](https://www.westlaw.com/Document/N7EE38720AB7111F0A1E1FE0395FCCD06/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N7EE38720AB7111F0A1E1FE0395FCCD06/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

Conferences permit the judge to:

 Establish or clarify rules governing the trial

 Discuss settlement

 Determine issues

 Establish the order and sequence of opening and final arguments

 Estimate the time required for trial

 Inquire about exhibits

 Review electronic and digital evidence

 Make arrangements for daily transcripts

 Review case procedures

 Rule on any other motions or requests

3.10 Prehearing Administrative Conference

The existence and scope of a prehearing conference for an administrative proceeding depends on the type of the administrative process. Some hearings do not include a prehearing conference, while others have a conference similar to a pre-trial conference.

3.11 Prehearing Arbitration Conference

Arbitration parties may have an opportunity to participate in a prehearing conference with the arbitrator, similar to a pretrial hearing, often conducted through a virtual video meeting or conference call.

3.12 Case Briefs

Many judges, arbitrators, and hearing officers require advocates to submit briefs or memoranda in support of their case. The content of these briefs varies depending on the requirements of the tribunal. A trial or case brief may consist, in part, of short memoranda regarding various issues in the case. These submissions allow advocates to present their case theories and supporting facts and law.

D. How to Act as an Advocate

3.13 Rules and Regulations

There are rules, protocols, and customs that govern the conduct of advocates.

3.13.1 Avoid Familiarity

The advocate should not display or take advantage of any familiarity with the judge, arbitrators, administrative hearing officers, jurors, parties, witnesses, or other participants.

3.13.2 Use Appropriate Names

Judicial and administrative law judges should be addressed as “Judge,” “Your Honor,” or “the Court.” An arbitrator may be addressed as “Arbitrator” or by surname. Hearing officers are commonly referred to with their surname. It is improper for advocates to address other attorneys, participants, or jurors by their first names during trial. Some witnesses, such as children, may be appropriately referred to by their first name, and some advocates may call witnesses by their first names for strategic reasons, if permitted by the rules of the jurisdiction.

3.13.3 Avoid Interruptions

Do not interrupt arguments, questions, or responses unless they are properly objectionable or unfairly prejudicial.

3.13.4 Approach the Witness/Bench

Judges expect advocates to request permission before approaching the bench. They may also anticipate a request before counsel approaches a witness, and lawyers can ask their preference before approaching.

3.13.5 Discussions Outside the Hearing of the Jury

Several events that occur during a jury trial should or must occur outside the hearing of the jury to prevent jurors from being influenced or prejudiced. See FRE 103(c) & 1040.

3.13.6 Place for Bench/Sidebar Conferences

Matters regarding discussions which jurors ought not to hear should be resolved by the judge at a bench/sidebar conference. The attorneys can approach the bench and talk quietly with the judge when a topic must not be heard by the jury, and these conferences are usually recorded by the reporter.

3.13.7 Counsel Tables

In many forums, custom dictates which table is for plaintiff/prosecutor and which is for the defense. In other forums, the attorney to arrive first selects a table. In arbitrations, the arbitrator may assign places. In a jury trial, the advantage of having the table nearest the jury is that the lawyer can more easily observe the jurors. The advantage of having the far table is that counsel can observe the entire courtroom, including opposing counsel.

3.13.8 Room Arrangement

The arrangement of most courtrooms is fixed. Some judges may permit tables and lecterns to be arranged to meet the needs and numbers of the attorneys and presentation preferences. Most arbitration and some administrative hearing venues are informal and may be arranged by the advocates to facilitate effective presentations. Requirements vary regarding whether, during the various stages of a trial or hearing, an advocate should stand or sit. At formal trials and hearings, advocates usually stand during opening and final argument—and may stand or sit during witness examinations. The effective advocate considers the entire room and stands, sits, or moves as necessary to enhance the persuasiveness of the argument or witness examination.

3.13.9 Available Equipment

Court and hearing rooms often include an easel with paper and/or a white board and marking pens. Modern court and hearing rooms include computer and internet access with monitors. Some rooms also have video equipment, projectors, screens, speakers, and other equipment. The advocate must determine what is available and if the equipment works. Many advocates bring the equipment they need, such as laptops, a WiFi booster, extension cords, marking pens, scissors, white-out.). In cases involving more advanced technology, advocates will arrange for such equipment and test the system in advance.

3.13.10 Case Materials

Advocates commonly bring a variety of files, materials, and books to the proceeding, including the case notebook, exhibits, deposition or preliminary hearing transcripts, parts of the case file, rules of evidence and procedure, and law books. The resources should be neatly organized for easy access, to avoid negatively affecting the presentation.

3.13.11 Acting Appropriately

Advocates should act with respect towards the decision maker and all participants. Exaggerated facial expressions, head shaking, gesticulating, shouting, or other inappropriate conduct that indicates disagreement or disapproval should be avoided. Counsel ought to always emulate a professional demeanor.

3.13.12 Making Requests

Any request, including requests to mark an exhibit, go “off the record,” read something into the record, or take a recess, should be addressed to the judge—not to the reporter or clerk.

E. Presenting Evidence

3.14 Scheduling Witnesses

Witnesses should be scheduled efficiently, avoiding unnecessary delays. Advocates should share good-faith estimates about sequence, timing, and expected length of witness examinations. Witnesses should be scheduled to maximize their testimony and when their evidence will have an effective impact.

3.14.1 Subpoenaing Witnesses

Witnesses should be subpoenaed to make certain they appear to testify. Most jurisdictions require that—along with the subpoena—the witness receive a prescribed witness fee. A witness who fails to abide by a subpoena may be subject to a contempt citation. See [FRCP 45(e)](https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

3.14.2 Sequestering Witnesses

To avoid witnesses influencing each other’s testimony, the decision maker has the power to exclude or separate witnesses during a case. Sequestration orders are commonly granted at the request of counsel. Such an order’s effectiveness depends on how thoroughly the witnesses have been prepared, their familiarity with the testimony of others, and whether the order prohibits contact with other witnesses during the trial or hearing.

3.14.3 Using Interpreters

To testify, a witness may need an interpreter. Advance arrangements should be made with the tribunal.

3.14.4 Order of Witness Examinations

The advocate must determine the best order to examine witnesses. But the mechanics of the proceeding, the method of interrogating witnesses, and requests by counsel to expand the scope of examinations are left to the discretion of the decision maker. See [FRE 611(a)](https://www.westlaw.com/Document/N74DC8840C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N74DC8840C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

3.15 Scope of Direct Examination

A competent witness may testify to any relevant matter unless excluded by a specific rule, statute, or case.

3.15.1 Scope of Cross-Examination

A witness can be cross-examined regarding any matter covered on direct examination or evidence related to credibility.

3.15.2 Scope of Redirect, Recross, and Subsequent Examination

Redirect examination is confined to new matters brought out on cross-examination. Recross-examination is limited to matters brought out on redirect examination. Subsequent examinations are confined to the scope of matters covered during the previous examination.

3.15.3 Scope of Rebuttal

After the defense has rested, the plaintiff/prosecutor may present additional evidence in rebuttal. The scope of this evidence is limited to those material areas covered during the defense case that were not covered during the plaintiff’s case and which are not redundant. Rebuttal is limited to new and significant areas of evidence and cannot be used to repeat evidence. After the plaintiff has introduced rebuttal evidence, the defense may offer sur-rebuttal evidence. Further rebuttal evidence may be allowed only if necessary as determined by the decision maker.

3.16 Stipulations

Stipulations allow evidence to be presented without calling witnesses. A stipulation is reduced to writing and signed by the advocates or made orally on the record and communicated to the fact finders.

3.16.1 Admissions

Statements made by an opposing party may be admitted as evidence against that party. The party seeking to introduce admissions must affirmatively offer them into evidence. In civil cases, admissions occur orally, in written documents, and discovery responses. In criminal cases, admissions made by the defendant may be contained in a recorded statement or formal confession.

3.16.2 Former Testimony

Situations arise where witnesses are unavailable to testify during a trial or hearing. In civil cases, the previous testimony of a witness who is not available may be presented as substantive evidence. Testimony is often introduced by a video recording of a deposition or through the reading of a transcript of testimony given by unavailable witnesses, including expert witnesses. In criminal cases, former testimony is usually not admissible—because of the defendant’s constitutional right to confront witnesses during the trial.

3.16.3 Evidence Summaries

Parties may stipulate to several types of summaries, including a summary of the testimony of a witness based on a deposition, a summary list of exhibits and their contents, summary outlines of information, or any other summary that makes the evidence more understandable.

3.16.4 Technology-Assisted Evidence

Many cases are commonly aided by the use of technology to establish and display evidence. The use of hardware and software and their resultant formats affects the flow of evidence. Advocates must ensure throughout the case that the technology will work as planned.

3.17 Judicial, Administrative, and Arbitral Notice

Facts that are indisputable or highly authoritative and widely accepted may be introduced through judicial notice, administrative notice, or arbitral notice. See [FRE 201](https://www.westlaw.com/Document/N3CBEF130B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N3CBEF130B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

F. Can They Do This?

3.18 Appoint Experts?

A judge may appoint an expert witness to testify in a case. Federal Rule of Evidence 706 and similar state rules govern the appointment of experts. This rule is rarely invoked by the judge because the parties commonly have experts testify.

3.18.1 Call Witnesses?

A judge may call a witness who has not been called by a party. Federal Rule of Evidence 614(a) and similar state rules authorize a judge to call any person as a witness, with the exception of a criminal defendant. This is very rarely done because it is not usually the role of the judge to introduce additional evidence.

3.18.2 Ask Questions?

A judge may question any witness. See [FRE 614(b)](https://www.westlaw.com/Document/N8650C370C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8650C370C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules. Advocates have a right to object to questions asked by the judge. See [FRE 614(c)](https://www.westlaw.com/Document/N8650C370C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N8650C370C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). In jury trials, judges rarely ask questions because they commonly leave questioning to the lawyers. In bench trials, many judges will ask questions—as the finder of fact—and may need specific evidence to decide a case.

3.18.3 Can Jurors Ask Questions?

In some courts, jurors are permitted by the judge to ask questions of witnesses, although this is not a common practice. If allowed, the jurors submit written questions to the judge, who reviews the questions, consults with counsel, determines if they may be asked, and reads any question to the witness. The attorneys may object to the questions asked by a juror.

3.18.4 What Can the Administrative Judge Do?

Administrative judges in a case may be active or passive. In some administrative hearings, the judge’s role is to present evidence, call witnesses, and raise issues. In other hearings, the administrative judge acts more akin to a trial judge or arbitrator.

3.18.5 What Can the Arbitrator Do?

Arbitrators may ask questions of witnesses to clarify evidence and may ask questions of parties regarding legal issues. Arbitrators typically do not raise new issues or call their own witnesses.

3.18.6 What About a Trial Master/Neutral?

A judge may appoint a master or neutral to assist with a case’s factual or legal matters. See [FRCP 53](https://www.westlaw.com/Document/NB4F126F0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NB4F126F0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). The judge may allocate the costs of appointing a master or referee to both parties. Special masters are often involved in pre-trial matters and can also be designated as trial masters.

G. How to Present a Case to a

Professional Decision Maker

This section discusses considerations applicable to making a presentation to a trial court judge, arbitrator, administrative law judge, or hearing officer.

3.19 Explain the Case

Opening statements should be made, unless the decision maker is very familiar with the case. An opening statement often has a persuasive impact. It helps present the issues that need to be resolved and summarizes the supporting facts through a story. Judges, arbitrators, and ALJs appreciate counsel explaining to them the factual and legal questions that need to be addressed and answered. If a decision maker is familiar enough with the issues, facts, and the positions of the parties, an opening statement might be unnecessary. But a brief opening may still be helpful in clarifying and emphasizing the theory of the case, important persuasive facts, and the ultimate issues.

3.19.1 Consider Evidentiary Rulings

The decision maker who must decide both the facts and the admissibility of evidence may have a difficult time avoiding the influence of inadmissible evidence. When deciding whether to admit or deny specific evidence, a decision maker must understand what the evidence is and its impact—before ruling on admissibility. They are usually more inclined to admit evidence than to exclude it.

3.19.2 Introduction of Evidence

The presentation of evidence through witnesses and documents must be addressed to the fact finder effectively and concisely. Professional decision makers may not need as much background about a witness as jurors may need, but they need to hear and see all relevant facts.

The presentation of evidence involves a balanced use of witness testimony and exhibits. These exhibits may be real or demonstrative evidence. Technology can help highlight these forms of evidence. Visual aids should not detract from the focus of the judge, arbitrator, or hearing officer. Advocates may want to direct the decision maker to follow along on a monitor or display with highlighted evidence.

3.19.3 Summarize

Summation should have a persuasive and informative impact on the decision makers and touch on their values and norms. A final argument must be presented in a way that restates the theory of the case, summarizes the important facts, applies the law to the facts, and assists and persuades the decision maker to decide in favor of the advocate’s client. This information can be presented verbally and with the aid of visual aids.

Counsel should be prepared for (and invite) the judge, arbitrator, or ALJ to ask questions during summation. It’s much better to know what the decision maker is thinking about the case and be able to respond directly to those concerns. Advocates can ask if they have any questions—or if there are any issues they specifically want counsel to address. In some cases, if preferred, the final arguments can be submitted in writing.

3.19.4 Findings of Fact and Conclusions of Law

In a bench trial, attorneys usually submit proposed findings of fact and conclusions of law to the judge after the case is ended. These submissions may also be made in administrative cases and in arbitrations. An order that includes the judgment of the judge will contain findings and conclusions, and often these statements reflect the proposed findings and conclusions submitted by the winning party.

H. Trial and Hearing Motions

3.20 Trial and Hearing Motions

Many types of motions may be made before or during a trial or hearing, depending on events. For an explanation of available pretrial, trial, and post-trial motions, see Roger Haydock, Motion Practice (Wolters Kluwer). Chapter 3 explains supporting motion documents, how to prepare for a hearing, and how effectively to present oral argument.

3.20.1 Motion to Amend Pleadings

The procedure to amend pleadings at the trial stage is commonly known as a motion to amend to conform the pleadings to the evidence. See, e.g., [FRCP 15(b)](https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCB2EC8606D0C11EEB34BF3D191E29EBF/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). This amendment is ordinarily allowed if the parties expressly or impliedly consent to the evidence offered during the trial. The requirements of the motion to amend the pleadings ensure that one party does not surprise the other party at trial.

3.20.2 Motion in Limine

A motion “in limine” is usually brought to exclude—from the trial or hearing—the introduction of inadmissible evidence, and it can also be brought anytime to include evidence. See Chapter 2, § 2.03.1. In jury trials, an in limine motion requests an advance ruling concerning the admissibility of evidence to prevent the objectionable evidence from being offered in the presence of the jury.

3.20.3 Motion for Summary Judgment

A summary judgment motion seeks to partially or fully resolve a case’s issues—disposing of the entire case, some of the claims, or some of the defenses—because the evidence lacks any genuinely disputed issues of material fact. See [FRCP 56](https://www.westlaw.com/Document/N1B4C0B30B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N1B4C0B30B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Typically, a summary judgment motion is a pretrial motion and is brought before the case has been set for trial. In some instances, a summary judgment motion is available when there are undisputed facts regarding one or more issues in a case. Ordinarily, summary judgment motions are written.

3.20.4 Motion to Strike

A motion to strike is a formal procedural device made during trial in reaction to some objectionable matter—such as an improper question, an inadmissible answer from the witness, or some inappropriate behavior. The stricken evidence, however, remains in the record. In a jury trial, a curative instruction from the judge is often necessary and may be requested instead of, or in addition to, the motion to strike. See Chapter 4, § 3.20.4.

3.20.5 Motion for Involuntary Dismissal

In a bench trial, after the presentation of the plaintiff’s evidence, the defendant may move for dismissal of the case on the ground that the plaintiff has not demonstrated a right to relief or has not proven the claims asserted. See [FRCP 41(b)](https://www.westlaw.com/Document/N52590C80B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N52590C80B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). The motion for involuntary dismissal is seldom granted.

3.20.6 Motion for Judgment as Matter of Law, or Directed Verdict, or to Dismiss

In jury trials, a motion to challenge the legal sufficiency of the evidence may be brought at the close of a party’s case or after the close of all the evidence. See § 4.02.1. This motion may be called a motion for directed verdict, or a motion for judgment as a matter of law, or a motion to dismiss all or part of a claim. See, e.g., [FRCP 50](https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

Any party may bring such a motion, which should only be made if the party has sufficient grounds to support it or unless the rules of a jurisdiction require the motion be made to preserve the opportunity to subsequently bring a later motion. Judges seldom grant these motions—because granting it would deprive the parties of a jury determination on the merits, and sufficient evidence often requires submitting the case to the jury.

3.20.7 Motion for Leave to Reopen a Case

When a motion to dismiss, or motion for judgment as matter of law, or a directed verdict motion is granted, the losing party may make a motion to reopen the case and present additional evidence. If the evidence is readily available and substantial, judges usually grant this motion.

3.20.8 Motion for Mistrial

Incidents involving unfairly prejudicial events may occur during trial and give rise to a motion for mistrial. The grounds for a mistrial must be so severe and uncorrectable that a party will have been denied a fair trial. Few cases result in a mistrial. See Chapter 4, § 1.14.1.

3.21 Additional Motions

Other common motions include:

 To request a jury or court trial

 To remove or disqualify the decision maker

 To disqualify an advocate

 For a court reporter to record proceedings

 To sequester witnesses

 For recess or adjournment

 To limit testimony

 To change order of witnesses

 To exclude testimony or exhibits

 To make an offer of proof

 For judicial notice

 To strike jurors for cause

 To instruct jurors

 To sequester jury

 To poll the jury

Post-trial or hearing motions can include:

 For judgment as a matter of law (a/k/a directed verdict)

 For judgment notwithstanding the verdict (J.N.O.V.)

 For a new trial or hearing

 For amended findings of fact or conclusions of law

 For remittitur (decrease verdict amount)

 For additur (increase verdict amount, not in federal court)

 For a stay of judgment

 To enforce a judgment

 For interest and costs

 For attorney fees

I. How to Make a Record

3.22 Making the Record

The primary purpose of making a record is to establish and preserve grounds for appeal. It may also assist a fact finder in remembering facts accurately. Records are commonly made in trial and administrative hearings. Arbitration hearings often do not include a record because there usually is no appeal.

To preserve an error for appeal, typically the record must reflect an objection to an error in the case, a record of the ruling, an offer of proof showing what the evidence would have proved if the objection had been sustained, a request for a curative instruction in a jury trial, and the submission of a post-trial or hearing motion to the judge.

Before an appellate court will review an error, the mistake must not have been cured, waived or abandoned. See Federal Rule of Appellate Procedure (FRAP) 10. The advocate must ensure that all rulings, orders, findings, verdicts, and judgments are entered on the record.

In judicial and administrative cases, the court supplies the reporter, who should be present for all trial and hearing proceedings. Some civil bench trials, arbitrations, and administrative cases are audio-recorded.

3.22.1 Creating the Record

A losing advocate may not need or want to pay for the costs of an entire trial or hearing transcript. It is helpful to maintain a log of the transcribed proceedings to help determine what portions of the transcript should be ordered from the reporter. For proceedings that are audio recorded, those portions of the audio that are needed can be transcribed.

AI-backed technology can transcribe audio and video files cost-effectively and accurately. Exhibits are commonly part of the record and are maintained as introduced by the “custodian” of the evidence during the trial, often a court clerk, and afterwards by counsel.

3.22.2 Making an Accurate Record

Advocates can assist the court reporter by speaking clearly, proceeding at an appropriate pace, spelling difficult names, providing the reporter with information to help understand the issues and witness identities, not blocking the reporter’s view of the witness, not speaking simultaneously with others, describing all conduct or events that may not appear on the record, avoiding superfluous comments, and properly referring to exhibits by number or letter. For proceedings that are audio recorded, all participants must be careful not to talk at the same time—and to be sure their voices are identifiable.

Planning After the Case Presentation

A. Scope

4.01 Post Trial and Post Hearing Procedures

This section covers the procedures that occur after all evidence has been introduced and the trial, arbitration, or administrative hearing is completed.

As with most legal tasks, AI can help in the post-trial phase. For example, LLMs can strengthen post-verdict strategy by ideating arguments based on the record and the law. GenAI can compare the court’s findings and verdict forms against admitted exhibits and testimony, flagging mismatches that matter for post-trial motions. If the record shows an objection, a proffer, or a waiver, then LLM-backed tools can slot each issue into a category—prejudicial, harmless error, or plain error—with rule and case support. With sufficient caselaw, AI can also help assign the proper standard of review—de novo, clearly erroneous, or abuse of discretion—so counsel can properly frame arguments. LLMs can also generate element-to-proof charts, converting messy transcripts into judge-ready summaries and targeted grounds for relief.

Law-backed AI systems can help suggest new-trial motion grounds, elaborating on alleged misconduct, newly discovered evidence, or other error—complete with proposed orders. Modern tools can help produce motions that cover preservation, standards, and remedies cleanly, equipping counsel with an oral argument plan that focuses on errors and prejudice.

4.01.1 Judicial Decisions

In a civil bench trial, the judge usually decides the case by making findings of fact and conclusions of law in writing or orally on the record. To withstand the challenge at the trial or appellate court level, findings and conclusions should accurately reflect the supporting evidence and the law. In a criminal bench trial, the judge will declare the defendant either guilty or not guilty.

4.01.2 Administrative Decisions

An administrative law judge issues a decision, often called an order, with an accompanying explanation of supporting reasons or findings of fact and conclusions of law. The applicable statutes or rules determine the type and format of decision made.

4.01.3 Arbitration Awards

After an arbitration hearing, the arbitrator issues an award, which explains the relief granted—which is typically money damages, but may be any form of relief, including injunctive relief. The award may be a short, summary decision or it may include detailed findings, conclusions, and supporting reasons. The arbitrator has the power to issue an award within the scope of the agreement, the rules, and the law.

Arbitration awards can be confirmed to a judgment in either state or federal court by following the applicable statutory proceedings. After the court confirms the arbitration, the award becomes a judgment and can be enforced like any other civil judgment.

B. How to Present Post-Trial

and Post-Hearing Motions

4.02 Submission of Motions

After a decision, one or all parties may submit post-trial or post-hearing motions requesting that matters be reviewed.

4.02.1 Motion for a Judgment as a Matter of Law or a Directed Verdict

A motion for a judgment as a matter of law or as a directed verdict may be made during a jury trial at the close of the opponent’s evidence, at the close of all the evidence, or on both occasions. See § 3.20.6, This motion requests the judge to review the evidence in a light most favorable to the nonmoving party and rule that the evidence is insufficient to sustain a verdict for the opponent. See [FRCP 50(a)](https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & [FRCrimP 29(a)(b)](https://www.westlaw.com/Document/N6B467D50B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6B467D50B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). This motion, made outside the hearing of the jury, is rarely granted—because judges prefer to allow the case to go to the jury and because at this stage of the trial, sufficient evidence has been offered.

4.02.2 Motion for Judgment as a Matter of Law or Judgment Notwithstanding the Verdict

After the jury has returned a verdict, a party may bring a motion to challenge that verdict. The standard for determining whether to grant or deny this motion is identical to the previously brought motion for judgment as a matter of law or a motion for directed verdict. See [FRCP 50(b)](https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/ND49532A0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

4.02.3 Motion for New Trial or Rehearing

A party may seek a second trial if some error or misconduct regarding the law, facts, rules, or procedure occurred during the first trial. See [FRCP 59](https://www.westlaw.com/Document/NFD44B500B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NFD44B500B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & [FRCrimP 33](https://www.westlaw.com/Document/NF3DE2EA0B8B711D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF3DE2EA0B8B711D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). A new trial may be granted if a party was deprived of a fair trial, there was misconduct, the trial was unduly prejudicial, material evidence has been newly discovered that could not have been discovered before, excessive or insufficient damages were awarded, errors of law occurred, the verdict is not justified, or the verdict is defective.

4.02.4 Rulings on Motions

Although they are available, post-trial motions are seldom granted—usually because sufficient evidence supported the verdict or because any error was harmless. Post hearing motions, in effect, ask the decision maker to change their mind, which rarely occurs.

4.02.5 Motions to Reduce or Increase the Jury Award in Civil Cases

In some civil jury cases, the losing party or unhappy prevailing party may not want a new trial on the merits, but may want a different dollar award. This procedure is known as additur (the amount of the verdict is increased) or remittitur (the amount is decreased). Federal courts permit remittitur, but not additur.

4.02.6 Motion to Amend Court Findings and Conclusions

In a court trial, any party may move to amend the findings of fact, the conclusions of law, or an order a judge has entered. See, e.g., [FRCP 52](https://www.westlaw.com/Document/N44D92B10B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N44D92B10B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Such a motion must explain which findings are not supported by the evidence, which conclusions are not supported by the law, and why the order is improper. See § 3.19.4.

4.02.7 Timing

When a post-trial motion must be made depends on rules of procedure, which vary by jurisdiction. The time available to submit post-trial motions is ordinarily limited to no more than fourteen or twenty-eight days after the verdict or after a party has been notified of the filing of the decision. See, e.g., [FRCP 59](https://www.westlaw.com/Document/NFD44B500B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NFD44B500B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & [FRCrimP 29](https://www.westlaw.com/Document/N6B467D50B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N6B467D50B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Arbitral and administrative cases have similar strict time deadlines.

4.02.8 Supportive Memorandum and Proposed Order

Submitting a supportive memorandum that explains the factual and legal grounds for the motion and hoped for order may be required and will increase the chances of obtaining a favorable ruling from the judge.

4.02.9 Stay of Entry of Judgment or Enforcement of Judgment

A losing party ordinarily needs to obtain an order from the court staying entry of judgment or the enforcement of a judgment until the post-trial motions have been decided and an appeal taken. See § 4.12.2. If a stay is imposed, the court may attach appropriate conditions for the security of the winning party. See [FRCP 58(b)](https://www.westlaw.com/Document/NF1E8FE00B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF1E8FE00B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and 62(a); [FRCrimP 34](https://www.westlaw.com/Document/N1BEB5350B8B811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N1BEB5350B8B811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

4.02.10 Enforcing Administrative Decisions

The nature of the administrative decision determines how it is to be enforced. The statute or rules governing the administrative proceeding control the enforceability of the administrative decision. An administrative order is usually enforceable in the same way that a judicial order is enforced.

4.02.11 Vacating an Arbitration Award

A losing party may seek to modify or vacate an award if unusual circumstances exist. The Federal Arbitration Act, [9 U.S.C. §§ 1–15](https://www.westlaw.com/Document/N5116E290955611D880E4BAC23B7C08D1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5116E290955611D880E4BAC23B7C08D1/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), allows an award to be challenged if it was procured by fraud, if the arbitrator is corrupt, or if no law or facts support an award.

C. Costs, Interest, and Attorney Fees

4.03 Costs and Expenses

A prevailing party may be entitled to receive reimbursement for their costs incurred during the case. See [FRCP 54](https://www.westlaw.com/Document/NB2CA80F0B96911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NB2CA80F0B96911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Recoverable expenses typically include witness fees, reasonable expert witness fees, service fees, filing fees, deposition expenses, transcript costs, and related expenses.

4.03.1 Interest

A victorious party is usually able to recover interest in a case. There are two forms of interest: prejudgment interest and post-judgment interest. The law of the jurisdiction determines what is available—and the percentage of interest recoverable.

4.03.2 Attorney Fees: The American Rule

The prevailing party may recover attorney fees only if a statute, contractual agreement, or judicially created exception (e.g., class action, common benefit fund, bad faith) permits fee recovery. Otherwise, the winning party is not entitled to recover attorney fees.

D. Civil and Criminal Judgments

4.04 Entry of Civil Judgment

A judgment is not effective or enforceable until entered by the clerk or administrator. See [FRCP 58](https://www.westlaw.com/Document/NF1E8FE00B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NF1E8FE00B96A11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Entry of judgment is critical to enable the filing of a notice of appeal or to permit a party to execute on the judgment.

4.04.1 Satisfaction of Civil Judgment

A judgment is satisfied when the losing party pays it. A partial satisfaction occurs when the losing party pays only part of the judgment.

4.04.2 Execution of Civil Judgment

If the losing party fails or refuses to voluntarily pay a judgment, the winning party may need to enforce the judgment to collect the recoverable amount. The methods available to collect are described in sources that explain execution, levies, garnishment, attachment, replevin, and foreclosures.

4.05 Entry of Criminal Judgment

A criminal verdict of not guilty will be entered as a final judgment. The method of entering the judgment and its appearance on the defendant’s record depends upon local law and practice.

E. Appeals

All trial advocates must make certain that a record of appealable issues has been properly preserved. There are several appellate considerations that a trial lawyer needs to understand.

4.06 Should an Appeal Be Made?

The major factors that influence the decision whether a case ought to be appealed include the following: the error’s type and degree, the client’s economic resources, and the chances of appellate success. The probability of being successful depends on the nature of the appellate issues, as well as the appellate court’s prior decisions.

4.07 Type and Degree of Error

A party is not entitled to a perfect trial, but is entitled to a fair trial. There are three types of errors most jurisdictions recognize:

4.07.1 Prejudicial Error

A party’s substantial rights have been adversely affected.

4.07.2 Harmless Error

This is an error that is not prejudicial. Any matter short of depriving a party of substantial justice will usually be deemed harmless—and insufficient to overturn the verdict. See [FRCP 61](https://www.westlaw.com/Document/NEF69B0B0B96B11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NEF69B0B0B96B11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & [FRCrimP 52](https://www.westlaw.com/Document/N1143DBB0B8B911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N1143DBB0B8B911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

4.07.3 Plain Error

The “plain error” doctrine allows an appellate court to review an unduly prejudicial error that caused an unfair trial, even though the error was not properly preserved.

4.08 How Much Will It Cost?

Client resources and the amount spent on a losing effort will affect an appeal decision. The expense of an appeal may not make the effort worthwhile. A negotiated settlement may be based on an agreement not to appeal.

4.08.1 What Are the Chances of Success?

Issues with little or no chance of success should seldom be a basis for an appeal. Legal research in a jurisdiction regarding results in similar appeals can determine the likelihood of success.

4.08.2 Finality of Judgment and Order

The general rule is that a case is not appealable until entry of final judgment. The entry permits an appeal to be taken from the judgment—and from any order entered by the judge during the trial before entry of judgment.

4.09 Intermediate Civil Appeals

A judge’s pretrial and trial orders are usually not appealable during the civil case. But, there may be limited circumstances that allow a prompt appeal, which are called interlocutory appeals.

4.09.1 An Appeal from an Order That Determines Some Claims

A judge may make a final decision on some critical issues in a complex case that ought to be appealed prior to completion of the entire case. See [FRCP 54(b)](https://www.westlaw.com/Document/NB2CA80F0B96911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NB2CA80F0B96911D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

4.09.2 Immediate Appeal Designated by Federal or State Statute

Orders immediately appealable vary among jurisdictions, but generally include interlocutory orders involving preliminary injunctive relief and other equitable remedies.

4.09.3 The Collateral Order Doctrine

Many jurisdictions by case law permit a limited number of collateral orders to be appealable, such as a joinder of parties order. The scope varies significantly among jurisdictions.

4.09.4 Writs of Mandamus or Prohibition

In exceptional circumstances, all jurisdictions permit a party to ask the appellate court to order a trial judge to do something (mandamus) or to restrain a judge from doing something (prohibition) to align with applicable law.

4.09.5 Petitions for Discretionary Review

Some jurisdictions permit a party to bring a petition for discretionary review for specific orders issued before a final judgment that have a dispositive effect on some issues. Common examples include relief from orders regarding privileged or work product disclosures.

4.09.6 Certification of Issue

Some jurisdictions and some cases allow a party to request that an issue of substantial public or legal importance be certified by a judge to an intermediate appellate court or a supreme court for immediate review.

4.10 Intermediate Appeals in Criminal Cases

A criminal defendant’s constitutional right to a speedy trial determines whether an intermediate appeal is available. The prosecution and defendant may appeal a very limited number of adverse orders if the rulings have a substantial and prejudicial effect on a criminal case.

4.11 Standard of Review

The standard of review is the standard that the appellate court employs to determine whether to affirm or reverse the lower court. The three common standards are:

Clearly erroneous standard for errors of fact.

The appellate court will not reverse the lower court’s factual finding absent clear error.

De novo standard for errors of law.

The appellate court reviews anew the legal issue—without regard to the lower court’s decision.

Abuse of discretion standard for mixed questions of law and fact.

This standard is often used in determining whether a procedural pretrial or trial order was properly issued.

4.12 Initiating the Appeal

An appeal is initiated by filing a “notice of appeal” in the trial court and with the appellate court within a prescribed period of time—for example, thirty days in a civil appeal and ten days in a criminal appeal.

4.12.1 Appeal Bonds

In civil appeals, the appellant may need to post—with the notice of appeal—a cost bond or a supersedeas bond, or both. A cost bond ordinarily covers the costs of printing and submitting the briefs. See [FRCP 62](https://www.westlaw.com/Document/N0DCBDBA0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N0DCBDBA0B96C11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & [FRAP 7–8](https://www.westlaw.com/Document/NB9A20700B97711D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NB9A20700B97711D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). A supersedeas bond in the amount of the money judgment ensures payment to the winning party if that appellee prevails on appeal.

4.12.2 Stays

The filing of a notice of appeal does not ordinarily stay the enforcement of a judgment of order. See § 4.02.9. Rather, a party must also seek an order.

4.12.3 Record

On appeal, the appellant usually must order the record from the court reporter. The record typically consists of the pleadings, the written rulings and orders appealed from, and the requested portions of the trial transcript with exhibits.

4.12.4 Briefing and Argument Schedule

After or during the completion of these procedural steps, the appellate court provides the attorneys with a briefing schedule indicating the deadlines for submission of the briefs and oral argument.

4.12.5 Oral Argument

Litigants typically receive an opportunity for oral argument in an appeal before a three-judge panel. In some cases, oral argument may not be available, and the appellate court decides the appeal on the briefs. The appellate lawyer needs to become thoroughly familiar with the record, compose an effective oral argument covering the major issues, and be prepared to answer questions from the panel.

4.12.6 Appellate Decision

A state court of appeals or a federal circuit court of appeals will decide the initial appeal from a trial court. The losing party to this appeal may be able to appeal to the state supreme court or the U.S. Supreme Court. The availability of these appeals is limited.