Wednesday, October 30, 2019

Something about Objections during Trial and Opening/ Closing Statements


Dear Students

What follows has been developed from Stae versus Monty Khanna--an exercise that we have done threadbare in the class.
It is an attempt to familiarise you with some tricks that might come in handy while submitting your written work on Mock for the assessment.



MOCK TRIAL-MODEL LESSON PLAN1


  1. For the purposes of MT Assessment, there are four aspects of a the mock trial that a student must know: opening statements, direct examination, cross-examination, closing arguments.
  2. Interspersed between the entire process, is the aspect of raising ‘objections’, which has been popularized by movies as something fancy and hard-hitting. There is however a whole body of literature around raising objections properly during a mock. I am going to touch upon a few basics of this art.
    OBJECTING DURING TRIAL

What are OBJECTIONS? And why do they matter?

  1. Objections2 are allowed during the trial in order to KEEP OUT evidence that is hurtful to your client.
  2. Objections and evidence rules were created to keep the process as fair as possible.
    1. Evidence Rule: Fair hearing and to keep out any evidence that
      1. doesn’t relate to the issue of the case, (@ whether Kashish had a boyfriend)
      2. isn’t reliable (@ most of the testimony of Poornima) or
      3. value of which, as evidence, is totally outweighed by how prejudicial it would be (@ if ask the MD Sanjiv Bhatia whether Monty Khanna could do anything of the sort Kashish is alleging)—such objections stop a witness from testifying to something that is probably not very trustworthy)

  1. In the assessment, you as an advocate can object any time during the EIC/Cross if you are sure that the opposing counsel is violating the rules of evidence.
    1. When to object? You can object to 3 things broadly speaking…
      1. questions that the other side’s counsel is asking,
      2. answers that a witness is giving3, or
      3. to exhibits that the other side is attempting to admit into evidence
    2. How to Object4?:
      1. stand up; say OBJECTION, YOUR HONOR, _____(evidence rule)
      2. Wait, standing, for the ruling.
      3. No need to explain yourself, judge may agree with you! If he agrees he will say: “sustained”
      4. Judge may turn to the other advocate who asked the question or offered the exhibit, and that advocate usually will have a chance to explain why the objection should not be accepted by the judge.

    1. There are TONS of evidence rules. Today let us learn at least 7 handy ones.
      1. Rule 1: Leading Questions
        1. A "leading" question is one which suggests the answer desired by the questioner, usually by stating some facts not previously discussed and asking the witness to give a "yes" or a "no" answer.
        2. Leading questions5 should not be asked when questioning one's own witness in direct examination.
        3. Leading questions should be used in cross examination.
        4. If it is used in Direct Examination and you want to object: Objection: "Objection, Your Honor, leading."

      1. Rule 2: Argumentative Questions
        1. Advocates cannot argue with the witness. Questions cannot be argumentative in tone or manner. Badgering is harassing or asking again and again which is not allowed (later)
        2. Example: During the cross of Kashish--"So you were being harassed by Monty time and again and you decided not to tell the manager, not to anyone in the hotel, not even to your own mother!; How do you expect the court to believe that?/Perhaps there WAS nothing to tell"
This is being argumentative with the witness.
        1. "Objection. That question is argumentative.”

      1. Rule 3: Speculation
        1. You cannot ask questions that get witnesses to guess.
Ex: In the cross of Poornima--“Could it be that Kashish had developed feelings for Monty Khanna and that is what made her upset on learning about the latter’s marriage?
        1. Objection. Counsel is asking the witness to speculate.”

      1. Rule 4: Narration (or non-responsive):
        1. Witnesses' answers must respond to the questions. A long story is objectionable. When the witness gives much more information than the question calls for.
        2. Objection: "Objection, Your Honor, narrative."

      1. Rule 5: Relevance
        1. Questions or answers that add nothing to the understanding of the issue in dispute are objectionable.
        2. Questions and answers must relate to the subject matter of the case; this is called "relevance." Those that do not relate to the case are "irrelevant."
          1. Example: "Why does you mother not work Kashish?”
Objection: "Objection, Your Honor, relevance."

      1. Rule 6: Badgering
        1. Similar to argumentative questioning, badgering the witness is when the opposing attorney asks the same question several times in order to harass the witness, usually done in a harsh manner.
Example—While cross of Monty—You have stated in your testimony that you had feelings for Kashish and found her to be an attractive woman...you even wanted to live together...what kind of strange and immoral ‘fatherly’ feelings are these? You have to accept that you encouraged and fanned the emotions of Kashish that made her delusional and totally besotted with you...YOU ARE THE ONE WHO ARE TRYING TO TAKE ADVANTAGE OF A HAPLESS GIRL!

        1. When objecting, the attorney should stand and say “Objection. Counsel is badgering the witness.”

      1. Rule 7: Beyond the Scope of the Packet
        1. Questions that ask about, or answers that supply, significant facts not contained in the packet are objectionable. However, minor obviously inferred details may be asked and added.
        2. Objection: "Objection, Your Honor, this is beyond the scope of the packet."

Now, something about the opening statement and the closing argument. Usually, the prosecution/plaintiff goes first.

4 tips to draft a good opening statement (to be taken in class by the teacher)


  1. OPENING STATEMENT—State/Kashish’ side [might not be required for MT Assessment]
Your Honour, this case is about a 19 year old young and professionally inexperienced girl, who in such a tender age has been compelled by fate to fetch and fend for her family—family that has only dependent females in it. She has recently lost her father and trusted the accused to help her professionally. However, the accused being a seasoned womanizer used his charms to beguile the victim...used his influence to subdue her protests and tried to take advantage of her situation in the most heinous manner possible.
To prove this, I will call ---[these many] witnesses to stand…brief about each witness…


3 tips to draft a good closing (to be taken in class by the teacher)

  1. CLOSING ARGUMENT-State/Kashish’ side
In my opening statement, I mentioned that I would call ---witnesses to testify as to the defendant’s guilt. Each witness testified as I explained and we have established the following facts beyond a reasonable doubt: 1); 2) AND 3).

We would ask you to reject the defense theories of the case. [Address each argument THAT YOU WANT TO DEMOLISH and explain why you disagree.

Argue why your witnesses (Poornima and Manager, Happy Hotel ) are credible, how they have nothing to gain by lying, and were consistent with each other.
Argue how the defense witnesses lack credibility—The driver for instance has been inconsistent in his statement; similarly, the MD does not want bad reputation for his company etc.

Explain that it is an important principle that people in our society be held accountable for their actions.

In conclusion, we would ask that you find the defendant guilty of breaching the trust of the victim and guilty of attempting an assault on the latter.


  1. OPENING STATEMENT—Monty Khanna’s side6[might not be required for MT Assessment]
Your Honour, the case is about a thorough gentleman and a professional with a clean record of 15 years. 15 years of blemish-free service has been most horrendously tainted by his colleague—the most unsuspecting colleague who had designs on my client the moment she set her eyes on him.

It is also a case about how greed and uninhibited ambitions can make the life of a helping and ever motivating professional like the defendant, miserable. The Defendant has been artfully deceived into this situation just because he was steely enough to resist the immoral advances of the woman in question. The latter, scorned in love is wanting to settle a score against my client.

To prove this, I will call ---[these many] witnesses to stand…brief about each witness…


CONTRADICT THE OPPOSITE PARTY’S THEORIES:
The Plaintiffs hope that their witnesses will say…. However, in fact, the testimony will show…(that the plaintiff’s testimony is nothing but a bag full of lies. She is deceit personified and has clearly taken advantage of my client in all possible ways/that Poornima has nothing of her own to state and has been parroting whatever has been fed to her by her friend )

  1. CLOSING STATEMENT-Defendant Monty Khanna’s side
In the case that the plaintiff has presented to you today there is insufficient proof to conclude that Monty Khanna is guilty of any assault. The plaintiff on the other hand is clearly guilty of misjudging my client's behaviour and imposing herself in the most immoral way on him. We would ask for a favourable verdict—the defendant is not guilty. [Echo or refer to the theme that you referenced in your opening statement—that he has been taken advantage of.]

Point out any inconsistencies in the statements of the opposite sides witnesses, and explain why witnesses might have a motive to lie…(may be used)


1 By Dr Sunanda Bharti.
2 Objections are for protection of the client against following strategies of the opposite party:

1) To bring such facts which may mislead the material on record;
2) Manipulative tactics to influence witness;
3) Create altogether new fact to confuse and divert attention from the subject matter;
4) Delaying tactics to prolong trial so that convict with death penalty could get the grace of more life;
5) Used as pressure tactics to demoralize the opposite party so that he/she can withdraw from the case or become hopeless for the justice, so that entire material on record could be interpreted differently without much protest or objections from the opposite party.
3 The counsel of In-Chief is not permitted to speak to his witness during Cross, but he can only raise an objection over the questions of opposing counsel on their Cross-Examination.
4 Examination-In-chief Counsel is also standing during Cross-examination and he will carefully listen to the counsel on Cross Exam, points objections immediately, even before the witness can answer.
5 Leading questions are permitted only during Cross examination, i.e. by Opposite Counsel only. During Examination in chief, if the witness counsel is asking a Leading question, then the opposite counsel can raise an objection.

Tuesday, October 22, 2019

HOW TO MOOT AND COURT-ROOM ETIQUETTE


What follows in these pages comes from my personal experience as a teacher of Moot Court, Mock Trials and Internship. I am sharing the same in the hope that students would benefit.
ADDRESSING THE COURT
  • Be professional, polite, respectful, appropriately dressed.
  • Know-it-all and overbearing attitude does not take you places; humility, on the other hand, strikes a chord with the judges.
  • It is a fallacy that good debaters or orators are good at mooting. NO. They are good at arguing and one-upmanship-which are fatal to mooting. Over the years, I have seen debaters turn aggressive in their language and attitude to prove their side of the argument. This is not the right court-room attitude.
Presenting Your Submission
A. COMMUNICATION: Bear in mind that mooting is an exercise in personality development and communication.
Speak slowly and carefully. YOU SHOULD BE AUDIBLE, WHATEVER THE LANGUAGE. Do not speak to yourself. Try to engage the court by modulating the tone of your voice; court would reciprocate --it would be interested in hearing you out fully. At the same time, do pause to observe if the judges are interested and listening to you in the first place. Do not just rant away.
It is a legal issue that has been given as a moot problem to you. Remember your IRAC and kindly present a logical submission on facts and law. Emotional appeals, feelings, opinions etc usually have no place in mooting.
B. LANGUAGE TO BE USED: You may begin your submission with the following statement: 'May it please the Court, my name is ________ and I appear on behalf of ______. My submission will address…'
Conclude with one of the following statements: 'That concludes my submission. May I be of any further assistance to the Court?' OR
'Unless the Court has any further questions, that concludes my submission'.
Some OTHER useful phrases that may come in handy are-
1. ‘In my submission, I will show that____________’ AND NOT ‘...I will argue that… (CONTRARY TO POPULAR NOTION, YOU ARE NOT THERE TO ARGUE THE MATTER, YOU ARE THERE JUST TO PRESENT YOUR SUBMISSIONS). Having said that, NEVER ARGUE WITH THE JUDGE. NEVER.
At the same time, it is equally important to say that if you are confident, stick to your stand and be assertive about it, without being aggressive. Just because the judge has decided to ask a question on a certain matter, should not make you buckle down and shift your stand.
2. ‘In my respectful submission ‘the court should consider____________’ AND NOT ‘the court must consider________.’
3. When asked a question, answer ‘yes’ or ‘no’ and then explain your answer. LEARN TO ANSWER THE QUESTION ASKED. Beating about the bush does not work. It is a good idea to pause (briefly) before answering a question posed by the judge, instead of blurting out whatever comes to your mind.
4. If you are unclear or uncertain about a question put by the court, some of the following phrases may be useful: 'I would be obliged if the Court would clarify the question.'(HOWEVER, NEVER USE THIS AS A TRICK TO BUY TIME—IT BACKFIRES)
OR YOU MAY SAY--
'I’m afraid I don’t understand the court’s point.
OR
'I accept the court’s point, however, it is my submission that…' [or] 'I would submit that…'
5. If you do not know the answer, kindly do not try to play bluff-master with the court. They will call your bluff and you lose credibility as a mooter. Instead, admit that you do not know and proceed.
6. Avoid phrases like 'I think'. 'I believe', 'I feel'. A simple ‘I submit’ would suffice.
7. In case you want to pinpoint something to the court, you may state it thus: 'May I bring the courts attention to paragraph ___.
8. Always ask the court whether it is aware of the facts of the case. Two simple ways of doing it are:
      # 'Is the court familiar with the case of... ?'
      # 'Would the court like me to state the facts of the case?'
Usually this is allowed to be skipped by the judge. Nonetheless, be prepared to give a rough outline if the court is unfamiliar with it.
9. Present your case – do not simply read your speech. An occasional reference here and there to the written memorial is not a problem. Presenting it as a news-reader is.
10. Keep a control over your hand gestures and movements. Limbs flailing here and there has to be avoided. Likewise, hands in pockets is a NO.
11. Expressions such as ‘Of course your honour’, ‘Yeah, that is what I meant’ have to be avoided at all costs.
C. SIMPLE MANNERS WORK WONDERS: The judge is not your pal. Try not to treat him/her like one!
Follow these:
1. Listen to the judge. Do not pretend that you are listening. ACTUALLY listen and try and make sense of what s/he is pointing at. Never interrupt a judge. If a judge interrupts you, what should you do?
  • Roll your eyes in exasperation
  • Show sass and attitude in your body language
  • Go blank
  • Mutter under your breath
The above may seem like computer-ji options of KBC but believe it or not, they are often the responses of some students. All are wrong and no-one can win a crore by using them.
What to do then—The right response is not that difficult, only if you practice it. The answer is, you should stop speaking (even if it is a middle of a sentence), and listen carefully to the judge’s question or comment. Then answer the same politely.
2. JUDGE WOULD QUESTION: Do not show signs of exasperation if the judge questions you. That is his job. He is not there to nod in agreement to whatever you state.


3. YES, it is a simulation exercise and you know that it is your teacher and not some actual judge in front of you. This should not, however, prevent you from displaying all your impeccable manners to that fake court. Mooting is a performing art which can be perfected through practice.


Practice away then.
Good Luck.


Tuesday, January 22, 2019

Spicy-IP Thrilled to get to you the first guest post

Wanted to share my perspective on moral rights and copyright in architechture and buildings... happy reading!

https://spicyip.com/2018/09/heritage-hall-of-nations-and-assertion-of-moral-rights.html

Spicy IP-Glad to bring you the 2nd guest post

Hey readers

Here is a link to my post on SpicyIP, a premium IP Law Blog. I am happy to share. Would be happier to receive comments on the same.


https://spicyip.com/2019/01/is-braille-a-language-under-copyright-law-capable-of-translation-reproduction-and-adaptation.html