Introduction
Acknowledgements
How To Use This Book
About the Author - John A. Day
Chapter 1. Scheduling Orders
Section 1. Introduction
Section 2. The Law of Scheduling Orders Generally
Section 3. Topics Addressed in Scheduling Orders
Section 4. Conclusion
Chapter 2. Final Pretrial Conferences
Section 2. Final Pretrial Conferences Generally
Section 3. Issues Subject to Discussion at Final Pretrial Conferences
Section 4. Documentation and Impact of Results of Final Pretrial Conferences
Section 5. Evidentiary Issues Raised at Final Pretrial Conferences
Section 6. Discussion of Alternative Dispute Resolution at Final Pretrial Conferences
Section 7. Sanctions for Violations of Pretrial Orders
Chapter 3. Motions in Limine
Section 2. What are Motions in Limine?
Section 3. When to File Motions in Limine
Section 4. Uses of Motions in Limine
Section 5. Form of Motions in Limine
Section 6. Hearing of and Orders Concerning Motions in Limine
Section 7. Practical Considerations Concerning Motions in Limine
Section 8. Issues Arising at Trial and Standard of Review
Section 9. Preservation of Adverse Rulings for Purposes of Appeal
Section 10. Violation of Orders on Motions in Limine
Section 11. My Opponent Did Not File a Motion in Limine. Now What?
Chapter 4. Jury Selection
Section 2. Who is Qualified to Serve as a Juror?
Section 3. Voir Dire
Section 4. Challenges for Cause
Section 5. Peremptory Challenges – Number and Use
Section 6. Alternate Jurors – Selection and Peremptory Challenges
Section 7. Limitations of Peremptory Challenges
Chapter 5. The Rule
Section 1. Definition of the Rule
Section 2. How the Rule Works
Section 3. Violations of the Rule
Chapter 6. Opening Statements and Closing Arguments
Section 1. Generally
Section 2. Appropriate and Inappropriate Remarks in Opening Statements and Closing Arguments
Section 3. Use of Transcript of Testimony in Closing Arguments
Section 4. Use of PowerPoint During Opening Statements and Closing Arguments
Section 5. Use of Per Diem Arguments
Section 6. Time Limits on Opening Statements and Closing Arguments
Section 7. Preserving the Record
Section 8. Additional Points on Opening Statements and Closing Arguments
Chapter 7. Examination of Witnesses
Section 2. Competence of Witnesses
Section 3. Relevance of Testimony
Section 4. Evidence Admissibility Checklist
Section 5. Direct Examination
Section 6. Cross Examination
Section 7. Re-Direct Examination
Section 8A. Other Frequently Encountered Evidentiary Issues - Rule of Completeness
Section 8B. Other Frequently Encountered Evidentiary Issues - The Use of a Writing to Refresh Recollection
Section 8C. Other Frequently Encountered Evidentiary Issues - Use of Prior Statements
Section 8D. Other Frequently Encountered Evidentiary Issues - Learned Treatises
Section 9. Re-Opening Proof
Section 10. Testimony by Remote Video Conference
Section 11. General Rule – Evidence Issues on Appeal
Chapter 8. Use of Depositions at Trial
Section 2. The Basic Rule Governing the Use of Depositions
Section 3. Use of Depositions to Impeach
Section 4. Use of Depositions to Support Claim or Defense
Section 5. Limitations on Use of Depositions at Hearing or Trial
Section 6. Use of Deposition Because Witness is Unavailable
Section 7. Use of Depositions of Experts at Trial
Section 8. Final Thoughts about Using Depositions at Hearings and Trials
Chapter 9. Opinion and Expert Testimony
Section 2. Practical Suggestions on Opinion and Expert Testimony
Chapter 10. Mistrials
Chapter 11. Motion for Directed Verdicts and Involuntary Dismissals
Section 2. Motions for Directed Verdicts
Section 3. Motions for Involuntary Dismissals in Non-Jury Trials
Chapter 12. Findings of Fact
Section 2. Amendment of Factual Findings
Section 3. Appellate Review of Factual Findings by the Court
Chapter 13. Jury Instructions
Section 2. Instructions before Voir Dire
Section 3. Instructions after Voir Dire but Before Opening Statements
Section 4. Instructions during the Trial
Section 5A. Instruction at the Conclusion of Trial - Development of the Charge to the Jury
Section 5B. Instruction at the Conclusion of Trial - Delivery of the Jury Charge
Section 6. Instructions After the Jury Begins Deliberations – Deadlocked Juries and the Dynamite Charge
Chapter 14. Juror Questions
Section 2. Juror Questions During Witness Testimony
Section 3. Juror Questions During Deliberations
Chapter 15. Verdict Forms
Section 2. Special Verdict Forms Under the Tennessee Civil Justice Act of 2011
Section 3. Appellate Review
Chapter 16. Discretionary Costs
Section 1. Awards of Discretionary Costs Generally
Section 2. Who is the “Prevailing Party”?
Section 3. What Costs Can Be Awarded?
Section 3A. Court Reporter Expenses
Section 3B. Expert Witness Fees
Section 3C. Interpreter and Guardian Ad Litem Fees
Section 3D. Costs that are Not Recoverable
Section 4. Motions Seeking Discretionary Costs
Section 5. Opposing an Award of Discretionary Costs
Section 6. Appeal of Adverse Rulings on Motions for Discretionary Costs
Section 7. Recovery of Discretionary Costs Against Governmental Entities
Section 8. Impact of an Award of Discretionary Costs on the Ability of a Plaintiff to Refile Suit
Chapter 17. Motions for a New Trial and to Alter or Amend Judgments
Section 2. Filing a Motion for New Trial
Section 3. Appellate Court Review of Rulings on Motions for New Trial
Section 4. Grounds for New Trial
Section 5. The Plain Error Doctrine
Section 6. Motions to Alter or Amend
Section 7. Additional Information on Motions for New Trial and Motions to Alter or Amend
Chapter 18. Remittitur
Section 2. Remittitur Motions in the Trial Court
Section 3. Remittitur Issues before the Appellate Courts
Chapter 19. Additur
Section 2. Additur Motions in the Trial Court
Section 3. The Trial Judge’s Role When Faced with a Motion for an Additur
Section 4. Options Available to a Defendant When an Additur is Suggested
Section 5. Recourse Available to Plaintiff If Motion for Additur is Denied
Section 6. Role of Appellate Court When Additur Has Been Suggested
Chapter 20. Motions for Judgment Notwithstanding the Verdict
Chapter 21. Preparing to Win at Trial
Section 1. Take Time to Think
Section 2. Read and Learn the Local Rules and the Chamber Rules
Section 3. Trial Preparation Checklists
Section 4. Use Scheduling Orders
Section 5. Do Proper Expert Disclosures
Section 6. Numbering Your Discovery
Section 7. Review Discovery Responses for Supplementation
Section 8. Identification of Documents
Section 9. Depositions
Section 10. Referencing Identification Numbers of Documents During Depositions
Section 11. Exhibit Numbering at Depositions
Section 12. Think About Stipulations Early
Section 13. Create an Appropriate Record for Pretrial (and All Other Motions)
Section 14. Re-Read the Rules of Evidence Before Trial
Section 15. Address Witness Availability Issues as Soon as Possible
Section 16. Obtain the Jury List When it is Available
Section 17. Motions in Limine
Section 18. Sending Depositions to Witnesses
Section 19. Over-Sized Exhibits and Models
Section 20. Outline Depositions of Witnesses Likely to by Called at Trial
Section 21. Outline Direct Examinations
Section 22. Outline Cross-Examinations
Section 23. Trial Brief
Section 24. Trial Notebook - Generally
Section 25. Trial Notebook - Contact Information
Section 26. Trial Notebook - Trial Timeline
Section 27. Trial Notebook - Pleadings
Section 28. Trial Notebook - Discovery
Section 29. Trial Notebook - Proof Checklist
Section 30. Thinking About Your Case - How Can We Prove What We Need to Prove with as Few Witnesses and Exhibits as Possible?
Section 31. Trial Notebook - Witness Sections / Witness Notebooks
Section 32. Trial Notebook - Proposed Jury Instructions
Section 33. Trial Notebook - Jury Verdict Form
Section 34. Trial Notebook - Error Section
Section 35. Pocket Briefs
Section 36. Plan for Rebuttal
Section 37. Trial Box
Section 38. Food
Section 39. Out-of-Town Trials
Section 40. Visit the Courtroom Where the Case Will be Tried
Section 41. Photos of the Courtroom
Section 42. Think About the Weather
Section 43. Driving Directions and Parking
Section 44. Clothing, Jewelry, and Pens
Section 45. Tell Your Clients and Witnesses How to Dress
Section 46. Warn Your Client, Witnesses, and Co-Workers That They are on Trial from the Moment They Leave Their Home
Section 47. Computers in the Courtroom
Section 48. Video and Document Projectors
Section 49. Have an Easel and Over-Sized Writing Tablet Available
Section 50. Show Up Early - and Make Your Clients and Witnesses Do the Same
Section 51. Check Your Zipper (and Your Shoes)
Section 52. Turn Your Smart (or Dumb) Phone Off
Section 53. Courtroom Personnel
Section 54. Interacting with the Judge
Section 55. Consider the Use of a Juror Questionnaire
Section 56. Develop a Method of Keeping Up with Data During Jury Selection
Section 57. Keep Up with Peremptory Challenges During Jury Selection
Section 58. Have Court Reporter Place Time-Stamps on the Transcript
Section 59. Exhibits at Trial
Section 60. Review Exhibits for Previously Excluded Information
Section 61. Juror Notebooks
Section 62. Use of Documents at Trial
Section 63. Life Expectancy
Section 64. More Thoughts on Dealing with Your Judge
Section 65. Proposed Findings of Fact and Conclusions of Law
Section 66. Exhibit Management
Section 67. Witness Notification Request
Section 68. The End of the Trial Day
Section 69. Settlements During Trial
Section 70. Taking the Verdict
Section 71. Speaking with the Jury After the Verdict is Announced
Section 72. Preparing the Judgment
Section 73. Post-Trial Motions
Section 74. Call Your Witnesses When the Trial is Over
Section 75. Post-Trial Analysis
Section 76. Appeals
Section 77. Concluding Remarks
Appendix A (Scheduling Orders)
Appendix B (Motions in Limine)
Appendix C (Rule 26 Deficiency Letter)
Appendix D (Proposed Jury Instructions)
Appendix E (Discretionary Costs)
Appendix F (Trial Preparation Checklists)
Appendix G (Trial Brief)
Appendix H (Trial Contact Lists)
Appendix I (Trial Timeline)
Appendix J (Take-to-Trial Checklist)
Appendix K (Trial Exhibits Index)
Appendix L (American College of Trial Lawyers Code of Pretrial and Trial Conduct)
