Jury Instructions -- key to victory at trial

A jury trial is comprised of multiple steps -- and one of the most critical is the formulation of jury instructions. Instructions are drafted, generally, at the pre-trial conference stage. Opposing parties exchange suggested jury instructions on each area of contested law. Now, if there are nbo novel concepts to consider, then the instructions can be taken from the "generic" jury instruction selection provided by each Courthouse. You can find these in the law library or online from a sevice such as Lexis. However, when specialized, or non-normative instructions are required, you will need to write them yourself.

A jury instruction is comprised of three components: (1) any statute or ordinance on point, (2) relevant case law, and (3) the instruction itself.

An example of a jury instruction on "equitable estoppel" (lulling) might be:

Governing Statute
None known.

Case Law
From JANKOVIC v. INTERNATIONAL CRISIS GROUP, 494 F.3d 1080 at 1086 (2010):

"Similar to equitable estoppel, the doctrine of lulling applies when the defendant “ha[s] done something that amounted to an affirmative inducement to plaintiffs to delay bringing action,” Bailey v. Greenberg, 516 A.2d 934, 937 (D.C. 1986) (quoting Hornblower v. George Wash. Univ., 31 App. D.C. 64, 75 (1908)), as when a defendant promises to settle a dispute outside of court.)

From Property 10-F, Inc. v. Pack & Process, Inc., 265 A.2d 290, 291 (D.C.1970):

Equitable estoppel (lulling) is appropriate where “[The defendant has] done anything that would tend to lull the plaintiff into inaction and thereby permit the statutory limitation to run against him."

Proposed Jury Instruction
Lulling occurs if one party has created an affirmative inducement to the other to prevent or delay them from bringing action on the case.

You must find lulling when a party to a contract has done something that would tend to lull the plaintiff into inaction and thereby permit the statutory limitation to run against him.

An "affirmative inducement" is some action, no matter how minor, taken by a party, designed to intentionally trigger a reaction or action in the other party. Inaction or "doing nothing" cannot be an affirmative inducement.

Once you draft your custom jury instruction, you must submit a copy to opposing counsel and a copy to the judge who will be involved with the case. The final written instructions, including your proposed jury instruction, will be made by the judge. He/She will consider both your proposed instruction, and the instruction of opposing counsel.

Do you need help with an upcoming jury trial? Give us a ring! We've been doing this for a while and would be glad to handle your case, or consult on the jury management process. Remember -- ~30% of the outcome of your case is decided in the proper selection of your jury. Another ~15% is decided by the proper instructions and verdict form. Do the math, folks. That is ~45% of your case decided before the trial starts. Be sure you have an attorney you can trust.

Sean R. Hanover, Esq
www.HanoverLawPc.com
Contact Us
703-402-2723

Voire Dire -- and the jury trial

Ever wonder how a jury trial really works? There are quite a few steps. In the next several articles, I will discuss a few really important aspects of jury trials. While we've been handling complex jury matters for years, we just finished (successfully!) a jury trial where the key elements really made a difference:

• voire dire
• jury instructions
• the jury verdict form

. "Voire Dire" is French, and means to see and to speak. A slightly more easily digestible translation would be "to observe and discuss." Although "question" would be more appropriate, the French word for that is "demander" -- and certainly nothing close to "dire". So we're stuck with observe and discuss. C'est bon! You may have heard the terms translated as: "speak the truth" -- that is pure fiction.

Now, it is important to understand that you must get a good lawyer for a jury trial. Not only must your attorney be an excellent cross-examiner, he or she must be a good tactician. Jury operations are all about tactics. Subtle tactics. Understanding the nuances can make the difference between a sympathetic jury and one the clobbers you. So, be careful and choose wisely.

Voire Dire -- the art of selecting the jury

Calling the jury

Most courts work the same way, but in this example, we will discuss Federal court. Voire dire is initially conducted by the judge. Once all preliminary matters are resolved (before the trial starts), the judge will instruct the clerk to "bring in the jury." The jurors are ushered into the court and seated in the gallery (that's the area with the rows of seats -- in the back), generally in order starting with number one, with five per row (obviously, there are more if the rows are larger). The clerk will also hand each counsel a "jury sheet" which shows each the name of each juror, their juror number, profession, and perhaps a few remarks on demographics. There will also be a line by each juror name for entry of comments.

Initial Questioning by the Judge

Generally, several weeks before the trial a "pre-trial" hearing is held. During this time, jury questions are discussed between the parties and the judge. These are the initial questions the judge will ask the jury directly, and must be agreed to by the parties. During the day of trial, once the jury group is seated in the gallery, the judge have the clerk pass out index cards. As the judge asks the jurors the questions agreed to by the parties at pre-trial, each individual juror will enter the question number and a "yes" if any are true for that juror. The jurors will enter nothing if the question is false or not true. A typical question may be: "1. Do you know any member of the defense team?" or "2. Have you ever owned a business?". A juror would write: "1. yes" if he/she did know a member of the defense team, for example.

Questioning by Counsel

Once the judge has asked all the questions, the clerk will collect the index cards. The judge will call defense and plaintiff's counsels to the bench. Each attorney will stand on one side of the bench. The terms "bench" refers to where the judge sits. The judge will then call each juror by juror number, and ask them to explain his/her answer if a "yes" was given. The attorneys then have the ability to follow-up with their own questions based on the response the juror gives (in explanation) to the judge. The question is one of bias. The attorney wants to learn if there is any bias in the actions of the juror. Also, the attorney needs to get as much information as to motive and interest of the juror as possible. Make notes! Occasionally, a juror will say something that precludes him/her from serving. This is usually obvious. For example, in a DUI trial, a juror that states, "My mother was killed by a drunk driver." would be "struck" for cause. The term "for cause" is legal jargon for removing a juror because they are not appropriate or qualified to sit on the jury. There is a much better chance of a strike "for cause" being accepted if both attorneys agree, however, that is not a requirement. The judge will make the final determination. Once the jurors have been called forth, and questioned at the bench, and those ineligible to serve removed from consideration (for cause), the judge will send the attorneys back to their respective tables in order for them to formulate their peremptory strikes.

Peremptory Strikes

A peremptory strike is the removal of a juror from the list "just because." That is -- for no other reason than the defense or plaintiff's counsel seeks to do so. It is the legal method of stacking the jury. Removing those not favorable to your case. In a civil case, each side receives three peremptory strikes. In a criminal trial, usually the defendant receives 10 strikes and the state receives 6. These numbers are completely at the discretion of the each jurisdictions court rules, so be sure to verify them! A peremptory strike form is provided to each attorney. Thereon, the attorney enters the juror information, as well as demographics information of the jurors who are struck. This ensures that there is an no racial or gender bias in the selection of peremptory strikes.

How to conduct effective Voire Dire

The key to success is knowing the best profile for your jury. What type of case do you have? Is this is a sympathy case for your side? Then seek simple jurors who are family oriented, or females who are more empathetic. Is this a legal, business case where calculations are more valuable? Then seek the professional who is all business. Once you know the profile of the juror you seek, then ask questions at the bench that elicit the bias you seek. While you are respectful and honest in your questioning, this process is not about being fair. It is about stacking the jury with those most sympathetic to your case. Is this a land case? Strike jurors that are clearly large land holders (unless you want them to side with the land-owner!). You get the idea. The key is a thorough and clear understanding of your case, coupled with piercing "bias" questions at the bench.

Jury selection is critical to the theory of your case. Your opening statement and your closing statement will be given directly to the jury. You need to make eye-contact, and the jury must believe you, the attorney. Select jurors that bother represent the closest interest to your client's case, and also who relate to you as an advocate. When the jurors comes to the bench, smile at them. Be gracious and make eye contact. This is the first time you will have a chance to make them yours -- do not squander the opportunity.

Do you need help with an upcoming jury trial? Give us a ring! We've been doing this for a while and would be glad to handle your case, or consult on the jury selection process. Remember -- ~30% of the outcome of your case is decided in the proper selection of your jury. Another ~15% is decided by the proper instructions and verdict form. Do the math, folks. That is ~45% of your case decided before the trial starts. Be sure you have an attorney you can trust.

Sean R. Hanover, Esq
www.HanoverLawPc.com
Contact Us
703-402-2723

BIA -- remember to STAY REMOVAL during Appeal

Happy Holidays to everyone -- and I hope this posting finds folks setting enjoying the season, and a warm fire. As I contemplate the thought of Christmas, I am reminded of the many clients we have that may not be with there loved ones. One method of ensuring that our friends who have been denied relief in immigration court is through a BIA appeal. However, it is very important to remember that once an appeal is filed, a stay of removal must be requested before the stay will be granted. Stays are granted as a matter of course when an appeal is filed.

What are the steps to a BIA (Board of Immigration Appeals)filing? There are several routes, however, today we speaking only of an appeal from an immigration judge's decision. Generally, you have 30 days to appeal a decision of the Court. You must note your appeal at trial. Appeals are divided into three categories: (a) procedural deficiency, (b) abuse of discretionary (defined as a misapplication of fact or denial of objection), and (c) discovery of substantive information that was not available at trial but materially effects the outcome (this is rare, but can happen in immigration cases).

To effect a good appeal, you must get a copy of the Court hearing. Generally, this is accomplished by having your attorney contact the clerk of the Court that held the hearing, and request a CD that have the audio transcript of the trial. This is important! Both (a) and (b) above require a thorough and comprehensive understanding of the issues that were raised at trial. Even if you were the trial attorney that conducted the first case, you still need to have a copy of the transcript to cite to errors or omissions.

The appeals package consists of a cover letter, the appeals request (EOIR-26), notice of appearance before the BIA (EOIR 27), filing fee, and a motion to the Board to STAY REMOVAL. This last is critical -- forget this, and your client will be sent packing long before the Board can make a decision. It is not necessary to submit a full appeals brief when you initially file, however, you must indicate on the EOIR-26 that you intend to submit a brief. The Board will send you "orange sheets" -- these are forms that show the briefing schedule and due dates for all aspects of the appeal. That will arrive about 30 days (sometimes sooner) after your filing.

A note about the stay of removal. Generally, a stay is automatically granted once the request is received. HOWEVER -- if your client is detained, he/she will REMAIN detained during the pendency of the appeal. Be sure to discuss this aspect with the client BEFORE you file. A full appeal may take over a year -- during which your client will be stuck in the pokey. This makes for very unhappy clients if they are not briefed prior to agreeing to an appeal. Once the BIA has control of the case, you may petition for a bond reconsideration -- however, it will be based on the initial bond hearing that was held before the IJ (immigration judge), so be sure to get a copy of that transcript and be ready to argue the merits of reconsideration. I have yet to see a request for bond reconsideration by BIA be granted at this stage (appeals), but it may serve to placate your client to at least try (you never know...).

In future articles I will cover strategy on how to write an appeals brief in full, covering each of the three points (a, b, and c) outlined above. Below you will find a sample stay of removal request to submit when filing your BIA appeal.

Sean R. Hanover                                                                                  DETAINED

Hanover Law, PC

888 16^th St. N.W. Ste. 800

Washington, DC 20006

UNITED STATES DEPARTMENT OF JUSTICE

BOARD OF IMMIGRATION APPEALS

IN THE MATTER OF                                IN REMOVAL PROCEEDINGS

CLIENT X          

RESPONDENT                                          FILE NO.:  AXXX-XX-XXXX

MOTION TO

STAY DEPORTATION PENDING HEARING ON THE MERITS

Comes now your petitioner, through counsel, and requests this honorable tribunal

grant a stay of deportation pendant the appeal process with BIA.

1.  Mr. X requested to re-open his underlying removal order in San Antonio Texas immigration court, based on lack of notice, was denied.

2.  An appeal was properly and timely filed with BIA in accordance with EOIR procedures.

3.  A stay is appropriate given the likelihood of success on the merits, and the expenses imposed on the government to transport and retrieve Mr. X for trial on remand.

4.  For the foregoing reasons, petitioner requests BIA exercise its discretion and grant a stay pendant the appeal process.

I ask for this:

Client X

Through Counsel:

Sean R. Hanover, Esq

Principal Attorney

Hanover Law, PC

888 16^th St., NW Suite 800

Fairfax, VA 2006

703-402-2723

SeanHanover@hanoverlawpc.com

CERTIFICATION OF SERVICE

I certify a copy of this motion was served on DHS Office of Chief Counsel at 8940 Fourwinds Drive, 5^th Floor, San Antonia, TX 78239.

Sean R. Hanover, Esq


Do you need help with a BIA appeal?  MOVE QUICKLY!  Timing is very important.  Contact us immediately for a free discussion on the matter, and a review of your case.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Model Witnesses -- a review of a trial strategy book.

This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material!

I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go.

This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules.

However, there are two significant detractors, and I am unclear why the book does a poor job of addressing them. They seem fundamental to the topic. First, the author makes no attempt to explain what a practitioner should expect if he/she actually used one of the sample approaches in trial. While the examples are generally sound, you ought to bet that opposing counsel will protest and object vigorously -- and Mr. Sandler does little to address what these objections will be. Oh, there are half-hearted attempts to indicate what might be said, and how a judge would rule, and there are some warnings (for example, "Whether the police officer in this pattern can testify to a hearsay declaration by an absent witness might present a problem." - pg. 8), but truly little is discussed about the "jam" effect of opposing counsel objecting and completely throwing the questioning line of thought. And to think a judge would actually site to Rules is just ridiculous. They (judges) rarely do --and often judge get's it wrong, too. For example, helpful might be: "When you use this line of questioning, you should expect objections in the form of objection...."

Tied closely to the first detractor, I did not like how the author brought forth various forms of testimony on one hand, but failed to give examples on how opposing counsel might rehabilitate a witness (or challenge an expert) on the other. Essentially, there are two sides to every case -- and there was not enough examples of for/against positions and how to guide questions on each side (on the same topic). That would have really assisted in developing good case management strategies. As we often teach new associates -- take the position of the opposite side -- thus will you be ready for any argument.

Overall, the work was intelligently written, clearly well researched, and helpful. It will find a nice place in my litigation library. However, with just a few more tweaks, it could truly have stood out as an exceptionally useful training tool.

Do you need a book, article or paper reviewed? Would you like a seminar or class on a particular legal topic? Let us know! We've been doing this for a few years, and would be glad to share our experiences as trial attorneys.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

The abused spouse and the I-360 - VAWA

An interesting crossroads between Family Law and Immigration Law is the I-360 -- Petition for Special Immigrant Visa. While this form can be used for a couple of purposes, by and away the largest utilization is for VAWA purposes -- Violence Against Women Act (VAWA). Fortunately, this Act applies to both men and women, so do not be confused by the gender in the title. The I-360, in the Family Law context allows an abused immigrant to self-apply for a green card (LPR status) if the marriage that brought him/her to the US was broken due to violence, abuse, or fraud by the his/her partner.

Under normal I-130/I-485 procedures, in order to apply for a green card (LPR status), once married, the sponsoring spouse (citizen or LPR) must submit supporting forms to show that the immigrant is lawfully married, and that the marriage is not a sham. This involves, among other things, the requirement that the sponsoring spouse attend the LPR interview for the immigrant.

In the 1980's there came about an explosion in mail order brides -- and with this, the attendant exploitation of foreigners coming to the US for the first time to meet their "mates." Women would all too often be trapped in a relationship, unable to obtain legal status (and often with her passport taken), and therefore unable to leave. Report of rampant abuse, prostitution, and horrid conditions led to the passage of the VAWA (those section regarding immigration)in the early 1990's.

Key aspects of VAWA -- you must show abuse (mental or physical); it must be documented. The marriage must be concluded (i.e. divorce must be underway), and the original marriage must be valid (the person petitioning for the I-360 cannot have caused the fraud to have occurred if it did).

While awaiting final adjudication of your application, you can also receive a work permit, and any pending immigration action is frozen (i.e. deportation actions if your spouse refused to attend your LPR interview).

If you have a question about VAWA, divorce, spousal abuse, or family immigration activities, CALL US! We can help -- we've been doing this for years, and have considerable experience on helping women (and men!) who are in an abusive situation.

By the way -- spousal support is often possible if the I-864 was filed by the now abusing spouse. Be sure to speak to us about this -- as it could be critical to getting money until you have a job. I-864 litigation must take place in FEDERAL COURT, not the court where you get a state divorce. This is tricky, so talk to an attorney first! http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

The Useful "Q" Visa -- another way to work in the US

I recently had the pleasure of writing an article or two for use in the AILA Paralegal Handbook. For informaton on ordering or learning more, go here: Paralegal Manual. For an overview of material covered by the book, go here: Table of Contents.

An area I covered for the book included Q visas. This handy visa is an excellent work-around for finding a legitimate means to bring over a foreign worker for a short duration work experience. I've included an excerpt below.

There are two forms of exchange visas issued by the United States. The first, and most common, is the J visa. Less common is the Q. This under-used visa category offers unique opportunities for the immigration advocate to bring foreign aliens into the US in a manner that allows them to work, as well as learn, for a period of 15 months.

In a Q visa, the definition of cultural exchange is much broader than that of the J. 8 CFR 214.2(q)(3)(iii)(A) - (C) describes the requirements of a "cultural" engagement under Q. Essentially, this includes a requirement that the cultural aspects of the visitor be displayed to the general public (museums, schools, parks, or other public forums), and that the cultural aspects themselves include things such as (a) cultural heritage of the alien's home country, (b) structured instruction on particular aspects of the alien's country, (c) language, (d) history and heritage, etc.

Section 214.2(q)(3)(i) and (ii) explain the requirements for an employer to be involved in the program. These include the creation and maintenance of an exchange program (usually a program which shows the connections outlined in this section), and accessibility of the program to the public (214.2(q)(3)(iii)(A)).

The Q visa is uncommon, largely because it is unknown. However, the clever practitioner will recognize that almost any educated foreigner can be presented as a cultural exchange ambassador. With some thought, and creative sponsorship, it is possible to bring individuals to the US who may work, present on their home country, and remain in the country legally for 15 months. Finally, there is no bar from converting from the Q visa to another status.

Do you need help getting "legal" in the US, or determining how to come to the US to work? Contact us! It is often much cheaper to fix a problem before it happens. Like many visas, a "Q" visa requires a sponsor and proper planning. However, with a little forethought, you can work and operate legally in the US. Further, you can convert into a Q visa if you are already here. A consultation may be just the ticket to avoiding illegal overstay or finding the perfect segway into employment with a qualified organization.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

DUI -- and the five day rule

Recently had a couple of DUI's that seemed to have come to me after they had attended their initial hearing. This is just a reminder about seeking to have your license re-instated prior to your hearing date. In order to do so, you must file with the DMV to have a preliminary hearing within five days of having your license taken by the police for a DUI. This is known as the "five day rule."

A mere arrest for DUI is not a conviction, and an argument to have your license re-instated pending a trial on the merits will usually be permitted. Remember, though -- you must contact the DMV within 5 days of getting the DUI or jurisdiction on the license question is permanently transferred to the courts.

Need help with a DUI or OWI? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in drunk driving, operating while impaired, and drug cases.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.