Evidence 2007

Class Schedule: This class meets January 2, 3, 4, 5, 8, 9, 10, 11, 12, 16, 17, 18, 19 from 9:00 a.m. – 12:00 noon in the Austin North, Harvard Law School. Adjunct activities including workshops, group meetings and mock trial will take place in at times to be announced in Second Life.

The goal is to enhance each participant's understanding of the purpose and process of proof in a court of law and of the process of learning and performing in real and second life. At the core of the course is the ideal of the good lawyer.

The approach of the course is to devote a series of lectures and associated readings and assignments to the purpose, rules and practice of proof in courts of law. Martin Levin will describe trail process from the viewpoint of a plaintiff's lawyer. Charles Nesson will frame Levin's Lectures from the meta level of the Law Lord, who together with the lords of science, religion, media and government compete for belief in the domain of Truth.

This portion of the course will be examined in a two-hour in-class test on January 12, 2007, 9-11:00 a.m. This exam will be graded as prescribed by the faculty manual of Harvard Law School. The remaining sessions of the course will be devoted to group work in mock trail and will be assessed pass/fail; if "pass" the course grade will be the exam grade; if "fail" (should it occur) the course grade will be lower.

Class Prerequisites: There are no mandatory prerequisites beyond a good machine, a net connection, and eagerness to learn and participate in American Law's jury-trial process of dispute resolution.

Professor Contact Information: The best way to contact me is through e-mail. Send all e-mail to nesson@law.harvard.edu. IMPORTANT, type in the subject line: “Evidence2007”.

Laptops in Class: Please bring your laptop to class. Use of laptops in class will at times be encouraged and at other times not, depending on what we are doing.

January 2:

Nesson: Introduction to Course

• Discussion of syllabus, class plan and requirements, group work
• introduction to the law lord, jury process
• introduction of Martin Levin and Levin Lectures

Levin: Introduction to Trial Law and Pre-Trial Procedure

• Overview discussion of trial process, terminology and roles
• Initial Pleadings—Complaint, Answer, Reply
• Discovery—Generally, Interrogatories, Requests to Produce, Requests to Admit, Non-Party Production, Depositions, Electronic Discovery
• Pre-Trial Conference--Pre-Trial Memorandum, Motions in Limine, Witness & Exhibit List, Jury Instructions, Verdict Form, Trial Briefs
• Initial Trial Preparation--File Organization, Trial Subpoenas, Venire List, Jury Instructions, Verdict Form, Examination Preparation, Deposition Readings and Videos, Stipulated Facts, Interrogatory Publication, Request to Admit Publication, Demonstrative Aids and Exhibits, Order of Proof, Opening Statement, Closing Argument, Voir Dire, Directed Verdict

Assignment:

• Familiarize yourself with the pleadings in Bragg v. Linden Labs.
• Log In to Second Life, choose an avatar, come to Berkman Island.

January 3:

Levin: Trial Presentation

• Theme of Case
• Stylistic Issues
• Exhibits and Demonstrative Aid Tools—Adobe Photoshop, Aerial Photography, Computer Animations, Diagnostic Scans, Medical Exhibits, Microsoft PowerPoint, Roxio Complete Media Creator, Scanners, Sympodium, Timelines, Trial Director, Vacuum Mounted Boards, Verdict Systems Sanction Software, Video Projectors, Visual Presenters
• Motions in Limine

Nesson: Division of Function between Judge and Jury

• Problem - The Rim
• Procedure for handling issues of fact relating to proof of the complaint
• Procedure for handling issues of fact relating to issues of law
• Procedure for handling issues of law

Readings:

Nesson, "The Evidence or the Event? On Judicial Proof and the Acceptability

of Verdicts"

American Jury

January 4:

Levin: Voir Dire

• Theory
• Focus Groups
• Electronic Juries
• Mock Trials
• Venire Lists
• Seating Charts
• Juror Questionnaires
• Venire Questioning
• Jury Selection Software
• Legal Doctrine

Nesson: Burden of Proof

• Concepts - Reasonable Doubt, Proof to a Preponderance
• Constitutional grounding
• Inferential Proof and the problem of the Blue Bus
• Statistical Proof and the problem of the Prison Yard

Readings:

Amar, The Bill of Rights and our Posterity

Duncan v.Louisiana, 391 U.S. 145 (1968)

In re Winship, 397 U.S. 358 (1970)

Batson v. Kentucky, 476 U.S. 79 (1986)

J.E.B. v.Alabama, 511 U.S. 127(1994)

Davis v. Minnisota, 511 U.S. 1115 (1994)

January 5:

Levin: Opening Statement

• Fundamentals
• Format
• Issues
• Law

Nesson: Power of Narrative

• Necker cube
• Lawyer Credibility

January 8:

Levin: Examinations 1

• Evidentiary Issues
• Direct Examination
• Redirect Examination
• Expert Examination
• Exhibits
• Objections
• Create your witness and exhibit list to be utilized at trial.
• Prepare two (2) direct examinations, of which at least one (1) includes the introduction of an exhibit.

Nesson: Confrontation

• From Raleigh to Crawford

Crawford v. Washington, 124 S. Ct. 1354 (2004)

Davis v. Washington(2006)

January 9:

Levin Examinations 2

• Cross-Examination
• Witness & Exhibit Lists
• Order of Proof
• Motion for Directed Verdict

Nesson: Experts

Daubert v. Merrell Dow

General Electric Co. v. Joiner

Kumho Tire Company v. Carmichael

Daubert v. Merrell Dow (on remand)

January 10:

Levin: Jury Instructions & Verdict Form

• Theory
• Doctrine

Nesson: Hearsay in Theory

January 11:

Levin: Closing Arguments and Summation

• Fundamentals of Closing Argument
• Stylistics Issues Specific to Closing Argument
• Addressing Issues Head-On in Closing Argument
• The Law on Closing Argument

Nesson: Privilege

• Attorney-Client Privilege

January 12:

• exam
• Nesson: Hearsay Exceptions (yes, after the exam)

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