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Author Archives: Richard Willis

Hearsay for baseball fans: How the prosecution balked in the Roger Clemens case (access required)

“A first-year law student knows you can’t bolster the credibility of one witness with clearly inadmissible evidence.” U.S. District Judge Reggie Walton, United States vs Roger Clemens (July 13, 2011). With all due respect to Judge Walton, I’m not so sure first-year law students would know this. But, they would surely know not to violate a judge’s prior ruling. Twice.

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To lead or not to lead (and how to ask the question) (access required)

Recently, I heard a young lawyer conduct a textbook direct examination. It consisted exclusively of “who, what, when, where, how and why” questions. It was objection proof. Everything that needed to be said, was said. And yet — it was flat. It had no zing. It was like listening to Polonious. I wanted to say, “More matter, with less art.”

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If you’re not objecting, you may not be protecting the client (access required)

A New Yorker cartoon has a young lawyer saying to an upset client, "Oh, I don't object much. As lawyers go, I'm pretty laid back." Conventional courtroom advice is that juries don't like objections; it makes you look like you are trying to hide something. Like most things conventional, this advice isn't worth much. Besides, if you are really trying to hide something at trial, an objection isn't going to help you any more than the fig leaf helped Adam.

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Peitho: ‘It Ain’t Necessarily So’ – Lessons in jury selection

You don't have to be a South Carolinian or a musical theater fan to appreciate George and Ira Gershwin's famous song from "Porgy and Bess," "It Ain't Necessarily So." I mention South Carolina, not only because the musical is set in the Holy City of Charleston, but also because the true lyricist was not Ira Gershwin, but one of South Carolina's best writers, DuBose Heyward.

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Morality plays and Moby Dick: Finding a theme

By RICHARD H. WILLIS, Special to Lawyers Weekly richard.willis@bowmanandbrooke.com   Thirty-five years ago, I was sitting in an English class in Sewanee, Tenn., wondering what “The Second Shepherd’s Play” had to do with anything I really needed to know.  Until recently, ...

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Peitho: Passion under the name of reason

There are two contradictory admonitions every trial lawyer should heed when preparing a closing argument. First: "It is improper for counsel to make a closing argument to the jury ... calculated to arouse passion or prejudice." Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 231, 317 S.E.2d 748, 755 (Ct. App. 1984). Second: "Passion and prejudice govern the world, only under the name of reason." John Wesley (1736).

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Peitho: Working on the chain…

"When do I have to prove chain of custody?" Believe it or not, this is the most frequently asked evidence question in the Trial Advocacy class I teach at the law school with Steve Morrison. Our gun-shy graduates-to-be live in abject fear of "chain of custody." I can see them now, prosecuting their first felony DUI. "Doctor, I show you what has been marked as State's Exhibit One, a SLED BAC report showing that one hour after the accident, Mr. Defendant had a BAC of .28, setting a new state record for how many beers one can drink and still be able to find one's keys."

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