V. The Form and Substance of a Trial

A. The Elements of a Civil Case

In civil lawsuit, when a person allegedly commits a wrong against another (other than a breach of

contract), it is called a “tort”; a “tort” is a civil wrong committed by one person against another. The

injured party (the plaintiff) may sue the wrongdoer (the defendant) in court for a remedy which is

usually money damages. In this case, the plaintiff alleges that a tort has been committed and is suing

under one of many Nebraska statutes governing the relationships between employers

and their employees.

In general terms, the law prohibits an employer for taking any meaningful action against an

employee—that is, “retaliating” against the employee—because the employee has, in good faith,

reported information to the employer that the employee reasonably believes is evidence of a

violation of federal or state law. If an employer “retaliates” (for example, by firing or demoting the

employee after the employee makes such a report), the employee may then sue the employer. Such

claims are referred to as “retaliation” or “whistleblower” claims. The idea is that the employee has

“blown the whistle” on unlawful conduct in the workplace, and is being unfairly penalized as a

result. Specific to the facts of this case, the plaintiff has the burden of proving several elements. The

essential elements include:

1. Protected/whistleblowing activity. The plaintiff first must prove that he or she engaged in

“protected” or “whistleblowing” activity, i.e., that he or she actually made a report regarding

some sort of unlawful conduct to his or her employer.

2. Adverse action. The plaintiff must next prove that he or she suffered some sort of “adverse

employment action,” i.e., that he or she was fired, demoted, disciplined, etc.

3. Causal connection. Finally, the plaintiff must prove that there exists a causal connection

between the protected activity and the adverse action, i.e., that the adverse employment

action would not have occurred if the employee had not engaged in the protected activity.

A defendant can defend himself or herself by showing that plaintiff has failed to meet his or her

burden of proof on one or more of the elements above.

B. Proof by a Preponderance of Evidence

The standard of proof in a civil case is the preponderance of the evidence. A “preponderance of

evidence” means “more likely than not.” This standard requires that more than 50% of the weight of

the evidence be in favor of the winning party. This means that Lopez only has to show that it is more

likely than not that the harm occurred as a result of actions or inactions of the defendant. Likewise,

the defendant need only prove that is more likely than not that Lopez’s harm occurred as a result of

Lopez’s own actions or inactions.

C. Role Descriptions

1. Attorneys

Trial attorneys control the presentation of evidence at trial and argue the merits of their side of the

case. They introduce evidence and question witnesses to bring out the facts surrounding the

allegations.

The plaintiff’s attorneys present the case for the plaintiff, Landry Lopez. By questioning witnesses,

they will try to convince the jury that the defendant, Buddie’s Burgers, is liable by a preponderance

of the evidence.

The defense attorneys present the case for the defendant, Buddie’s Burgers. They will offer their

own witnesses to present their clients’ version of the facts. They may undermine the plaintiff’s case

by showing that their witnesses cannot be depended upon, or that their testimony makes no sense, or

is seriously inconsistent.

Demeanor of all attorneys is very important. On direct examination it is easy to be sympathetic and

supportive of your witnesses. On cross-examination it is also to be sympathetic. An effective cross-

examination is one in which the cross examiner, the witness, the judge and jury all agree on the

outcome. It is bad manners and unethical to be sarcastic, snide, hostile or contemptuous. The

element of surprise may, in fact, be a valuable attorney’s tool, but it is best achieved by being

friendly and winning in the courtroom, including with the other side.

Attorneys on both sides will:

• conduct direct examination and redirect if necessary;

• conduct cross examination and conduct redirect and re-cross if necessary;

• make appropriate objections (note: only the direct and cross-examining attorneys for a

particular witness may make objections during that testimony);

• be prepared to act as a substitute for other attorneys; and

• make opening statement and closing arguments.

a. Opening Statement

The opening statement outlines the case it is intended to present. The attorney for plaintiff delivers

the first opening statement and the defense follows with the second. A good opening statement

should explain what the attorney plans to prove, how it will be proven; mention the burden of proof

and applicable law; and present the events (facts) of the case in an orderly, easy to understand

manner.

One way to begin your statement could be as follows:

“Your Honor, my name is (full name), representing the plaintiff/defendant in this case.”

Proper phrasing in an opening statement includes:

• “The evidence will indicate that ...”

• “The facts will show that ...”

• “Witnesses (full names) will be called to tell ...”

• “The defendant will testify that ...”

Tips: You should appear confident, make eye contact with the judges, and use the future tense in

describing what your side will present. Do not read your notes word for word – use your notes

sparingly and only for reference.

b. Direct Examination

Attorneys conduct direct examination of their own witnesses to bring out the facts of the case. Direct

examination should:

• call for answers based on information provided in the case materials;

• reveal all of the facts favorable to your position;

• ask questions which allow the witness to tell the story. Do not ask leading questions

which call for only “yes” or “no” answers – leading questions are only appropriate during

cross-examination;

• make the witness seem believable;

• keep the witness from rambling.

Call for the witness with a formal request:

“Your Honor, I would like to call (full name of witness) to the stand.”

The clerk will swear in the witness before you ask your first question.

It is good practice to ask some introductory questions of the witness to help him or her feel

comfortable. Appropriate introductory questions might include asking the witness’ name, residence,

present employment, etc.

Proper phrasing of questions on direct examination include:

• “Could you please tell the court what occurred on (date)?”

• “How long did you remain in that spot?”

• “Did anyone do anything while you waited?”

Conclude your direct examination with:

“Thank you Mr./s. ________. That will be all, your Honor.”

Tips: Isolate exactly what information each witness can contribute to proving your case and prepare

a series of clear and simple questions designed to obtain that information. Be sure all items you need

to prove your case will be presented through your witnesses. Never ask questions to which you do

not know the answer. Listen to the answers. If you need a moment to think, it is appropriate to ask

the judge for a moment to collect your thoughts, or to discuss a point with co-counsel.

2. Witnesses

Witnesses supply the facts in the case. As a witness, the official source of your testimony, or record,

is your witness statement, all stipulations, and exhibits you would reasonably have knowledge of.

The witness statements contained in the packet should be viewed as signed and sworn affidavits.

You may testify to facts stated in or reasonably inferred from your record. If an attorney asks you a

question, and there is no answer to it in your official statement, you can choose how to answer it.

You may reply, “I don’t know” or “I can’t remember,” or you can infer an answer from the facts you

do officially know. Inferences are only allowed if they are reasonable. If your inference contradicts

your official statement, you can be impeached.

It is the responsibility of the attorneys to make the appropriate objections when witnesses are asked

to testify about something that is not generally known or cannot be inferred from the witness

statement.

Duties of the Clerk/Bailiff

1. Call to Order: As the judges enter the courtroom, say, “All rise. The Court with the

Honorable Judge ______ presiding, is now in session. Please be seated and come to

order.”

Say, “all rise” whenever the judges enter or leave the room.

2. Swear in the witnesses: Every witness should be sworn in as follows:

“Do you promise that the testimony you are about to give will faithfully and

truthfully conform the facts and rules of the Mock Trial Competition?”

Witness responds, “I do.”

Clerk then says, “Please be seated and state your name for the court and spell your

last name.”

3. Provide exhibits for attorneys or judges if requested (both sides should have their own

exhibits, however, it is a well-prepared clerk who has spares).