Section 2.  Three Key Points in the Trial

 

No matter how large scale is the case, and how complex are the facts, the onlookers need not follow the trial from beginning to the conclusion. To know the contents of the entire case and the final verdict, they merely need to listen to the opening statements,the cross examinations, and the closing arguments at the critical stages.

 

Critical point #1:  Opening Statement

 

According to what Mr. Zhang learned from his professor in law school, even in the most complex, big case, an effective opening statement should not exceed five minutes in length.  In those five minutes, the lawyer needs to tell the jury the content of the case and the reasons his client should win the case.  The professor said, after the parties have given their opening statements, 80% of the result of the case is already determined.

 

Our dispute between brothers was not a big case and was not complicated, still Mr. Zhang's opening statement consumed seven minutes. He introduced to the jury the main points of the dispute of the brothers, and concluded: "The evidence of the defense will show that the accusation of plaintiff Big Brother Shi was a lie; the defendant's evidence will show Big Brother Shi to be a liar".

 

"The evidence will show" is a typical phrase in all opening statements. The lawyer making the statement is promising the jury that he will present evidence at trial; if he does not keep his promise, he loses credibility with the jury. The opposing counsel's closing argument will attack fiercely his broken promise, like issuing a check that is unnegotiable.

 

Critical Point #2: Cross Examination

 

After the attorneys had made their opening statements, Mr. Brown called Big Brother Shi to give his direct testimony.

 

Direct testimony is when a witness, under the guidance of his lawyer, tells his story.  If the preparation has been adequate, telling a reasonably persuasive story should not be difficult before being challenged. So Big Brother emphasized in this testimony that the down payment of three hundred thousand dollars was paid by him, evidenced by the wire transfer receipt.

 

Under cross examination by opposing counsel, whether a principal witness can keep calm and maintain the credibility of his testimony is often the turning point of the case. For example, in the traffic accident case in the previous Lesson, the fact that the plaintiff Mr Wang stood up to the opposite counsel's cross examination expedited the final settlement.

 

After Big Brother finished his testimony, Mr. Zhang engaged him in cross examination. He attacked the weakness of Big Brother's story, to wit, the agreement to buy a house was completely oral and was not supported by evidence. The wire transfer receipt did not indicate who owned the funds nor was there any mention about real property. Further, Mr. Zhang pointed out the several contradictions in the testimony of Big Brother.

 

Mr. Zhang started the attack with a letter written by Big Brother.

 

Mr. Zhang: "Mr. Shi, showing you defense evidence number 10, identified as a letter from Big                      Brother Shi to Little Brother Shi, dated July 5, 996.  Do you recognize this letter?"

Witness:  "Yes."

Mr. Zhang:  "Did you sign on this letter?"

Witness:  "Yes."

Mr. Zhang:  "The letter you signed said that the three hundred thousand dollars you wire                                transferred to the defendant was the private funds of the defendant, correct?"

Witness:  "No. The funds belonged to me. They defrauded me. I wrote that way for their tax                        benefit."

Mr. Zhang:  "So your testimony is that the letter you wrote on July 5, 1995, was false, isn't that                      right?"

Mr. Brown:  "Objection.  Leading question."

Mr. Zhang:  "This is impeachment."

Judge:  "Objection overruled."

Mr. Zhang:  "Please answer my question."

Witness:  "Yes."

 

Mr. Zhang followed up with a sharp question:

 

Mr. Zhang: "Since you admit that what you said in the July, 1996 letter was false, my next                             question is, were you lying when you wrote the July 5, 1996 letter, or are you lying                     now?"

Mr. Brown:  "Objection. Compounded question."

Judge:  "The question is allowed."

Mr. Zhang:  "I ask again. Mr. Shi, were you lying when you wrote the July 5, 1996 letter, or are                       you lying now?"

Witness:  "I am telling the truth now."

 

Mr. Zhang saw that it was already lunch time, and said:

 

Mr. Zhang:  "No further questions."

Judge: "All right. Mr. Shi, you can come down.  We recess till 1:30.  At that time Mr. Brown                     can ask questions."

 

Note: The above question in the cross examination "Were you lying when you wrote the July 5, 1996 letter, or are you lying now?" is a classic or teaching manual cross examination question, focusing on the contradiction in the testimony of the witness. Mr. Zhang managed the time so that the question was asked just before lunch break so that it stayed in the mind of the jurors but the opposing counsel was not given the opportunity to rehabilitate the witness. It was no accident that the timing was handled just right, and is a part of an effective cross examination. 

 

Critical Point #3: Closing Argument.

 

After all the witnesses had gone through direct testimony, cross examination, redirect testimony, and recross examination, the next step was for the judge to receive evidence.  And then came the bottom line - the closing arguments of the attorneys.

　　

Although it has been said that the opening statements decide 80% of the verdict, the closing arguments are still one of the most critical stages. Particularly in a long trial, the testimonies from a few weeks ago have already become vague. The closing argument allows the lawyer a chance to remind and persuade the jury about past testimonies, or explain away or mitigate the points adverse to his case, and emphasize the points favorable to him. In a truly complex, big case, closing argument may consume several days. In this relatively simple dispute between brothers, judge Collins only allowed each lawyer 20 minutes.

 

When Mr. Zhang's turn came to make the closing argument, he first thanked the jury for their patience in hearing and even make notes. Then after review of the major testimonies and opinions, he said, "You may recall that when I made the opening statement, I said I would prove that Big Brother Shi is a liar. Liar is such a harsh term, but the facts prove that it was indeed the case".

 

After I finish my closing statement, the judge will give you instructions. That is the privilege of the judge. But I can tell you that one of the instructions states: when one side make a declaration against his own interest, such a declaration is entitled to a special credibility and importance, even to the point that just this one declaration can decide the entire case, even all the other evidence point to a contrary conclusion.

 

When Big Brother Shi wrote his brother and said that the three hundred thousand dollars he had wire transferred were the money of the latter, that was a contemporaneous declaration against his own interest. As you deliberate the evidence, you can consider this:  if big Brother Shi were not telling the truth when he wrote the letter, why would he make a declaration against his own interest? Thank you for your service.

 

Section 3. The Judge Reads the Instructions to the Jury

 

After the closing arguments were concluded, the judge began to read to the jury the jury instructions, that is, the law relevant to this particular case. When the judge finished his reading, the twelve jurors and two alternates formed a procession and left the courtroom to go to the jury room to deliberate.  At this time all the attorneys and clients stood up and their eyes followed the jury, as an expression of respect.

 

Section 4.  Hung up and Unresolved - The Anti Climatic Hung Jury

 

We can look inside the decisions of the lawyers, but we cannot penetrate into the conference of the jury in the jury room. After waiting anxiously for three days, the court informed the parties that the jury had reached a decision.

 

All the people once again appeared together in the courtroom. The judge read the verdict given him by the jury foreman.  The jury said that they were deadlocked and could not reach a 9 to 3 majority decision. The final conclusion was the jury had hung. After Judge Collins thanked the jury, he then declared:  the trial was a mistrial!

 

According to the polling after the announcement of decision and the conversations some jurors had with the attorneys, what happened was:  from the beginning there were four jurors who insisted that the defense had solid evidence and the plaintiff's reason was not established. Two jurors of Chinese descent said that what the plaintiff said was credible, because in those years it was not possible for the defendant to have an income of three hundred thousand US dollars income. Two American born Chinese youths also agreed and said that the older generation of Chinese American immigrants did business based on oral agreements. There were four more persons whose attitude was ambiguous. After intense discussion for over two days, they could not break the deadlock and decided on a hung jury.

 

From the practical point of view, a hung jury verdict is equivalent to a defeat of the plaintiff, because after expending tremendous resources to litigate, he came away empty handed!  In theory he could demand a new trial, but would he insist on fighting an uncertain war?

 

Section 5.  Looking back on the Case of Dispute between Brothers

 

Looking back on this lawsuit between brothers from beginning to end, there are several meaningful points.

 

1.  Jury trials are very expensive, time consuming, and low efficiency system, but they are also one of the foundations of American democracy.  This system encourages the general public to volunteer service and participate in a fair trial and guarantee the transparency of the judicial system and consolidate the people's confidence in the judicial system. Therefore, despite the deficiencies of the jury, no lawyer, judge or prosecutor in America advocate the abolition of the jury. From another angle, in the event you are facing a life and death trial, would you choose a judge whose word alone is decisive, or the jury representing the people?

 

2.  "War is brutal and risky".  The "Rashomon effect" was  more or less evident in this dispute between brothers and in the verdict of the jury. In a multicultural society, the 12 jurors brought their diverse cultures, background and bias into the jury room. When the jury was selected, who could have predicted their final points of view?

 

3.  Television tends to suggest that all the trials depend on the jury trial. In reality, the jury trial occupies only a very small proportion because preparation at every step demands the investment of huge amount of blood and sweat effort by the lawyers, clients. Our example is a very good illustration.