Key Ideas Before The Case: Fill & Download for Free

At one time or another, I explain to all my non-corporate clients something that is *never* shown on TV.That something is: There are no surprises in a courtroom. The courtroom drama you’re about to see is carefully scripted and choreographed. Everybody’s lines are already known.Before a defendant testifies in a civil case, the defendant has already been required to provide the plaintiff with all documents relating to the case. The defendant will have already provided a list of all witnesses to be called at trial and often a summary of each witness’s testimony. The defendant will already have provided written answers to written questions under oath, detailing all legal and factual trial defenses that will be asserted at trial, including listing relevant documents and witnesses. The defendant will have been asked to admit certain undisputed facts about the case in writing before trial. The defendant will also be required to identify all experts to be called and provide expert witness reports. The defendant has also been required to sit through a deposition where the defendant can be cross examined by the plaintiff’s lawyers about all aspects of the case until his recollection of events has been throughly reviewed and there is nothing left.All of this is also endured by the plaintiff as well.There are strict penalties for non-compliance or bad faith compliance with these procedures including monetary penalties, prohibition of certain testimony, documents or defenses, to striking the entire defense and awarding judgment to plaintiff. This process is not something to mess around with.As Andrew Weill said in Andrew Weill's answer to Lawyers, what are some ways you set verbal traps that will cause a defendant to slip up and reveal something?, the key is preparation, preparation, preparation. After collecting all of this evidence, the defendant cannot say anything in court that wasn’t already provided in the above process and was not already said before in the deposition. That means that I already know what the defendant will say when called as a witness by his own attorney. He will describe the best version of events from his side and I will already know what it is. If there is testimony that was not previously provided or documents not previously provided, I would object to that “surprise” testimony and the objection will be routinely sustained. For cross examination, I carefully prepare my cross examination of the defendant by writing the questions out beforehand. I know what the answer is because he has already been asked these questions. I sometimes show my own client the questions that I will ask of the other side. My questions are generally phrased so that a complete answer is either “Yes”, “No” or “I don’t know.”In my question and answer outline, I do not write the defendant’s answer. Instead, I write the volume, page and line number of the deposition where the defendant was asked that question before. If the answer is in a written document, the exhibit number and page of the document where the answer appears is noted. My witness notebook has every deposition extract and exhibit page highlighted with the answer indexed to my questions so I can simply turn to the index number in the witness trial notebook that is listed with the question. If the witness goes “off script” I just turn to the witnesss notebook, go to the tab and get the marked up copy of the deposition or exhibit that contradicts his courtroom answer. Meanwhile, my paralegal has already located the official copy of the deposition transcript or exhibit to show to the witness and court, because the paralegal is following along with the script.As you can see, there are no verbal traps. If the witness tells the truth, then I won’t ever reach for my witness trial notebook and the witness will have testified as I anticipated. I will have made all of the points favorable to my client’s case that I could have made and will highlight those in my closing argument.A short example of how this works:My client sued the defendants for fraud in a sale of a small strip mall. My client purchased the strip mall from the defendant. My clients found out after the sale that all of the strip mall tenants were drug dealers, chop shops, or prostitutes. Oh, and they didn’t pay their rent on time, either. The defendant also didn't tell my client that prostitutes paid their rent in trade. That wasn’t going to work for my client. I took the defendant’s deposition and asked this question:“Why didn’t you let my client meet personally with the tenants before the sale?”His answer: “I didn’t want to upset the apple cart.” In short, he is admitting that he concealed facts from my client that would cause my client to not purchase the property. This, I knew before trial, was an important point to make at trial.At trial, I asked the defendant the exact same question, “Why didn’t you let my client meet personally with the tenants before the sale?”. I could risk the “why” because I already knew the answer.Here was his answer at trial: “I introduced him to all the tenants during his visit.”I then reached for the deposition transcript and read his previous answer out loud in court. He responded that the deposition was a long time ago. I showed him the deposition and asked him the date of the deposition. It had been taken one week earlier. That series of questions proved the fraud and the lie in court and the defendant lost the case on that testimony.Note there were no verbal tricks used and no animals were harmed in the making of this courtroom drama.Edit to address comments. What I’ve described above is an ideal civil lawsuit discovery process, which is mostly unknown to non-lawyers. That discovery process prevents surprises in the courtroom. If the case is properly prepared, there is no need to attempt to get a witness to slip up and reveal something. The truth will do that just fine in the very vast majority of cases. There is some general belief that lawyers have some kind of magic, hypnotic powers or Vulcan Mind Meld to “trick” witnesses. We don’t have those powers. What we do is prepare the case and we don’t allow witnesses to minimize, divert, equivocate, misdirect, make excuses, or otherwise not answer the direct question. To be successful, we have to carefully craft our questions and then actively listen to the answers. Our pretrial preparation allows us to prepare the best questions to focus the witness’s testimony onto facts.The full discovery process I described above is obviously extremely expensive. Not all Civil litigants can afford that kind of litigation. I may advise potential civil litigants that litigation is not worth it or cost effective if our firm handles the matter. I might also refer the person to another lower cost firm. In some cases, our preparation will be less encompassing. It’s not preferred but realities must be considered.Criminal law is an entirely different situation. The prosecution generally delivers the entire case to the defendant pretrial. There are no depositions or other written discovery. The defense has a limited duty to disclose certain information, such as the intent to assert an insanity defense or alibi defense. Witnesses can be interviewed by both the prosecution and the defense, but cooperation in the form of a subpoena can’t be enforced before the trial. It doesn't matter; both attorneys still have a very good idea about the facts and witnesses cannot be tricked into anything they don’t want to say.I should note that the US civil procedure I described above does not apply in other countries. As a commenter noted, the UK civil process is much different. Barristers are generally not allowed to contact witnesses. That work is performed by solicitors and investigators in an entirely different process.Administrative proceedings are also limited in their pre-hearing process. There is still some requirement that witnesses and documents must be disclosed before the hearing. Although these hearings are a little more informal, there is often very much at stake, such as professional licenses or project permits, so solid preparation is still a requirement.I’m sure most practitioners’ worst fear in the courtroom is not the opposing party’s testimony. It’s their own client’s testimony. It’s not unheard of for the client to “go rogue” and offer totally unnecessary excuses and justifications that wreck their own case. I am always relieved when my client is excused from the stand.It’s not magic. It’s preparation.

Conjecture:Absence of physical dimensionality as we know it - an absence, at the least, of spatiotemporal distance.This is what did not exist before the Big Bang, which may surprisingly mean quite a lot!For the sake of clarity on what my answer precisely means, below is a LONG (but friendly) explanation:It is technically meaningless to ask what existed before the Big Bang singularity. Why so?Statements including time as we know it cannot apply in a situation where all spatial distances are in an initial ‘collapsed’ state of zero magnitude. As time is fundamentally linked with space in relativity theory, it too is sort of ‘degenerated away’ with space.Importance in noting some key features:The Big Bang theory has consensus in describing the known present universe as having expanded from an much smaller state of very high density and temperature. Those are the conclusions made from lots of deductive extrapolation out of observation of deep space (galaxies etc).What is described as having high density and temperature are ‘just’ the aspects of the mass-energy occupying spacetime; what was much smaller was the spacetime itself - the earlier in time you go back, the smaller space is.The known universe is not expanding into any new space with time - space itself is intrinsically expanding. This is the Big Bang expansion.Further extrapolations, whose inclusions in the overall theory are debated, describe this expansion of the universe as having started from a singularity ~13.7 billion Earth years ago. At a finite time in the past, all spatial distances increased from an initial magnitude of zero. This is the Big Bang singularity.On descriptive analogies used for the Big Bang:Numerous popular analogies are used in attempting an explanation of how space itself expands with time. One such example is the ‘expanding sphere’ analogy, an illustration of the known universe as an expanding sphere:All points in the universe (like the mini galaxies shown as white smudges) move away from each other, even though the overall pattern of positions remains the same.Analogies are powerful tools when describing an idea. Another object, concrete or abstract, is presented that is far easier to comprehend. There is an aspect of this object which is similar or identical to a key aspect of the idea you want to describe - this is the aspect you intend to get across. The idea is made easier to comprehend by effectively translating it into a far more everyday situation.Translations are not acts of perfect replication. They are acts of preserving only certain intended features across different mediums, so many other features are unavoidably lost. Use of analogy comes with great responsibility as well as great power; skillful use minimises the risk of misunderstanding.The expanding sphere analogy is powerful in showing how distances between locations can increase while the relations of the locations to each other remain the same. The same analogy is also dangerously misleading in involving addition of points that were previously literally external to the sphere. Furthermore, the distances between the points really just stay the same; the locations actually move along points.With the actual universe, space expands not by addition of new points, but by an increase in the magnitude of the distances between the same ‘old’ points. In a sense, the universe is expanding ‘into’ itself, not out into anything external. This is the correct interpretation of what is fundamentally going on with the expansion from the Big Bang.Visual models to show what the above is all about:Two diagrams are presented below. (Do zoom in on them.)Both diagrams show a universe of one infinite spatial dimension and one time dimension. Space is horizontal and time is vertical, with time progressing upward to the future. An observer is at a location O1 in their present time of T1; T2 and T3 are future times when the expansion of space has progressed. T0 is the extrapolation of the expansion backwards in time to the predicted initial state of all space. Seven other points are shown in relation to each other and O; the dotted lines show their spatial positions with the passing of time. The pair of yellow lines around each point indicate a constant spatial distance on both sides.The above is the same analogy as the expanding sphere, just that infinite space is used instead. Distances only change extrinsically between the moving locations. All points are converged into one at the singularity at time T0. There is also an illusion of the expansion occurring out from the observer’s location.This is a more accurate representation of the expansion. All points are the same as they ever were, never intrinsically moving. Appearance of the movement of the locations from any one of them is due to the distances between the points being the only thing that changes. At T0 there is the same infinite set of points as afterward, here ‘only’ with the distance between any two points in the set being exactly zero. All points A0 to G0 have exactly zero spatial distance between them. This effectively makes it all like a single point, but a single point implies an outside, an outside that does not actually exist.The singularity is a state of lack of spatial distance, but as time is somewhat interchangeable with space depending on one’s velocity and acceleration to other objects (relativity), the singularity is better seen as a lack of spatiotemporal distance entirely.What is above the white T0 line is the universe ‘after’ the Big Bang. What is below the white line is what is ‘beyond’ it, or ‘before’ it, to use the flawed wording in the question. If the line represents the singularity, the line is a metaphorical edge to spacetime as we know it, the edge of the realm of physical location and distance.On conjecturing ‘before’ the Big Bang:There is debate between physicists on if it is justified to extrapolate an actual singularity at the Big Bang, or instead to ‘stop’ around or before 10^-43 seconds after this supposed event (named the Planck Epoch), when quantum effects are predicted to be dominant at the time. This is where ‘normal’ science ends and ‘conjectural’ science begins, as there is currently no known way to obtain any information on what happened this far back.What can be conjectured may be placed into three categories (as I see it):The Big Bang expansion is real but the Big Bang singularity is not; ‘only’ spacetime as we know it was what had formed. What is seen as the singularity by some is actually classical physics’ failure at describing something else entirely: an event marking the emergence of spacetime and mass-energy out of another primordial state. This state may have contained meaningful location and distance but of a less ordered and/or incommensurable form compared to that of current space and time. Physical dimensionality was still a thing but not like anything we know of.The Big Bang singularity is real and marks the entire initiation of all meaningful dimensionality, spacetime included. Regardless of the degree of importance of quantum effects, all meaningful physical location and distance started from the Big Bang singularity. Dimensionality of any form is meaningless ‘prior’ to the singularity. It is not, however, implied that any form of existence is also absent, though it may be the case that physical existence as we know it was absent. It is arguable that dimensionality (e.g. spacetime) is fundamental and prior to any physical entities or processes. If physics is seen as being one and the same as all existence, then…The Big Bang singularity is real and marks the initiation of all meaningful existence. It may be seen that all physical existence needs spacetime or other meaningful dimensionality to happen at all, and if physics is equated with all possible existence, then raw dimensionality is fundamental existence. If the singularity is seen as the initiation of dimensionality, then ‘prior’ to this there is literally nothing at all. Absolute nonexistence was prior to the Big Bang - there is no ‘prior’ to the Big Bang to speak of. There is nothing else to talk about.The first category sees spacetime as just one form of all possible dimensionality, whereas the second has them one and the same. Category three goes all out and sees them as synonymous with fundamental existence itself.So…This is why I said that the Big Bang was, at the least, a transition from an absence to the presence of spacetime as we know it. Spacetime is absent from whatever was ‘before’ the Big Bang. Anything prior to the Big Bang has no spatiotemporal quality.Probably everything you are familiar with needs spacetime to exist. Welcome to being thrown into the unknown.If you read all of the above, many thanks!

I got the idea first from a superb speech[1] former Brexit secretary David Davis gave just over a month before the referendum.It was obvious he had given this a lot of thought and had a clear idea about how to run the post-referendum negotiation with individual EU members —They cannot afford the threat being levelled at Britain, so called “WTO terms”, because they would involve a 10% levy on all car imports.A German Chancellor would have to avoid this, particularly in an election year. In Europe, what a German Chancellor wants, a German Chancellor generally gets.Indeed the first calling point of the UK’s negotiator in the time immediately after Brexit will not be Brussels, it will be Berlin, to strike the deal: absolute access for German cars and industrial goods, in exchange for a sensible deal on everything else.Similar deals would be reached with other key EU nations.France would want to protect the £3bn of food and wine it exports to the UK. We have seen the sort of political pressure French farmers are willing to bring to bear when their livelihoods are threatened, and France will also be holding a general election in 2017.Italy will deal to protect its billion-pound fashion exports. And Poland its multi-billion pound manufacturing and electronics exports.So there is almost certainly going to be a deal, one that maintains a free market between the EU and the UK.But Davis wasn’t alone.Many other formidably clever Leave leaders knew that German commercial interest, especially its car manufacturers’ interests, will trump everything else in negotiations.Here is for example Michael Gove shortly before the referendum[2]I think it would be very difficult for any German finance minister to say to BMW I am afraid you are going to have to lay off workers because I want to punish the British for being democratic by erecting trade barriers...that won't happen.Gove was of course later in charge of no-deal Brexit :-)So there, I got this idea because senior Leave leaders told us so before the referendum. And everyone knew what they were voting for.Including this guy, the cleverest of them allBoris Johnson speaking before the referendum: "I would vote to stay in the single market. I'm in favour of the single market." pic.twitter.com/UCeifCf0dC— Adam Bienkov (@AdamBienkov) October 2, 2016Footnotes[1] David Davis gives a speech making the case for Brexit[2] Gove and Osborne trade blows over EU