GENERAL ADVICE ON THE FINAL EXAM.

1. Strictly enforced: No computers, no books, no notes, no cell phones, no i-Touches, no MP3 players.

2. The final exam will be around 12-13 questions for which you will have 2.5 hours. All questions will require you to make an objection or respond to an objection. You will be making an argument. That requires you to TAKE A POSITION.

EXAMPLES

Q: When did you first meet the plaintiff?
A: At a fraternity party where we were all playing naked beer pong.
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What objection(s) could the plaintiff make?

GOOD: I object and move to strike the testimony about naked beer pong under Rule 403. The evidence involves fraternities, sex and booze, so the high risk of unfair prejudice substantially outweighs the small probative value of knowing where they first met.

BAD: I object and move to strike the testimony about naked beer pong under Rule 403. The evidence involves fraternities, sex and booze, so the high risk of unfair prejudice substantially outweighs the small probative value of knowing where they first met. However, the defendant could argue that this evidence goes to show bias because they were in the same fraternity. So maybe character evidence would be a good back-up objection.
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3. You will have a limited amount of space on the exam itself in which to write your answer, and your entire answer must fit in the spaces provided. You will turn in the exam with your answers written on it -- no bluebooks. Write legibly. Example of a bad answer.

4. Throughout the exam, assume the case is being tried to a jury. Base your answers on the Federal Rules of Evidence and all generally recognized interpretations of the rules of evidence. Ignore any tactical considerations.

5. The exam is to be taken closed book & no notes. I will provide the relevant Fed. R. Evid.

6. Don't panic if you don't know the answer to one question. I will ask a couple of questions that are essentially unanswerable. Getting around 50% of the available points puts you in the B range;
80% will put you in the running for the A-star. Perfection is not expected.

7. Before you plunge in and start writing, make sure you understand the basic facts of the case:
a. Who are the parties?
b. What is the cause of action?
c. What is the central event?
d What are plaintiff's basic allegations?
e. What is defendant's response.
f. Are there any affirmative defenses?
You need to know this for relevancy, helpfulness of opinions, and for a number of hearsay responses, especially "not for its truth," state of mind, and admissions

8. Remember that the best objection or response will not necessarily be the one that first pops into your mind. To combat the natural tendency to jump to conclusions, you may want to adopt the following strategy:
a. Decide what is the most likely evidence rule that will control the outcome.
b. Try to think of another rule that might also control the outcome.
c. Analyze both approaches (in your head or on scratch paper).
d. If you have a stronger argument under one rule than the other, use only the stronger argument.
e. If you have strong arguments under both rules, use them both.
f. If you have weak arguments under both rules: 1) Go back to the beginning and look for a 3rd rule that might cover this situation; 2) If you can't find a 3rd possibility, put down your better answer, even if it is weak; and 3) If you have 2 equally plausible but weak answers, put them both down.

9. It is not enough to cite the correct rule. Remember our formula for objecting:
a. Be specific about what evidence you are objecting to.
b. Be specific about what rule you are relying on. Cite it by name (character) or number (404). Don't waste time copying the entire text of the Federal Rule.
c. Be specific about what language in the text of the rule controls this situation. Don't mention irrelevant parts of the rule.
d. Support your argument with a brief explanation.
e. Move to strike if the jury has already heard the evidence (these are the easiest points you can earn, yet every year, ten people forget this).

EXAMPLES:

Q: When did you first meet the plaintiff?
A: At a fraternity party where everyone was playing naked beer pong.
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What objection(s) could the plaintiff make?

Incomplete answer (4 points): The evidence is prejudicial. Move to strike.

Minimum correct answer (6 points): I object and move to strike the testimony about naked beer pong. The prejudice outweighs probative value under Rule 403.

Good answer: (8 points): I object and move to strike the testimony about naked beer pong under Rule 403. The evidence involves fraternities, sex and booze, so the high risk of unfair prejudice substantially outweighs the small probative value of knowing where they first met.

Incomplete answer (4 points): I object and move to strike the testimony about naked beer pong under Rule 403. Rule 403 provides that "although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." This evidence should therefore be excluded.
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10. Basic formula for responding:
a. Be specific about what portion of the objected-to evidence you are arguing is admissible.
b. Be specific about what rule are you relying on (just its name. number) - note that your response may be different from the objection, e.g., objection 404b character, response 609 impeachment by prior conviction.
c. Be specific about what portion of the text controls this situation
d. Give a brief explanation -- 1) That foundation has been laid [point to evidence in transcript]; or 2) Why evidence is relevant; and/or 3) What material issue the evidence tends to prove.

11. The "offer to connect up" and resorting to Rule 807 are the last ditch arguments of a desperate lawyer. Try to find a better argument.

12. Should you put down more than one objection or response? Only if they are both of equal strength.
a. Don't weaken a strong objection with a weak one.
b. Don't be inconsistent, e.g., that evidence is not hearsay and also that it is hearsay but fits an exception.