Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is an excellent instructional package. It integrates text, video, and exercises, providing the multi-dimensional and experiential approach crucial to skills acquisition. The section on Objections is especially impressive. I recommend it highly.


Evidence: Skills, Strategies and Assignments for Pretrial and Trial is a very impressive piece of work. I have not seen a trial practice book like it -- one that develops a rich set of facts that can be used for instruction on all phases of both a civil and a criminal trial, from start to finish. In one volume, the book provides explanations, instruction, tips and exercises on all aspects of trial -- developing a theory of the case, making objections, writing and arguing motions, opening and closing argument, presenting exhibits (including the most up to date electronics), and of course examining and cross-examining witnesses. It also provides the basic rules of evidence, with examples and explanations. The book’s emphasis on professional ethics throughout the book is also a big plus. The book should be popular with students and new lawyers because its style is very engaging; its exercises are very challenging; and the preparation it provides for those exercises appears to be highly useful and pitched at the right level.


"Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is a strikingly helpful package (the book includes the “Freck Point” trial DVD and case files CD) for students and professors alike—no more searching the internet for video clips of trial scenes, or examples of documents, that may be only tangentially related to the course materials.  Berger, Mitchell, and Clark provide a compact book (making the use of other materials easy) that integrates into each section (objections, motions, exhibits) the appropriate video example.  When I require that students in Expert Evidence participate in a mock trial, they always want to see an example of what is expected of them, and I regularly use the Freck Point DVD in class as I teach each skill.  It is easily the most impressive and professionally-produced trial practice video I have ever used or seen in 25 years of law teaching.  I highly recommend this book/DVD/CD/website as a secondary resource for advanced evidence or trial practice classes."

Professor David S. Caudill, Arthur M. Goldberg Family Chair in Law, Villanova University School of Law


Colin Miller, Editor of Evidence Prof Blog and Assistant Professor at John Marshall Law School (Chicago) wrote this review of Evidence: Skills, Strategies and Assignments for Pretrial and Trial

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. BergerJohn Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

Well, let's start with the goal of the book. According to the authors,

The goal of this book and the Freck Point Trial movie is to fill the need that law students and lawyers have for practical skills instruction on how to apply evidence in professional settings: in motion practice (motions in limine); during depositions; in alternative dispute resolution and in trial. Generally, traditional law school evidence courses teach legal doctrine, but not how evidence law works in real world practice. As a consequence of the lack of skills training on evidence, new lawyers are ill equipped for pretrial litigation and in trial settings....

Evidence Skills, Strategies & Assignments provides practical pretrial and trial advocacy experiences which teach evidence skills. By including a movie that shows the skills of experienced trial lawyers working with evidentiary issues, the book is a ground-breaking way of providing a model of performance skills.  

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is broken down into 6 chapters: (1) Chapter 1. Introduction; (2) Chapter 2. Objections:  Skills and Strategies; (3) Chapter 3. Motions:  Skills and Strategies; (4) Chapter 4. Exhibits:  Skills and Strategies; (5) Chapter 5. Assignments; and (6) Chapter 6. Morgan’s Evidence Handbook

The book is accompanied by a DVD with the 135 minute Freck Point Trial, a simulated trial that Professor Clark describes on the Pretrial, Trial, Appellate & Evidence Blog as follows:

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the project of renowned  true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial.

I've had a chance to watch the entire DVD, and it really provides an excellent tool for students to learn how to conduct a trial from start to finish.  The trial is a civil wrongful death case in which the plaintiff claims that the defendant-husband murdered his wife and the defendant claims that his wife was killed by an intruder. The simulated trial is broken down into 6 chapters: (1) Jury Selection; (2) Opening Statement; (3) Direct & Cross of Plaintiff's Witness; (4) Direct & Cross of Expert Witness; (5) Direct & Cross of Defense Witness; and (6) Closing Argument. Most chapters have one of the attorneys (actual veteran trial lawyers) in the case initially describing the importance of each stage of the trial and the strategy that they use. We then see each attorney putting this strategy into practice as they strike jurors, make objections, and use visual demonstrations to drive home their points.

You can see a preview of the simulated trial by clicking here. The trial is accompanied by a CD which contains a case file with exhibits, witness statements, legal documents and other things pertinent to the case. The simulated trial and this case file are then integrated into the book through readings and assignments. For instance, in Chapter 4, students are given a sample stipulation that might have been used in the Freck Point Trial. And, in Chapter 5, students are asked to file motions as if they were one of the attorneys in the trial Here is one example:

As your instructor directs, defense counsel will either make a motion in limine or object to Montgomery’s following testimony and prosecutor/plaintiff’s counsel responds to the defense motion or objection:

1.   Testimony that Homicide Unit’s Sergeant Kameron called him at home and told him that patrol officers had just arrived at a house in the Freck Point neighborhood in response to a 911 call placed by the home owner Sam Griffith. Kameron said that a patrol officer found Sam Griffith’s wife stabbed to death in the bedroom of the house. According to Montgomery’s testimony, Kameron told him to go to the Griffiths’ house.

Director Richard  Linklater, who taught himself how to make movies, once directed the movie, It's Impossible to Learn to Plow by Reading Books. The point of Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is that it is impossible to learn how to conduct a trial by (just) reading books. Instead, it let's students see a simulated trial that is, in a sense, even better than the real thing. And then it asks them to role play, to step into the shoes of the lawyers in the Freck Point Trial, to make motions, to question witnesses, to make opening and closing statements. It is highly recommended.

Published on Evidence Prof Blog on June 14, 2011