Witness Outlines: Which came first, the question or the answer…

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You getting ready for trial and you are outlining your examination, so how should you do it? What? There is more than one way to outline your questioning? Well, yes… There is.

Buddy Yosha, the Melvin Belli of The Midwest, meticulously outlines his examination and writes out every question and expected answer. He also uses marginal notes to signal general topics of the examination such as background, anatomy, treatment opinions, permanency, future medical expenses and treatment, etc. You get the idea. This system works well for him. Some of the other attorneys in our office have adopted it and have been successful in outlining testimony in this fashion. However, such as system has its drawbacks.

First the outline is very long. I have seen some outlines that have gone well over a 100 pages which can be cumbersome. It is basically a deposition transcript of what you hope to present. When it comes down to studying it, you are lucky to get through it two or three times in a single sitting. It can also lead to the testimony coming across scripted and stiff.

It does the have the advantage of allowing you to fully visualize the expected testimony. If you are pressed for time it can also provide a clear blueprint for the witness’s testimony which would allow a young associate or paralegal to work with the witness and know what to expect as far as the question and answer.

There is an alternative method that I use. I outline the facts I hope to obtain from the witness, in the order I hope to obtain them from the witness. I will write at the top of my outline the legal elements of the claim I expect to cover with the witness (breach of duty, proximate cause, damages, etc.) and list any exhibits by number and description , I hope to cover with the witness. I make the question up as I go. The testimony comes across spontaneous and more conversational.

From my perspective this type of outline can be reviewed multiple times because it is substantially shorter than one which has both the questions and answers. It places the emphasis on your goal, the expected answer, not the question. This forces you to listen to the witness, instead of moving on to your next question. You make up each question as you go which helps you develop the skill of forming questions on the fly. If an objection is sustained, no worry, you simply rephrase the question. It’s second nature to you.

This method forces you to develop the skill of thinking on your feet and adapting rapidly to your opponent’s objections and the Court’s rulings. Most of the time if you rephrase the question, the Court will allow you to move forward. With a scripted witness outline, I have seen attorneys freeze in their tracks when an objection is sustained because they are locked into their script and do not have the requisite skills to rephrase their question quickly. It makes them look like they are struggling and have been hurt by the legal objection. This second method of outlining a list of facts, also keeps you focused on the goal… the witness’s answer.

The only exception to this rule is when you are asking a question which requires information to be loaded into it such as for an expert witness such as a hypothetical question or when words of legal art must be included in the question, such as “Based upon a reasonable degree of medical certainty, what caused Mr. Roger’s numbness in his left arm?”

Hypothetical questions, as noted above, should be written out in advance so that no key facts are omitted. Otherwise your question could be objected to as an incomplete hypothetical or one that either misstates the record.

There is more than one way to outline your examination. Choose the method which works best for you. Both approaches have their advantages and drawbacks. Good luck!

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on May 26, 2014, in depositions, Trial Advocacy and tagged , , , , . Bookmark the permalink. Leave a comment.

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