Practice… We Talking ’bout Practice…

“Practice… We talkin ’bout practice.”  – Allen Iverson 2002

Just like Allen Iverson of the Philadelphia Sixers, no one likes to practice, but it is necessary if your witness and you are going to stay in sync.  In order for your witness examination to be credible and persuasive, both the questioner and the witness must be on the same page. Otherwise, the testimony will come across like two ships passing in the night. The only way to get a smooth and flawless examination is for the questioner and witness to know exactly what is expected by the other. Obviously, the most important witness is usually your own client. Any run-through with your client is privileged as attorney-client communications because you are providing legal advice about how to handle their direct examination.  (IRE 501 and I.C.34-1-14-5 and I.C. 34-1-60-4.)  I would videotape the client’s testimony and allow them to see it so they can critique their own the delivery of their testimony.

Make sure you give the witness or your client copies of any earlier statements/depositions and, if possible, have them return to the scene of the incident to check it, note landmarks and refresh their recollection. If at all possible, you should try to meet with the witness or client at the scene of the incident so that you can discuss the scene and make sure you’re both talking about the same thing. If this is not possible, an acceptable substitute is to conduct a virtual tour of the scene utilizing Google maps or Google Earth.

Emphasize to the client or witness that accuracy is the most important thing. This requires that they clearly understand the question and avoid any exaggerations or opinions. They should stay factual in their descriptions. When a witness or client slides into opinions, they enter dangerous territory.  They are prone to guess, speculate, exaggerate or just plain get it wrong.

My own favorite saying is: “Don’t take a good case, try to make it a great case, and turn it into a bad case.” The first rule I learned when  as an insurance defense attorney was to let a plaintiff exaggerate all they want. There is nothing that undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration.

The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when they actually know the facts. Make sure your client or witness avoids using such terminology. It is better to show that you don’t know or recall than to guess or speculate. Also, pay attention to clients who raise the pitch of their voice at the end of sentences.  It makes them sound tentative or like they are checking with you on whether their answer is correct.  You should only raise the pitch of your voice at the end of a sentence when you are asking a question.

Once again, the primary rule is to answer truthfully and accurately.

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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 July 24, 2015, in Direct examination, mock trial, testimony, Trial Advocacy and tagged , , , , , , . Bookmark the permalink. Leave a comment.

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