Monthly Archives: August 2015
There are three things to keep in mind when preparing a witness… Credibiliy, credibility, credibility. Let’s face it; the most persuasive witness is the witness who is most credible. Such a witness speaks clearly, calmly and plainly, does not exaggerate, does not dodge the question, and is able to look the jury right in the eye as they testified. They do not argue, make flippant remarks or engage in sarcasm. It really makes no difference how smooth your witness is, how nice he looks or whether he is glib, if he is not believable. A con man may have these traits, but that doesn’t mean a juror or jury would trust them. A party or witness needs to resist the temptation to make their testimony better than it really is. As mentioned before, “you don’t want to take a good case, try to make it a great case, and turn it into a bad case.” Here are a few general tips in checklist form for your witnesses:
1. Review any relevant documents, especially statements or depositions.
2. Review any exhibits with the witness and make sure they can authenticate them properly.
3.G o back to the scene of the incident at issue and take in all the details. The witness should try to visualize what occurred.
4. Dress appropriately in business attire or a suit if proper. Do not dress in a flashy manner.
5. The witness should be advised of any exclusion/separation orders or motions in limine which have been granted. Regardless the witness should stay outside of the courtroom until called to testify and should refrain from speaking with other witnesses or strangers who might be a potential juror or witness. Tell the witness they are not allowed to talk with anyone about what has happened in the courtroom.
6. If asked if you spoke to anyone, be honest and say yes. Advise the witness that there is nothing wrong with speaking with you before testifying and if he is asked about it there is nothing to fear. This is part of the preparation process so that the jury’s time is not wasted and evidence can come in an orderly fashion. Emphasize the need to be truthful and accurate and tell the witness if they are asked that this is the primary purpose in meeting with them in advance.
7. Always be a lady or gentlemen no matter how rude the other attorney might be.
8. Conduct yourself in a dignified manner. No chewing gum or tobacco in the courtroom. Be mindful that once on the grounds you never know who might be watching. This includes attorneys, jurors or the judge.
9. Take the stand and clearly accept your oath in a calm fashion.
10. Speak loudly and clearly so that all the jurors can hear your answers and look at them when you answer.
11. Be yourself and speak in terms you are comfortable with, but avoid slang or curse words.
12. Stay factual and avoid exaggerating, guessing or giving opinions where facts will do the job. Stay away from terms such as “I believe” or “I think” as they indicate that you are guessing. These terms create “milk toast” answers of little evidentiary value and are dangerous. If you don’t know the answer or cannot recall then simply say so. Again, don’t guess or speculate.
13. Do not memorize your testimony. Pat answers lack the ring of authenticity and candor.
14. Listen carefully to the question and do not answer a question that you do not understand or which has more than one correct answer.
15. Do not quarrel or argue with the other attorney no matter what.
16. Give a direct answer to a direct question. If it can be answered yes or no, then answer it in that fashion. Do not try and explain the answer if an explanation is not asked for by the other attorney unless an explanation is truly required. Before doing so ask the attorney politely, “May I explain my answer?” If he or the judge says no move on and wait for the next question to be asked.
17. Be careful of absolute terms and questions to “box” you in as a witness. This includes question that use language such as “So that is all that happened?”, “You are sure?”, “So you never did…?”, “You always…?”, etc. It is better to respond ”That is all I can recall,” if you forgot something. The answer, “I don’t know” means it has never been in your brain, while “I don’t recall” means the information sought has been in your consciousness, but you are unable to retrieve the information at the moment.
18. Cover with the witness the foundation for “refreshing recollection” under IRE 612 and “past recollection recorded” under IRE 803(5)
19. Don’t try to sneak in answer. If there is an objection stop immediately until the Court has ruled and you have been either instructed to move ahead or a different question is asked.
20. Don’t play attorney and object to questions yourself. That is the role of the attorneys, not the witness. That being said, you always have the right to understand the question being asked.
21. If you have received a subpoena and witness fee, know that this is perfectly appropriate. If asked, “Are you being paid for your testimony?” answer, “No, I received a witness fee for my time. My honesty is not for sale.”
22. If you are on the stand for an extended period and are tired or need to use the restroom, ask for a break. However, do not speak with anyone during the break. This is inappropriate and could lead to claims or arguments that you were being coached.
23. Most importantly: always testify truthfully and accurately.
Exactly how do you want to format your questions? There are several schools of thought on this matter. I know successful attorneys that literally script out every question and every answer to the question. In this way, the attorney can visualize exactly what will take place in the courtroom. Such a format also allows someone else, such as a paralegal or another attorney, to go through the outline with the witness even if you were not available to prepare them. The downside of such an outline is that usually ends up being extremely long like a deposition transcript. Also, when you work through the testimony in that fashion you can become a little too pat and maybe even a little stale, reversed and staged.
I will typically prepare an outline starting with the witness’s qualifications and background and then work through the evidence I wish to get from the witness. Instead of questions, like the game show Jeopardy I write out only the answers. Instead of 80 page outlines, my outlines typically run 5 to 12 pages. The advantage of such a system is that you can check your outline quickly. You focus on the answer you need to get instead of the questions. I form the questions on the fly as I come to each new fact I must elicit from the witness. Your questions come across more naturally and do not seem staged or scripted since they are slightly different each time. This keeps your witness alert as well.
Initially, this will take a little extra effort. However, you will be rewarded by developing this skill of being able to formulate questions on the spot. If an objection is sustained to a question you ask, instead of staring blankly at your outline, you will rapidly formulate a new question which will hopefully obviate the objection raised.
On the top of each witness outline, I like to write the elements of my claim that the witness will help support and any evidentiary foundations that might be required of the witness and legal authority supporting the same. Another way of accomplishing the same end is to place the foundational prerequisites on a Post-it and affixed to the back of the exhibit.
You want to look organized and prepared for the jury. Your mastery of your own exhibits will go a long way in impressing the jury of your command of the case and your competency and professionalism. Need a system to keep all your witnesses and exhibits organized? Sometimes the best system is the simplest one.
I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or, if it’s a record keeper, I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetize the folders from A to Z.
In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.
Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.
I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.
I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list I also have columns to note if an exhibit was tendered into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.
I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.
I have successfully used this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.
On direct examination Indiana Rule of Evidence 611 requires you to use non-leading questions to elicit information from a witness. Like a good journalist you must uncover the Who, What, Where, When, Why and How. Incorporating these words into your questions will avoid leading the witness and prevent objections concerning the form of your question.
Like a good journalist covering a story, jurors are going to want to know the who, what, where, when, why and how of the witness’s story. As the writer Rudyard Kipling so aptly put it:
I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
and how and where and who.
Make sure to take advantage of primacy and how you structure your examination so that the most telling points of the witness’s testimony will stay with the jury. To formulate your questions in a non-leading fashion, make sure to use these common terms.
Questions typically have to be asked in a non-leading fashion. That being said, there’s nothing to prohibit you from asking topically leading questions each time you introduce the jury to a new topic. Just like the journalist, you can use transitions to act as headlines for what is coming in your examination. For example, you could introduce a topic by stating: “I would like to talk with you about the day of the accident. Would you tell the jury how your day started on June 15, 2012?” You can also build your examination on testimony that has already been provided the witness. So if the witness provided you with testimony on a topic, you can link your next question to the information already provided. The witness tells you that they were in shock after the collision, you can follow-up with a question such as, “You said you were in shock after the collision, how did that affect your ability to communicate with those around you?”
The use of non-leading questions makes the witness the focus of the jury’s attention and allows for a more narrative and natural delivery of information to the jury. This enhances the witness’s connection with the jury and their credibility.
A theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.
There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:
This is an important case. It’s important for a lot of reasons – as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.
Below is a short list of some themes:
a. Safety – We do not allow profits to take priority over safety.
b. Keeping Promises – A man’s word is bond.
c. Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.
d. David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.
e. Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.
f. Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.
g. Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.
h. Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.
i. Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.
Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.
Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.
Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.
This is vexing problem which can take weeks and cost clients thousands of dollars in attorney time. Please read this practical solution…
Courts and litigants have long struggled with the question of how to describe email chains on a privilege log. Should you log only the most recent email, or log every email in the chain–or something in between? New York has recently adopted a potentially burdensome rule on this topic–one that cries out for an Excel solution.
Effective September 2, 2014, Commercial Division Rule 11-b imposes new obligations on litigants in New York Supreme who create document-by-document privilege logs, as opposed to the now-preferred “categorical privilege logs.” See here to read the rule. Among other things, entries for email chains should now indicate “the number of e-mails within the dialogue.” Rule 11-b (b)(3)(iii). That means you can log only the most recent email in a given chain, but you need to also disclose how many emails are in the chain.
How, exactly, does one figure out the number of emails in every email…
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You are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This Rule provides as follows:
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
There will be times when you will have to call either the opposing party or a hostile witness to make your case. Do not forget that you are allowed to treat that witness or party as if they are on cross-examination. In all other instances, any witness called in your case in chief must not be asked leading questions. The court also has the power to limit your examination if it delves into matters which are irrelevant, repetitious, confusing, misleading, or unfairly prejudicial. Almost all evidence is prejudicial, otherwise she wouldn’t present it. It’s only when the evidence is unfairly prejudicial and the prejudice substantially outweighs its probative value that it may be excluded. (IRE 403) With these thoughts in mind let’s delve into the organization of your questioning.
A witness’s testimony has to have a clear beginning, middle and end. The beginning typically involves laying out the witness’s personal background and their opportunity to observe. Usually at the beginning of the examination you are establishing for the jury why they should find your witness a reliable source of information.
The middle part of the testimony is typically the meat of the matter you need to address with the jury. Remember, you might know the case like the back of your hand but the jury doesn’t. As a result, it’s important to address issues in a chronological fashion and to avoid the use of pronouns. This is true not only for your questions, but the witness’s answers as well. A jury will easily get lost if you do not use the names of the persons involved. When it comes to your client, never use the word “plaintiff” or “defendant”. That sounds like your client is not a human. You want the jury to connect with your client on a personal level. Once you’ve established in a clear fashion as part of a witness’s testimony that the opposing party identity (for example “the plaintiff, John Smith”) you might want to resort to using the term “plaintiff” or “defendant” in referring to the other party.
Finally, always end the witness’s testimony on a high note. Try to structure your examination so that you leave your strongest point with the jury as you sit down. Remember the power of primacy and recency effect. People tend to remember that which they hear first or which they have heard most recently. The first item in a list is initially distinguished from earlier activities as important (primacy effect) and may be transferred to long-term memory by the time of recall. Items at the end of the list are still in short-term memory (recency effect) at the time of recall.