Category Archives: Direct examination

Getting Your Expert Ready for Court – How to Play the Course and Avoid the Rough.

What does an Expert Witness Needs to Know About Court Proceedings? Here are some thoughts to keep you expert out of the rough:

 
1. Review all evidentiary foundations. You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not
stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.  

2. Standard of proof or level of confidence required. This distinction has
somewhat dissipated. However, a number of judges still require the use of the “magic words.”
Typically, at the beginning, it makes sense to ask that your expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.  

 
3. Reliance on materials outside of the court record. The facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on
inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘If in reaching his  opinions and conclusions in this case, did he use only materials reasonably relied upon by  persons in his field? 

4. Role as an educator/not an advocate. KISS—Keep it simple, stupid! Avoid
technical terms. Use models or diagrams whenever possible. Above all, make it interesting!  The expert should be enlightening, not boring! In this regard, less is more. Get to the point early. The expert needs to be an educator, not an advocate. That’s your job.  

5. Professional demeanor. Make sure your expert has the knowledge and control
to avoiding taking the bait! No matter how the opposing attorney acts, your expert must stay
polite and professional. Avoid sarcasm or insults. Credibility will ultimately be lost.  

6. Review of demonstrative evidence. If you are going to use charts, models or
diagrams, make sure they are properly disclosed in advance, and if possible included with your
expert’s report. Likewise, summaries under Rule 1006 need to be produced in advance.  

7. In court demonstrations or “experiments”. Make sure you practice them and
they will definitely work. You don’t want to hear, “If it doesn’t fit, you must acquit.”

8. Review prior materials for any mistakes or errors. Look one last time for
problems. Deal with any mistakes or error on direct, and deal with any shortcomings honestly.
You will gain credibility and avoid the sting of these topics on cross-examination.  

9. Absent Subpoena Duces Tecum, limit materials brought to court. Bring only
those items which have previously been produced. Be ready to answer questions regarding
compensation paid, and hours of work spent. Remind your expert that he is paid for his time, not
his opinion.  

10. Contrast and compare expert’s qualifications with those of any opposing
expert. Show what he brings to the table that the other expert is missing, whether it is in the way
of experience, time spent, or knowledge. Show the jury why your expert is the better guide.  

11. Cover adequacy of facts included in any hypothetical questions. If you plan
or may ask a hypothetical question, make sure you review the relevant factors in advance of trial
with your expert so you are both on the same page. Write out your question so you are
consistent in the way you ask it.  

12. Likely tactics of opposing counsel. Know your opponent. In the seminal book, “
The Art of War” Sun Tzu advises:

“If you know the enemy and know yourself, you need not fear the
result of a hundred battles. If you know yourself but not the enemy,  for every victory gained you will also suffer a defeat. If you know  neither the enemy nor yourself, you will succumb in every battle.”  

Ask around and learn your opponent as well as yourself and your own case, and you, too, will
have nothing to fear.

Top Mistakes in Choosing Experts

Here they are…  
1. Hiring an expert too late. Experts can be helpful and sometimes essential in
properly investigating and evaluating a case. They can provide guidance in drafting discovery  requests and determining whether information has been overlooked, withheld or lost. They are  also invaluable in assisting in deposition preparation and questioning of the opposing expert.  

2. Being penny-wise and pound-foolish. Do not save pennies and shortcut what
needs to be done at the cost of your case! Go through the cost and benefits of what needs to been
done early on and decide whether it makes sense to pursue your case through trial. For example,
product liability cases and medical malpractice cases are very expensive to litigate. By getting  an expert involved early on, you can assess whether the case merits the time and money required
to be successful. If you defer expert involvement, you may well incur expenses and invest time  that was better spent on another case.  

 
3. Obtaining the wrong type of expert. Don’t bring a knife to a gunfight! Make  sure you understand the science and technical issues well enough to properly select and screen  your expert.  

 
4. Hiring an inexperienced expert. Experience in the courtroom matters. It holds  true for attorneys and experts alike. Get an expert who “has been there and done that.” This is  not the place to cut costs!  

5. Failing to check an expert’s background. You know your opponent will do so,
so why wouldn’t you check your expert’s background? It’s cheaper to check out your expert
than to have to pay for two experts or lose your case because of problems which could have been
avoided.  

6. Buying a Volkswagen when you need a Mercedes. Get the person who fits the
job, not just your budget! As a Plaintiff’s attorney you will lose your case, disappoint a client
and cost yourself money which you can never recover. As a defense attorney, you risk losing a  case and a book of business. If the insurer does want to do it right, then they better be ready to  pay, or overpay the claim.  

7. Forgetting that “Garbage in equals garbage out”. You must provide your
expert with solid evidentiary material or rock solid assumptions if he is opining on ahypotheticalquestion. If your incoming information is not reliable or ascertainable, you are lost from the
start.

8. Failing to educate yourself. You cannot hire the right expert if you don’t
understand the area of expertise involved. One excellent source to check is the Reference  

Manual on Scientific Evidence 3rd Edition published by the Federal Judicial Center, which
covers all of the common areas of forensic and scientific analysis that usually arise in civil or
criminal litigation. Here is the link:  

http://www.fjc.gov/public/pdf.nsf/lookup/SciMan3D01.pdf/$file/SciMan3D01.pdf

9. Underestimating the value of a good communicator. First and foremost, your
expert must be a good communicator and educator. No one will care how smart he is unless they
can understand and connect with him as a person. He has to be interesting and make the jury
want to lean forward and learn more – not take a nap! As Theodore Roosevelt quipped, “No one
cares how much you know, until they know how much you care.”

 

10. Lacking clarity on the issue in dispute and the theme of your case. What is your case’s theme? How does your expert move your case forward? Can you phrase the
technical issues so they meld with your broader themes in the case? Don’t forget the forest for
the trees.  

 

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to  the manner of taking the deposition, or to any other aspect of the  deposition—must be noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An  objection must be stated concisely in a nonargumentative and  nonsuggestive manner. A person may instruct a deponent not to  answer only when necessary to preserve a privilege, to enforce a  limitation ordered by the court, or to present a motion under Rule  30(d)(3).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  if possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you do and you don’t run away from the problem.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

Credibility, Credibility, Credibiiliy

20130507-001518.jpgThere 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.

Outlining Your Questions… Is There a Better Way?

20120209-183103.jpgExactly 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.

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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