Category Archives: testimony

Common Knowledge Exception to the Requirement for Expert Testimony in Professional Negligence Cases – Sometimes Its Child’s Play.

Is the information within the common understanding of the jury? 

Rule of Evidence 702 governing expert testimony does not always apply and bar lay testimony on issues which are just plain common sense. In certain instances the answer to whether there was professional negligence is intuitively obvious and needs no explanation by an expert or anyone else. (i.e. missed statute of limitation date, leaving behind a sponge or tools in a patient’s body following surgery). 

In Indiana, medical malpractice cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body.  See for example:

 Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen); 

 Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); 

 Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and  Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). 

Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery.  Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008). 

This same sort of common sense approach is endorsed in other jurisdictions as well.  See the following examples utilizing the common knowledge exception:
 Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953) (applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); 

 Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides was not required); 

 Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails); 

 Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); 

 Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door); 

 German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); 

 Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); 

 Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001)(case in which the defendant dentist allegedly pulled the wrong tooth); 

 Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); 

 Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); 

 Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) 

 Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); 

 Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); 

 Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267,683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); 

 Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); 

 Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); 

 Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); 

 Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); 

 Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App. 1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence). 

It is important to know your state’s law on this point and plan accordingly.  Hopefully, the cases cited above are of use.

The Case Against Experts in the Courtroom

20120227-001826.jpg“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein

I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:

Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.

Interestingly enough, no mention of depositions is made in the proceedings excluded.

Ind.T.R. 30(C) states in part:

Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).

Ind. T.R. 32(B) states:

Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *

(D) Effect of errors and irregularities in depositions


(3) As to taking of deposition.

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***

Ind. T.R. 43(B) then reads:

Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D).  As a result, I would think a court would find IRE 615 applicable to a deposition.

That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:

Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.

Generic allegations of prejudice were made in Ledden v Kuzma.  A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.

Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.

When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify.  Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.

So, what do you think?

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.

Plotting Your Strategy: Does Your Trial Have a Theme?

PaintingA 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.

Lights, Camera, Action: Directing and Producing Your Trial

imageYou 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.

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.

Direct Examination and Airing Your Dirty Laundry

LaundryThere is no tactic which will better serve you and your client in establishing credibility with the jury then to bring out negative points during direct examination and confronting them head on with believable explanations. If you wait until redirect, then it may be too late to salvage your witness. I always make a list of problems as the case progresses from investigation through discovery and on the trial. Come up with a strategy of either excluding the evidence or find a way to deal with it honestly and persuasively before the jury.

During direct examination, you can ask questions of your client or witness the jury is likely thinking. The witness is then provided an opportunity to take some of the sting out of the evidence by having a friendly questioner take them through the problem. The opposing attorney on cross-examination will be much more reluctant to extensively cover that area and come across as overbearing, looking as if he is desperate as he has nothing else to ask or add to outside of your examination.

The client or witness should be cautioned to stay calm throughout their cross-examination on any such topics. Once the matter has already been brought out to in direct examination, the jury will be looking much more at the witness’s reaction on cross.  If they do not react and you do not react, the jury will likely conclude that the matter is not critical to their decision. Most jurors have never been in a courtroom before and will not consider the points important unless you act like they are.

Helping Your Client Connect with the Jury

20130507-003004.jpgThe more significant a witness is to your case, the more important it often is to let the jury know exactly who they are. Usually, your client is one of the most important witnesses the jury will hear from during the course of trial. When dealing with such witnesses, I will generally cover age, where they live, personal background such as where they grew up, their family, their education and work experience, and any special qualifications which might bear on their credibility or believability as a witness. Such matters are typical covered at the beginning of the witness’s testimony. It’s difficult for someone on the jury to trust the person’s testimony; they may feel like they don’t really know them.

Keep in mind how you relate to people you meet. You typically look for connections and things you have in common. Don’t forget who your audience is. Is there information in your witness’s background that might establish such a connection with one or all the jurors?  What in your witness’s background enhances their credibility? What would you want to know about your witness if you were a juror? Is there something in your witness’s background that might create empathy or understanding for any weakness they may have in communicating? Try to approach each witness with a fresh set of eyes.

Everyone admires someone who overcomes adversity or is hard-working. If there are things in your witness’s background which you can weave into your examination, make the jury went to cheer or root for them, then find a way to present such testimony subtly. A bit goes a long way so don’t beat the jury over the head with it.

When it comes to persons being called for minor matters such as establishing the foundational prerequisites for the admission of documents or other tangible evidence, it may not be as important or necessary to cover matters outside of the witness’s education, training, experience and job duties relevant to their position as a custodian of the document or item of evidence.

Has your client or witness, assuming it is a more significant witness, had involvement in civic or charitable matters? Have they held public office or been an officer in an organization which is positively viewed by the public at large?  These sorts of connections help a juror bond with a witness or client. They are part of who the witness is. Everyone admires those who give back. It helps to show that the witness or client is part of the solution, not the problem. As noted earlier a bit of such testimony goes a long way so don’t overdo it.

Teaching Your Client How to Mind Their Manners While on the Stand


It costs you nothing to be a gentleman or lady.  However, a lack of civility can be very costly.  The manner in which a witness or party testifies is critical to their credibility and understandability to the jury. You want witnesses to testify in a natural manner, but they need to be understood and well received. If you have a witness who talks a mile a minute, then the best way to persuade them that they need to speak in a slower and more measured tone is to allow them to see exactly how they testify.  

I will typically meet with a witness or a client and, through the magic of a cell phone or iPad, record the testimony and then allow them to view it. I then asked the witness or client to tell me what they see and how they would improve such a witness’s testimony if they were in my position. Most people will be a harder critic of themselves than you could ever be.  After we discuss problems with their testimony and their manner of delivery, I covered the same line of questioning again and let them watch the new video.

The only thing a client or witness has absolute control over is their behavior and demeanor.  By emphasizing this point, you can both empower them and relax them.  No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed.  When an opposing attorney senses he has drawn blood, he will simply bore in with more of the same.  A client or witness can tactically overcome this by simply remaining calm and truthful no matter how bad the answer seems to hurt.  

Likewise, the client or witness needs to be cautioned to avoid any sarcasm, insincere or solicitous comments. Remember, this is their chance to make a good impression and show they will be a likeable and empathetic witness to the jury. ​ It’s not their job is not to exchange verbal jabs with the other attorney.  There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.”  Don’t let your client or witness get dirty with the other attorney. Ultimately, they will lose

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