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.
There is no set rule. I would recommend that you play it by ear. If you have a case that is clearly worth a good deal of money, give the jury guidance as to how you calculated damages by breaking down each separate category covered in the jury instruction on damages and assigning a number to it. When doing so, you may want to suggest ranges and provide the jury with a summary chart breaking down the value of each element of damages. I know of one occasion in a case against a national department store where an attorney drew a blank line followed by six zeros ($___,000,000) on the chalk board and pointed to the blank line told the jury this is the only number you need to worry about. His client received a million dollar verdict for a false arrest. Buddy Yosha is slightly less direct and will say in a matter-of-fact tone this is a seven figure case. All of these methods have been known to work.
What ever number or argument you present, you need to do so honestly and sincerely. Also, keep in mind your audience that makes up the jury. Watch them as you argue and you should know what you are comfortable arguing.
In my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters. Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?
Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm? Well a good portion of such evidence may be totally inadmissible.
Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996). The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.
Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors. Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.
However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury. In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).
Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6). Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702. Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004). If the proponent fails to satisfy this foundational requirement, then such records are inadmissible. See Also. Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible). Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.
Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).
Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established. Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay. This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”
One caveat to note on cross-examination of the defense doctor. Rule 703 does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.” However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.
Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.
1.Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman ;- this book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position ;that your client is “a liar, a cheat and a fraud” or completely abandon this position. The book provides a comprehensive approach to simplify your case and deal with a single coherent theme… Is my client telling truth about her injuries?
2. Rick Friedman on Becoming a Trial Lawyer by Rick Friedman – a great book for young lawyers about what it takes to become a real “trial attorney”.
3. David Ball on Damages by David Ball– an excellent book on strategies and methods to help jurors better appreciate the scope of damages and why it is necessary to compensate those who have been damage or injured.
5. Closing Argument: The Last Battle ;- This book is a well-organized ;collection of miscellaneous arguments and analogies which can be ;used to explain and illustrate various legal issues and address common defense attorney arguments and tactics which are used ;to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case. The book has ;a number of very effective arguments which address topics such as calculating money damages for pain and suffering, adverse witnesses, the burden of proof/ reasonable man standard, subtle appeals to prejudice, and other often ;encountered issues in civil cases. A review of the table of contents will give you a good idea of this book’s value.
6. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence – this book will help you fine your own voice and become a more effective advocate for you clients.
7. Exposing Deceptive Defense Doctors by Dorothy Clay Sims ;- this book provides in-depth check lists and strategies for dealing with defense medical examinations of all sorts.
8. Theater Tips and Strategies for Jury Trials by David Ball ;- this book analyzes all aspects of your presentation to juries to become a more effective communicator in the courtroom.
9. The Best Defense by Alan M. Dershowitz– a practical eye-opening guide to what criminal defense attorneys face in terms of bias and corruption in our criminal justice system based upon cases where Professor Dershowitz of Harvard has acted as defense counsel.
10. ;Letters to a Young Lawyer by Alan M. Dershowitz – advice to young lawyers on ethics, professionalism and pitfalls to avoid in the practice of law.
11. I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know By Jim M. Perdue – a wonderful compendium of stories that bring to life how legal protections arose such as trial by citizen jurors and the separation and exclusion of witnesses from the courtroom.
12. In the Interest of Justice: Great Opening & Closing Statements by Joel Seidemann ;- this is ;a collection of notable of opening and closing statements in famous cases.
13. THE ELEMENTS OF STYLE by William Strunk – a short guide on how write clearly and concisely.
14. The Devil’s Advocates by Michael S. Lief – ;this ;is ;a collection of notable of opening and closing statements in famous criminal cases.
15. A Rulebook for Arguments (Fourth Edition) by Anthony Weston – it is a concise guide on argument structure and use.
16. Lawyers’ Poker: 52 Lessons that Lawyers Can Learn from Card Players by Steven Lubet – the book uses poker as an analogical means illustrating various points of law.
18.And the Walls Came Tumbling Down by Michael S Lief ;- ; ;this ;book contains transcripts notable ;closing statements ; made in famous civil rights cases.
19. The Trial Lawyers: The Nation’s Top Litigators Tell How They Win by Emily Couric ;- a behind the scenes disclosure of methods used by experts in litigation to prepare and try cases.
20. The Trial Lawyer: What It Takes to Win by David Berg – this book provides a comprehensive overview of what it takes to win at trial.
21.McElhaney’s Trial Notebook by James W. McElhaney ;- A collection of ;essays on trial advocacy by Professor McElhaney ;covers a number of ;areas involved in modern-day litigation. ;
22. ; To Kill a Mockingbird by Harper Lee – The classic novel of a courageous lawyer taking on the unpopular cause of a black man charged with raping a white woman. ; This book displays the best and worse of our justice system and has inspired a number of people to become lawyers.
There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.