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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.

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There is a Difference Between “I Don’t Know” and “I Don’t Remember”

QuestionA client or witness needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something.  If one says, “I don’t know,” something, it means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be retrieved.  At the time of trial, an, “I don’t know,” will be utilized to show that your client is lying. When in doubt, a client should answer, “I don’t recall,” or “I don’t remember,” as opposed to, “I don’t know.”  If a client does not remember, you can salvage their testimony by either refreshing recollection under Indiana Rule of Evidence 612, or the information can be established as past recollection recorded under Indiana Rule of Evidence 803(5). These provisions are discussed below in greater detail.

Indiana Evidence Rule 612(a) provides: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.”  Although this evidence rule contemplates the use of writings to refresh a witness’s memory, it “does not address the method by which the witness’s memory may be refreshed.” Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)), reh’g denied. In Thompson, the Indiana Supreme Court outlined the proper procedure for refreshing a witness’s recollection as follows:

The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to look at the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or stop the line of questioning.

Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). In Thompson, the Court recognized that Indiana Evidence Rule 612 does not suggest, much less require, that a writing used to refresh a witness’s memory have been prepared by the witness. Id. at 160-61.

Indiana Evidence Rule 803(5) provides that the following is not excluded by the hearsay rule:

Recorded Recollection.  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.

Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or (2) before testifying … an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing has matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.

Rule 612 is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c), which governs depositions upon oral examination. See Federal Rule Civil Procedure 30(c) which provides that “[e]xamination and cross-examination of witnesses [during depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”.

If used the document to refresh his recollection, the Court must still decide whether the “writing contains matters not related to the subject matter of the testimony.” Id.

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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