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Mastering the Heart & Soul of the Trial: Direct and Cross Examination

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Mastering the Heart & Soul of the Trial: Direct and Cross Examination

A trial is really won or lost through the evidence, not through a flashy closing argument. In trial, evidence is presented to the jury through both direct and cross examinations of the witnesses. This course will help you hone the necessary skills to successfully present testimony and exhibits to the jury through direct and cross examinations of fact witnesses at trial.

Transcript

Welcome to Mastering the Heart and Soul of the Trial: Direct and Cross Examination. I am your host today. My name is Alison Baldwin. I'm a partner at Faegre Drinker Biddle and Reath. I've been practicing in litigation for about 25 years, and my specialty is patent litigation. But the things that we talk about today are going to be applicable to any type of litigation that you specialize in. Our goals today are about providing the basic principles and tools that will help you in your direct and cross-examinations. Now, the things that we talk about today will sound very simple and very logical. And they are. And they are the foundation. And putting these principles and practice is the key to success. And it's amazing how attorneys can get themselves into a mess at trial by not following these logical and very simple steps. And all it is, is practice understanding these simple guidelines and then practicing them. So today we're going to walk through those and get you comfortable with the basic techniques and principles so that you can start to experiment and become more advanced and more theatrical in your presentation. As long as you have the fundamentals down, then the rest of it is all about your own creativity and your own personal confidence in the courtroom. Now, because we are going to be presenting this across many different jurisdictions, many different states, we're going to focus on the federal rules because we have attendees that. May practice in different jurisdictions. And we want to make sure that the rules that we talk about today are applicable to everybody. So even if you are in state court, usually a state court, their federal, their rules and of civil procedure and of evidence will mimic those of the federal rules. So the guiding principles will be applicable to everybody. The other limitation to our talk today is the types of witnesses. There are two types of witnesses in a trial. Fact witnesses and expert witnesses. Now, because we are only together for an hour, we're going to focus on fact witnesses. Those are witnesses with personal knowledge about what they are testifying about. They are going to be limited to things that they have seen. They've heard they've witnessed, um, documents that they are personally familiar with. They will not be able to provide any opinion testimony. Opinion testimony is provided by an expert witness. And that's all. Whole session all in of itself. So we're going to focus today on just fact witnesses. So let's kick in, preparing your direct examination. Now the big picture overview. Many people think that cross examination is what wins a case because that's what you see. That's the role of the theatrical trial scenes that you see on TV. But the fact is that it is the direct examination that is either going to win or lose your case. And that's because that is how you put in the evidence that you need to support your case. Whatever you have the burden of proof on, you have to present through your direct examination. And if you can not show that all of the factors are met by the end of trial, through your witnesses and your documents that come in through your witness, even if you have the best cross examination in the world, you can't win because you haven't put in the necessary facts and evidence to support the elements of your case. And for the factfinder, that's either the jury or the judge. If this is a bench trial, the case will often come down to those facts that are in dispute. And with your witnesses under direct examination, you have the opportunity to introduce the disputed facts in the light most favorable to your case. So direct examination truly is the heart and soul of your trial. Now, there are three things you need to keep in mind. One is that you have to know your case. And what do I mean by that? Or you're thinking to yourself, Of course, by the time I get to trial, I'll know my case. But you have to remember, what do I need to get into evidence in order to meet all the elements of my claim that am my case, that I need the jury to make a decision on at the end of this. You also have to know your themes. So every case is going to have a theme. Some storyline that that goes from start to finish throughout your case that will resonate with the jury. You want to interweave those themes into your direct examination with your witnesses. And you also need to understand how your witness fits into your case. Why are you presenting this person at trial? Why does the jury or the judge need to hear from this witness? Understand how they fit into the overall story. Are they a main character? Are they a side character? And how important their role in the story also dictates how much time you need to have them on the stand? What do you need to cover with them? And that's when we get to the the key things you need to think about as you are preparing your direct examination. What do you need to get out of this witness? So what I mean by this is what facts does this witness have that you need to get into the record to establish the elements of your case? What did the witness do? What did the witness see? What did the witness hear? What you also want to think about what documents you need to put into evidence through this witness. Is this witness named or a recipient on a key document that you need into evidence? And there might be some witnesses like a records manager who is only on the stand in order to establish that certain documents are business records, in order to be able to use those documents with another witness later on. Think about how that witness relates to the documents that you need in in evidence. The other thing you want to think about is. Does your witness need to corroborate other testimony in the case? So sometimes this witness might not be the main witness in the case, but they can corroborate testimony of the main witness. So think about how they interrelate with the other witnesses that you're presenting to the jury. Now you want to think about what you would like to get from this witness. So once you get all this stuff that you really need, what other stuff would you like to get? So is there a testimony or facts that would help build or strengthen the credibility of your witness or the credibility of another witness that you're putting on the stand? And you also want to think about what bad facts there are in the case and how to deal with them. Every case will have bad facts for you. That's just how it works. You're never going to have all the facts favorable to your case, but how you address bad facts will dictate how they get perceived by the jury. Some facts might be better to present directly during your direct examination with the witness so that they can be presented in a way that's more favorable and the witness has more latitude and explaining the facts. So maybe they aren't as bad that way, or you might want to wait and just deal with them on cross-examination. It depends on how important the fact is. It depends on how your witness can handle it. It depends on how likely you think that the other side is going to present them to the jury. So that's another consideration. Do you want to address bad facts up front with this witness or do you want to wait and prepare them to handle it on cross? We'll discuss more about preparing your witness in a few minutes. Now let's talk about the structure and flow of the direct. So we have had this background, you know, these guiding principles that we're trying to to get in through this witness the facts that we need, the facts that we want, and then other things that might be helpful. So how do we set this out in our direct examination? Well, there is a basic structure and flow of the direct examination, and we're going to walk through that basic structure and flow. Once you are comfortable with direct examination, you can play with this a little bit. You might not do it exactly in this order, but this is just a general purpose structure that will help get you started. And then as you become more comfortable, you're going to be able to be more creative with how you want to handle things. So let's talk first about. The introduction. And that seems kind of kind of logical, right? But what kind of introduction do you need for a witness? What you want to think about is you want to let the jury know right away what role the witness plays in the story. When a witness takes a stand, the first question that in a jury's mind is who is this person and why do I need to hear them? The jury is there not, of their own accord. They want this to be done as quickly as possible, and they want it to be as interesting as possible since they're stuck there listening to this. So you want to always let them know right away why they should pay attention to this witness. Throughout today, we're going to be pulling examples from some public case transcripts. And the first example we're going to talk about is from a patent infringement case in the District of Delaware, Genzyme Corp v Zydus Pharmaceuticals. And here is a very basic example of an introduction. And why. Why does this matter? This seems pretty basic, right? Well, what I'm what we're telling the jury right away is who this witness is. This witness is Dr. Dale. And why do they need to listen to him? Because he is an inventor on one of the patents in the case. Here's another example, and this one is from the Johnny Depp v Amber Heard litigation that occupied so much attention in the spring of 2022. And this is the direct examination of Mr. Keenan Wyatt. And you'll see in this direct examination the counsel. Established a couple of things. First, they established who the witness was. They established the area that witnesses from establishing that the that Mr. Wyatt was from Thousand Oaks, California, which was probably as similar geography to a lot of the jurors. And they also established what he does for a living. He's a sound technician on feature films and that he's been doing it for over 35 years. So right away we know that Mr. Wyatt is probably one of our neighbors. We know what he's been doing as a career and how long he's been doing it. So he's established that he's got a lot of credibility in the area. Then they went on and they asked him, how do you know the the plaintiff? And in this case, he'd known the plaintiff for over 25 years. And he said that they were good friends and that he had worked with that plaintiff before. So we know a lot about this witness. And just a few questions. We know where he's from, his occupation and his relationship with the plaintiff, all established as soon as he took the stand. So next, we want a little background on the witness and why do we want to give any background information? Well, that's all about establishing credibility. We want to help introduce the witness to the jury and lay the foundation that this witness has personal knowledge about what he will be tested he or she will be testing about that. They have personal knowledge about the documents in the case. You don't need the witnesses entire life story. The jury just needs to be able to connect with the witness and have a feeling for who he or she is and why they are trustworthy. You want to humanize your witness and build their credibility with the factfinder. So in our. Or going back to our witness, Dr. Dale, in this excerpt, we see that he establishes that he went to Harvard Medical School, that he was the dean of the medical school, that he was president of the American College of Physicians, and that he is the author of a medical textbook. In two questions, we were able to establish a lot in the way of credibility with this witness. The jury jury understands why this person would have personal knowledge and why it's important to listen to him and helps humanize who Dr. Dale is. Similarly, if we look at Mr. Wyatt, our example from before in this series of questions. The Council establishes how many films Mr. White had worked with the plaintiff, and they also established that Mr. White is not employed directly by the plaintiff, which is important to help with his credibility so that the jury understands that his his finances aren't tied to the plaintiff. Credibility is key. If a jury does not feel that a witness is credible, doesn't matter what they say, they are not going to be believed by the jury. So the key thing is credibility. So now we've introduced our witness and given a little background and humanize them for the jury. So now we get into the body of the direct examination, and this is truly the heart of the testimony. And what you always want to keep in mind is that the witness is the star. It has to be in a question answer format. You're going to direct the witness through their testimony. And as in very simple question, answer format, you do not want your witness to go on a lecture or to ramble on in their answer. You must control the flow and the pace of the presentation. And why is that? Well, the key thing is that the jury will lose interest in some very important points. Might be lost on the jury if those points are made in the middle of a long and rambling testimony. It's your job to keep the witness on track. And that's where these simple question answer format is key because that is how you guide the witness and how you control the flow and the pace of the testimony. You have a lot to accomplish in a short amount of time when that witness is on the stand. So you need to think about the jury's attention span. And you also need to keep in mind that in a lot of courts, you will have time limits on how how much time you have to present your entire case. So you have to be very cognizant of how much time you have for this specific witness to be on the stand. So it's important that you control the pace and the questioning. So let's talk about setting up the questions. The key thing with direct examination is you cannot lead. That's federal rule of evidence. 611 C. Leading questions should not be used on the direct examination except as may be necessary to develop the witnesses testimony. So. The takeaway is that you will be limited to open ended questions Who, what, when, where, why? Describe and explain. If you start a question with one of those words, you will keep yourself out of trouble and leading. Now there are times you can lead, but those are limited to just non objectionable testimony. But what does that mean? So our questions that we had earlier, where we were introducing the witness or laying the background foundation about why that witness is there. Those are typically not objectionable areas of testimony. And so in order to get through that quickly, the court is going to let you ask leading questions in order to get the witness introducing themselves and explaining why they are there. You can lead on those types of questions, but once you get into the body of your questioning, in order to be safe, especially as a beginner, always stick with the the open ended start. Who, what, when, where, Why? Describe. Explain. You also want to keep in mind that you're going to want simple questions that both the jury and your witness can follow. You're going to want to lay foundation and then build. We're going to talk about that in a minute. And you also want to keep in mind that you are there to help your witness. This is all new for them. And you are the one who they are relying upon to help them through this process. So let's look first at the leading question. So I've got two examples here and the first one. Mr. Chu says During the decades that you have known Mr. Depp, to what extent, if any, are you aware of any woman other than Ms.. Heard accusing him of abuse? This is not a leading question. Why? Because it allows for more than one answer. Because he says. To what extent, if any, that opens up the the number of answers that can be given in response to the question. Now, let's look at the other example. Mr. Chu says you are not aware of any woman other than Ms. Heard accusing Mr. Depp of abuse. Are you Mr. Chu? Now, in this situation, because you are ending it as a yes or no question? Yes or no answer, it is a leading question. So this would be a good question on cross, but you cannot use it on direct. You must always give the witness several options for answering. And once you have. Gotten more familiar and more comfortable with what is a leading question versus not. Leading question. Then you aren't going to be as tied to those introductory words. But even once you are not tied to who, what, when, where, why? Describe. Explain. You still want to keep the question simple because you want to jury to follow along and you want to keep it easy for your witness to give a simple response in return. We talked about laying foundation and then build. What do I mean by that? You want to use short, specific, open ended questions that will avoid objection and also set the stage for the jury. It helps the jury follow along. And you want to. Lead the jury through small steps because they don't know your case. You know where you're wanting to go. You know how all these different facts interrelate with each other, You know, the whole story. But they're getting at one little piece at a time. And so you always want to lay the foundation first and then build from that. Establish that your witness has an understanding, a personal understanding of the questions, and then go from there. You also have to keep in mind you are there to help your witness. The witness needs to understand that they may not remember every detail, and that's okay. You can remind them in the question that it's okay if they don't remember every detail. You can say things like describe for the jury as best you can. Or I know you may not remember word for word your conversation, but tell us the essence of what you said. Things like this will help your witness feel a little more comfortable if they don't remember exactly how something happened many years ago. You also want to keep in mind that you are there to help the jury. You have control over the presentation to the jury. You can use transitions to help guide the jury from one area of testimony to another. If you are switching topics with your witness. It's okay to let the jury know that and to say things like, you know. Mr.. Dr.. Dale. Now that we have discussed your role early on in the Minchin process, let's talk about the patent application. This is a simple transition to let the jury know like, hey, we're switching topics and, and help them follow along. You are the director. Think of it that way. You let the witness know when they need to speak up and slow down. It's. It's okay. If your witness is nervous, they might speak very softly. And you need to just remind them that they need to speak up so the jury can hear them. You also can go back and ask for clarification. So if your witness says something and you're not sure that the jury caught it, it's okay to go back and ask again and ask the witness to clarify something that they just said to make sure that the jury got it. And if you're using demonstrative exhibits, you want to always make sure that the jury is following along. And the transcript is clear as the witness is talking about the illustration that or that demonstrative exhibit that they're testifying about. And at the after you have. Gone through the body of your questioning. You've you at this point have gotten in all of the evidence that you need to get in from from this witness. You've gotten in all the documents you need to get in for this witness. Then you get into the closing. And what is the closing? This is the last thing you want the jury to hear from your witness. So now is the time that you want to kind of use this to tie the testimony into the theme of your case. If you haven't been able to do it through the substantive testimony itself. So here's an example of a closing. We're back with our doctor, Dale. And in this case, we asked Dr. Dale, looking back on his role in the development of the drug, what what is his personal assessment of this significance? And he testified about how, you know, he was very satisfying as a researcher to have his hypothesis prove out to be true and that he is satisfied bringing something that was useful for health purposes and that he had friends who received the drug where it was life saving and it made him personally satisfied. That's the last thing we wanted the jury to hear from. This witness is important for them to understand both the importance scientifically, but also on a personal level. And we were able to tie that all back together for them. Let's look at our example with Mr. Wyatt. So in at the very end, they asked him, you know. This was our question. We just just used as our example for a leading versus non leading question. You know, to what extent, if any, are you aware of any woman other than misheard, accusing him of abuse? And our witness said, I've never seen Johnny abuse anybody, ever. Thank you very much, Mr. White. That's all I have. That was the last thing they wanted the jury to hear. That's why that question was saved for the closing. Now, after you have finished your direct examination, don't relax. After you've finished. You don't just sit back and relax while you're opposing counsel cross-examines your witness. You must be vigilant. You must listen for objectionable questions, particularly questions such as that are outside the scope of your direct or if the cross-examining attorney is trying to do an improper impeachment. We'll talk about those in just a minute. You also want to listen for areas that might need clarification when you. Redirect your witness. So. For redirect. This is this is where you have an opportunity to come back and give your witness an opportunity to either clarify something that they weren't allowed to give a complete response to or to correct anything. Now for redirect. It's important to be judicious in what you ask. Just because your witness may not have handled a question perfectly on cross doesn't necessarily mean that you need to spend time on redirect, because you must remember you can't leave. And so sometimes your witness might not realize or appreciate where you are wanting them to go in your questioning. They might not understand that what you think is wrong with how they answered it before. And so if they can't appreciate what you're wanting them to answer, it will be very frustrating for them and often will make things worse rather than better. The other thing you want to think about is there might have been an answer that your witness gave that seems not great, but did the jury catch that? It wasn't great. They might not have it might not have made that big of an impression on the jury. You need to kind of watch the jury as well when you're paying attention during the cross-examination. Sometimes it might highlight something that you don't want highlighted if you bring it up again on redirect. Is this an area you really want to reemphasize? And then if you do, do a redirect, then you also want to think about what do you want the witnesses final words to the jury be. That's very important. Don't get up and redirect and not think about what you want that final statement to be. So let's go back to our Dr. Dale example. So in this one, we state that the cross-examining attorney had asked questions about a certain document and we pointed the the witnesses attention to the beginning of this document on paragraph one and what that statement was and the date of that document. And then we ask. At that time. Was Dr. Dale aware of of data in the first clinical trial? And he said yes. And how long had you been specializing in the area of white blood cells and stem cells at that time? About 30 years. So why did we do that? Because we wanted to establish that his impression of that document was based upon 30 years of experience, and that wouldn't necessarily be the impression of someone else with less experience. That tied in with our theme of the case. So that was the last thing we wanted the jury to hear and appreciate. The thing to keep in mind is that in every cross-examination, mistakes will happen. And that's okay. Remember your. When your witness forgets or can't remember something, you can refresh their recollection with documents or with their prior testimony. And what if your witness, you know, keeps talking or skips over a question that you had planned? Keep in mind that if you get 80% of what you had hoped to get with that witness, then you did just fine. It's unlikely you will get everything on the stand that you wanted to get out of that witness. If something is really important, it's okay to go back and ask questions to re-emphasize that point. But if if it was just something you hoped or wouldn't like to get out of the testimony but is not necessary, then let it go. Now, the other thing to keep in mind is to anticipate the objection and how to overcome it in your materials. Here, I've put together a little cheat sheet for you that I've used for years with my associates and students to help them know the objections that are most common and likely that they will face during their direct examination and to think about how to fix them. So questions like lack of foundation, if you get that objection made, then just take a step back and ask the witness the missing foundation questions and then ask your question again with a what, when, where, how, etcetera. What if you get an objection for relevance? Well, then be ready to explain to the judge how your question is relevant to the issues of the case or the credibility of the witness. You just have to say something like your Honor, the issue this relates to is and then fill in the blank. What about vegan objection for leading? Just stop and rephrase the question. Starting with a what? When? Where? How? Why? Describe. Explain. If you do that, more than likely you will fix whatever the problem was in your original question. What if you get calls for speculation? Remember, a fact witness cannot give opinion testimony, so they can't speculate about something. They have to only testify about their personal knowledge. Then start restart the question with to your knowledge and then go on with your question. What about an objection for hearsay? That's the one that everyone is always afraid of. Think about if there is a way that you can rephrase the question so you are not asking the witness about their perception that you're asking the witness about their perception and not what was said to them. So how they perceived what was said, not actually what was said to them. If you think about always preparing ahead of time about what objection could be made and just stop and think about how to rephrase the question, you can usually fix the problem. Now, let's talk quickly about trial exhibits and why are we talking about this? Well, new practitioners are often really excited about a document, have it planned out in their head how they're going to it's going to be so impactful for a jury. And then they trip up getting it into evidence at trial and don't want to see you miss out on using a great document because you messed up the simple steps needed to introduce the document into evidence. So. These are the steps. You can mark the exhibit. You're going to show the exhibit to opposing counsel and to the judge. You are going to show it to the witness. You will lay the foundation that the witness has personal knowledge of the document and therefore can testify about it. You will offer it into evidence. Then you will publish it to the jury so that they can see the exhibit and then you will use it. Mark Show Witness Foundation. Offer. Publish. Use. So the first step, Mark most often nowadays the exhibits will already be pre marked for you. It will be it will already have a trial exhibit number as part of the pre trial order and the submission of the pre trial order in advance of trial. But even though you may have already pre-marked the exhibit and had to exchange the exhibits ahead of trial, once you go to use the exhibit in the courtroom, you still have to have a copy that you can give to the opposing counsel and a copy that you can give to the judge. You will also need to give a copy to the witness and you need to remember that you have to ask permission of the court to approach the witness in the courtroom. Is it all all you have to do is say, Your Honor, may I approach? It's that simple. And then the court will give you permission to approach the witness at the witness stand and hand them the document. Then you're going to lay the foundation. Make sure that the jury and the court understands that the witness has personal knowledge about the document and its relevance. You may need to establish the document is a business record overcome a hearsay objection? You're going to offer it into evidence. And I'm going to show you an example of that in just a minute. Then you're going to request to publish it, because up until this point, the jury has not been able to see the document. They know you're talking about a document, but they don't know what it is. They haven't seen anything. Publishing means that you are going to put it up on a screen so that the jury can now see it and then use it. It's amazing how often I see students go through these steps and then get the document into evidence and never actually ask the witness questions about it, because they forgot that during this process of laying the foundation while they were asking the witness questions about how they know the document, the jury didn't see it. So all this is kind of lost on the jury until they can see that document. Then you want to use it and ask questions about it while the jury is seeing it and reading it. So let's do a little example here. So this is Doctor Dale. And in this case, the exhibit was pre as four, five three prior to trial. When I went to use the document, I gave a copy to opposing counsel, and in this case, the witness had a binder of all the exhibits. So instead of going back and forth, every single time I wanted to use an exhibit, I asked the court for permission and I gave the witness a binder of all the exhibits that I might use at one time. Then you lay the foundation for the document. So in this case, I asked you recognize this document? He said, Yes. It's the first filing of our patent application. Ask the date of it. Ask the number of it. I asked who the inventor named on that application was, and he said it was me. So he's established that he recognizes the document. He's explained what that document is and that he is an inventor. So we've established that he has the foundation to testify about the document. Then. I state, Your Honor, Plaintiffs move 453 into evidence. The court asks if there are any objections. Opposing counsel will either state their objection or say no. The court then says five four, five three is moved into evidence. I ask, may we publish 453 to the jury? The court says yes, you may. At that point. The exhibit can go up on a screen so the jury can see it. And now I can ask Dr. Dale questions about that exhibit with the jury able to see the exhibit. Seems simple enough, right? If you, in your outline for your direct examination, just put those steps in there and then you won't get tripped up. And then as you become more comfortable with the process, you won't need to have all of that in your outline. But in the beginning, just put in your notes to yourself that you need to move it, move, show it to market, show it to opposing counsel, show it to the witness, lay the foundation, offer it into evidence, ask to have it published, and then have your questions that you want to ask the witness about after that. Now we're going to touch very briefly on preparing your witness. And why are we touching on this? Because it goes hand in hand with preparing your direct examination because you are leading. You are the director of the show of your witness. Direct examination is all about the witness and establishing their credibility with the jury. And you must keep in mind that every witness is going to be different. So the way you prepare a witness is not going to be a one size fits all. You have to think about and get to know that witness so that you understand what their fears and worries are about testifying at trial. There's a lot of emotion that can be tied up into a trial. Sometimes they're there and they're coming out to this really frustrated and angry. They might be nervous. They might not want to be there at all. And so they aren't very cooperative. Start from where your witness is and then help them through the process of preparation. Remember also that. You need to think about whether or not you have confidentiality during the prep when you are preparing a witness for trial. You they might be your client and there's confidentiality in what you tell them during the preparation. But if they're not your client, then you must always keep in mind that whatever you say during that preparation, they could be asked about at trial. While sometimes this is pretty unlikely it can happen. And so you always want to keep that in mind. You also need to think about whether or not they can see a document. You cannot show them a document that they would not have the access to, you know, or the confidentiality. Approval to be able to see that document in outside the courtroom, then you can't show them. Before they testify in the courtroom. So let's keep in mind privilege and confidentiality. The other thing to think about is that preparing a witness to testify isn't just about the substance of the questioning that you're going to be going through. It's also about helping them feel comfortable with the entire environment. It's very rare that you're going to have a fact witness that has testified frequently in a courtroom. Usually, this is going to be their first time and all they've seen is what's on TV. So you need to make them comfortable with the process, with the environment of the courtroom, how they should look, you know, do they need to wear a suit? Is it okay if they just wear something that's more casual? Let them know what's expected to take out as many of their questions ahead of time as you can. And then the substance part, you want to think about going over everything with the witness ahead of time. You want to have them comfortable with the process, comfortable with what you're going to be asking them, what documents you're going to be showing them during the trial. You want to practice with the witness and help them feel comfortable in answering. You want to remind them over and over again to always tell the truth. And while that seems really obvious, when people are nervous, they often forget that little thing because they're afraid of saying the wrong thing. They're afraid that something that they're going to say is going to be taken the wrong way. You can always deal with things as long as they tell the truth. Now, the other thing you need to keep in mind is that what effect witness knows and what they need to testify about are often very vastly different. And so that is part of your role in the direct examination is to help keep them on track, help keep them testifying about the specific information that is relevant to the case, not necessarily everything that they know about the topic. The key to effective witness witness preparation is being prepared. Work with them on everything that they might have to do in the courtroom. That includes the direct, that includes you having to enter the exhibits into evidence. That's a weird process. And they don't know what to do while you're going through those steps. They need to understand how that's going to work. You also want to practice. Cross-examination with them. That is always a witnesses greatest fear is that they're going to look like a fool or or be tripped up on cross-examination. Practice with them. Help them feel comfortable with what types of questions you anticipate them being asked and if there's bad facts, practice with that witness about the questions to address those bad facts up front so that they feel comfortable with them and aren't sitting there being worried about how those facts are going to come across. Now, practice, practice, practice. But there is a difference between being prepared and being scripted. Being prepared means they know what's coming. Right? And you know how you are going to present things at trial. Being scripted is memorization, and that doesn't work because the witness will be nervous and they might not remember the script. And so you always have to be prepared that they are not going to remember every single thing that you practiced. And and similarly, they will definitely not remember the exact way to answer a question. So be prepared and so that they know what they're going to get asked. They know that the flow of the direct, but remind them they do not have to have things memorized is it never works out. Now. Let's talk about the cross examination. And this is the part that everyone gets the most excited about. Right. Because what do you see on TV and in the movies? You see that great cross examination and you want think. Every litigator always wants to have that great cross examination moment. But preparing for cross is a lot more than just those gotcha questions. You need to think about. What are your goals? Right? Do you need to repair or minimize damage in your case? Um, can that witness be made to retract or back away from their testimony on direct? Can additional facts be brought out that will minimize the witnesses testimony or their credibility? You also need to detract from the opposing case. Are there facts that you could get out of those witness that actually support your case? Do you need this witness to establish the foundation for an exhibit that you want to use later with another witness? And then are there anything that you can ask this witness that might hurt their credibility with the jury? Now, when I talk about hurting credibility, I'm not meaning to bash the witness. Um, often that's not even allowed by the courts. The court is going to be very protective of the witness, but you want to think about what kinds of things you could ask them that might damage the credibility of what they're saying or show that they don't have necessarily as much experience or personal knowledge as they tried to present during direct examination. So. Once you've established what your goals are, the key to cross-examination is to listen closely during direct examination. Often an attorney is so caught up in their planning for their cross-examination that they're not really listening to the questions and the answers being given during direct examination. Get out of your head and be in the moment of the direct. If you want to be able to quote something that the witness just said during their direct examination in your cross, you want to take very careful notes and have someone else there to help you take notes as well so you can get word for word exactly what they just said. You also want to think about scope. What do I mean by that? You have to keep in mind that the cross-examination cannot go beyond the scope of the direct examination. Okay. So you might have a series of questions in mind that you wanted to ask that witness that weren't covered on direct. Well, then you're going to be limited and you're going to have to somehow tie those questions back into context with something that was asked on direct. You cannot go beyond the scope of the direct in your cross-examination and then redirect. Can't go beyond the scope of the cross. So with each each subsequent set of questioning, the scope gets narrower and narrower. You have to be flexible and be able to adapt your cross-examination based upon what was asked during the direct. And sometimes if there's a line of questioning they might have purposefully avoided it on direct because they want to limit your ability to ask about it on cross. That's a very common tactic. So then you need to think about is there another way to tie that question into the scope of the direct? Is there another way you can address the issue maybe with a different witness? You always have to be flexible and be ready to adjust during the trial because they're they're trying to outwit you as much as you're trying to outwit them. So we have our goals. We're listening closely. We understand the scope. Now I'm going to tell you leading questions only. This is the exact opposite of direct examination. Only, only, only leading questions. Why? Because you are. You absolutely do not want to open the door for that witness to regurgitate what they said on direct or to tell their viewpoint. You want to always be in control of the witness. And the way you control the witness is by asking leading questions where they can only answer things one way. So leading questions only. The other thing I want to emphasize is patience. So. Just like in direct where said to use simple questions Bill lay a foundation and build in simple questions from there. You want to do the same thing on cross. You're just going to build those questions as leading questions only. But you still want to do it step by step. And what you want to think about is you want to box that witness in. I think the biggest mistake that new attorneys make in litigation when they're on, you know, they finally get to do that cross-examination. They're they want to go straight for that gotcha question. But if you go straight for that gotcha question without laying the foundation in little questions ahead of time, your witness will have plenty of room to wiggle out of that gotcha question. It will land flat or even be turned around on you. What you want to do is to be patient, ask little short questions, yes or no questions. That's going to box them into a corner. Then when you ask the the gotcha question, they won't have another option. But to answer it the way you want them to answer it. Patience is key. Pacing is also key. In direct examination, you want to and when you're prepping your witness, you want to have the witness come across as very comfortable and at more conversational. In cross. You want to have that same thing come through. Now, when you're prepping your witness for Cross, you want to make sure that they are very guarded against being conversational and. And getting into a rhythm with the questioner. But as the questioning attorney getting a witness into a rhythm and helping them forget that they're on the stand and becoming more forthcoming is always to your advantage. The other thing to keep in mind is brevity. Cross-examination. Brevity is key. The general guideline is to focus on just 1 to 3 topics for cross-examination. And why is that? It's because you don't want your key points to be lost on the jury in a long cross-examination. You're wanting to get in, make some big points, and then sit back down. There are witnesses that you may be able to go beyond just three topics because they are providing good testimony for you. That's helpful to your case. So pick your top three, but you may be able to go further and and you have to trust your instincts on this one. If the jury if you're losing their attention or if they're not following along, well, then you do not want to go past your top three areas of questioning. And I've seen far too many students who take the advice to be brief and think that means to be rushed. And those are not the same. Brevity means you should focus the questioning, focus on just 1 to 3 topic areas, but take your time with them, build them and lead up to that zinger question. You want to box that witness in before you ask the question that really matters to you. Rushing is ineffective because if you don't lay the foundation, the witness will wiggle out of that. Big question you want to ask. So let's. Let's talk about impeachment, because everybody always wants to do that impeachment show that witnesses saying something now that's contradictory to what they said before. Impeachment is something that can be very effective, but if it's done wrongly, it can land flat or even work against you. So there's four steps. Step one, it has to be the same question and a contradictory answer. So you must ask the witness the exact same question at trial that they were asked of the witness during the deposition or previous testimony. And the witness must give a contradictory answer. Step two. You must lay the foundation for the impeachment. Okay. So you have to show to the jury that that the witness was deposed before that they, you know, established that it was they were telling the truth. The same as they said they are doing today. You need to establish that. Then you have to show the witness, the prior testimony that you believe is contradictory. And then step four, you read the prior question and give the prior response to show the contradiction. So why is this so tricky? This seems pretty simple. It's tricky because often the questioner tries to rephrase the question differently from how it was asked at the deposition or prior to trial. And this is because usually the question how it was asked previously at the deposition isn't usually set up exactly the same way that you want to present it at court. And the second is that it's rarely an exact contradiction. So a witness, especially one that has been prepared and so has read their prior testimony and knows how they testified before can often explain the differences in how he or she answered the question then versus now. And then. The third reason why this can go wrong is because in this laying of the foundation and the showing, the witness, the prior testimony, there is so much buildup and suspense with the jury. So when an attempted impeachment doesn't really work or isn't a true contradiction, it often hurts you rather than helps you. It actually often can help the witnesses credibility. If you show that the prior testimony isn't really an exact contradiction. So you must be very careful when you decide that you're going to try to do an impeachment. Now, let me show this in a real world example. So this is the cross-examination of Johnny Depp during his trial with Amanda Heard. And so, you know, they go through a series of questions about the drugs that he had done with another person, Mr. Paul Bettany. And so the question I want you to focus in on is Mr. Waterborne says pills, including Xanax and Adderall. Right. And Johnny's answer is, I'm not too sure. So this is step one. We're asking the same question. And and they are going to assert that this is a contradicting answer. So. Mr. Rodman says. Mr. Depp, you remember giving testimony in the trial in the UK? Correct, Yes. And you gave that testimony under oath, right? Yes. You gave quite a bit of testimony at that trial, right? I wouldn't be able to judge that myself. It felt like a lot. Okay. Well, let's look take a look at some of it. If you turn to page 45 in front of you, it's page 12 of the document. And so this is step two, right? We talked about you have to lay the foundation for the prior testimony. So he's laid the prior the foundation that he gave prior testimony in the UK and that he was under oath. So he was telling the truth then, just like he is now or supposed to be. Then we get into the next step. We show you. Show the. He had previously shown the Mr. Depp the transcript. He directed him to that part of the transcript and now he needs to read the prior question and answer. So. Mr. Ratburn says, Hey, you see, at the bottom of that page there's a discussion of Paul Bettany and the things drugs that you did together. And there was a question. The question is, any sort of pills in your answer is yes, there could have been Xanax or if needed, if he asked for a Xanax or Adderall, whatever, I would, of course, give it to him. Question So you would supply Paul Bettany with whatever medication or control drugs he asked for. Is that right? Answer. If he was feeling anxious or he was feeling unpleasant, I would give him what he asked for. Question Would you give him Xanax? Answer Yes. Did I read that right? And Johnny Depp says, You certainly did. Yes, sir. Okay. So his testimony a few slides ago was that he wasn't sure. And his testimony at the prior trial was. Yes. So is that a contradiction? Will the jury think that's a contradiction? That's the that's the question you need to ask yourself. And will the jury think that it's worth the time to show this difference? So give this as an example of one of those situations where if it's not a direct contradiction, then it's likely to not really have a big impact on the jury. Johnny saying he wasn't sure before and saying yes at the prior trial, Is the jury going to think that that was a contradiction that was worth all the buildup and suspense that laying the foundation about the prior testimony leads them to believe jurors want a big difference. And so if there isn't a big difference, it's often going to actually help your witnesses credibility rather than hurt it. So let's talk about avoiding the common mistakes. Common cross-examination. Mistakes are open ended questions because when you ask an open ended question, you will lose control of your witness. Always, always, always ask closed questions. You don't want to invite the witness to give a long winded answer that you cannot control and you can't interrupt their answer because you gave them permission if you asked an open ended question. Second is I often say failure to build when someone jumps right in to the big money question and doesn't take their time to ask all the little questions beforehand that will help box that witness in so that they can't wiggle out of your big money question that you really want to ask. And the third common mistake is asking a question that you don't know the answer to. Never, never, never on cross-examination, ask a question. If you don't know how that witness will answer, because it will backfire on you. So I'm going to give you an example here. So this is also from the debt be heard case. And in this case, the questioning attorney asks the witness, Mr. Wyatt, who we saw testimony from earlier. She says, okay. And then as part of it, neesha Mr. Depp's contracts he had. What you were going to get paid. Right. And Mr. White says, I don't know what's in his contracts. And she says, okay, well, on this one, it was 14, 28 per hour. Correct. And the. Mr. Wyatt's attorney says lack of foundation makes an objection, and the court agrees because the attorney had jumped right into questions about Johnny Depp's contracts and hadn't first established that Mr. Wyatt knew them. So what could have been done differently if the questioning attorney had instead asked smaller questions that helped establish that? You know, Mr. Wyatt knew what he was going to get paid. And Mr. Depp's contracts. Right. Whether or not he actually saw those contracts, if he knew that his pay was in those contracts, if she had established that beforehand, then she could have gotten the questioning that she wanted. But instead, she jumped right into her big money question and then wasn't able to ask those questions because there wasn't a found. She got objected to for lack of foundation and calling for speculation. So take your time to establish the foundation and to set up the question that you really want to ask. Other questions. Other problems that you see in cross-examination. Questioning is that they are too long. So just like I said before, try to keep it to three topics unless there's a really good reason that you want to go beyond that with with your witness. And don't lose your cool. Don't fight with the witness. If you lose your composure and you lose your cool with the witness, it might look really good on movies and on TV shows, but it actually doesn't go over very well with a jury. An argument of type of questioning that insists that the witness agree with an opinion or characterization as opposed to a statement of fact, will get objected to as argumentative and will get shut down by by the court. You always have to remember that the judge is going to be protective of the witness unless they feel like the witness is really, really being dodgy or trying to avoid answering. When you lose control, you lose the jury. The other thing that keep in mind is that, you know, this is one approach is not going to work for every witness. This isn't one size fits all. You have to adjust your questioning approach based upon the witness. And, you know, being aggressive is not the only way to be a good cross-examiner. You know, we see it a lot in the movies where you have this really aggressive questioning attorney that just, you know, the witness on the stand just can't stand up to. But in real life, that often isn't the correct approach for a witness, especially if you have a witness that is likable. If the jury really likes a witness, then being heavy handed with them and being very abrasive with them is not going to work. Well, you also have to make your cross-examination fit your personality. You can't see me, but I am a five foot three small person. And so I'm not ever going to come across as intimidating. I would just come across like an annoying Chihuahua if I was super aggressive with my witness. Therefore, my style of cross-examination is typically to be nice to the witness and to be likable. I want the witness to let their guard down and and I set them up for my ultimate question with a series of small questions. Being nice doesn't mean that you're not also being strategic. Don't confuse aggressive with strategic, that that doesn't necessarily mean the same thing at all. Try the style that fits your personality. That's the one that's going to work best. Embrace who you are and make it work for you. Now, I've thrown a lot of out there and a lot of it, as you saw, was common sense. It seems very logical and it seems like very easy to do, and it is. You just have to practice. All of these things that we discussed today are just the foundations. And once you feel comfortable with them, you can have a lot of creativity and fun as you are in the courtroom and you're directing cross-examination. But it takes practice. You're never going to get better if you don't give it a try. So you will make mistakes and that's okay. You will learn from the mistakes and you will also see that there are very few mistakes that you can't fix as long as you keep your cool and think about how to fix them. Go back to your fundamentals. You can almost always fix them. So don't be afraid of making a mistake. Don't be afraid of not being perfect at the beginning. No one is perfect. Even your most practiced and skillful trial lawyers still make mistakes. Things still trip them up and what they do that's different from a new. Attorney is that they know how to go back to that fundamental and fix the mistake. So get out there, have some fun and practice.

Presenter(s)

ABJ
Alison Baldwin, JD
Partner
Faegre Drinker Biddle & Reath LLP

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