The Trial Practice Tips Weblog

"Please Tell the Jury": A Formula Guaranteed to Make You Sound Pompous

You hear it all the time when lawyers are presenting their experts to a jury or preserving their testimony for trial:

• "Doctor, would you tell the jury how mesothelioma is diagnosed?"
• "Mr. Expert, I'd like you to explain to the jury how it was possible to measure the width of the device."
• "Doctor, for the jury's benefit, would you describe how blood travels through the four valves of the heart?"

The trouble with the "tell the jury" formulation is that you risk sounding arrogant. You're suggesting that although the jury needs instruction, you already know the answer.

It's a problem that's easy to fix. Simply ask the expert to "tell us" or "explain to us" or "tell us why." Or leave out the "us" altogether--that works too.

It's a useful tip that was suggested by a one of the judge-lecturers in this CLE program, which I was watching in order to satisfy my Illinois compliance.

Related post:"Communicating with Juries by Acting Like a Regular Person: Is It Even Possible?"

Taking Control of Direct Examination

Has a witness on direct ever given you an unexpected answer to a key question? Did you know how to recover from this tricky situation? For a step-by-step guide, see "What to Do When Your Witness Forgets," by Elliott Wilcox at "Winning Trial Practice Techniques"--

First things first: DON’T PANIC!  Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you’ve just lost the case.  Chances are, the witness’s incorrect answer isn’t nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool — you can fix this.

For the complete answer, which includes a few different methods for regaining control of a failing direct examination, follow the link above.

Related post: "Stipulations That Will Streamline Trial."

Cross-Examining the Liar at Trial: Two Absolute Prerequisites

In the new book, Your Witness: Lessons on Cross-Examination, there is a chapter titled "Cross-Examining the Liar" by Chicago lawyer Dan Webb.

Webb, who has cross-examined scores of liars during his long career, begins the chapter by describing the two requirements that must be present before you even begin to think about trying to take on a liar at trial--

• First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";
• Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

In one of Webb's examples, he tells of a medical expert who was clearly biased against his client, but whose testimony was so technically complicated that Webb wasn't sure he could make it clear to the jury that the expert was lying about the results of certain scientific studies. As a result, Webb chose not to confront the expert.

Webb also discusses the proper demeanor to use when cross-examining a liar at trial. You should be aggressive--"firm, confident, and assertive." Yet you should never raise your voice, at least not in an over-the-top way. "Anytime I hear a lawyer scream and yell in the courtroom," writes Webb, "then I know the lawyer is a failure."

Related Post: "A Book All Trial Lawyers Will Want to Read."

Related Post from Legal Underground: "Being Dan Webb=Tons of Good Press."

Law Review Articles on the Web

In an article in the July issue of the Illinois Bar Journal, "Finding Free Legal Articles on the Web" (ISBA membership required), Tom Gaylord suggests these sources for finding free online law-review articles--

• Google Scholar;
• SSRN -- Legal Scholarship Network;
• Washington & Lee's Current Law Journal Content;
• Individual titles, found on sites like Law Review Home Pages at the University of Chicago Law Library.

You'll find tips and caveats about these sources in Gaylord's article, which is recommended for reading.

Depositions: When the Witness Answers a Question You Didn't Ask

Often during depositions, a witness will answer a question that's different than the one you asked. Lawyers with good deposition skills listen closely enough to a witness's answers to recognize this situation when it happens.

Example:

Q. Were you present for the meeting on February 22?

A. I wasn't at the office on February 22.

If you respond properly to this situation, you'll both take advantage of the witness's mistake (whether intentional or not) and regain control of the deposition.

What is the proper response? When the witness answers a question that's different than the one you asked, you have to figure out why (on the fly, of course). Among the possibilities are these:

• Your question wasn't clear. If this is the case, rephrase the question and ask again.
• Your question was clear but the witness heard it incorrectly. If you think this is what is going on, start over with the same question, then ask it again in a slightly different way to make sure the witness has understood.
• Your question was clear and the witness heard it correctly, but the witness was confused about its meaning. In this case, back up and start over, changing your phrasing slightly, if possible, but continuing to aim for short, clear, unambigous questions. Continue in this manner until you and the witness return to the same page.
• Your question was clear and the witness heard it and understood it, but the witness doesn't want to answer it. Rather than answering your question, the witness answered a slightly different question--one you didn't ask. 

If you suspect that this last possibility is what has occurred, ask the question again while getting ready to dig in -- the witness's reaction means you're probably onto something. You've entered an area that is making the witness uncomfortable, and you need to find out why.

If you make an effort to respond properly when the witness answers the wrong question, you´re less likely to waste the time you put into developing and fine-tuning your deposition outline.

Trial Notebooks: An Alternative Method

As an alternative to an earlier post, "A Method for Organizing a Trial Notebook," here's another method of organization, as suggested in a book by Leonard H. Bucklin--

• The Plan
• Summary
• Pretrial Orders
• Our Witnesses
• Their Witnesses
• Third-Party Witnesses
• Our Experts
• Their Experts
• Exhibit List
• Contacts
• Deposition Summaries
• Deposition Arrangements
• Damages
• Pleadings
• Admissions
• Trial Memo
• Motions in Limine
• Motions and Orders
• Voir Dire and Juror List
• Opening and Closing
• Jury Instructions
• Settlement
• Insurance

The list is from Bucklin's Building Trial Notebooks (James Publishing). I agree with Bucklin that "your trial notebook should be your primary file in a litigation case." As Bucklin adds, "When a litigation case is started, that is also the time to start your trial notebook for that case."

Related post: "Motivating Yourself for Trial: Start a Notebook Early."

Stipulations That Will Streamline Trial

The July, 2008 issue of Trial Magazine is devoted to "Trial Techniques" and contains an article by Elliott Wilcox titled "Sifting the issues with stipulations." (AAJ membership required unfortunately, or get it at the library.)

It's an article that's equally useful to lawyers for the plaintiff or defense.  Wilcox examines stipulation on the following issues:

• Prior deposition testimony;
• Authenticity of documents or business records;
• Other evidentiary foundations;
• Stock photos and diagrams;
• Sworn statements in lieu of live testimony;
• Percentages of fault or loss;
• Witness credentials;
• Admissibility of demonstrative exhibits;
• Allowing witnesses to testify by alternative means;
• Allowing witnesses to testify out of order;
• Technical and scientific literature;
• Suspending standard testimony requirements;
• Indisputable facts.

Other articles in the trial-techniques issue of Trial include "What can a mock trial tell you?" by Anne W. Reed, "Shield your client from defense attacks," by Cindy L. Nations, and "Direct examination of lay witnesses," by Charles G. Monnett III and Randall J. Phillips.

Communicating with Juries: The Well-Placed Pause

There's an article at Winning Trial Advocacy Techniques titled "Adding Impact to Opening Statements" that makes this observation:

One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

Read the full article to learn why, when, and how to pause for maximum effect during your opening statements and closing arguments.

Depositions: Boxing In the Witness

It's a simple but effective deposition tactic, one that should be used throughout a deposition. First, have the witness develop a list of all possibilities until the witness's memory is exhausted; then return to explore each possibility.

Q. Tell me why you fired X?
A. He did poor quality work, for one.
Q. What were the other reasons?
A. He didn't take instructions well.
Q. Besides doing poor quality work and failing to take instructions well, were there any other reasons you fired X?
A. He didn't turn in assignments on time and he didn't get to work on time.
Q. Other than doing poor quality work, failing to take instructions well, not turning in assignments on time, and not getting to work on time, were there other reasons that you fired X?
A. No.
Q. What do you mean when you say that X's work quality was "poor"?
. . .

This sort of questioning pattern will work in many of the areas you cover in a deposition. One advantage is that it will keep you organized and on track. A second advantage is that you will box the witness in with a "no" answer (like the second-to-last question in the example) that will serve as an impeaching response, should you need it later.

For other deposition tips like these, see my book Deposition Checklists and Strategies (James Publishing). You'll also find other tips, and more information about the book, in the following posts at Illinois Trial Practice--

• "Listing the Chapters in My Deposition Book"
• "A Plug for My Deposition Book: Some Specialized Deposition Outlines"
• "My Coverage of Expert Depositions in Deposition Checklists and Strategies"
• "Listing Some of the Practice Tips in My Deposition Book"
• "More Practice Tips from My Deposition Book"