Unless the witness is a professional testifier, terror is likely the witness's dominant emotion. Ask a few questions to ease that feeling. Ask things that cannot be challenged by the opposing lawyer and the jury. "Where do you live?" "Where do you work?" "Are you married?" "Do you have any children?" "Where do your children go to school" are a few such questions. Even if the witness goofs in answering these questions, no one else will know.
Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.
Here are some typical form objections:
"Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")
"Compound." The question is actually two questions.
Example: "Did you find the cancelled check on the ground and take it with you?"
"Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.
Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"
"Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.
"Assumes facts not in evidence." The question contains a factual statement that has not yet been established.
Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)
"Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.
"Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.
Example: "When you proceeded into the intersection, the light was green, correct?"
"Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)
"Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.
Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)
Some common objections that are not to the form of the question include irrelevance and hearsay.
If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)
As a leadoff witness you need someone who will point some points on the board and do no damage; you do not want to take a risk. If your first impression with a judge or jury is not good, your case is in trouble. You also want a witness who can explain the overall case and put matters in context.
This direct-examination tip comes from "Persuasive Direct," by Jim McElhaney, in the January 2009 issue of the ABA Journal--
When you prepare for trial, don’t write out your questions. They’ll sound stiff and unnatural when you read them out loud. Instead, write down the answers you’re looking for on the right-hand side of your outline, leaving the left side of the page for occasional notes and reminders. That system forces you to ‘free-form’ your questions to get the information you need. It makes everything sound more natural, including the witness’s answers.
There's more in the full article, which encourages you to leave the legalese in your office when you head for courtroom.
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.
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.
Here is a basic blueprint for putting together a direct examination. The tips are basic, but worth remembering--
Find out what information you want to elicit. The rest of these tips deal with technique; this tip deals with substance. You're presenting the witness at trial in order to prove facts you need to make or defend your case. Knowing which facts will be presented through a particular witness is the key to a good direct. You can't pull it off without a thorough understanding of your case. Make a checklist of the facts you're using the witness to prove. Keep the checklist handy when you're presenting the witness; don't hand the witness over for cross-examination until you've checked all the items off the list.
Prepare the witness. Make sure you're on the same page about the facts you want to elicit; make sure that the witness is going to say what you expect him to say. But don't commit yourself to particular questions, and don't let the witness develop scripted answers. If the direct examination seems too stiff or practiced, the witness will lose credibility. You want the direct to seem spontaneous. See "A Direct Examination Tip from Geoffrey Fieger."
Think about the questions you'll ask. If you're experienced enough, it will be sufficient to simply assemble the checklist mentioned above. Keep your questions short, and make sure they'll allow the witness to tell his story in a logical and clear way. Except for preliminaries, you can't lead. Make use of headline-type questions that announce both to the witness and the jury where you're headed next, e.g., "Now I'm going to ask you a few questions about the morning before the accident, okay?"
Be prepared to handle objections from your opponent, both to the form and substance of your questions. If your opponent objects to a leading question, use the tip found in "An Easy Way to Fix a Leading Question." You should also be prepared for objections about admissibility. Run the direct examination through in your mind and try to figure out when the objections will come and how you are going to deal with them.
Think about your opponent's cross-examination. If there are bad facts that worry you, consider revealing them yourself during your direct.
When the time comes for direct, give the witness enough room in the way you develop the testimony that he'll seem like a person, not a robot. The witness is the star during direct, not the lawyer. But if the witness is having trouble keeping on point, reel him in. "Thanks for your answer, but I'm asking a slightly different question. . . " Look for signs that the witness is confused; if it happens, back up and begin again.
For other tips about direct examination, see the posts on this weblog in the "Direct Examination" category.
Assuming the trial judge gives you the freedom to move around the courtroom, does it matter where and how you stand during direct and cross-examination?
During direct examination, many lawyers recommend standing near the far end of the jury box, which forces the witness to look at the jury when answering.
Is cross-examination any different? According to Steven Puiszis, President of the Illinois Association of Defense Trial Counsel, it's best to move around during cross-examination. That's according to Helen Gunnarsson's "Cross-Examination: Beyond the Perry Mason Moment," in this month's Illinois Bar Journal--
Puiszis says that he paces around the courtroom during his cross-examination so that the witness will look at him and not at the jury. Doing so not only emphasized Puiszis's role as star but also further diminishes the witness's opportunity to gain credibility with the jury through eye contact.
What's the "role as star" business? During cross-examination, the cross-examining lawyer should be the main focus of the jury's attention. It's the complete opposite of direct, when the witness plays only a supporting role. During cross-examination, the jury's attention should be squarely on the questioning lawyer, who asks leading questions to which the witness can only answer yes or no.
To read Gunnarrson's entire article about cross-examination, look here (ISBA members only).