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Examining Witnesses: Tips from Pace Law Library

Recommended: A page from the Pace Law Library website titled "Examination and Cross-Examination:
Getting the Facts," which includes a number of articles, orqanizations, and other resources that you can
bookmark and review later.
January 03, 2012 in Cross-Examination, Direct Examination | Permalink | Comments (1)

Direct Examination: Put the Witness at Ease

As J. Patrick Hazel writes--
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.
Source: "Direct Examination," by J. Patrick Hazel, in The Litigation Manual: Trial.
Related post: "Another Book to Think About: The Litigation Manual: First Supplement."
October 17, 2011 in Books, Direct Examination | Permalink | Comments (0)

Objections to the Form of a Question: A Partial List

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)
Related posts:
1. "The Anatomy of the Perfect Deposition Question."
2. "When Are Leading Questions Permitted During Federal-Court Depositions?"
3. "Depositions: Don't Ignore Form Objections."
4. "Depositions: Asserting Control with the 'Nonresponsive' Objection."
July 21, 2009 in Cross-Examination, Depositions, Direct Examination | Permalink |Comments
(3) | TrackBack (0)

Trial Practice Tips from David Boies

At the Insurance Defense Blog, Dave Stratton has collected a number of litigation-related tips from David
Stratton's post is titled "Trial Practice Tips Courtesy of David Boies," and pulls quotes from the (fairly)
recent Boies book, "Courting Justice: A Lawyer's Casebook, from NY Yankees v. Major League Baseball to
Bush v. Gore."
A sample of Boies's wisdom:
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.
For more, see Stratton's blog post.
July 16, 2009 in Direct Examination, Miscellaneous | Permalink | Comments (0) |TrackBack (0)

Tip for Direct Examination: Write Down the Answer, Not the Question
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, dont write out your questions. Theyll sound stiff and unnatural when you
read them out loud. Instead, write down the answers youre 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 witnesss answers.
There's more in the full article, which encourages you to leave the legalese in your office when you head
for courtroom.
January 06, 2009 in Direct Examination | Permalink | Comments (0) | TrackBack (0)

"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
"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?"
July 31, 2008 in Direct Examination | Permalink | Comments (1) | TrackBack (1)

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: DONT 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 youve just lost the case. Chances are, the witnesss
incorrect answer isnt 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."
July 29, 2008 in Direct Examination | Permalink | Comments (0) | TrackBack (0)
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.
July 03, 2008 in Cross-Examination, Direct Examination | Permalink | Comments (0) |TrackBack (1)

Six Tips for Improving Your Direct Examinations

Here is a basic blueprint for putting together a direct examination. The tips are basic, but worth
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"
May 01, 2008 in Direct Examination | Permalink | Comments (0) | TrackBack (1)

Where and How to Stand During Direct and Cross-Examination

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
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).

An Easy Way to Fix a Leading Question

Before I did my first direct examination of a real witness in a real trial, the partner I was working with
gave me a bit of advice about leading questions that turned out to be very helpful. He told me that if the
opposing lawyer objected that one of my questions was leading, I could probably fix the problem simply
by asking the same question with the phrase "whether or not" tacked onto the beginning.
Here's an example. Say your question is "The light was green, right?" and it gets an "objection, leading"
from the opposing counsel. Using the partner's method, the new question becomes "Can you tell me
whether or not the light was green?" In some cases, the resulting question will still be deemed leading,
but if the lawyer objects again, you're already on the right track to fixing the problem. That's important
because in the heat of trial, it's often very difficult to figure out how to rephrase questions when met
with repeated objections that are repeatedly sustained.
In my example, if the new question is met with another objection, it won't take much thinking to replace
it with this one: "What color was the light?" The "whether or not" method is not only a handy crutch,
but it also forces you to automatically think about what is was that made the question leading in the
first place. While the leading nature of the questions I used as examples in this post is easy to see, in a
real trial, things are often much more complicated.
March 17, 2006 in Direct Examination | Permalink | Comments (3) | TrackBack (1)
Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes
Can you take steps to make your client more likeable to the jury? While some people are inherently
unlikable, even these sorry cases can be taught how to avoid a few mistakes that will guarantee their
Being Discourteous to Counsel or the Court Most people know not to talk back to the judge,
but they shouldn't talk back to opposing counsel either. When answering questions on cross-
examination, it usually pays to keep one's cool. Becoming angry is almost always a mistake.
Failing to Answer Questions Directly Proper questions put to your client by opposing counsel
should be answered directly. It's a mistake to answer a different, imaginary question that
wasn't asked. Not only does it amount to volunteering, which is never a good idea, but it
makes your client appear to be evasive.
Trying to Explain Too Much Explaining too much also makes your client appear evasive. Clients
should be instructed that you will have a chance for rebuttal after the cross-examination is
over. This will give them a chance to explain.
Exaggerating Small Details Clients often want to exaggerate small details. If your opposing
counsel is skilled, however, it won't be hard for him to turn this small exaggeration into a big
lie. Warn your client against exaggerations.
Refusing to Yield on Uncontroverted Facts There are bad facts in every case. While you
undoubtedly have a plan to minimize these bad facts, it won't help if your client draws undue
attention to them by refusing to admit the truth on cross-examination. Let your client know
ahead of time why the bad facts won't destroy the case.
Failing to Look at the Jury Looking at the jury doesn't come naturally to most people. You can
help by standing at the corner of the jury box when asking questions. When answering, your
client will be facing the jury in a way that won't looked forced.
January 25, 2006 in Direct Examination | Permalink | Comments (0) | TrackBack (1)

Presenting an Expert Economist at Trial

"Tips for Making Damages Testimony Come Alive," by Paula E. Litt (pdf), was presented at the 2005 ABA
Annual Meeting and contains twelve tips for presenting an expert economist at trial--
Speak plainly;
Establish credentials wisely;
Tell a good story;
Play from higher ground;
Show pictures;
Get the expert moving;
Use examples;
Keep it simple;
Be enthusiastic;
Don't get caught short;
Know your expert; and
Don't underestimate the jury.
The tips are oriented towards the plaintiff's case but many of them would apply equally to the
defendant's economist.
November 04, 2005 in Direct Examination, Experts | Permalink | Comments (0) |TrackBack (2)

A Direct Examination Tip from Geoffrey Fieger

You can find background about trial lawyer Geoffrey Fieger in my last post. Meanwhile, here's another
tip Fieger gave at the presentation last weekend, this one about direct examination. According to Fieger,
he's always careful not to overprepare his client for direct examination. Why? Because the moment that
the jurors think your client's answers have been scripted, they'll tune the testimony out. Instead, the
testimony should be spontaneous and authentic. Not only will the jurors pay more attention, but they'll
be more likely to find your client credible. This spontaneity and authenticity can be achieved, according
to Fieger, by keeping your client partially in the dark about what you're going to ask until you've actually
ask it.
To me, this tip seems a little dangerous. Direct examination is known to be a particularly difficult area
even for skilled trial lawyers, since they're not in control as they are when cross-examining. This control
can be reestablished, in part, through preparation with the client.
If you're aiming for spontaneity, what I'd recommend is to spend time preparing at least the most
important parts of direct, but keep from rehearsing questions in the order you'll ask them at trial. At
trial, you can vary both the order of the questions and the questions themselves. Hopefully this will
make the direct seem conversational without allowing your client to inadvertently volunteer something
that will undermine the case.
June 29, 2005 in Direct Examination | Permalink | Comments (3) | TrackBack (2)

Tips for Improving Your Direct Examinations

From Ervin A. Gonzalez comes "Direct Examination," where you'll find these tips:
During the trial, develop the direct examination through the use of conversational language. Avoid
reading questions to the witness. This will bore the jury and leave them with the feeling that the
presentation was rehearsed. You may have your outline present, but use it only as a reference and not
as a script. Remember to guide the witness through the testimony so that she does not ramble.
Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a
breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on
the issues through the witness on the stand. Ask the types of questions that a reporter or investigator
would ask to become fully informed of what happened in the case. This technique will allow you to view
the case from the jury's perspective. Remember you may know everything about the case, but the jury is
hearing the testimony for the first time at trial.
For more, see the complete article.
October 05, 2004 in Direct Examination | Permalink | Comments (0) | TrackBack (0)

The Scope of Redirect

After witnesses are cross-examined at trial, the lawyer who offered the witness is allowed a chance to
conduct "redirect" examination. During redirect, the lawyer can ask the witness questions that will allow
him to explain any troublesome answers he gave during cross-examination.
As in most jurisdictions, the scope of redirect in Illinois is limited. The lawyer conducting redirect is not
allowed to ask questions about issues that were not covered in cross-examination. In fact, the scope is
even more limited than that: the lawyer may only ask questions about new matters that were covered in
cross-examination. The witness, in other words, must do more than simply repeat answers he already
gave during direct examination.
The judge conducting the trial has discretion to vary these rules and can allow a lawyer to ask new
questions on redirect that the lawyer forgot to bring out on direct. One author suggests that a judge in
this situation should forbid the questions, but allow the lawyer to recall the witness after the
examination has been completed for the purposes of going into the new matters. See Hunter, Trial
Handbook for Illinois Lawyers (7th ed.), at Section 31.1. According to Hunter, such a procedure
"increases the orderliness of the proceeding by adherence to the rule that the examination is limited to
the scope of the preceding examination, without restricting counsel in his right to bring out relevant
July 19, 2004 in Direct Examination | Permalink | Comments (0) | TrackBack (0)

Questioning a Witness as Chinese Water Torture

In the book Trial Advocacy, James W. Jeans writes about the way "the repetition of question and answer
too often simulates the Chinese water torture as the soporific rhythm rolls relentlessly on and on."
Q. What is your name?
A. Sylvester Brown.
Q. Where do you live?
A. At home with my wife.
Q. What is your job?
A. Inspector of parts.
Q. Da da da da?
A. Da da da da da.
Jeans suggests varying the questioning in three ways: (a) by moving around the courtroom if the rules
permit it; (b) by varying your approach to questions by using phrases like "state your name and
address," "tell the jury," and so on; and (c) by giving "dramatic impact to those features of the case
which you feel are important," for example, by referring to the police report as "the official police
report" and to the dangerous widget that caused the injury as "The Safe Tee Widget," which is the name
the manufacturer gave it (while saying it, of course, with a sarcastic sneer).
April 16, 2004 in Direct Examination | Permalink | Comments (0) | TrackBack (0)

A Trial Primer
On his firm's website, Connecticut lawyer Thomas J. Riley offers "Getting Evidence in at Trial or Keeping
It Out" (.pdf format). I particularly liked Riley's tips for preparing witnesses for direct examination. He
also discusses cross-examination, exhibits, and several other topics.
Even the headings contain some critical information, applicable to lawyers in every state, e.g., "Know
What You Need to Prove and Make Sure You'll Remember to Get It All In."