TRIAL PRACTICE SECOND EDITION

Transcription

1 TRIAL PRACTICE SECOND EDITION

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Herzog Summer Visiting Professor in Taxation University of San Diego School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Olympia Duhart Professor of Law and Director of Lawyering Skills & Values Program Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 TRIAL PRACTICE SECOND EDITION MICHAEL W. MARTIN Clinical Professor of Law Fordham University School of Law PAUL RADVANY Clinical Associate Professor of Law Fordham University School of Law LAWRENCE A. DUBIN Professor of Law University of Detroit Mercy School of Law THOMAS F. GUERNSEY President and Dean, and Professor of Law Albany Law School

4 ISBN: (print) ISBN: (ebook) Library of Congress Cataloging-in-Publication Data Martin, Michael W. (Michael William), author. Trial practice / Michael W. Martin, Clinical Associate Professor of Law, Fordham University School of Law; Paul Radvany, Clinical Associate Professor of Law, Fordham University School of Law; Lawrence A. Dubin, Professor of Law University of Detroit Mercy School of Law; Thomas T. Guernsey, President & Dean, and Professor of Law Albany Law School. -- Second Edition. pages cm Includes index. ISBN Trial practice--united States. I. Radvany, Paul, author. II. Dubin, Lawrence, author. III. Guernsey, Thomas T., author. IV. Title. KF8915.M \75--dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2014 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2014 Pub.3570)

5 Dedications Michael W. Martin: For Frederick J. Martin, Jr., my inspiration for the law and trial practice; and for Robbi, Shaye, and Brynn, my inspiration for everything else. Paul Radvany: For my wonderful family, Kim, Katie, and Jason. Thank you for all of your support throughout the years. I also want to thank my parents for their support and for inspiring me to become a professor. iii

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7 Acknowledgments The authors would like to thank the Honorable John F. Keenan, United States District Judge for the Southern District of New York, and Associate Professor James A. Cohen, for their comments on earlier drafts of this Second Edition, as well as Fordham University School of Law for its support, which included funding for research assistants and Deans Fellows, who assisted in the Second Edition s research. v

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9 Chapter 1 CASE THEORY AND STORYTELLING: TRIAL ADVOCACY BUILDING BLOCKS I. INTRODUCTION II. CASE THEORY A. A Case Theory Is What Happened and Why You Should Win B. Case Theory s Importance C. You Must Understand Your Adversary s Case Theory D. Developing Your Case Theory Formulate Early and Revise When Necessary Know the Law Make Sure Your Case Theory Is Simple and Makes Sense Your Case Theory Must Be Consistent Find Admissible, Corroborating Evidence to Show Why Your Client s Version Should Be Believed Know Your Strengths and Weaknesses (and Turn Your Weaknesses into Strengths) Sequence and Emphasize Artfully Seize the Moral High Ground and Focus on the Other Side s Wrongdoing Shape the Theory to the Client s Goals Never Base the Case Theory on Facts Known to Be False III. BRINGING THE CASE THEORY TO TRIAL: THE IMPORTANCE OF STORYTELLING A. Why Storytelling? B. Jurors Creating Their Own Stories C. How Do Jurors Create Their Own Stories? D. How Lawyers Can Influence the Jurors Story-Making Process Recognize Your Story May Be Built on Fact Remnants Begin Storytelling in Voir Dire and Do Not End Until Summation Make Your Story About People and the Way the Dispute Has Affected Their Lives Emphasize Injustice Be Concise Explain Opposing Party s Motive Use Case Themes Use Facts, Not Characterizations Present Your Story Visually Show and Tell vii

10 10. Deliver Story with Vigor, Simplicity, and Conviction Chapter 2 EVIDENCE AND OBJECTIONS I. INTRODUCTION II. WHY YOU OBJECT III. MOTIONS IN LIMINE IV. HOW TO BEST PREPARE YOURSELF FOR OBJECTING AT TRIAL A. Be Organized B. Know Your Judge C. Know Your Opposing Counsel D. Consider the Jurors Perception of Your Objecting E. Prepare for Foreseeable Objections F. Learn and Understand the Most Common Objections and Their Evidentiary Foundations G. Recognize Situations that Give Rise to Objectionable Conduct H. Listen for Certain Buzzwords I. Be Willing to Make Mistakes and Be Overruled V. TECHNIQUES AND TACTICS FOR OBJECTING A. Stand and Address the Court B. Say Objection C. Be Prompt D. Be Courteous E. Be Prepared to Object with Specificity F. State Alternative Grounds G. Sever Objectionable from Non-Objectionable Matters H. Request Appropriate Instructions I. Insist on a Ruling J. Stay on the Record K. Only Object for Legitimate Purposes L. Good Faith Belief M. Be Assertive and Confident N. Use Emotion Sparingly O. Avoid Being Argumentative P. Be Aware of How the Judge Is Ruling VI. OFFERS OF PROOF VII. COMMON OBJECTIONS A. Objections as to the Form of the Question The Question Is Ambiguous (Federal Rules of Evidence 611(a) and 403) The Question Is Argumentative (Federal Rules of Evidence 611(a) and viii

11 403) The Question Assumes Facts Not in Evidence (Federal Rules of Evidence 611(a) and 403) The Question Calls for Improper Hypothetical Answer (Federal Rule of Evidence 703) The Question Is Leading (Federal Rule of Evidence 611(c)) The Question Is Misleading (Federal Rules of Evidence 611(a) and 403) The Question Asks Multiple Questions, i.e., Is Compound (Federal Rules of Evidence 611(a) and 403) The Question Calls for a Narrative Response (Federal Rule of Evidence 611(a)) The Question Has Been Asked and Answered (Federal Rules of Evidence 403 and 611) The Question Calls for the Witness to Speculate (Federal Rules of Evidence 602 and 701) B. Objections as to the Substantive Content to Be Elicited in the Response Irrelevant (Federal Rule of Evidence 401) Unduly Prejudicial (Federal Rule of Evidence 403) Unnecessarily Duplicative or Cumulative (Federal Rule of Evidence 403) Improper Character Evidence (Federal Rules of Evidence 404(a), 405, 608, and 609) Improper Habit or Business Practice (Federal Rule of Evidence 406) Improper Use of Remedial Measures (Federal Rule of Evidence 407) Improper Use of Settlement Negotiations (Federal Rules of Evidence 408 and 410) Improper Use of Liability Insurance (Federal Rule of Evidence 411) Incompetent Witness (Federal Rules of Evidence 601 and 602) No Foundation for Testimony (Federal Rules of Evidence 602 and 701) Improper Impeachment (Federal Rules of Evidence 607, 608, 609, and 613) Improper Use of Religion (Federal Rule of Evidence 610) Cross-Examination Question Exceeds Scope of Direct (Federal Rule of Evidence 611(b)) Improper Refreshing Recollection (Federal Rules of Evidence 612 and 805) Opinion Rule Violated (Federal Rule of Evidence 701) Improper Expert Opinions (Federal Rules of Evidence 702, 703, 704, and ix

12 705) Hearsay (Federal Rules of Evidence ) Improper Authentication and Identification (Federal Rule of Evidence 901) Best Evidence Rule (Federal Rules of Evidence ) Improper Bolstering of Credibility (Federal Rule of Evidence 608(a)) Unreliable Scientific Evidence (Based on Insufficient Data or Unreliable Principles and Methods, or the Unreliable Application Thereof) (Federal Rule of Evidence 702) Improper Expert Testimony on Certain Ultimate Issues (Federal Rule of Evidence 704) Improper Judicial Notice (Federal Rule of Evidence 201) Improper Questioning by a Judge (Federal Rule of Evidence 614) Improper Presumption (Federal Rule of Evidence 301) C. Objections Common to Voir Dire, Opening Statements, and Closing Arguments D. The Ethics of Using Objections for Extralegal Purposes: Use of Objections to Disrupt Rhythm and Instruct the Witness and/or the Jury Chapter 3 JURY SELECTION I. INTRODUCTION II. PRELIMINARY MATTERS A. Decision No. 1: Whether or Not to Demand a Jury Trial B. Knowing How Voir Dire Is Conducted in Your Courtroom Judicial-Led Voir Dire What Questioning System Is Used in Your Courtroom? How Many Jurors and Alternates? Does Your Case Warrant a Juror Questionnaire? C. Pre-Trial Decisions Should You Invest in Jury Consulting Services? Should Your Client Participate in the Voir Dire Process? D. Primer on Understanding the Jurors How Have the Jurors Arrived at the Courthouse? How Do Jurors Generally Make Decisions? a. Jurors Work Within the Story Construct b. Jurors Cross-Referencing Will Be Influenced by Specific Attitudes and Beliefs c. Jurors Live in a Digital Age d. Jurors Are Not Created Equally i. Affective-cognitive continuum x

13 ii. Authoritarianism-individualism continuum iii. Persuaders, participants, and non-participants continuum E. Pre-Trial Preparation for Voir Dire Practice Know the Community Identify the Ideal Juror Prepare Voir Dire Requests III. THE OBJECTIVES OF VOIR DIRE AND HOW TO ACHIEVE THEM A. Obtaining Information About the Prospective Jurors The Type of Information You Want How to Ask Questions Impediments to Gathering Information and How to Overcome Them a. The Impediments b. How to Overcome the Impediments B. Begin Telling Your Client s Story C. Begin Process of Building Rapport and Showing Jurors That You Are Trustworthy IV. TYPES OF CHALLENGES A. Challenge to the Entire Jury Panel B. Challenges for Cause C. Peremptory Challenges V. STRUCTURING THE VOIR DIRE A. Introduction B. Examination C. Conclusion VI. DEALING WITH UNFRIENDLY AND FRIENDLY JUROR RESPONSES A. Negative Responses B. Getting a Juror to Admit Partiality General Bias Prejudice C. Silent Jurors D. Negative Spiraling E. Friendly Jurors Shielding the Good Juror Using the Overly Sympathetic Juror to Your Advantage F. Ingratiation G. Bias After Trial VII. AVOIDING OBJECTIONABLE CONDUCT VIII. CONCLUSION xi

14 Chapter 3 APPENDIX I. JUDICIAL-LED VOIR DIRE EXAMPLE II. JUROR QUESTIONNAIRE EXAMPLE III. JOINT VOIR DIRE REQUESTS EXAMPLE Chapter 4 OPENING STATEMENT I. THE MAIN PURPOSE OF AN OPENING STATEMENT IS TO ARGUE YOUR CASE II. ESTABLISHING YOUR CREDIBILITY EARLY IS CRUCIAL III. ORGANIZING YOUR OPENING A. You Must Have a Strong Beginning B. Transition C. The Narrative D. Only Refer to Key Witnesses or Evidence E. Anticipating Defenses; Revealing and Inoculating Weaknesses F. Discuss the Burden of Proof G. Discuss Motive H. Consider Referring to the Law I. Consider Discussing Damages J. End Strong IV. DEFENDANT S OPENING A. Argue Your Case B. Begin Strong C. Cast Doubt on Your Adversary s and Their Witnesses Credibility D. Limit the Impact of Your Adversary s Witnesses E. Discuss the Absence of Evidence F. Discuss the Burden of Proof G. Reserving the Opening V. WRITING THE OPENING A. Write an Outline First B. Argue Without Arguing C. Make It Short D. Avoid Legalese and Words You Will Trip Over E. Do Not Use Too Many Names F. Frame the Issue the Jury Will Have to Resolve G. Use Questions H. Provide Details on Important Issues VI. SOME DON TS VII. PRESENTING THE OPENING A. Keep the Jurors Attention xii

15 B. Use Visual Aids C. Practice D. Speak Directly to the Jury E. Some Don ts Regarding Your Presentation VIII. SAMPLE OPENING Chapter 5 DIRECT EXAMINATION I. INTRODUCTION II. THE BIG PICTURE A. Objectives of Direct Examination B. Preparing Direct Examination C. Storytelling Through Direct Examination D. Witness Selection: Determining Whom to Call and in What Order Whom to Call a. Choose Only Those Witnesses Who Are Helpful to Proving Your Case Theory b. Too Many Witnesses May Confuse the Jurors c. Your Case Theory and Claims (or Crimes ) Prima Facie Elements Must Guide You d. Choose the More Credible Witness e. Cumulative Witness Testimony May Affect Interest and Emotional Impact In What Order a. Let Logic and Clarity Guide Your Ordering b. Start and End with a Good Witness c. Start Each Trial Day with a Good Witness d. Place Bad Witnesses Towards the End of Each Day e. Allow the Jurors to Reach Conclusions Themselves f. Consider Taking Risks, but Do So Carefully E. Special Considerations Regarding Witness Selection Calling Your Client Calling a Non-Party Eye Witness Calling a Character Witness Calling an Adverse or Hostile Witness F. Preparing Your Witnesses Set Aside Adequate Time to Prepare Witness Address a Witness s Anxiety Instruct the Witness on the Role to be Played a. Inform About the Ethical Propriety of Preparing the Witness b. Explain How the Witness s Testimony Fits Within the xiii

16 Case Theory c. Explain Proper Etiquette Refresh the Witness s Recollection a. Review the Witness s Recollection b. Familiarize the Witness with Exhibits and Visual Aids c. Revisit the Scene Observe a Trial Prepare the Witness to Testify a. Do the Prep Sessions Yourself b. Prepare for the Witness Prep Sessions c. Practice Mock Questions and Answers for Direct Examination d. Make Suggestions for Testifying i. Take role seriously ii. Do not memorize testimony iii. Pay attention to jurors iv. Do not mumble and only give verbal answers v. Listen and take your time vi. Be clear in delivery and substance vii. Avoid appearing partisan viii. Do not take objections personally ix. Do not unintentionally qualify testimony x. Avoid self-pity Prepare the Witness for Cross-Examination a. Tell the Truth b. Only Answer the Question c. Immediately Clarify Errors d. Most Questions Will Be Leading Do Not Simply Agree e. Explain When Necessary f. Do Not Speculate g. Be Cooperative h. Do Not Look to Your Lawyer for Assistance i. If Necessary, Patiently Await Redirect Examination to Fully Explain the Truncated and Controlled Answers Elicited on Cross-Examination j. Do Not Grimace k. If Asked on Cross About Discussing the Case with Anyone l. Listen to the Question Use an Interpreter G. Structure for Direct Examination Introduction of Witness xiv

17 2. Building Your Witness s Credibility a. Humanize Your Witness b. Show Your Witness s Firsthand Knowledge of the Relevant Events and Locations c. Use Open-Ended Questions d. Discuss the Demeanor the Jurors Will Likely Be Expecting from the Witness e. Reflect Confidence in the Witness f. Avoid Appearing Frustrated or Angry g. Ease the Witness into the Testimony h. Accept Blame if the Witness Is Confused i. Refresh Recollection or Use Past Recollection Recorded When Necessary j. Deal with Bad Facts Development of the Facts a. Set the Scene b. Describe the Action: Chronological vs. Topical Anticipate the Negative Vary the Framework III. THE DETAILS: DRAFTING A. Drafting Direct Examination Questions in Advance Versus Outlining B. Cardinal Rules of Drafting Questions Use Open-Ended, Non-Leading Questions to Elicit the Witness s Story: Who, What, Where, When, and Why Use Narrative Questions Sparingly and Only with Well-Prepared Witnesses Use Closed-Ended Questions for Greater Control of the Witness Use Leading Questions in Exceptional Circumstances Draft Simple, Short Questions with Plain Words Select Language Partial to Your Case Theory Avoid Unnecessary Questions and Words Avoid Pronouns and Other Potentially Vague Language Use and Seek to Elicit Verbs, Not Adjectives Looping the Last Response into the Next Question Keep the Questions in the Present Tense Use Topic Sentences to Assist with Topic Transitions Drafting with an Eye Toward Potential Objections Anticipate Cross-Examination Dealing with Negative Facts Conclude on a Strong Point Knowing When to End a Topic and the Examination xv

18 IV. LAYING PROPER EVIDENTIARY FOUNDATIONS ON DIRECT EXAMINATION A. Refreshing Present Memory vs. Past Recollection Recorded Refreshing Recollection Temporary Memory Loss Past Recollection Recorded Total Memory Loss a. Two Common Past Recorded Recollection Moments b. Past Recollection Recorded Is a Hearsay Exception c. Inadmissibility of the Document d. Past Recollection Recorded s Foundational Elements B. Authentication V. DELIVERY A. Make It Interesting Do Not Bore the Jurors Be Thrifty with Time Use Only Necessary Witnesses Listen to the Witness Watch the Jurors Discreetly Make Sure the Jurors Can Hear You Create Drama Use Visuals Alter Your Tone Control the Pace of Questions Control the Witness In Important Moments, Consider Having the Witness Speak to the Jurors B. Keep the Testimony Credible Corroborate Testimony Help the Witness Relax Hide Anxiety or Frustration Show Interest in the Testimony C. Get Out of the Way Never Position Yourself Between the Witness and Jury Eliminate Distracting Mannerisms D. Handle the Adverse Party s Objections Smoothly Dealing with Objections Made for Proper and Improper Purposes Avoiding Unnecessary Objections a. Avoiding Objections by Forming Questions Properly b. Do Not Try to Elicit Inadmissible Evidence c. If Evidence Appears Admissible but You Are Unsure, Develop Foundation Before Eliciting Questionable Evidence and Be Prepared for an Objection When Your Adversary Objects, Listen, then Rebut or Withdraw xvi

19 VI. REDIRECT EXAMINATION A. Limit the Scope to Cross-Examination Topics B. Assess Redirect s Necessity, then Be Concise and Effıcient C. Look to Restore Any Loss of Credibility D. Add Questions to Hurt Opposing Counsel s Credibility Allow the Witness to Expand Upon the Cross-Examination s Yes or No Questions Spotlight Opposing Counsel s Avoidance of Bad Facts E. Clarify Confusing Answers or Potentially Vague Implications from Cross- Examination F. Start and End Strong VII. COMMON PITFALLS IN DIRECT EXAMINATION A. Prepare B. Do Not Get Rattled C. Do Not Rattle Your Witness D. Avoid Questions Susceptible to Form Objections E. Handle Objections Effıciently F. Handle Exhibits Properly and Smoothly G. Do Not Be Rude to Your Witness H. Only Interrupt the Witness When Necessary I. Do Not Confuse the Witness, and Take the Blame if You Do J. Avoid Legalese K. Do Not Repeat the Witness s Answer Unnecessarily or Otherwise Respond to the Witness, Other than to Ask the Next Question L. Avoid Distracting Ticks M. Never Stop Listening to the Witness N. Do Not Let the Witness Omit the Answer or Details You Need O. Avoid Poor Pacing P. Do Not Create an Ambiguous Record Q. Do Not Avoid the Hard Questions on Direct or Otherwise Fail to Anticipate Cross-Examination R. Do Not Be Rattled by a Judge s Invoking the Right to Question or Otherwise Call a Witness S. Do Not Speak to Your Witness During a Break in Cross-Examination, as Opposing Counsel Will Exploit this Conversation Chapter 6 EXHIBIT ADMISSION AND THE USE OF EXHIBITS AND VISUAL PRESENTATIONS I. INTRODUCTION II. PRELIMINARY CONSIDERATIONS xvii

20 A. Choosing Exhibits to Admit B. Choosing the Best Witness Through Whom to Admit the Exhibits C. Admitting Exhibits Through Witness Testimony and Subject to Connection D. Pre-Trial Consenting to Admission of Exhibits E. Stipulations F. Judicial Notice III. OVERVIEW OF THE NECESSARY STEPS IV. STEPS NEEDED TO INTRODUCE AN EXHIBIT INTO EVIDENCE A. Protect the Record by Marking the Proposed Exhibit B. Show the Proposed Exhibit to Opposing Counsel C. Request the Court s Permission to Approach the Witness D. Show the Exhibit to the Witness E. Through the Witness, Show that the Exhibit Is Authentic, Relevant, and Admissible Authentic a. The Basics b. Authenticate Internet-Based Evidence c. Testimonial Evidence Relevant Laying the Required Evidentiary Foundation to Ensure Admissibility F. Offer the Proposed Exhibit into Evidence G. Respond to Objections to the Proposed Exhibit s Admissibility Dealing with an Objection Obtaining a Ruling When the Court Sustains an Objection a. Whether to Argue Further b. Attempt a Redaction or Offer for a Limited Purpose c. Offer of Proof Objections from the Objecting Party s View Requesting a Voir Dire Examination H. Ensure the Exhibit Is Entered into Evidence I. Show the Exhibit s Significance Through the Witness J. Publication of Exhibit to Jury V. EXAMPLES OF EXHIBIT ADMISSION A. Physical or Real Evidence Chain of Custody Voir dire Publishing to the Jury Examples xviii

21 a. Weapon b. Defective Product c. Clothing d. Car Parts e. Writings i. Writings with substantive legal significance: Contracts, confessions, trusts, and wills a) Best Evidence Rule ii. Letters iii iv. Text messages v. Website information B. Demonstrative Evidence Photographs and Videos X-Rays, MRIs, and CT-Scans Video Audio Recordings Maps, Charts, and Diagrams Models Summaries of Data Computer-Generated Simulations C. Records Business Records Public Records Computer Records a. Authenticity b. Hearsay D. Exceptions to the Foundational Requirements Stipulations Pleadings, Admissions, and Discovery Responses Self-Authenticating Documents and Records VI. EXHIBITS NOT ADMITTED AS EVIDENCE A. When You Are Not Seeking to Admit: Exhibits as Illustrative and Argumentative Visual Aids B. Improving Your Use of Visual Aids VII. FINAL THOUGHTS: STAYING ORGANIZED Chapter 7 CROSS-EXAMINATION I. INTRODUCTION xix

22 II. REDUCING THE NEED FOR CROSS-EXAMINATION BY LIMITING THE WITNESS S EFFECTIVENESS III. OBJECTIVES OF CROSS-EXAMINATION A. Objective #1: Elicit Favorable and Helpful Information First B. Objective #2: Elicit Evidence that Discredits the Testimony of the Witness Attack the Substance, but Not Necessarily the Witness Basis for Attacking the Substance of Testimony a. A Witness Must Have Personal Knowledge b. The Elements of Personal Knowledge i. Perception: Receipt of data through the senses ) Explore Obstacles to Perception ) Explore the Facts Behind a Witness s Statement ii. Memory ) External Factors That Influence Memory ) Internal Factors That Influence Memory ) Listen for Key Words/Phrases Indicating Witness Is Not Positive About His Testimony iii. Communication ) Witnesses Must Be Able to Communicate ) Clarify the Witness s Testimony When Appropriate Contradiction a. Establish That Another Witness Should Have More Accurate Information b. Elicit Contradictions Among Other Side s Witnesses c. Highlight the Difference Between Testimony and Conduct C. Objective #3: Elicit Evidence That Discredits the Witness Impeachment Ask If the Witness Has Talked to Anyone About Testimony Elicit I Don t Know Responses IV. TECHNIQUES AND TACTICS FOR CROSS-EXAMINATION A. Cross-Examination Requires Preparation Read Everything Make Sure Witness s Prior Statements Are Easily Accessible Do Your Homework During Trial B. Invoke the Sequestration Rule C. Determine Whether Witness Should Be Cross-Examined As a General Rule, Every Witness Should Be Cross-Examined Your Cross-Examination Need Not Be Lengthy A Very Short Cross-Examination Can Be Powerful Do Not Cross if There Is Nothing to Gain, and You Fear Giving Your xx

23 Adversary Redirect D. Cross-Examination Generally Cannot Go Beyond Topics Discussed During Witness s Direct Credibility Issues Are Fair Game You Cannot Strategically Limit Direct to Prevent Damaging Cross E. Only Cover Important Points Jurors Want a Focused Cross The Control Vehicle Know the Answer to Most, if Not All, of Your Questions Questions to Which You Lack Answers Are Safe if the Desired Answers Comport with Common Sense F. Do Not Repeat the Direct Examination G. Do Not Cross on a Topic Simply Because It Is in Your Outline H. Do Not Allow Witness to Clarify Confusing Testimony I. Maintain Objectivity J. Know When to Stop (the 80% Rule ) K. Watch Experienced Lawyers Cross-Examine L. Practice Your Cross-Examination V. FORMULATING QUESTIONS A. Outline of Topics Before Drafting Questions B. Draft Unobjectionable Questions C. Drag Out Facts D. Do Not Feel Compelled to Use a Logical and Linear Structure Chronological Is Not Always the Most Effective You Must End with a Bang Avoid Ending with a Sustained Objection E. Control the Witness at All Times Ask Leading Questions Use Plain and Concise Language Ask Specific Questions That Require Specific Responses: One Fact Per Question Never Invite Explanations Do Not Use Adjectives or Characterizations: On Cross, They Get You in Trouble a. First Exception You Are Using the Witness s Own Words b. Second Exception It Is Obvious That the Adjective Is Appropriate Controlling the Witness Who Does Not Answer Your Question Techniques for Dealing with the Witness Who Answers Either Yes or No, but then Provides an Explanation for His Answer xxi

24 a. Establish the Ground Rules from the Beginning b. Ask the Judge to Instruct the Witness c. Move to Strike if the Answer Is Not Responsive d. Interrupt the Witness e. After the Witness Finishes, Make a Comment f. Repeating the Question Verbatim Is Usually the Most Effective Technique VI. LAWYER DEMEANOR A. Beginning the Cross Begin Immediately Don t Introduce Yourself B. Demonstrate Confidence C. Tone D. Where to Stand E. Where to Look F. Watch and Listen Watch for Non-Verbal Clues Listen Carefully G. Appear Fair and Courteous H. Demonstrate Knowledge I. Do Not Argue with the Witness J. Reacting to Testimony Temper Your Reaction to Helpful Testimony Do Not React to Harmful Testimony, Though Seek to Limit the Harm VII. THE SEVEN RULES OF CROSS-EXAMINATION AND WHEN, IF EVER, TO BREAK THEM A. Rule #1: Only Ask Leading Questions B. Rule # 2: Do Not Use Adjectives C. Rule # 3: Never Ask for an Explanation D. Rule # 4: Never Ask a Question When You Do Not Know the Answer E. Rule # 5: The O.J. Simpson Rule F. Rule # 6: Don t End on a Sustained Objection G. Rule # 7: Don t Ask One Question Too Many H. Rule # 8: Follow Rules Chapter 8 IMPEACHMENT I. INTRODUCTION A. You Can Impeach Any Witness B. You Can Impeach on Matters Relevant to Truthfulness xxii

25 C. The Proper Way to Impeach Varies D. No Extrinsic Evidence Is Allowed if the Witness Untruthfully Denies a Collateral Fact or Admits the Truth E. If Impeached, a Witness May Be Rehabilitated II. FORMS OF IMPEACHMENT A. Prior Inconsistent Statements General Considerations a. Choose a Prior Inconsistent Statement Goal: Discredit Witness or Elevate Prior Statement i. An example to illustrate the choice ii. Choosing to impeach the witness as unreliable iii. Choosing to promote the prior inconsistent statement as reliable b. Don t Impeach Every Inconsistent Statement c. Consider Whether or Not to Repeat the Witness s Direct Testimony d. Don t Ask the One Question Too Many Types of Impeachment a. Impeachment by Written Statement i. At common law: Foundation needed ii. The federal rules: Opportunity to admit only iii. Strategically, you still may want to lay the common law foundation b. Impeachment by Oral Statement i. Similar approach to impeaching with a prior written statement ii. Recorded oral statements c. Impeachment with a Prior Inconsistent Deposition Statement i. Choose carefully when to impeach with a prior inconsistent deposition statement ii. If you have several points in which to impeach a witness, give the witness the deposition transcript from which to read iii. Bring at least three copies iv. Know your goal: Discredit witness or elevate prior statement v. Quote, don t paraphrase, from the deposition d. Impeachment Using an Omission B. Bias, Prejudice, Interest, Incentives, and Corrupt or Improper Motive C. Prior Criminal Convictions D. Prior Bad Acts E. Character Witness Offering Reputation or Opinion F. Impeaching When Witness Does Not Recall xxiii

26 III. REHABILITATION Chapter 9 EXPERT TESTIMONY I. INTRODUCTION II. THE LAW GOVERNING THE USE OF EXPERTS A. Federal Rule of Evidence 702, Daubert, and Frye Federal Courts: Federal Rule of Evidence 702 and Daubert State Courts: Frye, Daubert, or Hybrid? B. Expert Disclosure III. SELECTION AND PREPARATION OF AN EXPERT A. Choosing and Retaining an Expert B. Preparing the Expert Ensure the Expert Has Reviewed All Information on Which the Expert s Opinion Is Based Be Careful About Sharing Privileged Communication with the Expert Prepare Your Expert to Have the Same Demeanor on Direct and Cross Remind the Expert to Address the Jury Remind the Expert to Speak Simply and Clearly Remind Your Expert to Treat Questions About Treatises and Other Sources with Special Care Remind Your Expert to Correct Errors Promptly IV. DIRECT EXAMINATION OF EXPERTS A. Introducing the Expert B. Qualifying the Expert Eliciting the Witness s Training and Experience a. The Unopposed, Uncontested Expert b. The Contested, Opposed Expert i. How to elicit enough detail about expert s experience and training without boring the jurors and judge ) Alert the Jurors to the Credentials Importance ) Prevent the Witness From Rambling with Questions That Elicit Short Answers ) The Use of Exhibits ) Breaking-Up the Examination ) Emphasize the Witness s Relevant Practical Experience ii. How to deal with the frequent expert witness Proffering the Expert Witness Responding to an Offer to Stipulate xxiv