Masters of the Courtroom SM Direct & Cross Examination The Hon. Carl J. Barbier, USDC EDLA Darleen M. Jacobs, The Law Offices of Darleen M. Jacobs Kerry Miller, Frilot Course Number: 0200141211 1 Hour of CLE December 11, 2014 2:50 3:50 p.m.
CARL J. BARBIER United States District Court Eastern District of Louisiana 500 Camp Street, Room C-256 New Orleans, Louisiana 70130 Phone: (504)589-7525 Fax: (504)589-4536 E-mail: barbier@laed.uscourts.gov Carl J. Barbier currently serves as a judge on the United States District Court for the Eastern District of Louisiana in New Orleans. Judge Barbier took the oath of office on October 12, 1998. Prior to taking the bench, Judge Barbier was a practicing attorney in New Orleans since 1971, primarily representing plaintiffs, consumers and small businesses in civil litigation. He earned his law degree cum laude in 1970 from Loyola School of Law, where he was associate editor of the Loyola Law Review. He served as law clerk to Judge William Redmann, Fourth Circuit Court of Appeal, and to Judge Fred Cassibry, U. S. District Court, Eastern District of Louisiana. Judge Barbier is a past president of the New Orleans Bar Association and formerly served as president of the Thomas More Inn of Court. He is currently on the Board of the Federal Bar Association, New Orleans Chapter. Judge Barbier is a past president of Louisiana Trial Lawyers Association, a past member of the House of Delegates of the Louisiana State Bar Association, and a fellow of the Louisiana Bar Foundation. In addition, Judge Barbier is a member of the board of directors of the Loyola Law Alumni Association.
DIRECT EXAMINATION The Hon. Carl J. Barbier, U.S. District Court - EDLA 1. Preparation, Preparation, Preparation 2. What are you trying to prove Theme of the case 3. Practice makes perfect 4. Dress, appearance of witness 5. Keep it simple, understandable (specific, closed end?) 6. Structure (chronological, short narrative? 7. Emphasis on strongest points ( primacy & recency -- begin strong and end strong, ) 8. Use of words ( crash vs. accident ) 9. Tell the truth, but important how to tell the truth 10. You are the director (be aware of your positioning) 11. Visual aids/exhibits&demonstrative evidence (prepare in advance) 12. Let witness tell his story (witness should be focus of attention) 13. Be organized (don t fumble around); Avoid repetition. 14. Bring out unfavorable points 15. Listen to the witness answer, before moving on to next question. 16. Must ask non-leading questions (FRE 611-order and method of interrogation at trial) But, there are several exceptions (witness who is hostile, unwilling, or biased; child witness or adult with communication problems; witness whose recollection is exhausted; and undisputed preliminary matters. This is clearly within area of control by trial judge over mode and order of interrogation and presentation.)
17. Prepare witness to listen carefully to your question and answer only that question. You should control flow. 18. Don t ask compound questions. 19. Transition signals or signposts (alert listeners to change in topic or transition in the story) 20. Refreshing witness recollection with writing on direct examination(fre 612) 21. Courtroom mechanics, etiquette, positioning, movement, etc. 22. Redirect examination (correct errors and explain important damaging testimony from cross-exam; and remind listeners of strong points 23. Prepare the witness for anticipated cross exam 24. Know judge s rules: Ordinarily, only (1) Direct Exam; (2) Cross-Exam; and (3) Re-direct Exam. C ROSS EXAMINATION 1. What are your goals? Substance of testimony? Credibility? Bias? 2. Scope of cross-examination [F.R.Evid. Rule 611 (b) (cross-examination limited to subject of direct examination and matters affecting credibility, but court has discretion to permit inquiry into additional matters as if on direct examination) ] 3. Don't simply have witness repeat direct examination 4. Control the witness through leading questions [FREvid. Rule 611 (c)...you are really testifying and having the witness agree with you. 5. Don't ask questions that you don't know how the witness will answer (unless answer does not matter) 6. Don't argue with the witness 7. Allow the witness to finish his answer, but demand an actual answer to your question 8. If witness refuses to answer or attempts to evade, ask Judge to instruct witness to answer
9. Above all, be fair and courteous. Jurors will intuitively identify with witness, not you Im peachment of Witness by Use of Prior Inconsistent Statement 1. Consider whether the prior statement is truly "inconsistent" or whether it can be easily explained 2. If using prior deposition or other sworn testimony, be sure to ask precisely the same question 3. If witness gives different answer on witness stand, ask permission to provide witness with a copy of his prior testimony or statement, ask whether he recalls being sworn and giving his deposition (or statement), point witness to page and lines where impeaching statements appear, and then read question and answer, asking witness whether he gave that testimony or made that statement at the earlier time. [FREvid, Rule 613]
12/8/2014 Direct & Cross Examinations The Honorable Carl J. Barbier USDC for the EDLA Darleen M. Jacobs Jacobs, Sarrat, Lovelace & Harris Kerry J. Miller Frilot, LLC Direct Examinations Preparation 2 Direct Examinations Preparation Have your witness read/study his or her deposition. Do not give your witness a script. Mk Make sure your witness has empty pockets. Your witness should know the questions you will ask and the answers he or she will give. Prepare for the unexpected a nervous witness may freeze at trial. 3 1
12/8/2014 Direct Examinations Organization No compound questions. Keep it simple and as short as possible. Preempt cross examination i by bringing bi i out unfavorable points in a favorable light. You should control the flow, not your witness. 4 Direct Examinations Non Leading 5 Direct Examinations Non Leading Federal Rules of Evidence: Rule 611 Generally no leading questions on direct examination. Exceptions when a party calls a hostile witness, an adverse party, or a witness identified d with an adverse party. Consider other exceptions within judge s discretion over the mode/order of examining witnesses and presenting evidence (e.g., children, adults with communication problems, undisputed preliminary matters, witness whose recollection is exhausted). 6 2
12/8/2014 Cross Examinations 7 Cross Examinations Preparation/Organization Avoid open ended questions (e.g., who, what, when, where, how). Know how the witness will answer your question. Demand that the witness answers your question. Be fair and courteous jurors will intuitively identify with the witness, not you. Investigate the witness social media profiles (Facebook, Twitter, etc.) to find posts inconsistent with deposition/direct testimony or to discover other relevant matters. 8 Cross Examinations The Lost Art of Impeachment 9 3
12/8/2014 Cross Examinations The Lost Art of Impeachment FRE 613 A witness prior inconsistent statement is generally admissible if the witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine the witness about it. Consider whether the prior statement is truly inconsistent or whether it can be easily explained. If using a prior deposition or other sworn testimony, be sure to ask precisely the same question. Check the witness social media for inconsistencies. 10 Cross My Cousin Vinny 11 Cross A Civil Action 12 4
12/8/2014 Cross Presumed Innocent 13 Cross The Lincoln Lawyer 14 Cross My Cousin Vinny (again) 15 5
12/8/2014 Use of Depositions at Trial Generally, a deposition may be used at trial for impeachment, when it is an FRCP 30(b)(6) deposition of an adverse party, or when the witness is unavailable. FRCP 32(a)(4) A witness is unavailable when: the witness is dead; the witness is more than 100 miles from trial or outside the U.S., unless the absence was procured by the offering party; the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; the offering party could not procure attendance by subpoena; or exceptional circumstances make it desirable to permit the deposition to be used. Consider the best way to present a deposition at trial show both the video and the scrolling transcript text underneath the video and edit the video to keep it short. 16 Use of Depositions at Trial When is it appropriate/effective to confront a witness with other witness deposition testimony? FRCP 32(a)(2) (4) (2) Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence. (3) An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party s officer... or designee under Rule 30(b)(6). (4) A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds [that the witness is unavailable as defined by Rule 32(a)(4)(A) (E)]. 17 6