TRIAL PROCEDURE AND TACTICS

Author: James A. Tanford Indiana University School of Law

A. THE CARDINAL RULES OF SUCCESSFUL TRIALS 1. Act respectful toward the judge. Stand when he/she enters or leaves the room. Address him/her as "your honor." . !e "rief. #. $on%t waffle or whine &. 'ever underestimate your opponent (. )ear comforta"le clothes* especially shoes. 'o rule re+uires men to wear vests or women to wear pumps that ma,e them limp. -. !ring water and granola "ars. .. Arrive at every court appearance at least 1( minutes early. /. !e formal and professional at all times. 0. 1repare. B. USUAL ORDER OF TRIAL 213 1reliminaries !ailiff calls court to order* attorneys stand and judge enters room Judge as,s for attorneys% names 2sometimes called "appearances"34 attorneys give their names and whom they represent. Judge as,s if there are any preliminary issues and attorneys ma,e motions. 1laintiff usually goes first. 5otions are of three ,inds: a3 5otion to separate witnesses under 6ed. 7. 8vid -1( "3 5otions in limine to prevent the other side from "ringing up inadmissi"le evidence c3 7e+uests that the judge clarify his or her procedures on specific issues4 e*g* i3 5ay e9hi"its "e used in opening statement:4 ii3 5ay leading +uestions "e used on preliminary or uncontested matters:4 iii3 Should you state grounds for an o"jection in open court or at the "ench:4 or iv3 )ill the judge give jury instructions "efore or after closing arguments. ;f instructions are not given until after arguments* will the judge permit you to refer to specific pattern jury instructions during argument. (2) Jury selection (not usually done at trial competitions) A jury panel is "rought in The judge introduces the case and lectures the jury a"out civic responsi"ility Si9 jurors are called to sit in the jury "o9 1laintiff +uestions the panel first* and when done* then defendant +uestions them 8ither side may challenge a juror for cause 2legal dis+ualification3 whenever grounds "ecome apparent After the +uestioning* the lawyers approach the "ench and tell the judge whether they have any peremptory challenges 2you just don%t li,e a juror3. 1laintiff e9ercises the first challenge* then defendant* then alternately until they are satisfied with the panel or run out of allotted challenges. <ou may not challenge jurors "ased on race* ethnicity or gender. 'ew jurors are called up to fill in the jury "o9 and the process starts over again. The jurors who remain are sworn in 3) Opening statement 1laintiff 2or prosecutor3 gives an opening statement $efendant gives an opening statement.

(4) Plaintiff's case in chief 1laintiff calls )itness 'o. 1 a3 1laintiff conducts direct e9amination "3 $efendant conducts cross=e9amination c3 1laintiff conducts "rief re"uttal 1laintiff calls remaining witnesses. 6or each one: a3 1laintiff conducts direct e9amination "3 $efendant conducts cross=e9amination c3 1laintiff conducts "rief re"uttal 1laintiff announces that s/he rests 2(3 $efendant ma,es a motion for a judgement as a matter of law under 6ed. 7. >iv. 1ro. (?. (6) Defendant's case-in-chief $efendant calls )itness 'o. 1 a3 $efendant conducts direct e9amination "3 1laintiff conducts cross=e9amination c3 $efendant conducts "rief re"uttal $efendant calls remaining witnesses. 6or each one: a3 $efendant conducts direct e9amination "3 1laintiff conducts cross=e9amination c3 $efendant conducts "rief re"uttal $efendant announces that s/he rests. 2.3 1laintiff ma,es a 7ule (? motion for judgment on the evidence as to any affirmative defense or counterclaim ( ) Plaintiff presents its re!uttal case * limited to new facts* issues and defenses raised during the defendant%s case=in=chief. 1laintiff calls one or more witnesses a3 1laintiff conducts direct e9amination "3 $efendant conducts cross=e9amination c3 1laintiff conducts "rief re"uttal 1laintiff announces that s/he rests. 203 !oth sides renew their 7ule (? motions for judgment on the evidence. ("#) $losing arguments 1laintiff presents the first argument $efendant presents his or her argument 1laintiff presents the final argument ("") %he &udge instructs the &ury on the la'

("2) Jury deli!eration The jury deli"erates in secret long enough to get at least one free meal. ;f the jury re+uests more instructions or a review of evidence* it ta,es place in open court with the parties present. 8ven the judge may not communicate e9 parte with the jury. The jury returns its verdict* the lawyers are summoned* and the verdict is read. )hichever lawyer lost the case as,s that the jury "e "polled*" a process in which each juror is individually as,ed if they agree with the verdict. C. BASIC PRINCIPLES OF ADVOCACY 213 $evelop a theory of your case and stic, to it. 5a,e sure that everything you do furthers that theory* and don%t waste time on anything irrelevant to it. A case theory is the simplest model that e9plains what happened and why you are entitled to a favora"le verdict* and forms a cohesive* logical view of the merits of the case that is consistent with common everyday e9perience. A case theory contains the following elements: (a') <our theory should clearly indicate the proper legal outcome of the case. <ou must understand the elements of your cause of action or defense* and whether and how you can prove them. ;f there are multiple legal issues* you must decide what is your strongest legal argument. Just "ecause an issue could "e argued does not mean you must do so. 6or instance* a defendant in a personal injury case could argue that the plaintiff cannot prove lia"ility* or that plaintiff suffered no damages* or "oth. ;f you represent a defendant who* at the time of an accident* was drun,* speeding* driving in the wrong lane* and did not have a license* could you sincerely argue that your client was not negligent: ;f the plaintiff suffered only whiplash injuries that cannot "e medically verified* your theory of the case can more comforta"ly rest on an argument that the plaintiff cannot prove any injury. *acts) <our theory must "e consistent with the weight of the evidence. ;t also should identify which are the most important items of evidence that support your version of the disputed events. Just "ecause evidence is availa"le does not mean it must "e presented == even if you have spent time and effort to gather it. <ou must develop the a"ility to discern helpful from confusing information and the discipline to limit yourself to the presentation of facts supporting your theory. +ea,nesses) <ou must recogni@e* ac,nowledge* and have an e9planation for wea,nesses* gaps* inconsistencies* and impro"a"ilities in your case. -motions) A good theory includes an emotional component. )hat injustice has "een committed: )hy is your client morally deserving of a verdict: Opponent's case . 7ecogni@e that there is another side to the story. Analy@e your opponent%s case to determine where the disputes will arise* what the strengths and wea,nesses of the adverse case are* and develop an e9planation for why your opponent%s version is wrong. 2 3 Ather general principles .eep it simple) >oncentrate on the five or ten most important facts in your case: ;dentify them in your case theory. ;f you can simplify your case* edit your presentations* and ,eep the jury focused on your main points* resisting the temptation to go off on less important tangents* you will present the jury with a case they can understand and remem"er. /nderstand the la' of the case as contained in the jury instructions. A good case fits s+uarely in the middle of it. Save your clever legal arguments a"out what the law should "e and your interesting interpretations for the court of appeals.

0e realistic) 'ever "uild a case around what a judge or jury might do* "uild it around what they will pro"a"ly do. Sure* it%s possi"le that jurors might "elieve that a drooling child molester with "!orn to Bose" tattooed on his forehead is a credi"le witness* "ut it is not li,ely. %hin, carefully a!out the language that you use . Cse words that personali@e your witnesses and depersonali@e your opponent%s. Cse colorful la"els as mnemonic devices for the main facts. $orro!orate rather than repeat . 89act repetition is "oring* "ut corro"oration from several angles is convincing. 1llustrate) Cse themes* stories* e9amples and anecdotes to illustrate your main points. Jurors may not remem"er all the details of your argument that an opposing e9pert witness%s opinions are purely su"jective4 "ut they will remem"er the story of Doldiloc,s and the three "ears. They may have trou"le envisioning what the scene of a crime was li,e until you tell them it loo,ed li,e a scene from "$eliverance." 0e positi2e rather than negative. 8mphasi@e the strengths of your case* rather than the wea,nesses of your opponent%s. 3tart strong) 1sychologists have confirmed what our mothers always told us: first impressions are important. This principle suggests that the first thirty seconds of each phase of your trial == your opening statement* each direct and cross=e9amination* and your closing argument == is a critical point in which you should focus on something you especially want the jury to remem"er. -nd strong. The psychological principle called "recency" suggests that the final thirty seconds of each phase of your trial == your opening statement* each direct and cross=e9amination* and your closing argument == is a critical point in which you should focus on something you especially want the jury to remem"er. 4dmit your 'ea,nesses) 8very case has wea,nesses* e.g.* witnesses with unsavory "ac,grounds or evidence that defies common sense. <ou cannot ignore these pro"lems4 wea,nesses do not just go away. <ou cannot e9plain them away* "ut you can disclose them yourself in a way that ma,es them appear trivial. 1sychologists have shown that you will usually "e more persuasive if you "ring out "oth sides of an issue yourself than if you adopt the "used=car=salesman" approach of trying to hide o"vious points of vulnera"ility. As a corollary to the principles of primacy and recency* however* wea,nesses should usually "e "uried in the middle of each phase of your trial. 3) Plan 5our *actual $ase $arefully ;s the evidence admissible? <ou can anticipate in advance evidence that can "e o"jected to* and places where your opponent may o"ject to your evidence. <ou need to decide whether the judge will sustain any of these o"jections and e9clude the information. A good theory of the case must "e "ased on a reasona"ly accurate prediction of what evidence will "e admitted and what evidence will "e e9cluded at trial. ;t is a waste of time to develop a theory premised on evidence that is inadmissi"le. Diagram the case) 5a,e a chart in which the elements you need to prove are matched with a list of witnesses and e9hi"its availa"le to you. <ou then can com" your interview notes* the prior statements* and the depositions for each witness* recording on your chart every important piece of admissi"le evidence that will help you prove your theory of the case. The chart can form an outline of your case and help assure that you call all witnesses and introduce all e9hi"its that help you) (oo, for corro!oration) Ane witness is legally ade+uate* two witnesses and a corro"orating document is persuasive. <our goal is to ma,e your case persuasive* not merely ade+uate. <ou can ma,e the testimony given "y every important witness more credi"le "y corro"orating everything that witness says* through e9hi"its* demonstrations* and the testimony of other witnesses == especially your opponent%s witnesses. 6or e9ample* a defendant claiming self=defense may as, the arresting officer to descri"e the overturned furniture suggesting mutual com"at* or verify that a ,nife was found near the victim%s "ody.

$onsider &udicial notice) Judicial notice is availa"le to introduce many types of information not su"ject to reasona"le dispute. ;ndiana 7ule of 8vidence ?1 provides for two categories: 213 facts "generally ,nown" in the community* and 2 3 facts "capa"le of accurate and ready determination "y resort to sources whose accuracy cannot reasona"ly "e +uestioned*" such as almanacs* encyclopedias* and newspaper television listings. ;f you see, to prove facts of the second type* you "ear the responsi"ility for supplying a reference "oo, to the judge. 4) /se a %rial 6ote!oo, A trial note"oo, provides a central* easily transporta"le storage place for everything you may need at trial. >onsider including the following sections: a3 $ramatis personae. A list of the names of everyone important to the case and their roles == a +uic, reminder if you forget. "3 >ase theory and a diagram or outline of your proof* which you will use to respond to your opponent%s directed verdict motion. c3 Trial schedule* listing everything you intend to do at trial in the actual order you will do it. ;f you write down the scenario and refer to it as you go along* you will not forget to ma,e a motion* as, for a recess so you can telephone a witness* su"mit a jury instruction* or call a witness. 6or e9ample* the first part of a trial schedule might loo, something li,e this: 1. Approach "ench* as, for preliminary instruction on cause of action. . 5ove to separate witnesses 2Joe3. #. $ave goes to get witness Jac,son. &. Apening statement 25ary3. (. $efense opening -. $irect e9amination = Jac,son 2Joe3 .. $efense cross=e9amination. /. 7e+uest that Jac,son "e allowed to leave courthouse 2Joe3. 0. 7e+uest judicial notice of traffic law E 0=1& 2twenty mph speed limit3 25ary3 1?. 7ead "school @one" stipulation 25ary3. 11. $irect e9amination = Stevens 25ary3. etc. d3 1retrial. A section containing a list of +ueries for the judge at the start of trial* e.g.* whether she will permit an e9hi"it to "e used in opening statement* and whether she permits argument accompanying o"jections. e3 >ourt documents. A section for the pleadings* rulings on motions* pretrial orders* and any other official court documents. f3 Apening statement. <our notes for your opening statement* if you are giving one. g3 <our witnesses* "oth for direct and cross* with copies of statements and documents relating to that witness and an outline of the direct or cross=e9amination. 1rior statements and depositions should "e carefully inde9ed so you immediately can locate passages needed to refresh recollection or impeach. h3 Trial motions. 'otes pertaining to your argument for or against a motion for a directed verdict. i3 8vidence research. >opies of your evidence research and any "riefs you have prepared to support your o"jections* or a copy of the ;ndiana Trial 8vidence 5anual. j3 >losing argument. <our notes for final argument* including s,etches of any diagrams you plan to draw on the chal,"oard.

,3 89hi"its appendi9. Ariginals or copies of all documents you will use at any time during trial and a chec,list for ,eeping trac, of which ones have "een admitted into evidence. Feeping trac, of e9hi"its 2your own and your adversary%s3 can "e one of the most difficult tas,s in the trial. 89hi"its are mar,ed* shown to witnesses* tal,ed a"out* offered* withdrawn* admitted and passed to the judge. Baying ade+uate foundations may re+uire more than one witness. 6ew things are more frustrating than "eing told you cannot use an e9hi"it during closing argument "ecause you neglected to move it into evidence. An e9hi"it chec,list can help you ,eep a running record of the status of all e9hi"its. $. A18';'D STAT858'T 213 The 7ule: <ou are supposed to tal, only a"out the facts you intend to prove4 you may not argue. a. <ou may discuss the evidence* e9cept: <ou may not refer to inadmissi"le evidence. Judges will rarely sustain this o"jection unless the evidence is clearly inadmissi"le 2e.g.* privileged* involves insurance3* and will permit the statement is the evidence is potentially admissi"le 27ule &?#4 hearsay3. The courts use a good=faith="asis test: you may refer to any evidence that you have reasona"le grounds to "elieve is admissi"le* and that you intend to offer. <ou may not e9aggerate or overstate your evidence. 1laintiff may not discuss evidence the defendant will introduce that will not "e part of plaintiff%s case. ". "Argument" is prohi"ited. ;f it is something you intend to prove* it is not argument. ;f you ma,e a statement that is not suscepti"le of proof* it is argument. )henever you ma,e a statement* if a witness could ta,e the stand and ma,e the same statement* it is not argument. Gowever* if the rules of evidence would prevent such testimony* or if no such witness e9ists* the remar,s are argumentative. 5any judges will allow you to ma,e fair inferences from the evidence* such as ")e will prove that the defendant shot the victim for no good reason." 5any judges permit you to state your legal claim or defense in "asic terms and to descri"e the nature of the case or the issues. As,ing the jury to resolve disputes in your favor is argument4 e.g.* referring to your witnesses as "disinterested*" and therefore more worthy of "elief that your opponent%s. 5a,ing negative comments a"out your opponent is argument4 e.g.* calling the defendant a ""ig cow." Csing colorful la"els that characteri@es facts in a way distinctly favora"ly to your side is argument4 e.g.* the prosecutor characteri@ing a ,illing as a "slaughter." $iscussion of the law is prohi"ited* e9cept to mention the issues and disputes. c. ;t is generally inadmissi"le* and always a waste of time* to read the pleadings or tell the jury how much was sued for. 2 3 A"jections a. )hen to o"ject Any discussion of witness credi"ility is argument. Any discussion of how the jurors should resolve disputes is argument. An e9planation concerning how the facts should "e applied to the law or whether elements of a cause of action have "een satisfied is argument. To discussion of inadmissi"le evidence. ;f your opponent mentions their personal opinion. $isparaging remar,s a"out you or your client are argument. To any misstatement of the law. ". )hen not to o"ject

To evidence that you thin, is irrelevant or hearsay. To statements of fact "eyond the scope of the depositions. To correct descriptions of the law. c. Gow to respond to an o"jection "; am only stating what ; e9pect the evidence to show." 5emori@e this 2#3 The techni+ue of opening statement

6ind a theme that relates to the elements of your case or in the characteristics of your client that arouse natural sympathy or coincide with universally admired principles. ;t is especially helpful if you can come up with a clever title for your theme. 8.g.* 1. $avid and Doliath == if you represent an individual against a large corporation. . 6ighting city hall == if you represent a person who has "een the victim of infle9i"le policies of government "ureaucracies or the unreasona"le decisions of faceless officials. #. >aught in a sea of red tape == if you represent a small "usiness trying to comply with contradictory and ar"itrary regulations and laws. &. Baw and order == if your case is wea, on sympathetic factors* "ut your client%s actions were legally justified. Cse chronological order. The more common is to following your client chronologically through the event. 8.g.: 8llen Daston left her house at #:1( to drive to the supermar,et. She put on her seat"elt and drove east on Second Street. As she passed 7ogers 8lementary School on her right* she slowed down. She was watching the road in front and the schoolyard on her right* when she heard a sudden screeching of tires and was smashed into "y the defendant coming out of a driveway on her left. <ou also may use a timeline* in which the movements of several people are charted minute "y minute* "ut there is no protagonist. 6or e9ample: ;t%s #:1(. 8llen Daston is leaving her house to go to the supermar,et. The defendant is finishing his fourth "eer in his apartment on Second Street. Fim >hua is sitting in his fifth grade classroom at 7ogers 8lementary School. At #:1-* 5s. Daston gets in her car and fastens her seat"elt. The defendant goes to the refrigerator for another "eer* "ut the cup"oard is "are. Fim loo,s an9iously at the cloc,. 6rom #:1- to #: ?* 5s. Daston drives east on Second Street. The defendant decides to go out for more "eer* puts on his coat* and wal,s down to his car. Fim counts the minutes to the end of the school day. At #: ?* 5s. Daston approaches 7ogers School. The defendant guns his car down the driveway. The "ell finally rings and Fim races out of the schoolhouse. At #: 1* these three people come together. Fim runs across the schoolyard. 5s. Daston loo,s to her right to ma,e sure he%s not going to run into the street. The defendant flies into Second Street without stopping and smashes into 5s. Daston%s car. Tell a story. !e entertaining. Try to forget it%s a courtroom4 imagine you%re sitting around a campfire. Dive a conclusion and tell the jury what verdict you e9pect the evidence to support. Feep it specific and "rief. Admit 2"ut don%t emphasi@e3 wea,nesses. 8very case you ta,e to trial will have some inherent wea,nesses == gaps in your evidence* witnesses who lac, credi"ility* the a"sence of corro"oration on an important issue* unavaila"le witnesses* and so forth. !y "ringing them out yourself in as positive a manner as possi"le you ta,e some of the sting out of them* appear honest* and lessen the negative impact when your opponent points them out. This does not mean you should tell the jury a"out every trivial piece of conflicting evidence nor anticipate disputes your adversary may raise. 7ather* you must "ring out and e9plain away those wea,nesses that will emerge from your own presentation of evidence or that inhere in your theory of the case* regardless of what your opponent does. 6or e9ample* suppose your client had consumed a couple of "eers. <ou might say:

Jac, was so"er when he got into his car. Ge had drun, only two "eers over the course of the evening* and was still in full control of his faculties. 2&3 1erformance suggestions: Cse as few notes as possi"le. 5aintain eye contact with the jurors* loo,ing from one to another. ;f loo,ing directly at an individual juror ma,es you nervous* loo, "etween two jurors. Cse simple words and plain 8nglish. Avoid "legalese." $on%t get too dramatic == save it for closing. Hary your pace* pitch and loudness. A monotonous* droning spea,ing voice will put jurors to sleep. Feep up the pace of your speech* without letting it get so fast the jury cannot follow you. Slow speech is "oring. Cse good posture. $espite what you see on television* the slouching country lawyer approach is not very effective. 8. $;78>T 8IA5;'AT;A' 213 )hat topics to cover Sufficient facts to ma,e out a prima facie case on every issue on which you "ear the "urden of proof. Any testimony from the witness on one of your main points of emphasis. Testimony that corro"orates your other witnesses* especially your client. ;nformation a"out the witness%s "ac,ground that ma,es their particular evidence more credi"le. <ou may have to supplement the meager information in the pac,et. Testimony that is necessary to lay a foundation for other evidence Testimony that provides continuity and ma,es the story understanda"le. 2 3 Suggested order Something dramatic and important !ac,ground that "olsters witness%s credi"ility. Set the scene. Det witness to tell the story. !ig finish

2#3 5a,ing the testimony persuasive. a. 5a,e sure the jury hears your important evidence: Attract and ,eep the jurors% attention. 5ost direct e9amination is "oring. 5uch of it is not very important. Therefore* you want to assure that the jurors% attention is focused on the witness "efore you cover the most important parts of the direct e9amination. <ou can attract jurors% attention to the witness "y having the witness do something unusual. 6or e9ample* you can hand the witness an e9hi"it* have the witness get up and demonstrate something* or have the witness wal, to a diagram. <ou can ,eep the jurors% attention "y "eing "rief and using visual aids. Det your evidence admitted. The jurors cannot hear your evidence if it is ruled inadmissi"le "y the judge. This means you must anticipate o"jections your adversary might ma,e* and prepare to circumvent them. )ith advance preparation* you can come e+uipped with research that supports admissi"ility. <ou can ma,e sure that your direct e9amination contains sufficient evidence to satisfy foundations. <ou can prepare alternative theories of admissi"ility* such as offering evidence for a limited purpose. And* you can "e prepared to loo, for other alternative methods of proof* perhaps through other witnesses* in case your evidence is e9cluded. ". 5a,e sure the jury understands your case. 6ive techni+ues will help: 5aintain chronological order. A story is easier to follow if it is in chronological order. 7arely is there any reason why you should deviate from it. Su"divide direct e9amination into smaller units. ;f you "rea, up a long story into "episodes" it will "e easier for the jurors to understand and remem"er it. Thus* you might divide up the plaintiff%s story of a traffic accident into si9 segments: the plaintiff%s happy and active life "efore the accident4 the events of the day leading up to the accident4 a detailed account of the accident itself4 the minutes immediately following the accident4 the ne9t few days in the hospital4 and what plaintiff%s life has "een li,e since the accident. 1lan transitions "etween segments. ;t will "e easier for the jury to follow your story if they understand when one "episode" stops and another starts. <ou should therefore plan ver"al and visual transitions "etween segments. A transition is made up of three parts: a clear closure on one segment* an interruption of the flow of the direct e9amination* and then a clear "eginning to the ne9t segment. <ou can close a segment with a +uestion such as* "$o you recall anything else a"out the accident:" 6or an interruption* you may remain silent for a few seconds* move to a different location* have the witness sit down if the witness was standing* and/or insert a phrase such as* "Bet%s move on to the events following the accident." <ou can open the ne9t segment with the same ,ind of topic +uestion you use to start the chronology: "$irecting your attention to immediately after the accident* tell us what happened." 8licit facts and details* not conclusions. >onclusory testimony depends for its success on the witness and jurors sharing a common frame of reference. ;t is unli,ely that all jurors will share the witness%s view on what constitutes "large*" "fast*" or "a good loo, at the suspect." The more you are a"le to provide the jurors with the details of important points* the more certain you can "e that the jury will understand it. Thus* you want your witness to say "si9 feet tall and two hundred pounds" rather than "large*" "going over eighty miles an hour" rather than "fast*" and "close enough to read the words %"orn to lose% tattooed on his upper arm" rather than "got a good loo, at the suspect." Cse appropriate visual aids. 5iscommunication is least li,ely if you can show the jury the actual o"jects and places involved in a litigated event. 1hotographs* diagrams and other illustrations also reduce the li,elihood of misunderstanding. c. 5a,e sure the jury remem"ers your ,ey facts "y emphasi@ing them so they stand out. The essence of emphasis is difference == you cannot emphasi@e everything.

Do into specific detail. The more details you elicit* the more you emphasi@e the event "eing descri"ed. ;f the witness testifies* "; was wal,ing down the street when the defendant pulled a gun on me and said* %Dive me a hundred dollars*%" the jurors might miss the gun reference. ;f you wanted to emphasi@e it* you could "rea, in at that point and elicit details: J: )hat color was the gun: A: !lac,. J: A"out how "ig was it: A: 1retty compact* a"out the si@e of an open hand. J: Short "arrel or long "arrel: A: Short. ; would call it a snu"=nosed gun. J: Automatic or revolver: A: 7evolver. >hange your +uestioning pace or pattern. ;f you have "een conducting a normal direct e9amination* you have "een as,ing simple neutral +uestions such as ")hat happened ne9t*" and ")hat did you see:" ;f you suddenly vary the type of +uestion you as,* it emphasi@es the testimony to follow. <ou can use a signal +uestion* such as "'ow thin, a"out your answer carefully* and tell the jury ..." Ar* you can change from narrative +uestions to slow* narrow* detailed +uestions. >hange your position or the witness%s position. 6or e9ample* if you have "een standing near the corner of the jury "o9* you could wal, over to your ta"le "efore as,ing an important +uestion. Ar* you can as, the witness to step to a diagram just "efore eliciting some crucial fact. Cse visual aids. 7epeat the evidence. 7epetition can ta,e three forms: similar testimony from different witnesses* similar testimony elicited more than once from a single witness* and repetition of testimony "y the attorney. d. 5a,e sure the jury "elieves your evidence. Several techni+ues help enhance the witness%s trustworthiness. 8nhance the witness%s personal credi"ility. Su"ject to the rule prohi"iting "olstering* it is helpful to show that a witness is li,ely to "e credi"le in this particular case. <ou can show the witness is un"iased* has good social standing* has e9perience* etc. 8nhance the credi"ility of the witness%s story "y proving that the witness has a good memory* did things to preserve recollection such as ta,ing notes* and "y eliciting detailed testimony a"out the event itself. )hy does the witness remem"er: Gow can the witness "e sure: 1rove the witness%s e9pertise and familiarity with the su"ject=matter. A witness%s opinions and o"servations of other events and people is more credi"le if the witness is familiar with that type of event or the people involved. ;f a witness is going to descri"e a traffic accident* "ring out that the witness used to "e a ca" driver. ;f a witness is going to testify a"out the condition of the testator at the time a will was e9ecuted* "ring out the witness%s ,nowledge of the details of the testator%s general life* family* ha"its* mannerisms* and so forth. 1rove motives that are consistent with conduct. 1eople do things for reasons. ;f the reasons and motives are e9plained* the conduct ma,es more sense. ;f a witness acted out of ha"it* jealousy* love* shame* curiosity* or any other common emotion* proving the emotional state will ma,e the conduct seem more logical. Admit your wea,nesses. 2&3 As, proper +uestions As, only one +uestion at a time* and not a +uestion with several parts.

Avoid negatives in the +uestion* if possi"le. $on%t as, +uestions li,e: "<ou do not ,now whether Jones was there:" 5a,e the +uestion "rief. Cse simple words that everyone will understand. Avoid leading +uestions. Bet the witness testify in his or her won words. 2(3 1erformance suggestions: !e honest and sincere. <our personal integrity is vital. 'o "cheap shots." 5anifest confidence and "elief in the witness. Show the jury that you "elieve in the case you are presenting. Act li,e you care. !e professional. ;t is always "etter to err on the side of "eing too formal than let your performance slide into sloppiness* slouching* or the dreaded "country lawyer" approach. 7espect the judge without "ecoming su"servient. 'o "rown=nosing. Address all remar,s to the "ench. $o not spea, directly to the opposing lawyer* and do not ma,e comments to the jury. As, permission to approach the "ench* the witness or the jury* or to have the witness step out of the witness chair. Cse a conversational tone of voice. !etter to "e too loud than too soft. Bet your voice reflect the emotional level of the e9amination. <ou pro"a"ly should +uestion a physician in a formal* professional manner* "ut when you e9amine an injured child* let your voice reflect your compassion and understanding. $on%t let negative feelings show in your face and voice. ;f disaster happens* don%t reveal that you are angry* irritated* or frustrated. $o not try to suppress all human emotion. Baugh if something funny happens. ;f you win a difficult "attle over an o"jection* allow yourself a +uic, smir, of triumph. )atch the witness* so you see what the jury is seeing. )atch for signs of nervousness or confusion. !e careful not to get distracted staring at your notes. )atch the judge. Boo, for signs of irritation or a raised eye"row. <ou also need to watch for visi"ly negative reactions that could affect the jury* such as the judge sha,ing her head in dis"elief. )atch the jury for their reactions. Are they attentive* "ored* falling asleep: Gave they "egun to loo, at your witness li,e the witness has some loathsome disease: Feep an eye on opposing counsel. Some unethical attorneys may try to distract the jurors% attention away from the direct e9amination. 2-3 89hi"its have their own special procedure:

5ar, the e9hi"it with a letter or num"er for identification. This is often done "y the attorneys "efore trial* "ut you also may re+uest the cler, or court reporter to mar, e9hi"its just "efore you use them. Bay the appropriate foundation through your witness* referring to the e9hi"it only "y its identification mar,. <ou may not state what the e9hi"it is4 only the witness may do so. Show the e9hi"it to opposing counsel or as, the court if opposing counsel would li,e to e9amine it. 7emem"er that you are not supposed to ma,e any remar,s directly to your adversary* so it is improper to turn to your opponent and as,* "5arva* do you want to e9amine this:" or for you to wal, over to the other counsel ta"le and engage in a whispered conversation a"out the e9hi"it. 6ormally offer the e9hi"it into evidence* referring to it only "y num"er or letter. 6or e9ample* "<our Gonor* we offer defendant%s e9hi"it > into evidence." ;f appropriate* hand the e9hi"it to the "ailiff 2or directly to the judge3 for the court to e9amine. <ou pro"a"ly should in all cases as, if the judge wishes to view the e9hi"it. The opposing lawyer may conduct a voir dire e9amination of the witness concerning foundation matters* and/or may ma,e o"jections to the admission of the e9hi"it. The court rules on whether to admit or e9clude the e9hi"it. ;f the e9hi"it is admitted* pu"lish it to the jury. )ith simple documents and photographs* you can distri"ute copies to individual jurors. 7eal evidence can "e passed among them. ;n either case* you should re+uest the court%s permission to approach the jury. Barge diagrams or charts can "e placed where all jurors can see them. ;f anything a"out the e9hi"it needs to "e e9plained* you must do so through witness testimony == you are not allowed to tal, a"out the e9hi"it yourself at this time without e9plicit permission from the court. 2.3 $emonstrations and e9periments a. 6oundation: )hether to allow a demonstration is a matter left to the discretion of the judge. The demonstration must "e relevant and not unduly prejudicial. The witness affirms that s/he can accurately recreate the event. The judge is satisfied that conditions in the courtroom are "sufficiently similar" to those e9isting at the time of the original event to ma,e the demonstration relia"le. Hariations in conditions generally affect weight* not admissi"ility. ". 1ersons other than witnesses* such as attorneys and jurors* generally are not allowed to participate in demonstrations. c. Tactical considerations 5a,e sure the demonstration faces the jury* so they can see the event unfold. ;f you want the jury to see what the advancing gunman loo,ed li,e* the witness must demonstrate it in a way that the gunman advances toward the jury. ;t is very difficult for one witness to demonstrate what two people were doing simultaneously. $emonstrations are more effective if

the witness is demonstrating what one person did. <ou should not participate in the demonstration. <ou are not a witness and cannot place evidence into the record. ;f you cannot plan a demonstration that the witness can conduct with you out of the way* then don%t do it at all. ;f you need a second person in a demonstration* use the jury. ;f you want the witness to demonstrate that she was close enough to the ro""er to see his face clearly* as the witness to demonstrate that distance in relation to the front row of jurors* not in relation to you* to your co=counsel* or to some inanimate o"ject in the courtroom. $o not conduct a demonstration without rehearsing. This means you pro"a"ly should never as, a witness on cross=e9amination to demonstrate anything. Save them for important facts. $emonstrations* li,e e9hi"its* will emphasi@e the facts "eing demonstrated. d. 5a,ing a record of a demonstrations* gestures* etc. ;n addition to formal demonstrations* witnesses will use gestures to help e9plain their testimony: They point to the accused* indicate si@e with their hands* and sha,e their heads in answer to +uestions. <ou must ma,e sure that this nonver"al conduct is translated into words so that it can "e recorded "y the court reporter. )e are all* of course* familiar with one common way of doing this == the attorney announces* "5ay the record reflect that the witness has pointed out the defendant." Tactically* it usually is "etter for witnesses to provide the ver"al descriptions in their own words. 6or e9ample* if a witness indicates a distance with his or her hands* you can as, the witness to estimate that distance ver"ally. ;f the witness does so* no further statement need "e made for the record. The following transcript indicates how demonstrations might "e included in the record: J: )hat happened ne9t: A: )e were standing in front of the trailer when the defendant turned to his wife and said he was going to "eat the stuffing out of her if she didn%t get "ac, inside. J: Gow close were you standing to him when he said this: A: 7eal close* a"out as far as from here to that chal,"oard there. J: So you were a"out four feet apart: A: <es. J: $id you o"serve the position of the defendant%s arms at that time: A: <es* ; did. J: )ill you demonstrate to the jury what the defendant did with his arms as he made the threat: A: Sure. Ge made fists li,e this KdemonstratesL and too, a step toward her li,e this KdemonstratesL. J: )e have to put this into words for the court reporter. $escri"e e9actly how the defendant was holding his fists. A: !oth fists were dou"led Kdemonstrating againL* down at his side. Ge too, a step toward her and held the left fist up at shoulder level and the right fist a"out at his waist* li,e a "o9er%s stance. 2/3 7efreshing recollection a. ;nformal method == used if witness forgets one detail As, a leading +uestion ". 89ample of informal method: J: $escri"e what you saw: A: ; entered the room. The were several overturned chairs* and a pin"all machine on my right. ; saw the victim lying on the floor* and the defendant standing over him with a revolver in her hand. J: $o you remem"er seeing anyone else in the room: A: ;%m not sure. J: )as the defendant%s sister there too: A: Ah* yes. c. 6ormal method == used if witness forgets a whole "loc, of testimony. The most common method of refreshing recollection is to

show the witness a writing. 1roper procedure consists of the following steps: 8sta"lish that the witness%s memory is e9hausted 5ar, a document for identification Show the document to opposing counsel* or refer to it "y page and line if it is a deposition. Gand the document to the witness As, the witness to read silently the specific portion of the document that covers the forgotten material 7etrieve the document As,ing the witness if his or her memory has "een refreshed >ontinue the e9amination if the witness now remem"ers the information 03 7edirect e9amination. Dive some advance thought to planning your redirect e9amination. <ou should "e a"le to anticipate what ,inds of impeachment your opponent will attempt* so you can plan how you will reha"ilitate those witnesses. 6. >7ASS=8IA5;'AT;A' 213 The most important facts to "ring out on cross are facts that help you prove your case: 6avora"le testimony on a contested issue. Accasionally* a witness called "y your opponent to testify against you on one issue will possess significant information you need to help prove a contested issue. ;f the favora"le testimony was mentioned on direct* you can reemphasi@e it on cross. ;f the matter was avoided* then you should "ring it up on cross=e9amination unless the topic cannot "e raised "ecause of limited scope rules. Testimony corro"orating your main witnesses. ;t often will "e possi"le to elicit testimony on cross=e9amination that enhances the credi"ility of your witnesses "y corro"orating parts of their testimony. The possi"ilities are endless. ;t can "e as simple as eliciting testimony that your witness was present at the scene* or as comple9 as "ringing out evidence of the truthful character of one of your witnesses. The most fruitful line of in+uiry is li,ely to concern the opportunity for your own witnesses to o"serve the events. An adverse witness* especially one who uses a diagram of the scene to aid his or her direct e9amination* always should "e a"le to corro"orate that there would have "een a good line of sight from another location. Csing opposing witnesses to corro"orate the actions of your client also is important. 6or e9ample* if opposing witnesses saw your client trying to avoid an accident* rendering assistance to the victim* or driving safely just "efore it occurred* or if they overheard your client%s e9planation of the events* you should "ring out these facts. Testimony consistent with your theory of the case. 7arely are more than a few issues really contested in a trial. The controversy usually "oils down to a few disputed facts. 8ven if nothing else is possi"le on cross=e9amination* you always can elicit testimony a"out those uncontroverted facts that form part of your theory of the event. 1rof. !ergman uses the e9ample of a petty theft charge for shoplifting a calculator. An direct* the defendant admits putting the calculator in his poc,et* "ut denies intent* claiming he stepped out of the store only to get his chec,"oo, from his wife. The cross=e9amination of the defendant could consist of the following +uestions on uncontested facts: J. So you did pic, up the calculator:

J. And you put it in your poc,et: J. Then you wal,ed to the nearest e9it: J. And left the store: J. And all the time you never too, the calculator out of your poc,et: 2 3 ;f the witness has hurt you* you will also want to impeach the witness%s credi"ility. The witness has a personal motive to testify falsely "ased on "ias* prejudice* or interest The witness has previously "een convicted of a crime* which shows the witness to "e the type of person who would lie. 1rior inconsistent statements may indicate that the witness has lied on one occasion. 1rior inconsistent statements cast dou"t on how well the witness is a"le to remem"er the events. ;na"ility to recall collateral details of similar importance may cast dou"t on the relia"ility of a witness%s memory. 6or this ,ind of cross=e9amination to "e successful* the facts forgotten must "e of e+ual importance to the facts remem"ered. ;f a witness claims to remem"er a startling event 2"; saw the defendant pull a shotgun and shoot two people."3* it pro"a"ly will "e a waste of time to as, if the witness remem"ers what other people were doing. 1rove the witness was at an unfavora"le vantage point from which to view the events. $emonstrate that the witness has physiological limitations* such as poor eyesight or hearing. Show that the witness was in poor condition to o"serve at the time of the event due to into9ication or fatigue. Show physical conditions limiting the witness%s opportunity to o"serve the events* such as o"jects o"structing the witness%s view* inade+uate lighting* a great distance separating the witness from the event* distractions* or a very short time in which to ma,e o"servations. !ring out testimony that is impossi"le or inconsistent with common sense 2"ut don%t confront the witness a"out it3. 8sta"lish inconsistencies with other* more credi"le* witnesses. 2#3 Avoid high=ris, topics. a. Safe topics are those where you have a reason to "elieve that the witness will give a favora"le answer and you have the a"ility to refute a "ad answer: <ou are as,ing for information the witness has previously given in a statement or deposition that would "e admissi"le as a prior inconsistent statement if the witness testifies differently. <ou are as,ing a"out information the witness should ,now which is also contained in admissi"le e9hi"its* such as photographs or records of criminal convictions. <ou are as,ing a"out information the witness should ,now that other more credi"le witnesses will testify to. ". 5edium=safety topics are those where the nature of the case raises a li,elihood that the witness will give favora"le testimony* "ut you have no direct way to refute a "ad answer. Cse them cautiously. <ou are as,ing for facts consistent with human e9perience where an unfavora"le answer would contradict common sense.

<ou are as,ing the witness a"out facts in situations in which the witness assumes that an independent refutation witness is availa"le. <ou want the witness to confirm something implied in a prior statement* "ut the witness has not previously "een as,ed directly a"out it. <ou are see,ing to prove that something did not happen "ecause the witness says nothing a"out it in an otherwise detailed prior statement. 6or e9ample* if a police officer%s accident investigation report is silent on whether your client had "een drin,ing* there is a li,elihood that the officer will admit that there was no evidence of into9ication. >ommon sense tells us that a police officer would have reported into9ication. c. Gigh ris, topics are those where you engage in wishful thin,ing. >ircumstances suggest that a witness might ,now something relevant* "ut the witness has never said anything one way or the other. Thus* you have no solid "asis to "elieve the witness%s testimony will actually help you* "ut the witness also has never e9plicitly said anything to the contrary* so 2you thin,3 may"e the witness will une9pectedly provide favora"le evidence. The witness acted inconsistently with the fact sought. 6or e9ample* a witness who says he was "eating pi@@a and watching TH" will pro"a"ly not confirm that there was a ,nife fight going on* "ecause it is unli,ely that anyone would calmly eat pi@@a while ,nives are "eing waved a"out. The weight of the testimony of other witnesses is to the contrary. The evidence would contradict common sense. 6or e9ample* if you are cross=e9amining an eyewitness to a crime that occurred at night "ut in a well lighted par,ing lot* it would "e ris,y to as, whether it was too dar, to see clearly. ;t contradicts something in the witness%s own prior statement. 2&3 Arder of topics Gigh safety favora"le evidence on contested issues. Gigh safety evidence that corro"orates your main witnesses. 5edium safety favora"le evidence. 5edium safety impeachment evidence. Gigh safety impeachment attac,ing the witness%s testimony. Gigh safety impeachment attac,ing the witness personally. 6inal topic that scores a "ig point 2(3 )hat does a good cross=e9amination +uestion loo, li,e: Beading Simple and "rief 'on=argumentative. As, a"out facts* not conclusions. Cse the witness%s own words whenever possi"le. !rea, your topics down into the smallest possi"le units* and as, a"out each one separately.

As, only one fact per +uestion. $o not repeat damaging direct e9amination. $on%t as, the witness to e9plain an answer. -3 1reparing to cross=e9amine. Assem"le the file "efore trial. <ou should have with you in court* in one file* all the necessary documents for cross=e9amining the witness: 13 your written cross=e9amination +uestions4 3 all prior statements* depositions* or other writings of the witness that could "e used to impeach inconsistent trial testimony4 and #3 any e9hi"its or certified copies of convictions you may want to introduce. Bisten to the direct e9amination. 'ever assume a witness will testify in e9actly the same way at trial as the witness did in a deposition. )itnesses occasionally will say e9traordinary things or may open the door to previously inadmissi"le evidence that you may miss if your attention is focused elsewhere. $ecide whether to a"andon any planned +uestions. !ased on the direct e9amination* you may face a decision whether to forgo +uestions "ecause they were covered on the direct e9amination. Denerally* of course* you should proceed with your planned cross= e9amination. 7epetition of favora"le evidence is a good idea. Gowever* in three situations you may choose to forgo a line of +uestions: 13 <ou may have to drop some topics "ecause your opponent limits the scope of the direct e9amination4 3 <ou may decide to forgo impeachment if the impeaching effect of some prior act is e9plained away4 or #3 The witness may une9pectedly put evidence in a more favora"le light than you e9pected* and might retract it or dilute it if you repeat the +uestion on cross= e9amination. $ecide whether to impeach "y prior inconsistent statement. A"viously* you cannot ,now in advance whether a witness will give direct testimony inconsistent with prior statements. Bisten during direct e9amination* and decide whether it is worth impeaching any inconsistencies. ;n general* the only statements you are concerned a"out are those where the witness changes from favora"le to unfavora"le testimony. ;f the witness gives inconsistent statements on unimportant issues* you pro"a"ly should forgo impeachment* unless you can string together a lot of small inconsistencies. 2.3 $ifficult or evasive witnesses. As, the witness to limit his or her answers to "<es" or "'o" 5ove to stri,e volunteered or evasive portions of the testimony As, the judge to instruct the witness to limit his or her answers to "<es" or "'o" ;f a witness evades your +uestion* repeat the +uestion or have it read "ac, 2/3 ;mpeaching )ith A 1rior ;nconsistent Statement a. 1repare an inde9 of prior statements and depositions. <ou must "e a"le to find the specific prior statement when you need it. The simplest way is to note "eside each +uestion you prepare e9actly where it came from. ;f it is a high safety +uestion that comes directly from lines 11=1# on page forty=si9 of the witness%s deposition* you might ma,e some notation li,e "$&-/11=1#" in the margin "eside your +uestion. <our partner can follow along* and if you need to impeach* your partner can instantly hand you the right line in the deposition.

". !asic principles. ;mpeachment is not the same as refreshing recollection. ;f* in answer to a safe +uestion ta,en directly from a prior statement* a witness testifies he or she does not remem"er* then you may choose to refresh recollection. Gowever* if a witness gives an answer une9pectedly different from one contained in a prior statement* it does not mean the witness has forgotten the facts. <ou cannot refresh memory when the witness claims to "e a"le to remem"er 2nor has a proper foundation "een laid to allow it34 you must impeach and show the current memory to "e unrelia"le. <ou are not trying to tal, witnesses into changing their testimony* "ut to prove they are unrelia"le. <ou are supposed to "e impeaching* not trying to tal, the witness into changing his or her testimony. <ou must accept the fact that the witness%s memory has changed. 'o matter how sure you are that it was just an inadvertent misstatement* you will not convince the witness to testify differently* no matter how many times you as, the witness to re=read a prior statement. The only thing that will happen if you try is that the witness will just repeat and emphasi@e the unfavora"le testimony* you will have completely lost control of the e9amination* and you will have wasted the opportunity to impeach. ;f it turns out the witness actually had made only an inadvertent misstatement* the witness pro"a"ly will ma,e the correction anyway when confronted with a prior inconsistent statement* so you lose nothing "y assuming the worst and impeaching accordingly. ;nconsistent testimony does not mean the witness is evil. )hen a witness testifies to facts different from those contained in a prior statement* it may "e an inadvertent misstatement* a result of the natural process of erosion of memory. ;t might "e an intentional change due to deli"erate perjury* "ut is not necessarily so. <ou impeach direct e9amination testimony* not cross=e9amination. The general rule governing impeachment "y prior inconsistent statements is that you may impeach facts testified to on direct e9amination only. ;f you "ring up an issue for the first time on cross= e9amination and get "ad answers* your only recourse is to a"andon the line of testimony. <ou may impeach specific factual assertions* not inferences. <ou can impeach a witness who disagrees with a specific fact or opinion written down in a previous statement. Gowever* if the witness disagrees with your interpretation of those facts* that cannot "e impeached. 6or e9ample* suppose a witness stated in a deposition that the defendant%s car was traveling -? miles an hour* ;f she testifies the car was going #? miles per hour* you can impeach. ;f you as, for an interpretation* such as ")as the car going very fast:" and the witness says "'o*" you cannot impeach her "y proving that she once said the car was going -? miles per hour. ;mpeachment always entails ris,. )itnesses will often "e a"le to e9plain away an apparent inconsistency* and you will often "e una"le to successfully complete the impeachment. Therefore* conduct this ,ind of impeachment with other ris,y cross=e9amination == in the middle. c. Techni+ue Boc, the witness into a definite answer without unnecessarily repeating the unfavora"le testimony. 8mphasi@e the prior version* not the damaging trial version. 8.g.: J: The light was green* wasn%t it: A: 'o* it was red. J: 'ot green: A: 'o. 1rove that a prior statement on the su"ject was made "y as,ing the witness a"out it* "eing specific a"out the time* place* and circumstances. 8.g.* J. $o you remem"er tal,ing to an investigator named Sarah 6randsen at your house: A: <es.

J: That was on Septem"er 1-: A: <es. J: She as,ed you a"out the facts of this case* right: A: 7ight. J: $o you remem"er answering +uestions a"out the scene of the accident: A: <es. 7eveal to the jury that the prior statement on this specific su"ject was materially different. The easiest way to do this is to read aloud the precise inconsistent passage and as, the witness to confirm that he or she made it. J: $irecting your attention to the second line in the second paragraph of that statement* did you say: ")hen the car drove through the intersection* it had a green light:"4 or J: $irecting your attention to page four* lines four through seven* is it true that you were as,ed these +uestions and gave these answers: Juestion: " )hat color was the light:"4 answer: "Dreen"4 +uestion: "Are you certain:"4 answer: "<es": As a courtesy* you might lean over and show the witness the page and line you are referring to* "ut do not hand the document over to the witness and as, the witness to peruse it. <ou are not trying to convince the witness the testimony is inconsistent* "ut the jury. $o not introduce the statement itself unless the witness denies or does not remem"er ma,ing it* in which case you may introduce it and read the inconsistent portion to the jury. Cnder 6ederal 7ule of 8vidence -1#* the statement is admissi"le without further foundation. 203 ;mpeaching )ith A 1rior ;nconsistent Amission. The most difficult ,ind of impeachment is to demonstrate that trial testimony is inconsistent with what was not said in a prior statement. To successfully impeach under these circumstances* you must esta"lish that the failure to mention a fact in the prior statement is the e+uivalent of an e9plicit statement that the fact did not e9ist* "ecause the person would surely have mentioned it if it had happened. The omitted fact must "e at least as important as other major facts included in the statement. ;f you decide to attempt to impeach "ased on a prior omission* you must add one preliminary step to the impeachment techni+ue discussed for prior inconsistent statements: eliminate the possi"ility that the fact testified to was inadvertently omitted "ecause the witness thought it unnecessary to include it. 8.g.: J: Afficer Jones* you investigate many similar cases* don%t you: A: <es. J: <ou often have to testify later* don%t you: A: <es. J: $o you prepare an accident investigation report for each one: A: <es. J: And use them to refresh your memory a"out a particular case "efore trial: A: <es. J: They help you ,eep the facts straight: A: <es. J: So it is important that you "e accurate in these reports: A: <es. J: <ou include all facts that might have some "earing on who was at fault: A: Af course. J: And you would include any facts that showed one driver might have violated a traffic law* isn%t that correct: A: <es. J: $o you also write down if anyone was seriously injured: A: <es. J: Ganding you defense e9hi"it ! for identification* is this the report you prepared in this case: A: <es. J: An direct* you testified that the defendant was into9icated* didn%t you: A: <es. J: 1lease loo, over your report and answer this +uestion: $id you ma,e any mention whatsoever of any evidence of into9ication: A: 'o. J: The plaintiff did not appear to "e seriously injured* correct: A: 'o* he loo,ed seriously hurt. J: Again* ; direct you to your report. ;s there any mention in your report of anyone "eing seriously hurt: A: 'o. J: ;n fact* you wrote that the plaintiff only appeared "sha,en*" isn%t that right: A: <es. 21?3 7e=cross e9amination is discretionary4 usually a "ad idea. D. >BAS;'D A7DC58'T 213 ;mproper arguments

Appeals to sympathy* e.g.* referring to the tears of the victim%s parents or the client%s recent heart attac,. Attempts to arouse racial prejudice Appeals to religious prejudice* e.g.* anti=Semitic remar,s Ienopho"ic arguments against foreigners Appeals to prejudice against corporations as large* wealthy or unfeeling 7aising the relative financial conditions of the parties* discussing insurance 2unless already in evidence3* or otherwise arguing that the verdict should depend on a"ility to pay As,ing jurors for vengeance* especially arguments that they should listen to the demands of the community and use this opportunity to get even for all the wrongs done to society* e.g.* "y lin,ing a defendant with the pro"lem of crime and drugs that is out of control* and suggesting that the community wants something done a"out the drug pro"lem As,ing jurors to ma,e an e9ample of the defendant or send a message to the community that they will not tolerate violence Appealing to jurors% fears for their personal safety or suggesting that they will personally suffer 2through higher ta9es or insurance premiums3 if they return a particular verdict 1ersonal attac,s on other lawyer 1ersonal comments a"out yourself or your opinions. Arguments that jury should ignore or evade unpopular laws "Dolden rule" arguments that jury should put themselves in the position of a party and as, what they would want. 2 3 Should you o"ject: a. 7easons to do nothing The improper argument is trivial The argument is unimportant to your theory of the case <ou%ve already made several o"jections and you sense that the jurors are growing impatient <our opponent is e9aggerating or misstating the evidence and you have no further opportunity to respond. ;t is unli,ely that the judge will remem"er precisely what the witnesses said* and he or she will pro"a"ly overrule you* instructing the jury that their recollection of the testimony controls. ". 7easons to o"ject <ou%ve already given your last argument and have no opportunity to retaliate or respond

The improper argument concerns a misstatement of law <our adversary is committing serious error that will prejudice your client: as,ing the jury to speculate* +uoting damage verdicts from other cases* ma,ing a direct appeal to emotion or prejudice* or commenting on suppressed evidence or the defendant%s silence #3 Bast=minute preparation: 5a,ing changes during trial $uring opening statement* note overstatements or e9aggerations made "y your opponent. These can "e used later to argue that the other side has failed to prove the case they promised. $uring the e9amination of witnesses* you can note the e9act words used "y a witness at a critical time* so that they can "e +uoted accurately. ;f any evidence is une9pectedly e9cluded* that too should "e noted so that you do not inadvertently refer to evidence outside the record. ;f either side is granted a partial directed verdict* or concedes an issue* whole sections can "e eliminated from your argument. 2&3 Deneral principles of argument 7eiterate your theory of the case and ma,e sure the jurors understand it. The importance of having a single* clear* simple theory cannot "e overstated. ;t provides direction to your jurors. Alternative theories merely divide your forces into two groups that may start fighting with each other. Stic, to it. 8mphasi@e favora"le evidence* "ut don%t waste time with a detailed rehashing of every detail as if the jurors were too stupid to remem"er anything. Spend your time arguing your own case* not your opponent%s. 8mphasi@e your strengths and concentrate on your main points. $iscuss your opponent%s case only to the e9tent necessary to refute it "riefly. 7e"ut your opponent%s allegations. 89plain the law and show how the evidence satisfies all legal re+uirements for a verdict in your favor. 5ost importantly* reduce your case to a good story* including plot* motives* adventure* "attles "etween good and evil* human wea,nesses* temptation* drama* and a moral at the end. Feep it simple. Simple does not mean simplistic4 it means uncomplicated. >oncentrate on the real disputes* resist the temptation to offer several alternative theories* and avoid "ecoming "ogged down in reviewing uncontested or trivial matters. 89periments "y social psychologists indicate that a"out seven points are all you can argue persuasively. After that* arguments "ecome confusing. !e specific. 6acts are more important than generali@ations or rhetoric. !e specific a"out the important factual points* and the details that corro"orate them. $on%t just say you have proven that the goods were delivered* remind them which witnesses testified to the delivery and show them the warehouse receipt. !e e9plicit. 1sychologists have demonstrated that an argument is more persuasive if the desired conclusions are e9plicitly drawn than if you leave it up to the jury to draw its own conclusions. Although in theory jurors might hold more strongly to a conclusion they reach on their own* if you do not suggest a conclusion* the juror may reach a conclusion you do not li,e. !e organi@ed.

Cse visual aids. 1resuma"ly* you introduced e9hi"its during trial for a reason. Cse themM !ut do not limit yourself to e9hi"its already introduced. >harts can "e prepared specifically for closing argument* and arguments can "e illustrated on the "lac,"oard. The uses of descriptive e9hi"its are as varied as your creativity. <ou can list the elements of a cause of action* summari@e evidence* calculate damages* draw a s,etch of an intersection* and so on. The only re+uirement is that your e9hi"it "e supported "y the evidence. Some attorneys prefer the apparent spontaneity of "lac,"oards4 others prefer charts prepared in advance "ecause they cannot "e erased "y your opponent and you cannot ma,e an inadvertent error on them. Support your positions with jury instructions. 7ather than just summari@e all the law at one time* weave instructions into the fa"ric of your argument. ;f you are arguing that a witness is not credi"le "ecause the witness made a prior inconsistent statement and is the plaintiff%s friend* that would "e a good time to read a jury instruction that prior statements and "ias may "e ta,en into account in determining credi"ility. Cse the theme from your opening statement. 1ersonali@e your client and depersonali@e the adverse witnesses. <ou should ma,e conscious efforts to personali@e your client "y referring to him or her "y name and telling the jury personal things a"out your client%s life. Similarly* you should depersonali@e the other side%s witnesses* e.g.* "y referring to the adverse party generically 2e.g.* the defendant* the corporation* the deceased3 or with negative la"els 2e.g.* the to9ic=waste company3. Cse analogies to common e9periences. ;f you thin, a jury may have difficulty understanding a legal concept* try to analogi@e it to some common e9perience. The classic e9ample is the e9planation of circumstantial evidence: suppose you got up one morning and saw a foot of snow on the ground that was not there when you went to "ed. <ou can "e certain it snowed during the night even though no eyewitness saw it. Admit your wea,nesses. 8very case has wea,nesses. <ou should confront those inherent in your theory* admit them* and deal with them as "est you can. The jury is pro"a"ly already aware of them from the evidence* and your opponent is sure to "ring them up* so you cannot ma,e them go away. Therefore* you might as well at least earn points for candor and honesty. Gowever* the dividing line "etween a candid discussion of your wea,nesses and a defensive argument that focuses on your opponent%s evidence is a fine one. ;t is not necessary to confront every piece of contradictory evidence. 7ather* you should discuss and e9plain away the major wea,nesses in your own theory. !e consistent with physical evidence and common sense. Try to ma,e it appear that your case has more support == a greater +uantity of evidence* or a greater num"er of credi"le witnesses. Avoid rhetorical +uestions 2(3 1resentation suggestions ;nformality is usually "etter than formality* "ut don%t get too sloppy or casual 5aintaining a courteous* professional demeanor is usually "etter than sarcasm* anger* or any other childish out"urst. Try not to "e rude* a"rasive* or o"no9ious. Gistrionics should "e used sparingly. <ou are li,ely to "e more effective if you adopt a friendly* conversational manner than if you attempt to mimic the dramatic techni+ues of the actors who portray lawyers on television. Gowever* this does not mean you should never use dramatic techni+ues* only that you should save them for the most important points in your argument.

)hen the facts are emotional* you should display an emotional reaction yourself. ;f you represent a client who was crippled in an automo"ile accident* or are prosecuting a rape case* don%t tal, a"out the victim%s plight in dry* matter=of=fact terms. Bet your voice e9press your sympathy and your outrage. !e careful a"out using e9aggeration and hyper"ole. 7emem"er that your person credi"ility is on the line* and if you say outrageous things that are not true* the jury will "elieve you less. 'otes should "e used as minimally as possi"le so that your overall presentation is e9temporaneous and conversational. A"ove all* do not read your closing argument. 5aintain eye contact with the jury. Boo, from juror to juror during your argument* not at your notes or the floor. ;f loo,ing directly at jurors ma,es you uncomforta"le* loo, "etween two jurors. Avoid standing "ehind a lectern. ;f you need the security of a lectern* try standing "eside it rather than hiding "ehind it. >ontrary to what your mother told you* don%t spea, slowly and distinctly. Slow speech is "oring. Hary the pace* and don%t "e afraid to tal, +uic,ly.