TRIAL PROCEDURE AND TACTICS

Author: James A. Tanford

Indiana University School of Law

A. THE CA!I"AL ULES #$ SUCCESS$UL TIALS
%. Act res&ectful toward the 'ud(e. Stand when he)she enters or leaves the room. Address him)her as *your honor.*
+. ,e -rief.
.. !on/t waffle or whine
0. "ever underestimate your o&&onent
1. 2ear comforta-le clothes3 es&ecially shoes. "o rule re4uires men to wear vests or women to wear &um&s that ma5e them
lim&.
6. ,rin( water and (ranola -ars.
7. Arrive at every court a&&earance at least %1 minutes early.
8. ,e formal and &rofessional at all times.
9. :re&are.
,. USUAL #!E #$ TIAL
;%< :reliminaries
,ailiff calls court to order3 attorneys stand and 'ud(e enters room
Jud(e as5s for attorneys/ names ;sometimes called *a&&earances*<= attorneys (ive their names and whom they re&resent.
Jud(e as5s if there are any &reliminary issues and attorneys ma5e motions. :laintiff usually (oes first. >otions are of three
5inds:
a< >otion to se&arate witnesses under $ed. . Evid 6%1
-< >otions in limine to &revent the other side from -rin(in( u& inadmissi-le evidence
c< e4uests that the 'ud(e clarify his or her &rocedures on s&ecific issues= e3(3 i< >ay e?hi-its -e used in o&enin(
statement@= ii< >ay leadin( 4uestions -e used on &reliminary or uncontested matters@= iii< Should you state (rounds for an
o-'ection in o&en court or at the -ench@= or iv< 2ill the 'ud(e (ive 'ury instructions -efore or after closin( ar(uments. If
instructions are not (iven until after ar(uments3 will the 'ud(e &ermit you to refer to s&ecific &attern 'ury instructions durin(
ar(ument.
;+< Jury selection ;not usually done at trial com&etitions<
A 'ury &anel is -rou(ht in
The 'ud(e introduces the case and lectures the 'ury a-out civic res&onsi-ility
Si? 'urors are called to sit in the 'ury -o?
:laintiff 4uestions the &anel first3 and when done3 then defendant 4uestions them
Either side may challen(e a 'uror for cause ;le(al dis4ualification< whenever (rounds -ecome a&&arent
After the 4uestionin(3 the lawyers a&&roach the -ench and tell the 'ud(e whether they have any &erem&tory challen(es ;you
'ust don/t li5e a 'uror<. :laintiff e?ercises the first challen(e3 then defendant3 then alternately until they are satisfied with the
&anel or run out of allotted challen(es. Aou may not challen(e 'urors -ased on race3 ethnicity or (ender.
"ew 'urors are called u& to fill in the 'ury -o? and the &rocess starts over a(ain.
The 'urors who remain are sworn in
.< #&enin( statement
:laintiff ;or &rosecutor< (ives an o&enin( statement
!efendant (ives an o&enin( statement.
;0< :laintiff/s case in chief
:laintiff calls 2itness "o. %
a< :laintiff conducts direct e?amination
-< !efendant conducts crossBe?amination
c< :laintiff conducts -rief re-uttal
:laintiff calls remainin( witnesses. $or each one:
a< :laintiff conducts direct e?amination
-< !efendant conducts crossBe?amination
c< :laintiff conducts -rief re-uttal
:laintiff announces that s)he rests
;1< !efendant ma5es a motion for a 'ud(ement as a matter of law under $ed. . Civ. :ro. 1C.
;6< !efendant/s caseBinBchief
!efendant calls 2itness "o. %
a< !efendant conducts direct e?amination
-< :laintiff conducts crossBe?amination
c< !efendant conducts -rief re-uttal
!efendant calls remainin( witnesses. $or each one:
a< !efendant conducts direct e?amination
-< :laintiff conducts crossBe?amination
c< !efendant conducts -rief re-uttal
!efendant announces that s)he rests.
;7< :laintiff ma5es a ule 1C motion for 'ud(ment on the evidence as to any affirmative defense or counterclaim
;8< :laintiff &resents its re-uttal case 3 limited to new facts3 issues and defenses raised durin( the defendant/s caseBinBchief.
:laintiff calls one or more witnesses
a< :laintiff conducts direct e?amination
-< !efendant conducts crossBe?amination
c< :laintiff conducts -rief re-uttal
:laintiff announces that s)he rests.
;9< ,oth sides renew their ule 1C motions for 'ud(ment on the evidence.
;%C< Closin( ar(uments
:laintiff &resents the first ar(ument
!efendant &resents his or her ar(ument
:laintiff &resents the final ar(ument
;%%< The 'ud(e instructs the 'ury on the law
;%+< Jury deli-eration
The 'ury deli-erates in secret lon( enou(h to (et at least one free meal.
If the 'ury re4uests more instructions or a review of evidence3 it ta5es &lace in o&en court with the &arties &resent. Even the
'ud(e may not communicate e? &arte with the 'ury.
The 'ury returns its verdict3 the lawyers are summoned3 and the verdict is read.
2hichever lawyer lost the case as5s that the 'ury -e *&olled3* a &rocess in which each 'uror is individually as5ed if they a(ree
with the verdict.
C. ,ASIC :I"CI:LES #$ A!D#CACA
;%< !evelo& a theory of your case and stic5 to it. >a5e sure that everythin( you do furthers that theory3 and don/t waste time
on anythin( irrelevant to it. A case theory is the sim&lest model that e?&lains what ha&&ened and why you are entitled to a
favora-le verdict3 and forms a cohesive3 lo(ical view of the merits of the case that is consistent with common everyday
e?&erience. A case theory contains the followin( elements:
Law. Aour theory should clearly indicate the &ro&er le(al outcome of the case. Aou must understand the elements of your
cause of action or defense3 and whether and how you can &rove them. If there are multi&le le(al issues3 you must decide
what is your stron(est le(al ar(ument. Just -ecause an issue could -e ar(ued does not mean you must do so. $or instance3
a defendant in a &ersonal in'ury case could ar(ue that the &laintiff cannot &rove lia-ility3 or that &laintiff suffered no dama(es3
or -oth. If you re&resent a defendant who3 at the time of an accident3 was drun53 s&eedin(3 drivin( in the wron( lane3 and did
not have a license3 could you sincerely ar(ue that your client was not ne(li(ent@ If the &laintiff suffered only whi&lash in'uries
that cannot -e medically verified3 your theory of the case can more comforta-ly rest on an ar(ument that the &laintiff cannot
&rove any in'ury.
$acts. Aour theory must -e consistent with the wei(ht of the evidence. It also should identify which are the most im&ortant
items of evidence that su&&ort your version of the dis&uted events. Just -ecause evidence is availa-le does not mean it must
-e &resented BB even if you have s&ent time and effort to (ather it. Aou must develo& the a-ility to discern hel&ful from
confusin( information and the disci&line to limit yourself to the &resentation of facts su&&ortin( your theory.
2ea5nesses. Aou must reco(niEe3 ac5nowled(e3 and have an e?&lanation for wea5nesses3 (a&s3 inconsistencies3 and
im&ro-a-ilities in your case.
Emotions. A (ood theory includes an emotional com&onent. 2hat in'ustice has -een committed@ 2hy is your client morally
deservin( of a verdict@
#&&onent/s case . eco(niEe that there is another side to the story. AnalyEe your o&&onent/s case to determine where the
dis&utes will arise3 what the stren(ths and wea5nesses of the adverse case are3 and develo& an e?&lanation for why your
o&&onent/s version is wron(.
;+< #ther (eneral &rinci&les
Fee& it sim&le. Concentrate on the five or ten most im&ortant facts in your case@ Identify them in your case theory. If you can
sim&lify your case3 edit your &resentations3 and 5ee& the 'ury focused on your main &oints3 resistin( the tem&tation to (o off
on less im&ortant tan(ents3 you will &resent the 'ury with a case they can understand and remem-er.
Understand the law of the case as contained in the 'ury instructions. A (ood case fits s4uarely in the middle of it. Save your
clever le(al ar(uments a-out what the law should -e and your interestin( inter&retations for the court of a&&eals.
,e realistic. "ever -uild a case around what a 'ud(e or 'ury mi(ht do3 -uild it around what they will &ro-a-ly do. Sure3 it/s
&ossi-le that 'urors mi(ht -elieve that a droolin( child molester with *,orn to Lose* tattooed on his forehead is a credi-le
witness3 -ut it is not li5ely.
Thin5 carefully a-out the lan(ua(e that you use . Use words that &ersonaliEe your witnesses and de&ersonaliEe your
o&&onent/s. Use colorful la-els as mnemonic devices for the main facts.
Corro-orate rather than re&eat . E?act re&etition is -orin(3 -ut corro-oration from several an(les is convincin(.
Illustrate. Use themes3 stories3 e?am&les and anecdotes to illustrate your main &oints. Jurors may not remem-er all the
details of your ar(ument that an o&&osin( e?&ert witness/s o&inions are &urely su-'ective= -ut they will remem-er the story of
Goldiloc5s and the three -ears. They may have trou-le envisionin( what the scene of a crime was li5e until you tell them it
loo5ed li5e a scene from *!eliverance.*
,e &ositive rather than ne(ative. Em&hasiEe the stren(ths of your case3 rather than the wea5nesses of your o&&onent/s.
Start stron(. :sycholo(ists have confirmed what our mothers always told us: first im&ressions are im&ortant. This &rinci&le
su((ests that the first thirty seconds of each &hase of your trial BB your o&enin( statement3 each direct and crossB
e?amination3 and your closin( ar(ument BB is a critical &oint in which you should focus on somethin( you es&ecially want the
'ury to remem-er.
End stron(. The &sycholo(ical &rinci&le called *recency* su((ests that the final thirty seconds of each &hase of your trial BB
your o&enin( statement3 each direct and crossBe?amination3 and your closin( ar(ument BB is a critical &oint in which you
should focus on somethin( you es&ecially want the 'ury to remem-er.
Admit your wea5nesses. Every case has wea5nesses3 e.(.3 witnesses with unsavory -ac5(rounds or evidence that defies
common sense. Aou cannot i(nore these &ro-lems= wea5nesses do not 'ust (o away. Aou cannot e?&lain them away3 -ut you
can disclose them yourself in a way that ma5es them a&&ear trivial. :sycholo(ists have shown that you will usually -e more
&ersuasive if you -rin( out -oth sides of an issue yourself than if you ado&t the *usedBcarBsalesman* a&&roach of tryin( to
hide o-vious &oints of vulnera-ility. As a corollary to the &rinci&les of &rimacy and recency3 however3 wea5nesses should
usually -e -uried in the middle of each &hase of your trial.
.. :lan Aour $actual Case Carefully
Is the evidence admissi-le@ Aou can antici&ate in advance evidence that can -e o-'ected to3 and &laces where your
o&&onent may o-'ect to your evidence. Aou need to decide whether the 'ud(e will sustain any of these o-'ections and
e?clude the information. A (ood theory of the case must -e -ased on a reasona-ly accurate &rediction of what evidence will
-e admitted and what evidence will -e e?cluded at trial. It is a waste of time to develo& a theory &remised on evidence that is
inadmissi-le.
!ia(ram the case. >a5e a chart in which the elements you need to &rove are matched with a list of witnesses and e?hi-its
availa-le to you. Aou then can com- your interview notes3 the &rior statements3 and the de&ositions for each witness3
recordin( on your chart every im&ortant &iece of admissi-le evidence that will hel& you &rove your theory of the case. The
chart can form an outline of your case and hel& assure that you call all witnesses and introduce all e?hi-its that hel& you.
Loo5 for corro-oration. #ne witness is le(ally ade4uate3 two witnesses and a corro-oratin( document is &ersuasive. Aour
(oal is to ma5e your case &ersuasive3 not merely ade4uate. Aou can ma5e the testimony (iven -y every im&ortant witness
more credi-le -y corro-oratin( everythin( that witness says3 throu(h e?hi-its3 demonstrations3 and the testimony of other
witnesses BB es&ecially your o&&onent/s witnesses. $or e?am&le3 a defendant claimin( selfBdefense may as5 the arrestin(
officer to descri-e the overturned furniture su((estin( mutual com-at3 or verify that a 5nife was found near the victim/s -ody.
Consider 'udicial notice. Judicial notice is availa-le to introduce many ty&es of information not su-'ect to reasona-le dis&ute.
Indiana ule of Evidence +C% &rovides for two cate(ories: ;%< facts *(enerally 5nown* in the community3 and ;+< facts
*ca&a-le of accurate and ready determination -y resort to sources whose accuracy cannot reasona-ly -e 4uestioned3* such
as almanacs3 encyclo&edias3 and news&a&er television listin(s. If you see5 to &rove facts of the second ty&e3 you -ear the
res&onsi-ility for su&&lyin( a reference -oo5 to the 'ud(e.
0. Use a Trial "ote-oo5
A trial note-oo5 &rovides a central3 easily trans&orta-le stora(e &lace for everythin( you may need at trial. Consider includin(
the followin( sections:
a< !ramatis &ersonae. A list of the names of everyone im&ortant to the case and their roles BB a 4uic5 reminder if you for(et.
-< Case theory and a dia(ram or outline of your &roof3 which you will use to res&ond to your o&&onent/s directed verdict
motion.
c< Trial schedule3 listin( everythin( you intend to do at trial in the actual order you will do it. If you write down the scenario
and refer to it as you (o alon(3 you will not for(et to ma5e a motion3 as5 for a recess so you can tele&hone a witness3 su-mit
a 'ury instruction3 or call a witness. $or e?am&le3 the first &art of a trial schedule mi(ht loo5 somethin( li5e this:
%. A&&roach -ench3 as5 for &reliminary instruction on cause of action.
+. >ove to se&arate witnesses ;Joe<.
.. !ave (oes to (et witness Jac5son.
0. #&enin( statement ;>ary<.
1. !efense o&enin(
6. !irect e?amination B Jac5son ;Joe<
7. !efense crossBe?amination.
8. e4uest that Jac5son -e allowed to leave courthouse ;Joe<.
9. e4uest 'udicial notice of traffic law H 9B%0+ ;twenty m&h s&eed limit< ;>ary<
%C. ead *school Eone* sti&ulation ;>ary<.
%%. !irect e?amination B Stevens ;>ary<.
etc.
d< :retrial. A section containin( a list of 4ueries for the 'ud(e at the start of trial3 e.(.3 whether she will &ermit an e?hi-it to -e
used in o&enin( statement3 and whether she &ermits ar(ument accom&anyin( o-'ections.
e< Court documents. A section for the &leadin(s3 rulin(s on motions3 &retrial orders3 and any other official court documents.
f< #&enin( statement. Aour notes for your o&enin( statement3 if you are (ivin( one.
(< Aour witnesses3 -oth for direct and cross3 with co&ies of statements and documents relatin( to that witness and an outline
of the direct or crossBe?amination. :rior statements and de&ositions should -e carefully inde?ed so you immediately can
locate &assa(es needed to refresh recollection or im&each.
h< Trial motions. "otes &ertainin( to your ar(ument for or a(ainst a motion for a directed verdict.
i< Evidence research. Co&ies of your evidence research and any -riefs you have &re&ared to su&&ort your o-'ections3 or a
co&y of the Indiana Trial Evidence >anual.
'< Closin( ar(ument. Aour notes for final ar(ument3 includin( s5etches of any dia(rams you &lan to draw on the chal5-oard.
5< E?hi-its a&&endi?. #ri(inals or co&ies of all documents you will use at any time durin( trial and a chec5list for 5ee&in(
trac5 of which ones have -een admitted into evidence. Fee&in( trac5 of e?hi-its ;your own and your adversary/s< can -e one
of the most difficult tas5s in the trial. E?hi-its are mar5ed3 shown to witnesses3 tal5ed a-out3 offered3 withdrawn3 admitted and
&assed to the 'ud(e. Layin( ade4uate foundations may re4uire more than one witness. $ew thin(s are more frustratin( than
-ein( told you cannot use an e?hi-it durin( closin( ar(ument -ecause you ne(lected to move it into evidence. An e?hi-it
chec5list can hel& you 5ee& a runnin( record of the status of all e?hi-its.
!. #:E"I"G STATE>E"T
;%< The ule: Aou are su&&osed to tal5 only a-out the facts you intend to &rove= you may not ar(ue.
a. Aou may discuss the evidence3 e?ce&t:
Aou may not refer to inadmissi-le evidence. Jud(es will rarely sustain this o-'ection unless the evidence is clearly
inadmissi-le ;e.(.3 &rivile(ed3 involves insurance<3 and will &ermit the statement is the evidence is &otentially admissi-le
;ule 0C.= hearsay<. The courts use a (oodBfaithB-asis test: you may refer to any evidence that you have reasona-le
(rounds to -elieve is admissi-le3 and that you intend to offer.
Aou may not e?a((erate or overstate your evidence.
:laintiff may not discuss evidence the defendant will introduce that will not -e &art of &laintiff/s case.
-. *Ar(ument* is &rohi-ited.
If it is somethin( you intend to &rove3 it is not ar(ument. If you ma5e a statement that is not susce&ti-le of &roof3 it is
ar(ument.
2henever you ma5e a statement3 if a witness could ta5e the stand and ma5e the same statement3 it is not ar(ument.
However3 if the rules of evidence would &revent such testimony3 or if no such witness e?ists3 the remar5s are ar(umentative.
>any 'ud(es will allow you to ma5e fair inferences from the evidence3 such as *2e will &rove that the defendant shot the
victim for no (ood reason.*
>any 'ud(es &ermit you to state your le(al claim or defense in -asic terms and to descri-e the nature of the case or the
issues.
As5in( the 'ury to resolve dis&utes in your favor is ar(ument= e.(.3 referrin( to your witnesses as *disinterested3* and
therefore more worthy of -elief that your o&&onent/s.
>a5in( ne(ative comments a-out your o&&onent is ar(ument= e.(.3 callin( the defendant a *-i( cow.*
Usin( colorful la-els that characteriEes facts in a way distinctly favora-ly to your side is ar(ument= e.(.3 the &rosecutor
characteriEin( a 5illin( as a *slau(hter.*
!iscussion of the law is &rohi-ited3 e?ce&t to mention the issues and dis&utes.
c. It is (enerally inadmissi-le3 and always a waste of time3 to read the &leadin(s or tell the 'ury how much was sued for.
;+< #-'ections
a. 2hen to o-'ect
Any discussion of witness credi-ility is ar(ument.
Any discussion of how the 'urors should resolve dis&utes is ar(ument.
An e?&lanation concernin( how the facts should -e a&&lied to the law or whether elements of a cause of action have -een
satisfied is ar(ument.
To discussion of inadmissi-le evidence.
If your o&&onent mentions their &ersonal o&inion.
!is&ara(in( remar5s a-out you or your client are ar(ument.
To any misstatement of the law.
-. 2hen not to o-'ect
To evidence that you thin5 is irrelevant or hearsay.
To statements of fact -eyond the sco&e of the de&ositions.
To correct descri&tions of the law.
c. How to res&ond to an o-'ection
*I am only statin( what I e?&ect the evidence to show.* >emoriEe this
;.< The techni4ue of o&enin( statement

$ind a theme that relates to the elements of your case or in the characteristics of your client that arouse natural sym&athy or
coincide with universally admired &rinci&les. It is es&ecially hel&ful if you can come u& with a clever title for your theme. E.(.3
%. !avid and Goliath BB if you re&resent an individual a(ainst a lar(e cor&oration.
+. $i(htin( city hall BB if you re&resent a &erson who has -een the victim of infle?i-le &olicies of (overnment -ureaucracies or
the unreasona-le decisions of faceless officials.
.. Cau(ht in a sea of red ta&e BB if you re&resent a small -usiness tryin( to com&ly with contradictory and ar-itrary re(ulations
and laws.
0. Law and order BB if your case is wea5 on sym&athetic factors3 -ut your client/s actions were le(ally 'ustified.
Use chronolo(ical order. The more common is to followin( your client chronolo(ically throu(h the event. E.(.:
Ellen Gaston left her house at .:%1 to drive to the su&ermar5et. She &ut on her seat-elt and drove east on Second Street. As
she &assed o(ers Elementary School on her ri(ht3 she slowed down. She was watchin( the road in front and the
schoolyard on her ri(ht3 when she heard a sudden screechin( of tires and was smashed into -y the defendant comin( out of
a driveway on her left.
Aou also may use a timeline3 in which the movements of several &eo&le are charted minute -y minute3 -ut there is no
&rota(onist. $or e?am&le: It/s .:%1. Ellen Gaston is leavin( her house to (o to the su&ermar5et. The defendant is finishin( his
fourth -eer in his a&artment on Second Street. Fim Chua is sittin( in his fifth (rade classroom at o(ers Elementary School.
At .:%63 >s. Gaston (ets in her car and fastens her seat-elt. The defendant (oes to the refri(erator for another -eer3 -ut the
cu&-oard is -are. Fim loo5s an?iously at the cloc5. $rom .:%6 to .:+C3 >s. Gaston drives east on Second Street. The
defendant decides to (o out for more -eer3 &uts on his coat3 and wal5s down to his car. Fim counts the minutes to the end of
the school day. At .:+C3 >s. Gaston a&&roaches o(ers School. The defendant (uns his car down the driveway. The -ell
finally rin(s and Fim races out of the schoolhouse. At .:+%3 these three &eo&le come to(ether. Fim runs across the
schoolyard. >s. Gaston loo5s to her ri(ht to ma5e sure he/s not (oin( to run into the street. The defendant flies into Second
Street without sto&&in( and smashes into >s. Gaston/s car.
Tell a story. ,e entertainin(. Try to for(et it/s a courtroom= ima(ine you/re sittin( around a cam&fire.
Give a conclusion and tell the 'ury what verdict you e?&ect the evidence to su&&ort. Fee& it s&ecific and -rief.
Admit ;-ut don/t em&hasiEe< wea5nesses. Every case you ta5e to trial will have some inherent wea5nesses BB (a&s in your
evidence3 witnesses who lac5 credi-ility3 the a-sence of corro-oration on an im&ortant issue3 unavaila-le witnesses3 and so
forth. ,y -rin(in( them out yourself in as &ositive a manner as &ossi-le you ta5e some of the stin( out of them3 a&&ear
honest3 and lessen the ne(ative im&act when your o&&onent &oints them out. This does not mean you should tell the 'ury
a-out every trivial &iece of conflictin( evidence nor antici&ate dis&utes your adversary may raise. ather3 you must -rin( out
and e?&lain away those wea5nesses that will emer(e from your own &resentation of evidence or that inhere in your theory of
the case3 re(ardless of what your o&&onent does. $or e?am&le3 su&&ose your client had consumed a cou&le of -eers. Aou
mi(ht say:
Jac5 was so-er when he (ot into his car. He had drun5 only two -eers over the course of the evenin(3 and was still in full
control of his faculties.
;0< :erformance su((estions:
Use as few notes as &ossi-le.
>aintain eye contact with the 'urors3 loo5in( from one to another. If loo5in( directly at an individual 'uror ma5es you nervous3
loo5 -etween two 'urors.
Use sim&le words and &lain En(lish. Avoid *le(alese.*
!on/t (et too dramatic BB save it for closin(.
Dary your &ace3 &itch and loudness. A monotonous3 dronin( s&ea5in( voice will &ut 'urors to slee&.
Fee& u& the &ace of your s&eech3 without lettin( it (et so fast the 'ury cannot follow you. Slow s&eech is -orin(.
Use (ood &osture. !es&ite what you see on television3 the slouchin( country lawyer a&&roach is not very effective.
E. !IECT EIA>I"ATI#"
;%< 2hat to&ics to cover
Sufficient facts to ma5e out a &rima facie case on every issue on which you -ear the -urden of &roof.
Any testimony from the witness on one of your main &oints of em&hasis.
Testimony that corro-orates your other witnesses3 es&ecially your client.
Information a-out the witness/s -ac5(round that ma5es their &articular evidence more credi-le. Aou may have to su&&lement
the mea(er information in the &ac5et.
Testimony that is necessary to lay a foundation for other evidence
Testimony that &rovides continuity and ma5es the story understanda-le.
;+< Su((ested order
Somethin( dramatic and im&ortant
,ac5(round that -olsters witness/s credi-ility.
Set the scene.
Get witness to tell the story.
,i( finish
;.< >a5in( the testimony &ersuasive.
a. >a5e sure the 'ury hears your im&ortant evidence:
Attract and 5ee& the 'urors/ attention. >ost direct e?amination is -orin(. >uch of it is not very im&ortant. Therefore3 you want
to assure that the 'urors/ attention is focused on the witness -efore you cover the most im&ortant &arts of the direct
e?amination. Aou can attract 'urors/ attention to the witness -y havin( the witness do somethin( unusual. $or e?am&le3 you
can hand the witness an e?hi-it3 have the witness (et u& and demonstrate somethin(3 or have the witness wal5 to a dia(ram.
Aou can 5ee& the 'urors/ attention -y -ein( -rief and usin( visual aids.
Get your evidence admitted. The 'urors cannot hear your evidence if it is ruled inadmissi-le -y the 'ud(e. This means you
must antici&ate o-'ections your adversary mi(ht ma5e3 and &re&are to circumvent them. 2ith advance &re&aration3 you can
come e4ui&&ed with research that su&&orts admissi-ility. Aou can ma5e sure that your direct e?amination contains sufficient
evidence to satisfy foundations. Aou can &re&are alternative theories of admissi-ility3 such as offerin( evidence for a limited
&ur&ose. And3 you can -e &re&ared to loo5 for other alternative methods of &roof3 &erha&s throu(h other witnesses3 in case
your evidence is e?cluded.
-. >a5e sure the 'ury understands your case. $ive techni4ues will hel&:
>aintain chronolo(ical order. A story is easier to follow if it is in chronolo(ical order. arely is there any reason why you
should deviate from it.
Su-divide direct e?amination into smaller units. If you -rea5 u& a lon( story into *e&isodes* it will -e easier for the 'urors to
understand and remem-er it. Thus3 you mi(ht divide u& the &laintiff/s story of a traffic accident into si? se(ments: the
&laintiff/s ha&&y and active life -efore the accident= the events of the day leadin( u& to the accident= a detailed account of the
accident itself= the minutes immediately followin( the accident= the ne?t few days in the hos&ital= and what &laintiff/s life has
-een li5e since the accident.
:lan transitions -etween se(ments. It will -e easier for the 'ury to follow your story if they understand when one *e&isode*
sto&s and another starts. Aou should therefore &lan ver-al and visual transitions -etween se(ments. A transition is made u&
of three &arts: a clear closure on one se(ment3 an interru&tion of the flow of the direct e?amination3 and then a clear
-e(innin( to the ne?t se(ment. Aou can close a se(ment with a 4uestion such as3 *!o you recall anythin( else a-out the
accident@* $or an interru&tion3 you may remain silent for a few seconds3 move to a different location3 have the witness sit
down if the witness was standin(3 and)or insert a &hrase such as3 *Let/s move on to the events followin( the accident.* Aou
can o&en the ne?t se(ment with the same 5ind of to&ic 4uestion you use to start the chronolo(y: *!irectin( your attention to
immediately after the accident3 tell us what ha&&ened.*
Elicit facts and details3 not conclusions. Conclusory testimony de&ends for its success on the witness and 'urors sharin( a
common frame of reference. It is unli5ely that all 'urors will share the witness/s view on what constitutes *lar(e3* *fast3* or *a
(ood loo5 at the sus&ect.* The more you are a-le to &rovide the 'urors with the details of im&ortant &oints3 the more certain
you can -e that the 'ury will understand it. Thus3 you want your witness to say *si? feet tall and two hundred &ounds* rather
than *lar(e3* *(oin( over ei(hty miles an hour* rather than *fast3* and *close enou(h to read the words /-orn to lose/ tattooed
on his u&&er arm* rather than *(ot a (ood loo5 at the sus&ect.*
Use a&&ro&riate visual aids. >iscommunication is least li5ely if you can show the 'ury the actual o-'ects and &laces involved
in a liti(ated event. :hoto(ra&hs3 dia(rams and other illustrations also reduce the li5elihood of misunderstandin(.
c. >a5e sure the 'ury remem-ers your 5ey facts -y em&hasiEin( them so they stand out. The essence of em&hasis is
difference BB you cannot em&hasiEe everythin(.
Go into s&ecific detail. The more details you elicit3 the more you em&hasiEe the event -ein( descri-ed. If the witness testifies3
*I was wal5in( down the street when the defendant &ulled a (un on me and said3 /Give me a hundred dollars3/* the 'urors
mi(ht miss the (un reference. If you wanted to em&hasiEe it3 you could -rea5 in at that &oint and elicit details:
J: 2hat color was the (un@ A: ,lac5.
J: A-out how -i( was it@ A: :retty com&act3 a-out the siEe of an o&en hand.
J: Short -arrel or lon( -arrel@ A: Short. I would call it a snu-Bnosed (un.
J: Automatic or revolver@ A: evolver.
Chan(e your 4uestionin( &ace or &attern. If you have -een conductin( a normal direct e?amination3 you have -een as5in(
sim&le neutral 4uestions such as *2hat ha&&ened ne?t3* and *2hat did you see@* If you suddenly vary the ty&e of 4uestion
you as53 it em&hasiEes the testimony to follow. Aou can use a si(nal 4uestion3 such as *"ow thin5 a-out your answer
carefully3 and tell the 'ury ...* #r3 you can chan(e from narrative 4uestions to slow3 narrow3 detailed 4uestions.
Chan(e your &osition or the witness/s &osition. $or e?am&le3 if you have -een standin( near the corner of the 'ury -o?3 you
could wal5 over to your ta-le -efore as5in( an im&ortant 4uestion. #r3 you can as5 the witness to ste& to a dia(ram 'ust
-efore elicitin( some crucial fact.
Use visual aids.
e&eat the evidence. e&etition can ta5e three forms: similar testimony from different witnesses3 similar testimony elicited
more than once from a sin(le witness3 and re&etition of testimony -y the attorney.
d. >a5e sure the 'ury -elieves your evidence. Several techni4ues hel& enhance the witness/s trustworthiness.
Enhance the witness/s &ersonal credi-ility. Su-'ect to the rule &rohi-itin( -olsterin(3 it is hel&ful to show that a witness is
li5ely to -e credi-le in this &articular case. Aou can show the witness is un-iased3 has (ood social standin(3 has e?&erience3
etc.
Enhance the credi-ility of the witness/s story -y &rovin( that the witness has a (ood memory3 did thin(s to &reserve
recollection such as ta5in( notes3 and -y elicitin( detailed testimony a-out the event itself. 2hy does the witness remem-er@
How can the witness -e sure@
:rove the witness/s e?&ertise and familiarity with the su-'ectBmatter. A witness/s o&inions and o-servations of other events
and &eo&le is more credi-le if the witness is familiar with that ty&e of event or the &eo&le involved. If a witness is (oin( to
descri-e a traffic accident3 -rin( out that the witness used to -e a ca- driver. If a witness is (oin( to testify a-out the
condition of the testator at the time a will was e?ecuted3 -rin( out the witness/s 5nowled(e of the details of the testator/s
(eneral life3 family3 ha-its3 mannerisms3 and so forth.
:rove motives that are consistent with conduct. :eo&le do thin(s for reasons. If the reasons and motives are e?&lained3 the
conduct ma5es more sense. If a witness acted out of ha-it3 'ealousy3 love3 shame3 curiosity3 or any other common emotion3
&rovin( the emotional state will ma5e the conduct seem more lo(ical.
Admit your wea5nesses.
;0< As5 &ro&er 4uestions
As5 only one 4uestion at a time3 and not a 4uestion with several &arts.
Avoid ne(atives in the 4uestion3 if &ossi-le. !on/t as5 4uestions li5e: *Aou do not 5now whether Jones was there@*
>a5e the 4uestion -rief.
Use sim&le words that everyone will understand.
Avoid leadin( 4uestions. Let the witness testify in his or her won words.
;1< :erformance su((estions:
,e honest and sincere. Aour &ersonal inte(rity is vital. "o *chea& shots.*
>anifest confidence and -elief in the witness. Show the 'ury that you -elieve in the case you are &resentin(. Act li5e you
care.
,e &rofessional. It is always -etter to err on the side of -ein( too formal than let your &erformance slide into slo&&iness3
slouchin(3 or the dreaded *country lawyer* a&&roach.
es&ect the 'ud(e without -ecomin( su-servient. "o -rownBnosin(.
Address all remar5s to the -ench. !o not s&ea5 directly to the o&&osin( lawyer3 and do not ma5e comments to the 'ury.
As5 &ermission to a&&roach the -ench3 the witness or the 'ury3 or to have the witness ste& out of the witness chair.
Use a conversational tone of voice. ,etter to -e too loud than too soft.
Let your voice reflect the emotional level of the e?amination. Aou &ro-a-ly should 4uestion a &hysician in a formal3
&rofessional manner3 -ut when you e?amine an in'ured child3 let your voice reflect your com&assion and understandin(.
!on/t let ne(ative feelin(s show in your face and voice. If disaster ha&&ens3 don/t reveal that you are an(ry3 irritated3 or
frustrated.
!o not try to su&&ress all human emotion. Lau(h if somethin( funny ha&&ens. If you win a difficult -attle over an o-'ection3
allow yourself a 4uic5 smir5 of trium&h.
2atch the witness3 so you see what the 'ury is seein(. 2atch for si(ns of nervousness or confusion. ,e careful not to (et
distracted starin( at your notes.
2atch the 'ud(e. Loo5 for si(ns of irritation or a raised eye-row. Aou also need to watch for visi-ly ne(ative reactions that
could affect the 'ury3 such as the 'ud(e sha5in( her head in dis-elief.
2atch the 'ury for their reactions. Are they attentive3 -ored3 fallin( aslee&@ Have they -e(un to loo5 at your witness li5e the
witness has some loathsome disease@
Fee& an eye on o&&osin( counsel. Some unethical attorneys may try to distract the 'urors/ attention away from the direct
e?amination.
;6< E?hi-its have their own s&ecial &rocedure:
>ar5 the e?hi-it with a letter or num-er for identification. This is often done -y the attorneys -efore trial3 -ut you also may
re4uest the cler5 or court re&orter to mar5 e?hi-its 'ust -efore you use them.
Lay the a&&ro&riate foundation throu(h your witness3 referrin( to the e?hi-it only -y its identification mar5. Aou may not state
what the e?hi-it is= only the witness may do so.
Show the e?hi-it to o&&osin( counsel or as5 the court if o&&osin( counsel would li5e to e?amine it. emem-er that you are
not su&&osed to ma5e any remar5s directly to your adversary3 so it is im&ro&er to turn to your o&&onent and as53 *>arva3 do
you want to e?amine this@* or for you to wal5 over to the other counsel ta-le and en(a(e in a whis&ered conversation a-out
the e?hi-it.
$ormally offer the e?hi-it into evidence3 referrin( to it only -y num-er or letter. $or e?am&le3 *Aour Honor3 we offer
defendant/s e?hi-it C into evidence.*
If a&&ro&riate3 hand the e?hi-it to the -ailiff ;or directly to the 'ud(e< for the court to e?amine. Aou &ro-a-ly should in all cases
as5 if the 'ud(e wishes to view the e?hi-it.
The o&&osin( lawyer may conduct a voir dire e?amination of the witness concernin( foundation matters3 and)or may ma5e
o-'ections to the admission of the e?hi-it.
The court rules on whether to admit or e?clude the e?hi-it.
If the e?hi-it is admitted3 &u-lish it to the 'ury. 2ith sim&le documents and &hoto(ra&hs3 you can distri-ute co&ies to
individual 'urors. eal evidence can -e &assed amon( them. In either case3 you should re4uest the court/s &ermission to
a&&roach the 'ury. Lar(e dia(rams or charts can -e &laced where all 'urors can see them. If anythin( a-out the e?hi-it needs
to -e e?&lained3 you must do so throu(h witness testimony BB you are not allowed to tal5 a-out the e?hi-it yourself at this time
without e?&licit &ermission from the court.
;7< !emonstrations and e?&eriments
a. $oundation:
2hether to allow a demonstration is a matter left to the discretion of the 'ud(e.
The demonstration must -e relevant and not unduly &re'udicial.
The witness affirms that s)he can accurately recreate the event.
The 'ud(e is satisfied that conditions in the courtroom are *sufficiently similar* to those e?istin( at the time of the ori(inal
event to ma5e the demonstration relia-le. Dariations in conditions (enerally affect wei(ht3 not admissi-ility.
-. :ersons other than witnesses3 such as attorneys and 'urors3 (enerally are not allowed to &artici&ate in demonstrations.
c. Tactical considerations
>a5e sure the demonstration faces the 'ury3 so they can see the event unfold. If you want the 'ury to see what the advancin(
(unman loo5ed li5e3 the witness must demonstrate it in a way that the (unman advances toward the 'ury.
It is very difficult for one witness to demonstrate what two &eo&le were doin( simultaneously. !emonstrations are more
effective if the witness is demonstratin( what one &erson did.
Aou should not &artici&ate in the demonstration. Aou are not a witness and cannot &lace evidence into the record. If you
cannot &lan a demonstration that the witness can conduct with you out of the way3 then don/t do it at all.
If you need a second &erson in a demonstration3 use the 'ury. If you want the witness to demonstrate that she was close
enou(h to the ro--er to see his face clearly3 as the witness to demonstrate that distance in relation to the front row of 'urors3
not in relation to you3 to your coBcounsel3 or to some inanimate o-'ect in the courtroom.
!o not conduct a demonstration without rehearsin(. This means you &ro-a-ly should never as5 a witness on crossB
e?amination to demonstrate anythin(.
Save them for im&ortant facts. !emonstrations3 li5e e?hi-its3 will em&hasiEe the facts -ein( demonstrated.
d. >a5in( a record of a demonstrations3 (estures3 etc. In addition to formal demonstrations3 witnesses will use (estures to
hel& e?&lain their testimony: They &oint to the accused3 indicate siEe with their hands3 and sha5e their heads in answer to
4uestions. Aou must ma5e sure that this nonver-al conduct is translated into words so that it can -e recorded -y the court
re&orter. 2e are all3 of course3 familiar with one common way of doin( this BB the attorney announces3 *>ay the record reflect
that the witness has &ointed out the defendant.* Tactically3 it usually is -etter for witnesses to &rovide the ver-al descri&tions
in their own words. $or e?am&le3 if a witness indicates a distance with his or her hands3 you can as5 the witness to estimate
that distance ver-ally. If the witness does so3 no further statement need -e made for the record. The followin( transcri&t
indicates how demonstrations mi(ht -e included in the record:
J: 2hat ha&&ened ne?t@ A: 2e were standin( in front of the trailer when the defendant turned to his wife and said he was
(oin( to -eat the stuffin( out of her if she didn/t (et -ac5 inside.
J: How close were you standin( to him when he said this@ A: eal close3 a-out as far as from here to that chal5-oard there.
J: So you were a-out four feet a&art@ A: Aes.
J: !id you o-serve the &osition of the defendant/s arms at that time@ A: Aes3 I did.
J: 2ill you demonstrate to the 'ury what the defendant did with his arms as he made the threat@ A: Sure. He made fists li5e
this KdemonstratesL and too5 a ste& toward her li5e this KdemonstratesL.
J: 2e have to &ut this into words for the court re&orter. !escri-e e?actly how the defendant was holdin( his fists. A: ,oth
fists were dou-led Kdemonstratin( a(ainL3 down at his side. He too5 a ste& toward her and held the left fist u& at shoulder
level and the ri(ht fist a-out at his waist3 li5e a -o?er/s stance.
;8< efreshin( recollection
a. Informal method BB used if witness for(ets one detail
As5 a leadin( 4uestion
-. E?am&le of informal method:
J: !escri-e what you saw@ A: I entered the room. The were several overturned chairs3 and a &in-all machine on my ri(ht. I
saw the victim lyin( on the floor3 and the defendant standin( over him with a revolver in her hand.
J: !o you remem-er seein( anyone else in the room@ A: I/m not sure.
J: 2as the defendant/s sister there too@ A: #h3 yes.
c. $ormal method BB used if witness for(ets a whole -loc5 of testimony. The most common method of refreshin( recollection
is to show the witness a writin(. :ro&er &rocedure consists of the followin( ste&s:
Esta-lish that the witness/s memory is e?hausted
>ar5 a document for identification
Show the document to o&&osin( counsel3 or refer to it -y &a(e and line if it is a de&osition.
Hand the document to the witness
As5 the witness to read silently the s&ecific &ortion of the document that covers the for(otten material
etrieve the document
As5in( the witness if his or her memory has -een refreshed
Continue the e?amination if the witness now remem-ers the information
9< edirect e?amination. Give some advance thou(ht to &lannin( your redirect e?amination. Aou should -e a-le to antici&ate
what 5inds of im&eachment your o&&onent will attem&t3 so you can &lan how you will reha-ilitate those witnesses.
$. C#SSBEIA>I"ATI#"
;%< The most im&ortant facts to -rin( out on cross are facts that hel& you &rove your case:
$avora-le testimony on a contested issue. #ccasionally3 a witness called -y your o&&onent to testify a(ainst you on one
issue will &ossess si(nificant information you need to hel& &rove a contested issue. If the favora-le testimony was mentioned
on direct3 you can reem&hasiEe it on cross. If the matter was avoided3 then you should -rin( it u& on crossBe?amination
unless the to&ic cannot -e raised -ecause of limited sco&e rules.
Testimony corro-oratin( your main witnesses. It often will -e &ossi-le to elicit testimony on crossBe?amination that enhances
the credi-ility of your witnesses -y corro-oratin( &arts of their testimony. The &ossi-ilities are endless. It can -e as sim&le as
elicitin( testimony that your witness was &resent at the scene3 or as com&le? as -rin(in( out evidence of the truthful
character of one of your witnesses. The most fruitful line of in4uiry is li5ely to concern the o&&ortunity for your own witnesses
to o-serve the events. An adverse witness3 es&ecially one who uses a dia(ram of the scene to aid his or her direct
e?amination3 always should -e a-le to corro-orate that there would have -een a (ood line of si(ht from another location.
Usin( o&&osin( witnesses to corro-orate the actions of your client also is im&ortant. $or e?am&le3 if o&&osin( witnesses saw
your client tryin( to avoid an accident3 renderin( assistance to the victim3 or drivin( safely 'ust -efore it occurred3 or if they
overheard your client/s e?&lanation of the events3 you should -rin( out these facts.
Testimony consistent with your theory of the case. arely are more than a few issues really contested in a trial. The
controversy usually -oils down to a few dis&uted facts. Even if nothin( else is &ossi-le on crossBe?amination3 you always can
elicit testimony a-out those uncontroverted facts that form &art of your theory of the event. :rof. ,er(man uses the e?am&le
of a &etty theft char(e for sho&liftin( a calculator. #n direct3 the defendant admits &uttin( the calculator in his &oc5et3 -ut
denies intent3 claimin( he ste&&ed out of the store only to (et his chec5-oo5 from his wife. The crossBe?amination of the
defendant could consist of the followin( 4uestions on uncontested facts:
J. So you did &ic5 u& the calculator@
J. And you &ut it in your &oc5et@
J. Then you wal5ed to the nearest e?it@
J. And left the store@
J. And all the time you never too5 the calculator out of your &oc5et@
;+< If the witness has hurt you3 you will also want to im&each the witness/s credi-ility.
The witness has a &ersonal motive to testify falsely -ased on -ias3 &re'udice3 or interest
The witness has &reviously -een convicted of a crime3 which shows the witness to -e the ty&e of &erson who would lie.
:rior inconsistent statements may indicate that the witness has lied on one occasion.
:rior inconsistent statements cast dou-t on how well the witness is a-le to remem-er the events.
Ina-ility to recall collateral details of similar im&ortance may cast dou-t on the relia-ility of a witness/s memory. $or this 5ind
of crossBe?amination to -e successful3 the facts for(otten must -e of e4ual im&ortance to the facts remem-ered. If a witness
claims to remem-er a startlin( event ;*I saw the defendant &ull a shot(un and shoot two &eo&le.*<3 it &ro-a-ly will -e a waste
of time to as5 if the witness remem-ers what other &eo&le were doin(.
:rove the witness was at an unfavora-le vanta(e &oint from which to view the events.
!emonstrate that the witness has &hysiolo(ical limitations3 such as &oor eyesi(ht or hearin(.
Show that the witness was in &oor condition to o-serve at the time of the event due to into?ication or fati(ue.
Show &hysical conditions limitin( the witness/s o&&ortunity to o-serve the events3 such as o-'ects o-structin( the witness/s
view3 inade4uate li(htin(3 a (reat distance se&aratin( the witness from the event3 distractions3 or a very short time in which to
ma5e o-servations.
,rin( out testimony that is im&ossi-le or inconsistent with common sense ;-ut don/t confront the witness a-out it<.
Esta-lish inconsistencies with other3 more credi-le3 witnesses.
;.< Avoid hi(hBris5 to&ics.
a. Safe to&ics are those where you have a reason to -elieve that the witness will (ive a favora-le answer and you have the
a-ility to refute a -ad answer:
Aou are as5in( for information the witness has &reviously (iven in a statement or de&osition that would -e admissi-le as a
&rior inconsistent statement if the witness testifies differently.
Aou are as5in( a-out information the witness should 5now which is also contained in admissi-le e?hi-its3 such as
&hoto(ra&hs or records of criminal convictions.
Aou are as5in( a-out information the witness should 5now that other more credi-le witnesses will testify to.
-. >ediumBsafety to&ics are those where the nature of the case raises a li5elihood that the witness will (ive favora-le
testimony3 -ut you have no direct way to refute a -ad answer. Use them cautiously.
Aou are as5in( for facts consistent with human e?&erience where an unfavora-le answer would contradict common sense.
Aou are as5in( the witness a-out facts in situations in which the witness assumes that an inde&endent refutation witness is
availa-le.
Aou want the witness to confirm somethin( im&lied in a &rior statement3 -ut the witness has not &reviously -een as5ed
directly a-out it.
Aou are see5in( to &rove that somethin( did not ha&&en -ecause the witness says nothin( a-out it in an otherwise detailed
&rior statement. $or e?am&le3 if a &olice officer/s accident investi(ation re&ort is silent on whether your client had -een
drin5in(3 there is a li5elihood that the officer will admit that there was no evidence of into?ication. Common sense tells us that
a &olice officer would have re&orted into?ication.
c. Hi(h ris5 to&ics are those where you en(a(e in wishful thin5in(. Circumstances su((est that a witness mi(ht 5now
somethin( relevant3 -ut the witness has never said anythin( one way or the other. Thus3 you have no solid -asis to -elieve
the witness/s testimony will actually hel& you3 -ut the witness also has never e?&licitly said anythin( to the contrary3 so ;you
thin5< may-e the witness will une?&ectedly &rovide favora-le evidence.
The witness acted inconsistently with the fact sou(ht. $or e?am&le3 a witness who says he was *eatin( &iEEa and watchin(
TD* will &ro-a-ly not confirm that there was a 5nife fi(ht (oin( on3 -ecause it is unli5ely that anyone would calmly eat &iEEa
while 5nives are -ein( waved a-out.
The wei(ht of the testimony of other witnesses is to the contrary.
The evidence would contradict common sense. $or e?am&le3 if you are crossBe?aminin( an eyewitness to a crime that
occurred at ni(ht -ut in a well li(hted &ar5in( lot3 it would -e ris5y to as5 whether it was too dar5 to see clearly.
It contradicts somethin( in the witness/s own &rior statement.
;0< #rder of to&ics
Hi(h safety favora-le evidence on contested issues.
Hi(h safety evidence that corro-orates your main witnesses.
>edium safety favora-le evidence.
>edium safety im&eachment evidence.
Hi(h safety im&eachment attac5in( the witness/s testimony.
Hi(h safety im&eachment attac5in( the witness &ersonally.
$inal to&ic that scores a -i( &oint
;1< 2hat does a (ood crossBe?amination 4uestion loo5 li5e@
Leadin(
Sim&le and -rief
"onBar(umentative. As5 a-out facts3 not conclusions.
Use the witness/s own words whenever &ossi-le.
,rea5 your to&ics down into the smallest &ossi-le units3 and as5 a-out each one se&arately.
As5 only one fact &er 4uestion.
!o not re&eat dama(in( direct e?amination.
!on/t as5 the witness to e?&lain an answer.
6< :re&arin( to crossBe?amine.
Assem-le the file -efore trial. Aou should have with you in court3 in one file3 all the necessary documents for crossBe?aminin(
the witness: %< your written crossBe?amination 4uestions= +< all &rior statements3 de&ositions3 or other writin(s of the witness
that could -e used to im&each inconsistent trial testimony= and .< any e?hi-its or certified co&ies of convictions you may want
to introduce.
Listen to the direct e?amination. "ever assume a witness will testify in e?actly the same way at trial as the witness did in a
de&osition. 2itnesses occasionally will say e?traordinary thin(s or may o&en the door to &reviously inadmissi-le evidence
that you may miss if your attention is focused elsewhere.
!ecide whether to a-andon any &lanned 4uestions. ,ased on the direct e?amination3 you may face a decision whether to
for(o 4uestions -ecause they were covered on the direct e?amination. Generally3 of course3 you should &roceed with your
&lanned crossBe?amination. e&etition of favora-le evidence is a (ood idea. However3 in three situations you may choose to
for(o a line of 4uestions: %< Aou may have to dro& some to&ics -ecause your o&&onent limits the sco&e of the direct
e?amination= +< Aou may decide to for(o im&eachment if the im&eachin( effect of some &rior act is e?&lained away= or .< The
witness may une?&ectedly &ut evidence in a more favora-le li(ht than you e?&ected3 and mi(ht retract it or dilute it if you
re&eat the 4uestion on crossBe?amination.
!ecide whether to im&each -y &rior inconsistent statement. #-viously3 you cannot 5now in advance whether a witness will
(ive direct testimony inconsistent with &rior statements. Listen durin( direct e?amination3 and decide whether it is worth
im&eachin( any inconsistencies. In (eneral3 the only statements you are concerned a-out are those where the witness
chan(es from favora-le to unfavora-le testimony. If the witness (ives inconsistent statements on unim&ortant issues3 you
&ro-a-ly should for(o im&eachment3 unless you can strin( to(ether a lot of small inconsistencies.

7< !ifficult or evasive witnesses.
As5 the witness to limit his or her answers to *Aes* or *"o*
>ove to stri5e volunteered or evasive &ortions of the testimony
As5 the 'ud(e to instruct the witness to limit his or her answers to *Aes* or *"o*
If a witness evades your 4uestion3 re&eat the 4uestion or have it read -ac5
;8< Im&eachin( 2ith A :rior Inconsistent Statement
a. :re&are an inde? of &rior statements and de&ositions. Aou must -e a-le to find the s&ecific &rior statement when you need
it. The sim&lest way is to note -eside each 4uestion you &re&are e?actly where it came from. If it is a hi(h safety 4uestion
that comes directly from lines %%B%. on &a(e fortyBsi? of the witness/s de&osition3 you mi(ht ma5e some notation li5e *!06)%%B
%.* in the mar(in -eside your 4uestion. Aour &artner can follow alon(3 and if you need to im&each3 your &artner can instantly
hand you the ri(ht line in the de&osition.
-. ,asic &rinci&les.
Im&eachment is not the same as refreshin( recollection. If3 in answer to a safe 4uestion ta5en directly from a &rior statement3
a witness testifies he or she does not remem-er3 then you may choose to refresh recollection. However3 if a witness (ives an
answer une?&ectedly different from one contained in a &rior statement3 it does not mean the witness has for(otten the facts.
Aou cannot refresh memory when the witness claims to -e a-le to remem-er ;nor has a &ro&er foundation -een laid to allow
it<= you must im&each and show the current memory to -e unrelia-le.
Aou are not tryin( to tal5 witnesses into chan(in( their testimony3 -ut to &rove they are unrelia-le. Aou are su&&osed to -e
im&eachin(3 not tryin( to tal5 the witness into chan(in( his or her testimony. Aou must acce&t the fact that the witness/s
memory has chan(ed. "o matter how sure you are that it was 'ust an inadvertent misstatement3 you will not convince the
witness to testify differently3 no matter how many times you as5 the witness to reBread a &rior statement. The only thin( that
will ha&&en if you try is that the witness will 'ust re&eat and em&hasiEe the unfavora-le testimony3 you will have com&letely
lost control of the e?amination3 and you will have wasted the o&&ortunity to im&each. If it turns out the witness actually had
made only an inadvertent misstatement3 the witness &ro-a-ly will ma5e the correction anyway when confronted with a &rior
inconsistent statement3 so you lose nothin( -y assumin( the worst and im&eachin( accordin(ly.
Inconsistent testimony does not mean the witness is evil. 2hen a witness testifies to facts different from those contained in a
&rior statement3 it may -e an inadvertent misstatement3 a result of the natural &rocess of erosion of memory. It mi(ht -e an
intentional chan(e due to deli-erate &er'ury3 -ut is not necessarily so.
Aou im&each direct e?amination testimony3 not crossBe?amination. The (eneral rule (overnin( im&eachment -y &rior
inconsistent statements is that you may im&each facts testified to on direct e?amination only. If you -rin( u& an issue for the
first time on crossBe?amination and (et -ad answers3 your only recourse is to a-andon the line of testimony.
Aou may im&each s&ecific factual assertions3 not inferences. Aou can im&each a witness who disa(rees with a s&ecific fact or
o&inion written down in a &revious statement. However3 if the witness disa(rees with your inter&retation of those facts3 that
cannot -e im&eached. $or e?am&le3 su&&ose a witness stated in a de&osition that the defendant/s car was travelin( 6C miles
an hour3 If she testifies the car was (oin( .C miles &er hour3 you can im&each. If you as5 for an inter&retation3 such as *2as
the car (oin( very fast@* and the witness says *"o3* you cannot im&each her -y &rovin( that she once said the car was (oin(
6C miles &er hour.
Im&eachment always entails ris5. 2itnesses will often -e a-le to e?&lain away an a&&arent inconsistency3 and you will often
-e una-le to successfully com&lete the im&eachment. Therefore3 conduct this 5ind of im&eachment with other ris5y crossB
e?amination BB in the middle.

c. Techni4ue
Loc5 the witness into a definite answer without unnecessarily re&eatin( the unfavora-le testimony. Em&hasiEe the &rior
version3 not the dama(in( trial version. E.(.:
J: The li(ht was (reen3 wasn/t it@ A: "o3 it was red.
J: "ot (reen@ A: "o.
:rove that a &rior statement on the su-'ect was made -y as5in( the witness a-out it3 -ein( s&ecific a-out the time3 &lace3
and circumstances. E.(.3
J. !o you remem-er tal5in( to an investi(ator named Sarah $randsen at your house@ A: Aes.
J: That was on Se&tem-er %6@ A: Aes.
J: She as5ed you a-out the facts of this case3 ri(ht@ A: i(ht.
J: !o you remem-er answerin( 4uestions a-out the scene of the accident@ A: Aes.
eveal to the 'ury that the &rior statement on this s&ecific su-'ect was materially different. The easiest way to do this is to
read aloud the &recise inconsistent &assa(e and as5 the witness to confirm that he or she made it.
J: !irectin( your attention to the second line in the second &ara(ra&h of that statement3 did you say: *2hen the car drove
throu(h the intersection3 it had a (reen li(ht@*= or
J: !irectin( your attention to &a(e four3 lines four throu(h seven3 is it true that you were as5ed these 4uestions and (ave
these answers: Juestion: * 2hat color was the li(ht@*= answer: *Green*= 4uestion: *Are you certain@*= answer: *Aes*@
As a courtesy3 you mi(ht lean over and show the witness the &a(e and line you are referrin( to3 -ut do not hand the
document over to the witness and as5 the witness to &eruse it. Aou are not tryin( to convince the witness the testimony is
inconsistent3 -ut the 'ury.
!o not introduce the statement itself unless the witness denies or does not remem-er ma5in( it3 in which case you may
introduce it and read the inconsistent &ortion to the 'ury. Under $ederal ule of Evidence 6%.3 the statement is admissi-le
without further foundation.
;9< Im&eachin( 2ith A :rior Inconsistent #mission. The most difficult 5ind of im&eachment is to demonstrate that trial
testimony is inconsistent with what was not said in a &rior statement. To successfully im&each under these circumstances3
you must esta-lish that the failure to mention a fact in the &rior statement is the e4uivalent of an e?&licit statement that the
fact did not e?ist3 -ecause the &erson would surely have mentioned it if it had ha&&ened. The omitted fact must -e at least as
im&ortant as other ma'or facts included in the statement. If you decide to attem&t to im&each -ased on a &rior omission3 you
must add one &reliminary ste& to the im&eachment techni4ue discussed for &rior inconsistent statements: eliminate the
&ossi-ility that the fact testified to was inadvertently omitted -ecause the witness thou(ht it unnecessary to include it. E.(.: J:
#fficer Jones3 you investi(ate many similar cases3 don/t you@ A: Aes.
J: Aou often have to testify later3 don/t you@ A: Aes.
J: !o you &re&are an accident investi(ation re&ort for each one@ A: Aes.
J: And use them to refresh your memory a-out a &articular case -efore trial@ A: Aes.
J: They hel& you 5ee& the facts strai(ht@ A: Aes.
J: So it is im&ortant that you -e accurate in these re&orts@ A: Aes.
J: Aou include all facts that mi(ht have some -earin( on who was at fault@ A: #f course.
J: And you would include any facts that showed one driver mi(ht have violated a traffic law3 isn/t that correct@ A: Aes.
J: !o you also write down if anyone was seriously in'ured@ A: Aes.
J: Handin( you defense e?hi-it , for identification3 is this the re&ort you &re&ared in this case@ A: Aes.
J: #n direct3 you testified that the defendant was into?icated3 didn/t you@ A: Aes.
J: :lease loo5 over your re&ort and answer this 4uestion: !id you ma5e any mention whatsoever of any evidence of
into?ication@ A: "o.
J: The &laintiff did not a&&ear to -e seriously in'ured3 correct@ A: "o3 he loo5ed seriously hurt.
J: A(ain3 I direct you to your re&ort. Is there any mention in your re&ort of anyone -ein( seriously hurt@ A: "o.
J: In fact3 you wrote that the &laintiff only a&&eared *sha5en3* isn/t that ri(ht@ A: Aes.
;%C< eBcross e?amination is discretionary= usually a -ad idea.
G. CL#SI"G AGU>E"T
;%< Im&ro&er ar(uments
A&&eals to sym&athy3 e.(.3 referrin( to the tears of the victim/s &arents or the client/s recent heart attac5.
Attem&ts to arouse racial &re'udice
A&&eals to reli(ious &re'udice3 e.(.3 antiBSemitic remar5s
Ieno&ho-ic ar(uments a(ainst forei(ners
A&&eals to &re'udice a(ainst cor&orations as lar(e3 wealthy or unfeelin(
aisin( the relative financial conditions of the &arties3 discussin( insurance ;unless already in evidence<3 or otherwise
ar(uin( that the verdict should de&end on a-ility to &ay
As5in( 'urors for ven(eance3 es&ecially ar(uments that they should listen to the demands of the community and use this
o&&ortunity to (et even for all the wron(s done to society3 e.(.3 -y lin5in( a defendant with the &ro-lem of crime and dru(s
that is out of control3 and su((estin( that the community wants somethin( done a-out the dru( &ro-lem
As5in( 'urors to ma5e an e?am&le of the defendant or send a messa(e to the community that they will not tolerate violence
A&&ealin( to 'urors/ fears for their &ersonal safety or su((estin( that they will &ersonally suffer ;throu(h hi(her ta?es or
insurance &remiums< if they return a &articular verdict
:ersonal attac5s on other lawyer
:ersonal comments a-out yourself or your o&inions.
Ar(uments that 'ury should i(nore or evade un&o&ular laws
*Golden rule* ar(uments that 'ury should &ut themselves in the &osition of a &arty and as5 what they would want.
;+< Should you o-'ect@
a. easons to do nothin(
The im&ro&er ar(ument is trivial
The ar(ument is unim&ortant to your theory of the case
Aou/ve already made several o-'ections and you sense that the 'urors are (rowin( im&atient
Aour o&&onent is e?a((eratin( or misstatin( the evidence and you have no further o&&ortunity to res&ond. It is unli5ely that
the 'ud(e will remem-er &recisely what the witnesses said3 and he or she will &ro-a-ly overrule you3 instructin( the 'ury that
their recollection of the testimony controls.
-. easons to o-'ect
Aou/ve already (iven your last ar(ument and have no o&&ortunity to retaliate or res&ond
The im&ro&er ar(ument concerns a misstatement of law
Aour adversary is committin( serious error that will &re'udice your client: as5in( the 'ury to s&eculate3 4uotin( dama(e
verdicts from other cases3 ma5in( a direct a&&eal to emotion or &re'udice3 or commentin( on su&&ressed evidence or the
defendant/s silence
.< LastBminute &re&aration: >a5in( chan(es durin( trial
!urin( o&enin( statement3 note overstatements or e?a((erations made -y your o&&onent. These can -e used later to ar(ue
that the other side has failed to &rove the case they &romised.
!urin( the e?amination of witnesses3 you can note the e?act words used -y a witness at a critical time3 so that they can -e
4uoted accurately. If any evidence is une?&ectedly e?cluded3 that too should -e noted so that you do not inadvertently refer
to evidence outside the record.
If either side is (ranted a &artial directed verdict3 or concedes an issue3 whole sections can -e eliminated from your
ar(ument.
;0< General &rinci&les of ar(ument
eiterate your theory of the case and ma5e sure the 'urors understand it. The im&ortance of havin( a sin(le3 clear3 sim&le
theory cannot -e overstated. It &rovides direction to your 'urors. Alternative theories merely divide your forces into two (rou&s
that may start fi(htin( with each other. Stic5 to it.
Em&hasiEe favora-le evidence3 -ut don/t waste time with a detailed rehashin( of every detail as if the 'urors were too stu&id
to remem-er anythin(. S&end your time ar(uin( your own case3 not your o&&onent/s. Em&hasiEe your stren(ths and
concentrate on your main &oints. !iscuss your o&&onent/s case only to the e?tent necessary to refute it -riefly.
e-ut your o&&onent/s alle(ations.



Explain the law and show how the evidence satisfies all legal e!"ie#ents fo a
vedict in $o" favo%
&ost i#potantl$' ed"ce $o" case to a good sto$' incl"ding plot' #otives' advent"e' (attles (etween good and
evil' h"#an wea)nesses' te#ptation' da#a' and a #oal at the end%
*eep it si#ple% Si#ple does not #ean si#plistic+ it #eans "nco#plicated% Concentate on the eal disp"tes' esist
the te#ptation to offe seveal altenative theoies' and avoid (eco#ing (ogged down in eviewing "ncontested o
tivial #attes% Expei#ents ($ social ps$chologists indicate that a(o"t seven points ae all $o" can ag"e
pes"asivel$% Afte that' ag"#ents (eco#e conf"sing%
,e specific% -acts ae #oe i#potant than geneali.ations o hetoic% ,e specific a(o"t the i#potant fact"al
points' and the details that coo(oate the#% Don/t 0"st sa$ $o" have poven that the goods wee deliveed' e#ind
the# which witnesses testified to the delive$ and show the# the waeho"se eceipt%
,e explicit% Ps$chologists have de#onstated that an ag"#ent is #oe pes"asive if the desied concl"sions ae
explicitl$ dawn than if $o" leave it "p to the 0"$ to daw its own concl"sions% Altho"gh in theo$ 0"os #ight
hold #oe stongl$ to a concl"sion the$ each on thei own' if $o" do not s"ggest a concl"sion' the 0"o #a$ each
a concl"sion $o" do not li)e%
,e ogani.ed%
Use vis"al aids% Pes"#a(l$' $o" intod"ced exhi(its d"ing tial fo a eason% Use the#1 ,"t do not li#it $o"self
to exhi(its alead$ intod"ced% Chats can (e pepaed specificall$ fo closing ag"#ent' and ag"#ents can (e
ill"stated on the (lac)(oad% The "ses of desciptive exhi(its ae as vaied as $o" ceativit$% 2o" can list the
ele#ents of a ca"se of action' s"##ai.e evidence' calc"late da#ages' daw a s)etch of an intesection' and so on%
The onl$ e!"ie#ent is that $o" exhi(it (e s"ppoted ($ the evidence% So#e attone$s pefe the appaent
spontaneit$ of (lac)(oads+ othes pefe chats pepaed in advance (eca"se the$ cannot (e eased ($ $o"
opponent and $o" cannot #a)e an inadvetent eo on the#%
S"ppot $o" positions with 0"$ inst"ctions% Rathe than 0"st s"##ai.e all the law at one ti#e' weave
inst"ctions into the fa(ic of $o" ag"#ent% If $o" ae ag"ing that a witness is not cedi(le (eca"se the witness
#ade a pio inconsistent state#ent and is the plaintiff/s fiend' that wo"ld (e a good ti#e to ead a 0"$ inst"ction
that pio state#ents and (ias #a$ (e ta)en into acco"nt in dete#ining cedi(ilit$%
Use the the#e fo# $o" opening state#ent%
Pesonali.e $o" client and depesonali.e the advese witnesses% 2o" sho"ld #a)e conscio"s effots to pesonali.e
$o" client ($ efeing to hi# o he ($ na#e and telling the 0"$ pesonal things a(o"t $o" client/s life% Si#ilal$'
$o" sho"ld depesonali.e the othe side/s witnesses' e%g%' ($ efeing to the advese pat$ geneicall$ 3e%g%' the
defendant' the copoation' the deceased4 o with negative la(els 3e%g%' the toxic5waste co#pan$4%
Use analogies to co##on expeiences% If $o" thin) a 0"$ #a$ have diffic"lt$ "ndestanding a legal concept' t$ to
analogi.e it to so#e co##on expeience% The classic exa#ple is the explanation of cic"#stantial evidence6
s"ppose $o" got "p one #oning and saw a foot of snow on the go"nd that was not thee when $o" went to (ed%
2o" can (e cetain it snowed d"ing the night even tho"gh no e$ewitness saw it%
Ad#it $o" wea)nesses% Eve$ case has wea)nesses% 2o" sho"ld confont those inheent in $o" theo$' ad#it
the#' and deal with the# as (est $o" can% The 0"$ is po(a(l$ alead$ awae of the# fo# the evidence' and $o"
opponent is s"e to (ing the# "p' so $o" cannot #a)e the# go awa$% Theefoe' $o" #ight as well at least ean
points fo cando and honest$% 7oweve' the dividing line (etween a candid disc"ssion of $o" wea)nesses and a
defensive ag"#ent that foc"ses on $o" opponent/s evidence is a fine one% It is not necessa$ to confont eve$
piece of contadicto$ evidence% Rathe' $o" sho"ld disc"ss and explain awa$ the #a0o wea)nesses in $o" own
theo$%
,e consistent with ph$sical evidence and co##on sense%
T$ to #a)e it appea that $o" case has #oe s"ppot 55 a geate !"antit$ of evidence' o a geate n"#(e of
cedi(le witnesses%
Avoid hetoical !"estions
384 Pesentation s"ggestions
Info#alit$ is "s"all$ (ette than fo#alit$' ("t don/t get too slopp$ o cas"al
&aintaining a co"teo"s' pofessional de#eano is "s"all$ (ette than sacas#' ange' o an$ othe childish
o"t("st% T$ not to (e "de' a(asive' o o(noxio"s%
7istionics sho"ld (e "sed spaingl$% 2o" ae li)el$ to (e #oe effective if $o" adopt a fiendl$' convesational
#anne than if $o" atte#pt to #i#ic the da#atic techni!"es of the actos who pota$ law$es on television%
7oweve' this does not #ean $o" sho"ld neve "se da#atic techni!"es' onl$ that $o" sho"ld save the# fo the
#ost i#potant points in $o" ag"#ent%
9hen the facts ae e#otional' $o" sho"ld displa$ an e#otional eaction $o"self% If $o" epesent a client who was
cippled in an a"to#o(ile accident' o ae posec"ting a ape case' don/t tal) a(o"t the victi#/s plight in d$' #atte5
of5fact te#s% Let $o" voice expess $o" s$#path$ and $o" o"tage%
,e caef"l a(o"t "sing exaggeation and h$pe(ole% Re#e#(e that $o" peson cedi(ilit$ is on the line' and if $o"
sa$ o"tageo"s things that ae not t"e' the 0"$ will (elieve $o" less%
Notes sho"ld (e "sed as #ini#all$ as possi(le so that $o" oveall pesentation is exte#poaneo"s and
convesational% A(ove all' do not ead $o" closing ag"#ent%
&aintain e$e contact with the 0"$% Loo) fo# 0"o to 0"o d"ing $o" ag"#ent' not at $o" notes o the floo% If
loo)ing diectl$ at 0"os #a)es $o" "nco#fota(le' loo) (etween two 0"os%