ORAL TRIAL ADVOCACY: A NORMATIVE AND

INTERNATONAL COMPARATIVE APPROACH

Law School Edition—For Teachers and Students

By Paul J. Zwier

Contributing Editors
Emory University School of Law
Center for Advocacy and Dispute Resolution
Reuben Guttman
Matt McCoyd
Alexander Barney
David M. Malone

Incorporating Examples for Teaching from US v. Hughes, State v. Malack, State v. Cortez, Gonzales v.
Hewitt and other NITA Case Files)
(December 2010)

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 Table of Contents
I. Preliminary Perspectives 3

II. Fact Investigation, Pretrial and Case Analysis 24

III. Direct Examination 60

IV. Cross Examination 93

V. Impeachment 120

VI. Exhibits 151

VII. Using Visuals to Persuade at Trial 197

VIII. Direct Examination of Experts 226

IX. Experts and Exhibits 268

X. Cross of Experts – Control 306

XI. Cross of Experts – Impeachment 318

XII. Cross of Experts -- Organizational Issues 350

XIII. Opening Statements 400

XIV. Closing Arguments 427

XV. Jury Selection 466

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 Chapter I
Preliminary Considerations
I. Lawyer Advocacy in a Post Modern Age.

This book describes a normative approach to oral advocacy for lawyer advocates in

adversarial settings. While it is designed, in particular, to help the lawyer in his or her

constitutional role as an oral advocate in the courtroom, it also is broader than that. This is so for

reasons of timing and context and because being an advocate is at the heart of what it means to

be a lawyer. First, as to timing and context, many countries have turned to the US as a model for

reforming judicial systems plagued by corruption, and looking for a new fresh approach to bring

accountability to both government and major institutions that can and have oppressed its citizens.

So Mexico, Columbia, Chile, the former Soviet Republic of Georgia, and African countries,

including Liberia, Kenya, Uganda, and middle eastern countries like Iraq, Pakistan, Afghanistan,

are looking to the US and studying its oral adversarial system.

Second, this book is designed to help the lawyer develop advocacy skills without regard

to whether he or she will use them in a court of law, legislative body, or international arbitration.

Moreover, those lawyers who end up in corporate or transactional practices must similarly

develop advocacy skills to communicate messages on behalf of their clients. It describes and

explores the art of rhetoric, or persuasion, the role of the ―heart,‖ or ―‖moral intuition,‖ and

―non-rational‖ influences on the decision maker. We trust the skills of rhetoric will prove useful

not only in the courtroom but also in the market place.

The international attention on our systems provides an opportunity to re-examine the

assumptions that undergird our system. Lawyers other than from the US come out of legal

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traditions that are skeptical of oral advocacy. Concerned that listeners would be overly

influenced by emotional rhetoric and thus misled rather than ethically persuaded by doing the

right thing, many years ago civil lawyers rejected, for the most part, the tradition of oral

advocacy. Even where oral advocates debate and respond to each other, the continental

traditionalists worried that the more skillful or more powerful would end up abusing the rule of

law rather than upholding it.

Giving credence to these concerns makes us look at our own system more critically. It

provides us with a good starting for understanding how the US advocacy system starts from

different adversarial assumption about how to sort out ―truth‖ from opinion and fact from

emotion. Given these different assumptions, it is also important to understand how the extremes

of the oral adversarial system are cabined by professional ethical restraints. So our task in this

book is to describe a normative approach to advocacy: one that places ethical constraints on the

lawyers. We will also describe the constraints placed on the advocate by the common law

adversarial process and by a healthy and vital evidence law. We will do this to show how the US

lawyer has to take seriously these 3 different areas of law in order to keep the oral advocacy

system well functioning. We will remind the reader of the dangers of not playing by the rules, of

taking ―cheap‖ shots, of lying and exaggerating the facts, of understanding when a statement is

not supported by evidence, of not understanding or abiding by the principles of evidence

imbedded in the adversarial system. Advocates of all stripes must learn that these practices are

fundamental to ethical persuasion and eschew short cuts that appear expedient, but affect the

advocate‘s credibility, as well as the credibility of the profession. In this way we hope to

celebrate the features of the adversary system that have made it both a hallmark of liberty and an

engine of economic prosperity.

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 Thus, our topic is advocacy. Our goal is to better understand and employ the skills of

advocacy and the role that advocacy plays in lawyer client representation. It is a very broad

topic because lawyer advocacy occurs in such a wide range of services that lawyers provide their

clients. It is also not a new topic; it may have been part of both your earlier education. So you

will find many of the principles and skills familiar to you. These materials, however, are

specially designed to take your understanding and ability as an advocate to a higher level by first

teaching advocacy in the context of a trial and then broadening out the application of advocacy

skills to a wider range of settings.

Before jumping into learning about lawyer advocacy, it is important to be reminded of

what advocacy is, what role advocacy plays in legal representation of a client, what skills are

involved and how changes in modern society have affected the role that advocacy plays in client

representation. It is important to examine the life of the advocate in order to make sure that you

do not end up succumbing to the pressures that will be placed upon you to win at all costs; that

you choose what sort of advocate you will be. The model we describe to help you make these

choices is a modern adaptation of ancient wisdom. It is based on Aristotle‘s Own Rhetoric, and is

the foundation for an understanding of what it means to be an advocate in the truest sense of the

word.

Advocacy still occupies the heart of what it means to be a lawyer. A lawyer speaks on

behalf of his or her client and her client‘s goals. He or she is the client‘s champion, not just in

courts of law but in the market place and to the public. He or she may make statements to and

handle questions from the press. He or she explains and justifies his or her client‘s past decision

making and projections for the future to the marketplace and in the boardroom. He or she stands

up for, defends, and teaches for his or her client whenever he or she negotiates on the client‘s
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behalf. He or she does deals for the client, advises it in helping it manage its employees and

helps it raise capital and buy and sell assets. He or she pleads for his or her client in the halls of

power whether before a regulatory hearing officer, an appellate court, an international arbitration

panel, or in the court of public opinion.

The skills the advocate needs are timeless. As Aristotle wrote in his famous book of

Rhetoric, the effective advocate has 1) integrity, 2) uses logic, employs syllogisms, juxtaposition

and multifaceted reasoning, 3) empathizes deeply with all sides of an argument to present

balanced and fair arguments, 4) anticipates counter arguments and strategizes her presentations

and rebuttal to lead the audience to a place where they will feel ―at home,‖ or comfortable in

seeing things the way the advocate intends them to see them, and finally, 5) employs emotion or

passion (not too much and not too little) to move the audience to act. These criteria not only

guarantee the success of a system of justice, but adherence to them insures the integrity,

competence and professional reputation of the individual advocate. For many years most liberal

arts educations around the world required at least one course in classical rhetoric. While these

requirements have been dropped by many in the modern curriculum, the importance of the

subject is none-the-less vital to the well educated lawyer.

Like Aristotle, advocates have long understood the limits of logic and reasoning and the

role of the heart in effective advocacy. A good argument persuades and persuasion needs to

anticipate both the audience‘s ―better selves,‖ the audience‘s values, deeply held beliefs in

justice and hope for a more compassionate world and their ―bad sides,‖ the audience‘s biases and

prejudices and what role each of these may play in shaping a favorable outcome for a client.

This last point is especially important for the trial lawyer to understand his or her role as

a gate keeper of what evidence the judge as fact finder or jury will even consider. An oral
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adversarial system is structured to try to keep the fact finder ―unbiased‖ by prohibiting evidence

presented before a judicial proceeding from causing the as fact finder to make up his or her mind

before the hearing even starts, and keep the jury for ever hearing the biasing evidence in the first

place. Without motions in limine, or motions to suppress evidence, the fact finder hears the

biasing evidence to decide whether it can be considered. So, in a continental system, that lacks a

hearsay screen evidence presented out of the presence of the defendant, without confrontation,

objection, or challenge to its relevance and reliability is not excluded. Its use depends on the fact

finder keeping straight his role as judge of what he can consider from his or her role as deciding

the facts. Such evidence is admissible though given less ―weight.‖ For some civil law

reformers, this confusion in roles is now thought to be partly to blame for the failing of the

present system. ―Written‖ systems, where evidence comes to the court ahead of the hearing in a

file, filled with exhibits and affidavits, and does not allow for a transparent testing of the

evidence, to determine if the court has decided the case on the law, or on a political, economic,

or even, corrupt bases. Written civil law systems then rely heavily on a professional law trained

judge to give whatever is in the file its proper weight.

Our system relies on a jury system and a prehearing test of the evidence to guard the fact

finder from unreliable or legally irrelevant evidence. Much of what has developed as the gospel

for advocates and is put forth in this book as principles for oral advocacy comes out of a lawyer

experience advocating before an audience hearing evidence for the first time in court. In other

words the principles come from lawyer experience advocating in front of juries adjudicating

criminal and civil cases. The jury plays a unique role in our adversarial system. It gives power

to a decisionmaker without a stake in the outcome. It provides a forum for advocates to make

appeals to community needs and values: a focus that turns the ―I‖ and ―me‖ of the
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decisionmaker, to the ―we.‖ Much of what has been learned then is directly applicable in only a

limited number of settings where the law requires a jury. Still judges, administrative hearing

officers, investigative commissions, legislative committees, impeachment proceedings,

institutional boards and other decisionmakers are often fact finders, and have enormous power

and discretion when it comes to deciding what will be the weight they will give to different facts.

They too have some room to consider community interests in values apart from their particular

institutional concerns. As a result, jury trial based experience will be of paramount importance

for the advocate when helping the court or other fact finding body in its fact finding role because

it helps the advocate both spot the essential community values at stake, and highlight the

evidentiary reliability and relevance issues, and advocate for or against their consideration.

Learning that comes from experience with persuading ―just plain‖ folk like those who

serve on juries is useful in another way. This setting is important one for the business lawyer, for

it serves as a test market that helps the lawyer to understand how a client‘s communication may

be viewed in the market place. The business client needs a message that is rational and backed

by proof that also appeals to the market and the consumers‘ non-rational values, beliefs and

prejudices.

Moreover, what most trial judges tell us is that they too are human beings. They too are

worried that they miss the important contextual setting that makes the strict adherence to the law

unjust and oppressive. They worry that their technical adherence to legal precedent or

legislative enactments might be colored by or biased by the moneyed interests of the rich and

powerful, and lacking in basic compassion and empathy. So, while, governed by law, they know

that they are asked to often time decide facts, based on incomplete proof, and restrictions placed

on the advocates and their clients by time and finite resources. The ideal of syllogistic reasoning,
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or decisions based solely on logic is seldom attainable. It is in these settings that judges and

administrators need skilled advocates to point out the limitations of proof and logic, realizing the

pragmatic realism requires decisions, and to open themselves up to the lawyers‘ oral persuasion.

Such persuasion will pay careful attention to proof, and to facts, and evidence, but will also make

appeals to the most basic tools of just decision making: common sense, fairness, and community

values of right and wrong, and good and evil.

The modern world has placed added stresses on the techniques of lawyer advocacy. No

technique is more important than capturing the decision maker‘s attention. The decision maker

receives so many messages from so many actors in the market and must process them in so little

time. (With the increase in number of messages, there is a marked decrease in the average

amount of attention any one message can be given. In addition, there is a marked decrease in the

attention span of the listener, consumer, or decision maker.) The decision makers may find that

they don‘t have the time for logical proof, or evidence and must make decisions largely in a

vacuum and on instinct.

These constraints on time and the need for speed increases the importance on the

advocates‘ choices in selecting tools of persuasion to achieve the client‘s goals. The client will

only trust the lawyer advocate with its message if it is assured the advocate has the skills

commensurate with the task. The client knows it will have to place a significant amount of

discretion in the hands of the individual advocate to convey its message in a moment‘s time.

In a world where the line between ethical advocacy, advertising, and politics is

increasingly blurred, the pressures to win at all costs can become overwhelming. These days of

image advertising, creating the ―buzz‖ and negative political campaigning, examples abound of

―successful‖ persuasion, at least in the short run, that operated through veiled appeals to the
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―dark side‖ of humanity; through appeals to racism, fear and prejudice. One only need to look to

examples of modern day politics or in the extreme, to the Nazis‘ use of the media to persuade or

the elite Hutu‘s use of Rwanda radio to incite genocide, to see the dangers in unconstrained

persuasive speech designed to incite violence, discrimination, or judicial decision making not

based on fairness and reason.

Moreover, the search for the ―truth‖ is said to be passé, even naïve. Legal education,

itself, sends this message, as legal educators hold up clever deconstructions of the law. So the

skill of deconstruction takes precedence over it effectively depriving the law of any ethical or

moral content or meaning, denying that the true facts can ever be known. Perception is more

important than fact, and the facts are said to be what you make them to be. Power is available

for those who will take it, and the market rewards those willing to push the envelope and take

extreme positions.

Even the facts seem to mean less and less, including biographical facts about people

involved in dispute resolution. For example, LexisNexis reports that it finds exaggerations or

―mistakes‖ in over one third of the resumes of testifying experts it has examined. Spin becomes

more important than objective truth. You spin your facts, the opponent spins back. Then you

spin their spin. The advocate‘s ability to persuade and win trumps everything. Advocacy seems

to place a higher premium on what you can get away with, than in playing fair; in making

money, than in making it honestly; in power more than character, and in moving an audience by

fear and suspicion, rather than by fairness, mercy, love and compassion.

What does it mean to be a client‘s advocate in a post modern age? An age that doubts the

knowablity of objective truth--that is expert at deconstructing what has happened in the past and

expert in the use of rhetorical devices like juxtaposition, narrative, visuals and illusion. (For the
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lawyer, whose ethic is only constrained by his or her client‘s ability to pay for results, it is easy

to worry less about integrity as the legal process becomes merely the means by which the ends

are obtained. For lawyers today, it is easy to question whether it is it better to have integrity or

to have success. Is it better to produce a useful product and sell it at a fair price, or better to sell

a cheap useless product and take the money and run? Is it better to run an honest campaign that

discusses the issues or better to say what it takes to win? Is it better to play by the rules, or get

your client off for a crime he committed?

In order to answer these questions we need to be reminded of the first principle of

Aristotelian rhetoric: that advocacy depends on the type of the person who is the advocate; on the

integrity and character of the individual advocate. Once the society stops crediting the lawyer

with any sense of professional integrity, then the lawyer‘s rhetoric becomes unpersuasive. Hence

what appears to be the economically expedient choice has long term professional and thus

economic consequences for the advocate.

But one could ask, after all, ―Who really cares?‖ ―Who really cares that everyone is so

selfish and self centered?‖ It turns out it is the advocate herself who may care the most. The

advocate is the client‘s advisor. The advocate is not the client‘s serf. What gives the advocate‘s

life‘s work its meaning and indeed its joy is not the win, but that the work is done honestly, with

integrity, and according to the rules of justice and fair play. Ultimately this course of study tries

to guarantee the reputation of the advocate and validate, from an economic perspective, the

rationale of a normative approach.

At least in the situation of the oral advocate/lawyer, these assumptions operate

powerfully to limit the excesses of the postmodern thinking about the non-objectivity of facts

and the impossibility of the search for truth. Where these assumptions are violated the society
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reacts and rebels. Because these assumptions are so vital to the integrity of the adversary system

that it is important to be reminded of what they are.

II. Truth and Narrative in the Adversary System.

The common law adversarial system works well if the advocate not only understands the

systems workings and her role in the process, but also understands how to resist the pressures of

cheating and winning at all costs. Make no mistake, the advocate must advocate zealously. On

the other hand, he or she must not present false evidence and may never lie on behalf of a client.

The system works because the adversaries present competing stories for the decision

maker‘s consideration. The system works because the judge or referee tests the admissibility of

evidence and exercises his or her discretion to make sure that the excesses of advocacy are

constrained. The system, though, finally depends on the integrity of the advocate and his or her

understanding that he or she may not advocate a position he or she knows to be false, or to take a

position merely to harass, annoy, injure, or delay the process.

This advocacy book takes the position that the truth is at least approximated in a well

designed advocacy system: whether in the trial process, within its constraints and limitations,

when the lawyer acts in that system with integrity and within the rules, or a board room of

directors hired for their experience and range of perspectives, or the public in its process of

selection of its representatives. We believe in the system‘s epistemology, or way of discerning

what is true and what is fair from what is a lie and what is unjust. We believe that an un-biased

group of individuals, or at least a group of individuals or professional judges, who are aware of

their biases and apply themselves to their task out of a sense of public duty to do what is right,

can make just decisions. This audience of decision-makers, whether making up a court, a jury,

or a board directors, or voters, must be assisted to think comprehensively about their decision,
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and explore fully what can be said on all sides. Then, if made up of well meaning, caring people,

trying to do the right thing, they will pool their experience, practical wisdom, and moral

intuitions and make ―right‖ decisions, or at least do as well at getting it right as any other system

known to man.

The advocacy system depends on a vigorous presentation of evidence by parties who

have a real stake in the outcome and these vigorous and competitive presentations are necessary

for the decision-makers to take a comprehensive and considered look at the dispute. Zealous

presentations insure that parties are truly heard, even where the matter is routine, or

uninteresting, or where one of the parties is unlikable, unpopular, or has little status. Zealous

advocacy insures that the freedom and autonomy of the individual client is maximized, even in

the face of societal pressure to conform and cooperate: that society is better off when it‘s

processes for justice are less concerned with efficiency, and more concerned that the decision-

maker hears all that needs to be said in favor of each side, and places the burden of discrediting,

and tearing down, on the opposition, through the discovery processes. These beliefs and values,

deeply imbedded in the adversary system, are inherent in both the civil and the common law.

They are also deeply imbedded in the market and the value placed on an efficient market

governed by informed and rational consumer choices.

At the same time, the adversary and market systems processes do depend on playing fair.

Just like a scientist who falsifies research or fails to follow fundamental scientific principles, the

rule of law is harmed where the individual lawyer fails to follow the rules. Lawyers must

understand the limitations that are imposed on their persuasion by the rules of evidence.

Obviously the advocate cannot falsify evidence. He or she cannot make up things or say or

allude to facts without a good faith basis to believe those facts are true. Even where the hearing
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is not being conducted according to rules of evidence, the advocate must understand the reason

why hearsay is so dangerous, why arguing irrelevant facts, or submitting evidence of prior bad

acts that do not relate to truth or veracity, are to submit matters that are distracting at best and

that are unfair and inflammatory at their worst. Even when the message is made to the market,

those messages can be the basis for lawsuits for consumer fraud, or securities fraud on the

market, or trading on inside information. What is said on behalf the client cannot ignore the

facts or the effects on the market those statements may bring about.

To keep our discussion of these matters from becoming too theoretical we will use a

number of examples from cases prepared by Emory‘s Center for Advocacy and Dispute

Resolution for teaching trial advocacy skills. These examples come from civil and criminal case

files that were written to instruct students on trial of a case before a jury. We will use and discuss

examples from a number of these case files. Included are examples from the following:

US v. Hughes (a case we will use for the spring semester exercises, and for the first 4

days of the May workshops) is a false claims case, and alleges that Hughes falsely certified that

it had magnaflux tested its Screaming Eagles helicopters that it was delivering to the US military,

for delivery to the Mexican government, for fighting its drug war, and that one of those

Screaming Eagless--falsely certified as having been tested cracked on landing, and then broke up

on subsequent takeoff, causing the deaths of 9 members of the Mexican military.

State v. Malack (a case we will use in May for final trials,) is a criminal case alleging

assault and battery by a man, Joseph Malack, of Megan Lee. Joseph Malack claims it is a case of

mistaken identity.

State v. Cortez, (a case we will also use in May for final trials,) is also a criminal case

involves allegations that Juan Cortez committed the crime of felony murder in killing the son of
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a restaurant owner during robbery of the owner‘s restaurant.

Gonzales v. Hewitt is a civil case involving a business relationship gone wrong.

Gonzales complaint states that Hewitt breached his fiduciary duty as his partner, for fraud in

promising to supply need capital and then denying it to his own benefit, and for interference in

prospective economic advantage by maliciously making false statements about a potential

substitute guarantor in order that a bank not lend the business the capital it needed. As a result

Gonzales alleges that Gonzales was made to pay Hewitt a $2 million penalty for partnership

property. In addition Gonzales asks punitive damages.

Finally, we will also use State v. Jackson, a criminal case involves allegations that Arthur

Jackson committed the crime of arson in burning down his plant to defraud his insurance

company. This is a NITA (National Institute for Trial Advocacy) case file that we often use as a

demonstration file during the May part of the program.

These cases will be used to describe how the trial lawyer should think strategically about

her case, how to be investigate, prosecute and defend the case pretrial, one investigation has been

completed, how to do a ―Case Analysis‖ to sort out the strongest arguments and stories she can

tell on behalf of her clients, and then, taking that analysis forward, how to construct her direct

and cross examinations, her strategy for admitting documents, her use of expert testimony, her

presentation of opening statements and closing arguments, to best present her client‘s case. With

this end in mind, we will also describe how taking a normative approach to each stage of the

pretrial and trial will help insure that the adversarial system works in a fair and efficient manner

and in a way that will try to insure that liberty is protected, and fair verdicts result.

This process will also be used to demonstrate how a lawyer can develop a strategy for

dealing with business needs of a client. It will show how advocacy during the negotiation of a
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deal requires similar understanding of the end game (BATNA) and how to tell the story of the

deal in a way that best advocates for the goals of the client.

Some of your co-participants may be international lawyers who are here at Emory to

learn about our oral adversary system. It will be interesting for seminar participants to

understand the fundamental differences between a written accusatorial and an oral adversarial

system. As every lawyer in a civil system knows, the written accusatorial system depends on the

following: before trial, witnesses are brought in by a Prosecutor who is objectively investigating

the case, to give written statements to the Secretariat. The Secretariat edits these oral statements

into a typed summary of what the witness has to say. The Secretary also audits the taking of the

statements, to keep out irrelevant evidence and evidence that is without foundation. The

witnesses then appear in Court at a hearing only to confirm those statements to the Judge. The

statements are not hearsay. They are the evidence, and oral additions will be prohibited if facts

were not raised earlier in the statements, other statements or documents. While the Constitutions

in most civil law countries may provide for confrontation and cross examination in court, these

are strictly limited by what is already in the file.

Under an accusatorial system, the battle over proof is shaped by what gets into the file.

Lawyers can examine the witnesses on their statements but can only examine witnesses to

contradict opposing witnesses if they have produced written statements to the Secretariat that

raise contradictory facts. In other words it will be natural for civil law trial lawyers to precede

every question with a phrase, ―it says in your statement, or in the statement of X, or in exhibit 5,

it says that… is that true?‖

Many civil law systems are now moving in the direction of becoming an adversarial oral

system that is in turn based on a Constitutional right by the accused to confront in court the
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witnesses and testimony offered against them, and statements given without the defendant and or

his attorney being present to contest the evidence at the time it was given violate the defendants

rights. (It is important to note here that some civil law jurisprudes distinguish the meaning of

―rights‖ from ―warrants.‖ The Mexican Constitution, for example, provides that the state

warrants the person‘s ability to have a lawyer or confront witnesses, but does not have a pre-

existing natural right to do so. The warrant proceeds from the state, and so the state can limit the

warrant if the state has reasons to do so. If, however, the civil law Constitution has been

reformed, and is meant to give a more common law understanding to the guarantees to person of

an oral adversarial system, then these new Constitutions create a significant difference in the way

the statements are viewed and over whether the statements are evidence, or in evidence, or will

even be consider as evidence by the Judge.)

If the defendant has a right to confront witness in Court where a judge is present, then the

witness‘s statements will not be allowed in Court, in the first instance. The Court will not allow

the statements to be referred to, and instead the statements will be viewed as hearsay, unless

there is some rule that would allow their use. Hearsay is based at least in part on the reliability

of out of court statements, and in part on the right of defendants to Confrontation of witnesses

against that is found in the Constitution. It is vital for lawyer participants to understand this

change: that the defendant‘s lawyer needs to be present when statements are taken, including the

submission of exhibits, and statement of experts, or there will be Constitutional implication.

Objections made by counsel on this basis, that there is no foundation, or that the statements are

not in evidence, should be sustained or the Court will be violating the defendant‘s right to an oral

adversarial process.

As a result of these changes, the question for advocacy teachers and students of oral
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adversarial advocacy is to understand that the court will not be able to read statements, but will

instead be hearing the evidence for the first time through the testimony of witnesses. Direct

Examination must be thought of in a different way, at common law. The cross examination also

becomes more important in a common law hearing. Without it the fact finders will have

difficulties in learning about the inconsistencies or biases in what the witness is saying compared

to statements they may have given earlier. If referring to statements without their being

introduced is objectionable under a common law system, the cross examiner will need to control

the witness to keep the witness from repeating the witness‘s direct testimony.

What creates further confusion between civil and common law, and between

administrative hearings where the rules of evidence do not prevail and a criminal law trial

concerns which evidence the civil law court or administrative agency will consider or not

consider. How will the court look at character evidence? How will it look at criminal records of

witnesses? How will the Court look at police reports, reports from experts, and other types of

documents that otherwise meet common law evidentiary exceptions to hearsay. What type of

preliminary showing regarding exceptions to hearsay must the proponent make? Will the Court

make a distinction between ―testimonial hearsay‖ (that raises Confrontation issues) and other

types of hearsay? Will the Court allow in everything and then give it its due weight? Or will the

Court apply a fairly rigorous analysis of what is and is not reliable, and depend objections, on

hearsay rules and other relevance and reliability standards like that of other oral adversarial

systems.

The main difference at common law is the centrality of the right of the criminal defendant

to Confrontation. This right is at the heart of an oral adversarial system and significantly

changes the ways that evidence will be presented in court. The common law is motivated by
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transparency considerations and contemplates the oral testimony of witnesses in public trials.

The burden of proof is on the state. These two changes imply that at common law it is not good

enough for the state to collect evidence and put it in a file and give it to a judge. The state will

need to present evidence to the court, in an oral format, permitting the defendant to challenge the

admissibility of the evidence, as well as challenge the witness who is its source. The need for

oral testimony will affect the roll of the advocate throughout the trial. In sum the oral adversarial

system will affect the lawyers skill sets, as the oral advocacy setting will give rise to the court‘s

need hear opening statements, and for the lawyer to conduct direct examinations, cross

examinations, impeachments, offering exhibits, and the need of the court to hear the lawyers

make closing arguments.

In summary, then, the Adversarial System makes the following assumptions:

Defendant is Presumed Innocent, Defendant has a right to Confront Witnesses, (Face to

Face, and to have judge assess the credibility of witnesses in court testimony), Defendant has the

right to Compel Witnesses, and Defendant has the Right to Counsel.

Adversarial Presentations—Case Strategy and Case Analysis

Pretrial Investigations by Prosecutor and by Defense. (The Role of Private Investigators).

Motion Practice

Challenges to Police Tactics and Procedures in Gathering Evidence

Other Police Misconduct During Fact Investigation

Motions in Limine (made to hearing judge to exclude evidence)

Objections and Making a Record

We need to expand here on what we mean by ―Objections and Making a Record‖ in light

of the corollary rules changes that are needed in an oral adversarial system. An oral adversarial
19
system assumes that a defendant, and in some cases, the prosecution, will have the right to

appeal if the court considered unlawfully admitted evidence or misapplied the law. This means

that the lawyers may make objections to the admissibility of evidence either before trial (motions

in limine) or at the point the evidence is introduced. It also assumes that the court keeps a record

of what has been said, so that the appellate court can review the decisions of the court, both as to

the court‘s decision on the admissibility of evidence, and to the law it applies to the case. This

means it is incumbent on the objecting attorney to make objections on the record, or the appellate

court will reasonably think that the lawyer has waived his objection to the admissibility of

evidence. Lawyers in an oral adversarial system must learn to object to evidence that is

inadmissible, and make a record for appeal, so that the appellate court knows the trial judge was

given a chance to make the right ruling.

Direct Examination.

On direct examination, if the court hasn‘t the benefit of notice of the statements before

they hear the witnesses, the witnesses must be ―directed‖ in their testimony. The court will rely

on counsel to conduct a direct that is efficient and yet complete.

The direct examiner must give the fact finder the opportunity to evaluate the credibility of

the witness. With this in mind it is important for the examiner to know how to ask open ended

question that will give the witness a chance to speak in a narrative. Testimony through narrative

helps the direct examiner show the witness‘s ability to speak in detail about what the witness

saw, heard, or did. Lawyer should not be asking closed-ended questions because if closed ended

questions are used, then the witness will only answer with short answer, usually only yes, no, or I
20
don‘t know.

Yet it is not enough for the lawyer to simply ask, ―Do you confirm your statement you

gave to the prosecutor?‖ Remember, the fact finder doesn‘t see the witness statements a head of

time. They are hearsay. The lawyer must use techniques which will highlight and give emphasis

to the important facts the witness knows. The lawyer should use head notes, so that the witness

is directed in to topics containing important facts.

Trials lawyers need to understand the importance of witness preparation. For efficiency

purposes, the lawyer should rehearse with the witness so the witness is ready to give important

details.

The students will quickly learn, though, that witnesses get nervous and may forget things,

or get facts out of order. It is important to know how a lawyer deals with these problems.

Preparation and rehearsal is critical. Second most important, the lawyer should organize the

direct by using questions with time signals imbedded in the questions. ―What did you do

immediately after you were hit by the defendant?‖ ―What happened right after you saw the man

take out a knife?‖ In other words, the best direct examiners will both proceed in an organized

fashion, proceed efficiently (by asking open questions), and proceed to highlight important facts

in favor of one‘s client by corroborating the testimony with exhibits, and asking time place and

circumstance questions to give context to the important fact.

It is important to note, in an oral adversarial system, the witnesses earlier statements are

not in evidence, and shouldn‘t be referred to by the direct examiner. To do would violate

confrontation rights of the opposition. The evidence is presented through the testimony of the

witnesses in court in order to protect the defendant‘s right to be present and confront witnesses

against them.
21
 Cross Examination.

Cross examination in an oral adversarial system is a time for the opposing lawyer to

challenge and confront the witnesses that testified against his or her client. Again, where the

judge has not seen witness statements before, this a time for the cross examining lawyer to

challenge the witness with other statements or other evidence that the lawyer has a ―good faith

basis‖ to believe is true. Using a combination of earlier statements, the lawyers own fact

investigation, and logic the lawyer challenges the witness by putting forward the facts and

exhibits that contradict or show bias or lack of consistency or foundation for what the witness

said on direct.

The court is not interested in the repeat of the direct, or that the lawyer conduct a fishing

expedition, hoping the witness will contradict him or herself. The court will then likely gravitate

towards allowing cross examining lawyers to ask leading questions. Leading question will keep

the witness from rehashing the direct. Leading questions will better allow the cross examining

lawyer to control the witness to admit holes, inconsistencies, or bias that may have affected the

witnesses testimony. [For more on cross examination, see the Normative Guide. See also the

slide presentation, attached to help with giving a lecture on this subject.]

Impeachment.

Where the witness statements are not in evidence, the cross examiner will need to use

inconsistent statements to highlight mistakes, changes, or lies that the witness is telling the court.

Impeachment by inconsistent statement avoids the hearsay use of the earlier statement, because

the earlier statement is not offered for the truth of the earlier assertion, but to attack the

credibility of the witness‘s testimony in court. (See the Normative Guide for the techniques of

impeachment by inconsistent statement.)

22
 Exhibits.

One of the most important changes in an oral adversarial system is that exhibits are not in

evidence but only come into evidence if witnesses can lay the proper reliable foundation for the

exhibit‘s admissibility. Otherwise, the statements contained in the documents or exhibits violate

the Constitutional requirements that witnesses and evidence be oral. For example a blood test

would come in only if the person conducting the test could testify that the blood came from

relevant person, or the right test was conducted, producing a verifiable result. The same will

need to be done regarding a photo, the chemical testing of drugs, DNA results, and finger print

analysis.

In additions documents need to be shown to be authentic, relevant, and not contain

testimony of witnesses not appearing in court. (See the Normative Guide for exceptions to

admissibility requirements for exhibits. See also slide presentations on Exhibits.)

Closing Arguments.

Finally, Closing arguments are important opportunities to review the evidence each side

has presented and argue the fair inferences that can be drawn from the evidence. The Court

should be shown the match between the law and the evidence, or lack of evidence. The Court

should also be shown the reliability, or unreliability of the evidence presented, using evidence

law, points of impeachment, burdens of proof requirements, and arguments about the credibility,

bias, or unreliability of the witnesses testimony or the documents presented. Where the court has

received documents, the court will be greatly aided by arguments that draw the court to specific

facts contained in these documents, and how they relate to proof or lack of proof. (See the

Normative Guide for specific argument techniques.)

There are many who have made invaluable contributions to this book.
23
 I have had help from many U.S. academics and trial lawyers. First are the inspiration and

teaching that pervades this work provided by Judge Ann C. Williams and Frank D. Rothschild,

Susan M. Steingass, Michael Ginsberg, Thomas R. Jackson, Allen J. Snyder, Anthony J.

Bocchino and many friends and colleagues at the National Institute for Trial Advocacy. Of

course, special thanks go to David M. Malone, my coauthor on NITA text, Effective Expert

Testimony 2d Edition. His ideas and writing are pervasively present in the chapters on Expert

Testimony. In addition his careful edit of many of chapters of the book was invaluable.

Moreover, important contributions were made by Emory Center for Advocacy and Dispute

Resolution fellows Matt McCoyd and Reuben Guttman, who carefully read and edited many of

the chapters. Finally, I would like to acknowledge the many contributions and close copy editing

of Alexander Barney, who checked the book regarding substantive legal issues, and brought to

bear his experience teaching Comparative Criminal Procedure, and Oral Advocacy, to help

provide a unique comparative law perspective.

24
 Chapter II
Fact Investigation, Pre-Trial and Case Analysis
It is important for you to understand how a common law oral adversarial system effects

the way lawyers must prepare for a trial. As opposed to a civil law system, where a prosecutor

conducts and independent investigation, gathering all relevant materials for presentation in court,

lawyers in a common law setting must each gather their own side‘s evidence. Each must think

ahead to the end game of the trial and what they will need in the way of evidence to make their

case, and prepare the case with the end game in mind. In other words, early in the case the

lawyer must analyze their case in order to prepare both how to present their best case, but also

anticipate how the opposition will be presenting its case, and what challenges it may have to

evidence the opposing lawyer wants to present.

Brainstorming is one way to help the lawyer become prepared for what the other side--the

adversary will be presenting and objecting to. This is particularly important for prosecutors, who

can‘t simply wait for the witnesses to give their statements to the court. After all, the defendant

may never testify, and so the state must take on the burden of producing evidence and anticipate

what the defendant will say in response. Brainstorming helps the prosecution to anticipate what

the defenses may be, and work during the investigation to produce the documents and testimony

that will meet the state‘s burden. By taking a careful look through the file at the good facts and

bad facts, the advocate can learn to think strategically about his or her case.

In addition, brainstorming helps the advocate prepare in an efficient way. Advocates

25
always wish they had more time to prepare. By gathering a team of office personnel working on

the case and asking them all to brainstorm provides the advocate the advantage of learning the

insights of others who have worked on the case. If the advocate will follow the brainstorming

techniques described below the advocate will be able to ―source‖ the facts in the file, and in the

process insure that the advocate won‘t over state and misrepresent the strengths and weaknesses

of the evidence, but also list and group the important points of emphasis for their direct of

examinations of their own witnesses, and points for cross for opposition witnesses.

Brainstorming should be thought of as distinct from examination preparation, but vital to the

examining advocate‘s ability to both support the direct with exhibits and statements, but also to

impeach the opposing witness on cross, should that witness overstate his or her evidence.

The brainstorming session will also be an important way for the advocate to distinguish

between facts and conclusions. The advocate will need to distinguish between facts and

conclusions, or argument so that he or she won‘t make the mistake of over promising in their

opening states. And opposing advocate will listen to see if more is promised than was delivered.

Brainstorming, then is vital for the lawyer‘s credibility before the Court. Each will need to know

the limits of his or her proof, (what evidence is actually admissible) and also for being able to

show the court the corroboration for assertions on direct (supplementing witness testimony with

exhibits) and contradictions on cross examination, (using documents to impeach the witness).

One way to run a factual brainstorming session is to suggest to your staff that you are

playing a bit of a game: a game that has rules. You will go around to each member of the group

and ask them to call out single facts, and name the fact as a good fact or a bad fact. They must

also give a citation where they got the fact from in the record or case file. Ask the members of

you group to take notes of these facts (as taking notes will help you later with your preparation of
26
directs and crosses and opening statements). Then state the rule that everyone will be asked to

participate and you will call on people one at a time, and no one person will offer a second fact

till everyone has offer at least one. In addition, there will be no debate, in that if a person lists a

fact as a good fact, students must not say they think it is a bad fact. Others can call out that they

want the fact also listed as a counter fact, (if listed as a good fact, to also list as a bad fact, and

vis versa).

To repeat, this exercise teaches empathy, an essential part of good case preparation. It

will help you to discover the ―holes‖ in your proof and will help you look for evidence, exhibits,

and prepare cross examinations, in anticipation of the opposition‘s case.

All throughout litigation, the litigator is doing problem solving. Should I settle this case?

What are the chances of winning at trial? How can I best advise the client on what he or she

ought to do in the light of their goals and objectives? As the trial nears, and ultimately, at trial,

the need to sharply focus the facts and legal issues in dispute, intensifies. Unfortunately, the

tendency of some trial lawyers is to put every possible fact --both good and bad –into evidence

and ―see what sticks.‖ Such tendencies are counter-productive to persuasion, especially where

the audience has a short attention span and the court has the need to move the case quickly to

conclusion.

By way of analogy, transactional lawyers understand that every deal has a focus, a

purpose that drives the client to do the deal. A lawyer can debate every single clause in a

contract, but better, if he or she really understands the deal, can make trades and concessions on

provisions that do not really hinder the client‘s overriding objectives. So the saying makes

sense, he or she who understands the deal controls the deal. The same can be said of the trial

lawyer.
27
 There are two somewhat paradoxical roles the lawyer has when conducting fact

investigation and doing case analysis. The first of these roles is that of an investigator who is

trying to discover what happened in the past. The investigator tries to discover what happened;

what people's behavior and actions were, what they said and did not say, what they knew and

did not know, what they intended and did not intend, what they remembered or perceived, what

they did not perceive and what they recorded or did not record.

At the same time lawyers play a second role as creators and/or producers of a persuasive

story. They are often concerned less with what actually happened than with which story they can

tell to allow the client to maximize his or her freedom or economic interest. Lawyers play the

role of blocker and protector, as well as interpreter and spokesperson on behalf of the client.

They are the public relations agent or ―Ad man‖ for the client within the context of the legal

system. They are at all times the negotiator, advocate, and persuader on behalf of the client.

How does the lawyer reconcile himself or herself to these two often paradoxical roles in

the context of fact investigation planning and analyzing cases? To answer this question the

lawyer must look ahead to the end of the process. While it is true that most cases settle, (latest

estimates are 98% for civil cases in the United States) all litigators are intimately aware that the

client's case could end up in court. They build their case with that in mind. And even where

their cases culminate in settlement negotiations, the lawyers frame what they say happened in

much the same way that they would tell the court in opening statement and closing argument

about why they should win.

What is it that the end game requires of the lawyer? The lawyer must prepare to present

the client's case with three different theories in mind: the legal theory, the factual theory, and

the persuasive theory or theme. Understanding the role and interplay of these three theories in
28
the end game of litigation (and, to some extent with deals, if one is a transactional lawyer)

instructs the lawyer on fact investigation, case analysis, and case (or deal) preparation for

settlement or for trial.

I. Legal Theory.

It may seem obvious and even trivial to say that a lawyer needs to have a legal theory in

mind when he or she conducts fact investigation, but many judges and juries recall trials

presented when the lawyer didn't seemed unclear on which legal theory he or she was` operating

under. It is very important to understand how a clear legal theory can help persuade a decision

maker to decide the case in favor of the lawyer's client. The secret to a good legal theory is that

it carries with it the power of logic, the power of the syllogism.

Syllogisms, you may remember, come from analytic philosophy. A common example of

a syllogism that is much discussed in beginning undergraduate philosophy classes is

Major premise: All men are mortal.

Minor premise: Socrates is a man.

Conclusion: Socrates is mortal.

The above conclusion is said to be logically entailed, or necessary. The minor premise is

included in the major premise and the conclusion is driven or required by the major premise.

The advocate tries to create this same sense of logic, the logic of entitlement, by stating a major

premise incorporating the facts as he or she thinks them to be. The following syllogism might be

used to explain the two sides of the US v. Hughes case file.

Major premise: The law is that where a military government contractor makes

promises to deliver certain goods to the US military and certifies

that he has done the required testing under the contract, when he
29
 has not done the promised testing, he has made a false claim to the

US government in violation of the False Claims act and must pay

up to treble damages for the damages caused by the false claim.

Minor premise: In this case, the US Justice Department hopes to prove that the

promised testing was not done, and if it had been done, it would

have discovered the defect—crack, in the helicopter‘s hull, and

had it discovered the defect it would have either repaired it or

replaced the hull, and thereby prevented the later crash of the

helicopter, which killed 9 members of the Mexican military.

Conclusion: Therefore Hughes needs to pay the US government three times the

damages caused by its false claim.

Or for Hughes:

Major premise: While a government contractor may not make a false claim to the

US government, any false statements Hughes made must be

materially false, with scienter, (knowing that it was false or with

reckless disregard for the truthfulness of the statement), and in

addition, there must be proof that its false statement caused the

damage to the US.

Minor premise: There was no proof of a crack in the helicopter hull. It crashed

under fire. The men killed were killed by members of the Mexican

drug cartel, each shot once through the head. In addition using

magnaflux testing would not have resulted in the discovery of any

30
 defect in the helicopter hull. All cracks discovered during the

manufacturing process by fluorescent testing were welded, and

therefore adequately repaired. Failure to do a magnaflux test was

not material to determining the safety of the delivered helicopters.

Finally, Claderon, the Mexican president knew that full testing of

the helicopters had not been done, and any risk of failure to do the

magnaflux test was assumed by Calderon, and there for there was

not false claim made: the risk of failure or defect was known and

waived by the ultimate user.

Conclusion: Therefore, Hughes is not liable under the False Claims Act.

The following syllogism might be used to explain the two sides of the Gonzalez v. Hewitt

case file, (assuming the business is a partnership):

Major premise: The law is that where a business partner promises to make capital

available for the good of the partnership and then refuses to do so

to the detriment of the partnership, he breaches his fiduciary duty

to his partnership.

Minor premise: In this case, Gonzales hopes to prove that notwithstanding his

financial ability to do so with little or no risk Hewitt made such

promises but, to the detriment of the partnership, he failed to honor

them.

Conclusion: Therefore Hewitt breached his fiduciary duty to the partnership.

Or for Hewitt:
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 Major premise: While a partner may not act in a way to harm a partner or a

partnership he is not required to place himself at any greater risk

for the benefit of the partnership.

Minor premise: Increasing to $4 million a personal guarantee on a business whose

operations had moved to Mexico, was paying substandard wages

which would antagonize US labor allies, and concealing

information from Hewitt about the hiring of family, presents

substantial new risks that the partner need not assume.

Conclusion: Therefore, Hewitt did not breach his fiduciary duty to the

partnership.

Of course, as every lawyer knows, and as Aristotle pointed out thousands of years

earlier,i there are very few situations in the real world where a conclusion is logically entailed.

Either there is some ambiguity in the law or uncertainty in the facts. For example, in US v.

Hughes, what is a material misstatement in a certification? What does ―causation‖ mean? What

are the ―damages‖ to the US caused by Hughes‘ false claim?

Or, in State v. Cortez, a felony murder case, a bullet killing the son was fired from the

gun of his father who shoots while trying to prevent the murder? Is Cortez still guilty of felony

murder?

Or, if Hewitt passes on a rumor to a bank loan officer, about Salazar, --a potential

substitute for Hewitt on a personal guarantee which would have allowed the bank to extend the

line of credit, which in turn would have provided the company the means to buy a mine from
32
Hewitt without paying the penalty-- is this improper interference with Gonzales and GHA‘s

prospective economic advantage with the bank? Does free speech keep the passing on of the

rumor from being an improper interference with in the context of a cause of action for intentional

interference with prospective economic advantage? What about if the speech is subject to an

absolute privilege particularly where Hewitt may have an obligation or a right to disclose

information to the bank to prevent it from economic injury resulting from a failed loan? What

does improper mean in this setting? What does malice mean?

The issue here is that legal problems are almost always subject to problems of legal

interpretation making the law indeterminate or at least creating uncertainty while the attempted

legal syllogism more often than not fails as a matter of strict logic.

Still, the importance of syllogistic reasoning, or having a legal theory, should not be

underestimated. Take for example the case of Paramount Communications, Inc. v. QVC. ii In

that case the lead counsel for one of the parties decided to try and predict what law the Delaware

Supreme Court would adopt in order to determine whether the corporate board had adequately

protected shareholder rights. The board had been accused by the shareholders of breaching their

duty of care by approving a merger between the defendant company and a takeover company

without providing adequate assurance they were getting the shareholders top dollar for their

shares. The lead counsel predicted that the Delaware Supreme Court would eventually adopt a

standard requiring the board of directors to "shop" the company, or put the company ―in play‖ or

―up for bid,‖ in order to fulfill their fiduciary duties to the shareholders. During depositions of

the defendant company‘s board of directors, the litigation team continually asked the board

members whether they thought it was their duty to shop the company before accepting the

offeror‘s bid. The board members said no. When the Delaware Supreme Court agreed with the
33
lead counsel‘s prediction, that it was the board's duty to shop the company, the result was

logically entailed. Having predicted correctly what the law would be, the lawyers knew the

questions which would elicit answers creating the appropriate syllogism. The board members

gave their answers unaware of the consequences. Having a clear legal theory can therefore drive

the result by making the case ―easy‖ for the decision maker.

For the beginning litigator, the feeling that they ought to have a legal theory before they

engage in discovery or investigation can create other feelings of inadequacy and uncertainty

leading to paralysis in the fact investigation process. Fortunately there are a number of practical

steps that lawyers can take to at least start to identify their potential legal theories and thus allow

them anticipate the areas of fact investigation. Reaching out to others is part of the investigation

process but the focus of this part of the investigation is not on facts but rather on legal theory.

Consult with a mentor or another lawyer who has had a similar case. Law Journal articles, and

law professors, may also be helpful resources for the beginning litigator in search of a legal

theory.

Of course the defendant can also start with the complaint or indictment. What causes of

action are proposed and what does your legal research tell you about the ambiguity that exists in

the law underlying the pleading? Read the complaint or indictment carefully, and continue to

revisit the complaint or indictment as more facts are discovered and legal theories begin to

crystallize. The complaint will continue to look different and new ―reads‖ may allow different

perspectives to evolve. Any vague, boiler plate, or cook book language in the complaint or

indictment can signal areas of legal, if not factual, ambiguity. Focus on key words and

determine why they were chosen over others that would seem suitable.

In addition, there are a number of legal issues to get straight before proceeding to the
34
witness interviewing. In the Hughes case file, what role does Baker play in doing an internal

investigation for Hughes? Is his report protected under attorney client privilege? Or, is it only

work product, subject to discovery due the difficult circumstances under which it was produced.

What if the investigation was ordered by Hughes General Counsel? What if Baker works for

Hughes and is an officer of Hughes? What if his title is Vice President of Internal

Investigations? Would his report serve as a party admission?

Or, what is the effect of a waiver by President Calderon, if never reported to the US

military? Is such a waiver good in a claim by the US for Hughes‘ false claim to the US?

What is the affect of Rodriguez‘s knowledge that a false claim had been submitted at the

time that it was submitted to the US government? Is Rodriguez‘s himself guilty of submitting a

false claim? What if Rodriguez took privileged information with him when he left the company?

Can it be used against the company? Why did he wait so long to report his suspicions? What if

Rodriguez is motivated, at least in part, by the bounty paid whistleblowers are paid in blowing

the whistle? Is this relevant to any fact at issue in the case?

Looking back at the Gonzales v. Hewitt case file, for the plaintiff Gonzales, is Salazar

connected to a drug cartel in some way so that Salazar will risks arrest by US authorities? Can he

claim privileges under US and Mexican Law against self incrimination? How will Gonzales

secure Salazar‘s testimony if he is unwilling to come to the U.S.?

Or, how would being in-house counsel for GHA complicate your investigation. In

defending a corporation, does in-house counsel want to first conduct an internal investigation?

Will such an investigation be privileged, meaning that its findings or existence are not admissible

in court or even subject to discovery? Does the corporation want the litigator to promise

confidentiality or job protection before conducting interviews with key employees? While these
35
are factual issues, they involve the lawyer doing some legal research and client counseling before

heading off to conduct discovery. The procedural law, issues of representation, conflicts of

interest issues, or confidentiality and privilege issues may each have to be determined before the

lawyer proceeds to fact investigation. iii For example, which employees-- if any—from a

defendant company may a lawyer interview without first alerting and seeking permission from

counsel for the company? How does a failure to follow the procedural rules governing the

collection of evidence impact the ability to use that evidence in court? And how does the failure

to follow the rules governing these circumstances impact the reputation of the lawyer with the

court or tribunal?

While some lawyers start with the law and legal theory, there are many lawyers who feel

that having a substantive legal theory early on in a case is of much lesser importance than having

a factual theory. They argue that they later will find the law to fit the facts. Big firm commercial

defense lawyers especially seem to send this message to their associates when they send them off

to do fact investigation. The associates are often on their way before they have been given any

idea about what they are looking for. Part of this is simply the problem of senior lawyers who

are ―too busy‖ to take the time to be clear about their task or the delegated assignment.

Associates and partners alike should look to be clear before any assignment is given whether the

partners already know the likely applicable statutes or major cases in the area, or the partner or

someone in the firm has previously written a motion for summary judgment or memorandum of

law covering major issues in the case. What treatises or legal resources would the more

experienced lawyer consult before they would head out to interview? Answering these questions

speeds the associates on their way.

Whether choosing to investigate the law or the facts first, at some point the litigator must
36
return to law, to secure as close to a logical syllogism as possible. One very good source of

major premises for syllogistic reasoning purposes can be found in evidence law that will govern

the courts consideration of the case. For example cases often turn on the credibility of witnesses,

the weight the fact finder puts on expert opinions, the difference between direct and

circumstantial evidence or an understanding of the burden of proof. (Trial lawyers should get in

the habit of consulting model jury instructions at some time in the case analysis process which

will tune the litigator in to a number of follow up questions or areas of inquiry that they might

otherwise miss. What are the burdens of proof given to each party? What specific facts or

definitions of the intent will the court use? There may be a number of statutes at issue and hence

the need to digest the multiple sources of the law as the issues for adjudication may involve

elements of crimes from more than one statute, and defenses available to more than one, or only

one type of crime or civil cause of action.

One exercise that can be extremely important is for the lawyer to look at how the law

instructs the judge about how it to weigh the evidence in order to enhance the chances he or she

can get an admission from the witness that will line up closely the law. For example, what in the

vernacular might substitute for materiality? Did General Crystal know that not doing magnaflux

created some risk of not discovering hidden cracks. Will he admit that Hughes had inserted that

language into the contract, and Hughes‘s contract price placed a value on doing such a test?

Hughes‘s own engineers thought the new test was important to discovery defect in earlier

versions of the helicopters. (And so you might get the witness to admit the test created some

risks, had value, and was important, and come that much closer to the definition of materiality.)

[PreTrial Matters in False Claims cases.]

[PreTrial Matters in Criminal Defense]

37
 At some point every fact investigator needs to be aware of the ―end game‖ trial.

Notwithstanding that in the U.S. some 90-98% of all civil cases settle, the client‘s decision to

settle based substantially on the client‘s understandings of the likely outcome at trial forms some

basis of the decisions. Therefore, whether it is because the client will need to understand and

predict the likely outcome of a trial because there will finally be a trial, a litigator needs to

develop a legal theory in order to provide good, sound, practical advice to the client. It will also

help the lawyer prepare for plea negotiations if the lawyer understands how the legal issues will

likely play out before the judge.

II. Factual Theory.

Not only must the lawyer have a legal theory, he or she must also have a factual theory

before the client can reach a decision about how the case will be resolved. Certainly no later

than the start of trial, facts and proof become paramount. The lawyer must be able to tell a

cogent factual story that will persuade the opposition, or the trier of fact, that their client has an

excellent chance of prevailing.

One might question the need for a factual theory before this time. Won‘t having a factual

theory too early in a case blind the lawyer to contrary information, or suggest too strongly to the

client and principle witnesses that the lawyer doesn‘t really want to know the truth about what

happened, but only what fits his or her factual theory?

These are important concerns that are primarily answered by knowing that at some point

the lawyer will need a factual theory. Initially the lawyer‘s job is to find out what happened.

Even so, the lawyer has to have some notion of what to look for. Otherwise the lawyer‘s fact

investigation is haphazard and inefficient. Learning theorists say it is better to start a learning

project having a tentative hypothesis, than to go in with a blank slate. As long as the learner is
38
careful to keep his or her factual theory tentative, he or she will be better able to learn what really

happened than if he or she is without any preconceived notions of what to look for.

How should the lawyer initially decide on a tentative factual theory? There are a number

of devices that can start the investigator on his or her way:

A. Time lines or Maps.iv

Early in a prosecution, (maybe as early as before the complaining witness first leaves the

office) the prosecutor should try to sketch out a time line of the key events. In US v. Hughes it

might be chronological listing of the key dates in the case.

Timeline for US v. Hughes

YR- 20 Rodriguez starts at Sikorsky

YR-12 Rodriguez Sikorsky bought by Hughes

December YR-6 RH letter to DOD

January YR-5 Screaming Eagles Mexico formed

January YR-5 Exclusive Bid Contract DOD 76-415 awarded to Hughes

March YR-5 General Crystal hired by Hughes

March YR-3 Alleged call between Calderon and General Crystal

March YR-3 General Crystal and Rodriguez discuss speeding up delivery

May YR-3 General Crystal starts working directly with Lozano

October YR-3 Rodriguez informed of his transfer to Atlanta

October 14 YR-3 Rodriguez sees cracks and the welding over of cracks in frames 3 Screaming

Eagless

39
October 15 YR-3 Contract Deadline. Rodriguez transferred

October 16, Yr-3 Certification signed.

February 16, Yr- 2 Crash of Screaming Eagles during military action against drug cartel in

Mexico

April/May YR-2 Investigation of crash by Baker

May YR-2, Rodriguez memo to file re conversation with Baker

May YR-2, Reported Suicide of Baker

June YR-2, Rodriguez Letter to DCIS

January YR-1, Rodriguez Disclosure to US Department of Justice

December 1, YR-1 Complaint filed

December 10, YR-1 Affidavit by Calderon

December, YR-1, Depositions of witnesses.

In State v. Cortez, (a felony murder/murder case) it might be a simple map which traces

defendant‘s stops on the evening of the murder.

[Insert Exhibit Time line From State v. Cortez.]

In the State v. Jackson ( a NITA arson case file) for example, it might be a timeline. The

prosecution would likely construct a time line to see whether the defendant Jackson had a

financial motive for burning down his own factory, the ―Flinders Aluminum‖ plant.

40
 Flinders Collapse - The Situation
2002-2004 Aluminum siding market collapses
2004 Flinders loses $500,000
2005 Flinders loses $500,000 in first 9 months
July 2005 “If no new accounts, we’re going under”
July-Nov ‘05Complains bitterly of financial problems
Sept 2005 Avery to “solve” his financial problems
Oct 2005 Meets with Bank--loan due--no financial
info--no plans—Bank refuses--No approval
Nov 1, ‘05 Jackson hires Avery—Key & $5,000
Nov 16, ‘05 Fire destroys plant—Avery at point of origin
Nov 28, ‘05 $400,000 loan due—Never paid

Or take a look carefully at Marie Williams, a witness who worked for Jackson and now

claims Jackson was an arsonist. Chart out a timeline of when she decides to go to the police.

Marie’s Motive to Lie?

Marie Promoted
Marie Fired

Sonia
Avery
hired Sonia Hired
suggests
Avery
Avery Fire
Demoted to BK
Visits

End of the Affair Goes to Police

Marie hired

Aug Sept Oct Nov Dec

96 02 05 06

41
 Does it suggest she may have lied about arson because she was getting back at Jackson

for having fired her? Timelines will fix the hard facts, but it is in the gaps between the hard facts

that intent, motive and persuasive story telling will fill.

The same is true in civil commercial cases. For example a time line in the Gonzales v.

Hewitt might look like this:

Yr-12
G and H meet as b-school students
Yr-11
G and H incorporate GHA
Yr-5
G executes leases w/ Mexican government
Aug. 1 Yr-5 - lease begins
Yr-4 Nov. - heated discussion
Yr-3
June 15 - GHA offers to buy out H
Aug 16 - SBG meets w/ GHA, says won't accept Salazar
Oct - G realizes has to sell to a 3rd party
Nov 26 - GHA sold to Royal Inc.
Yr-2
Jan 4 - H transfers $500K to Bauer
Jan 15 - G sues H
Jan 30 - Date of G's complaint
Yr-1
Jan 30 - Date of G's complaint
Jan 2 - H answers complaint

Look at the time line and start asking some questions. Is the first listed event really the

first event that is relevant to the case? Often the litigator needs to back up the time line and ask

what event(s) led up to the first listed event thus providing the story listener a better sense of

setting and context than what they have from the first event on the time line.

For example, in a standard car wreck negligence case in the U.S., the time line often

starts with the time and point of origin of the cars involved in the collision. Yet, were there

earlier events of relevance to the case? What did the drivers have to eat or drink before the
42
accident? What had they done the day or even days leading up to the accident? Regarding

matters of credibility, who are these people and what virtues or character traits have they

evidenced over the prior years?

Getting back to Gonzales v. Hewitt, why did Gonzales go to Emory rather than some

Mexican business program? Did he have a falling out with Salazar Silver Mining, or make a

mistake which led to the need for a time away from his home? Why did he not go back to work

with Salazar after he graduated? When ―drilling down‖ to determine when the story really

began, these inquiries may flesh out the starting points for a more comprehensive time line.

As noted, one of the greatest dangers of using a time line is a tendency to over narrow the

focus to the events immediately surrounding the dispute. Yet the time line stimulates a starting

point for discovery and the lawyer can then structure his discovery to proceed chronologically. It

is the way most of us learn. We learn by ―starting‖ with facts we know, then facts we think we

know, and then discovering what events followed by making educated guesses.

In particular, look at the gaps between events and think about what you know and what

you do not know and what you need to know. In the US v. Hughes case, look at the time line

surrounding Baker‘s investigation of the crash? Who ordered the investigation? When was the

field work done? When was the report written? When did Rodriguez talk to Baker? When was

the report given to General Crystal? When did Baker die? When did General Crystal ―threaten‖

Lozano to keep quiet, or he would end up like Baker? When did the machinery for doing

Magnaflux testing get sent to Mexico?

Moving forward on the time line, a number of questions will immediately be raised.

While you know that a meeting occurred, or an accident happened, you do not know what was

going on in people‘s minds at the time they were acting. What were their motivations for
43
meeting when and where they met? What communications, thoughts, ideas, feelings, and or

emotions led up to those meetings? Why were they meeting at that point? Why were they on the

road at that particular time of day?

In addition, the time line produces another set of questions. What policies or

procedures governed the behavior at the time of the key events? Were there any notes taken at

the key meetings? Was there a secretary present? Were the meetings recorded? Was a follow

up memo written? Do the parties keep telephone logs of their conversations? Do the individuals

have standard ways of dealing with certain matters? If they do, how did they get trained about

the procedures?

A time line, of course, will not show what the parties did not do, people they did not call

or talk to, or precautions they did not take. Moving down the time line, the litigator must start to

look for key non-events. These nonevents can be key to establishing negligence, or wrong

doing, especially where there are policies and procedures supposedly to protect against the non-

event happening. For example, in a criminal fraud case, a non-event may be a failure to disclose

material information that should have been disclosed where there was an obligation to do so.

The exercise of creating a time line may cause the lawyer to note the obligation while

recognizing the non-event failure to disclose.

Thus, time lines are useful not only because they answer questions, but also because they

cause the lawyer to focus and start to raise questions about what happened. In the investigation

process, time lines are important because they force the litigator to look hard at the gaps between

the key events. They can spur the lawyer‘s curiosity in trying to discover the why and wherefore

of the client‘s story, which can lead to useful information and the development of a theme which

will ultimately bind the arguments made by the litigator.

44
B. Story Outlines.

A second discovery planning device that can be very useful to fact investigators involves

imagining the ―performance‖ of telling of a persuasive and captivating story. Preparing a story

outline can start the litigator on the path to becoming more imaginative and creative about what

they might be looking for.

Ask yourself, for example, what would I love to be able to say about the opposing party if

I were free to make it up? Imagining the darker side of a person‘s story can spur the imagination

of fact investigators to look for those facts. It spurs such questions as, ―I wonder if the other

side‘s key witness ever got into any trouble?‖ ―I wonder if they ever got caught lying or cheating

or stealing?‖ ―I wonder if they are biased in anyway?‖ ―I wonder who they know and whether

they are at all beholden to the people they know?‖ What skeletons are in those witnesses‘

closets?‖ In addition, the lawyer must be creative and imaginative about looking for good in

their witnesses. What appealing things have they done with their lives? What social causes have

they furthered, and what people have they helped?

The point is that human nature is often neither as objective and neutral, nor as evil and

selfish as it seems. It is the job of the lawyer to accentuate their witnesses‘ good sides and

emphasize bad in the other‘s case. This process is greatly aided by imaginative stereotyping and

characterizing of the both sides‘ witnesses. As an exercise, this can be a tool for exploring the

limits of the proof of facts surrounding a case.

Some experienced lawyers recommend that the litigator write a brief, two or three

paragraph story outline both for the overall story that they might tell and for the stories of the

prospective witnesses. They then use these story outlines to seek out motivations, policies,

procedures, and nonevents these story outlines might overlook.

45
C. Miscellaneous Brainstorming Devices.

Another fact investigation planning device that many lawyers find particularly useful

consists of asking: what do I think really happened in the case? Here the lawyer is using his or

her own life experience to try to imagine the motivations, reasoning, and to sort through the

factual discrepancies of the case. Asking what really happened during the planning process can

moderate the lawyer's overly aggressive tendencies and force the lawyer to empathize a bit more

with the other side‘s witnesses.

In US v. Hughes, do I really think I can prove the General Crystal had Baker killed in a

way that made it look like a suicide? Or was he just using the event to persuade Lozano to keep

quiet? Do I really think that General Crystal would think that killing Baker would keep his

report from surfacing? How might the timeline of events either make such a theory fly, or …

not.

In the case file, State v. Cortez, while a lawyer might be convinced that Louis Grimes

(who is a roll over witness in that he makes a deal to ―roll over‖ on Cortez in exchange for a

lesser punishment) is lying to keep from going to jail, the question is what motivates the lie? Is

it to save his own skin? Or, is he more afraid of the person who really did the deed will come

and get him if he tells the truth about who really was at the door when the shooting occurred?

Or, in Gonzalez v. Hewitt, for example, do I really think that Hewitt is concerned about

US labor protests? Or is he just feeling pressure from his father and using rumors of drug cartels

as an excuse to make some money? Asking what most likely really happened will force the

lawyer to confront the hard facts in the case, those facts which mitigate against the telling of the

lawyer's most extreme factual theory in the case. In Gonzales v. Hewitt, for example, the fact

that Hewitt went into business with Gonzales in the first place suggests that Hewitt is not
46
generally prejudiced against Mexicans. Shouldn‘t the lawyer then, by asking what really

happened, come up with a theory that it doesn't matter if Hewitt was racist, he may have been

angry, or scared, or feeling pressure. Ultimately what matters is what the bank loan officer

Bauer said in writing, that based on his conversation with Hewitt he ―took care of it‖ by not

extending a loan to Salazar.

Creating a cohesive persuasive story outline can be very useful for spurring the

imagination of the lawyer to look for key facts as they make their way through the discovery

process. What often happens in these story-outline exercises is that the lawyer discovers she

may be able to tell more than one story about why something happened the way that it did. Then

his or her job is to pick the most persuasive story that they can be told. But why? Why tell only

one persuasive story? Why not tell multiple persuasive stories and let the fact finders take their

pick?

For example, the defense in Cortez might have a number of stories he can tell to attempt

to justify his behavior to the court. Lawyers for Cortez might argue that as a matter of law he

cannot be guilty of felony murder if his weapon (or a police officer‘s) did not fire the bullet the

killed the victim. Or, the defense might argue that Grimes‘ gun did not have a firing pin, and

thus it could not have been a legally viable weapon sufficient to make it an armed robbery. Or

that no valuables were transported away and so no robbery was completed thus there was no

predicate felony for there to be felony murder. The Cortez legal team could also argue that their

client was not even at the of the crime at the time it occurred.

Or, in the State v. Jackson case file, the defense might think of three different theories for

how the Flinders Aluminum plant burned down. They might think that the explosion occurred

while Mr. Avery was innocently working on a dye design in the machine shop. Or they might
47
want to argue that Mr. Avery was down cleaning the machines with HCL (hydrochloric acid)

when the explosion occurred. Or they might believe that Mr. Avery was up on the fourth floor in

his office and just happened to end up at the hot spot when the building collapsed.

Even in commercial cases, including the Gonzalez v. Hewitt case file, the plaintiff might

be tempted to try multiple theories with escalating versions of reprehensibility. So in the Hewitt

case, the defendant might argue that he did not want to do business with Gonzales anymore

because he was connected to drug dealers. Or that Gonzales was hiring his family members who

were robbing the business, or that Gonzales was not giving him an accounting of how the R&D

money was being spent. Trying all of these theories simultaneously is a tempting approach.

The problem with trying a case on multiple theories is threefold. First, the fact finder

often speculates quite correctly that you have talked to your client, your witnesses and the

experts and indeed know more about what happened then you have time to present. Having

multiple stories, then, the court or factfinder reacts like a parent or teacher might after hearing

multiple versions of a story about what children were doing at the time something has gone

wrong. With each version, the hearer starts to believe that they are being told what really

happened and when they hear inconsistencies they may question the speaker‘s character for

truthfulness.

Of course, in criminal prosecutions, this may be all the defendant has left; that the state

cannot prove what happened. But fact finders are often very keen to solve the case and thus

endeavor to determine what happened. Multiple stories add to the cognitive dissonance of

needing to solve the puzzle. If the defendant can relieve this dissonance by showing how the

pieces fit consistently together, then so much the better. For plaintiffs and prosecutors this is

vital. After all, multiple stories of what went on open up the plaintiffs and prosecutors to attacks
48
that they do not know what happened, are speculating, and therefore fail to meet their burden of

proof. The advice from most experienced trial lawyers is that if you do have multiple stories to

tell, pick the best most likely one and tell it. Otherwise you risk the jury "seeing" through the

multiple theory ―smoke screen‖ that you are presenting.

This advice can cause a great deal of cognitive dissonance for the lawyer. Which story

should I tell? There are a few rules of thumb that many lawyers have found helpful in sorting

through this problem. First, preview your stories before listeners with good common sense.

What you are looking for here is someone, not in your law office or particularly beholden to you

who can warn you away from the incredible, histrionic, or overly clever explanation for what

happened. (While I say ―not someone in your office,‖ many trial lawyers say that their

secretaries serve this function for them.) What I am warning against is relying too much on what

junior associates, or even other experienced trial lawyers may think about your clever

explanations. Law office ―group think‖ can often overly encourage the lawyer to take the high

risk of an overly attacking factual theory in a case. Instead it is better to think, can I sell this

theory to Mom or a good friend, someone with good common sense? Note, I am not saying that

you need to be able to sell your theory to a skeptic. You can control the atmosphere in the

courtroom or in a negotiation, so that the listener will find you sincere and likeable, and want to

believe you. Yet your theory must pass the straight face test. Can you tell it with a straight face?

Can you persuade someone with a foot in the real world?

As a fact investigation planning device, looking for a factual theory instead of trying to

juggle multiple versions of what happened can also inspire greater efforts at finding out other

facts consistent with the persuasive story you will tell in the end game. Another question a

lawyer should always seek to answer is this, ―If what I say is true, then what else would be
49
true?”

For the defense in Hughes, can the lawyer really prove Calderon waived the need for the

Magnaflux testing? Does his letter indicate that he specifically understood that the helicopter

had not been tested for subsurface cracks? Would Calderon really take responsibility for the

deaths of the 9 soldiers killed by agreeing that he knowing took delivery of a defective

helicopter? And without such an admission, won‘t a waiver theory contradict the materiality

theory: that if the test was immaterial, then why did Calderon need to know that it wasn‘t being

done?

For example, in State v. Jackson, if you say Jackson was in the building on the fourth

floor in his office when the building exploded, what else would be true? Mr. Avery‘s office

would be located above the hot spot, which it is not. The witnesses would have said the

explosion caused the building to collapse, while witnesses said only that the fire spread very

rapidly. If the building would have collapsed at the first explosion, it would likely have

smothered the fire. These would all be arguments that would make your theory less than

plausible.

Again, to show for example how asking what else would be true will help you to find

corroboration for your theory of a case, consider again the case of Gonzales v. Hewitt. If you

represented Gonzales you might be convinced that Hewitt was motivated by wanting to own a

golf course and needing a down payment of $3 million to make the purchase. If that were true

then what else would be true? Well, it would be likely that Hewitt would have had some written

agreement that supported his motivation, or oral agreement with someone contemporaneous to

his relationship with Gonzales turning sour. There are hard facts suggesting no such motive: it

looks like Hewitt bought the property after the fact with a $500,000 down payment, something
50
he could have secured by having been paid $940,000 for the property. And he would not have

needed to wait. Your factual theory would not be consistent with the timing of the purchase or

the amount necessary to make the purchase. Still, such a theory would be worth exploring. By

asking "what else would be true?" the lawyer is led to series of questions he might otherwise not

think to ask.

In other words, a related factual theory selection criteria is to make sure that the story you

tell is consistent with all the hard facts. In State v. Cortez., how does Cortez explain that Grimes

had his gun. Or, for example, one brain storming session with a group of lawyers about State v.

Jackson case produced the following discussion. One lawyer felt the state couldn't prove

financial motive because Jackson‘s wife had $500,000 in investments. Of course, taken in

isolation this is a powerful fact. But Mrs. Jackson in her prior testimony describes her attitude to

her husband at the time of the fire and recalls he had asked her for money and she had refused

him. If the lawyer cannot come up with an argument or reason why Mr. Jackson would have

been more successful in seeking money from his wife a second time, the jury will have a difficult

time getting past this hard fact.

Also, remember the normative part of trial lawyering. Your integrity and credibility are

your greatest assets of persuasion. If you waste these on alternative arguments, you may be

discarding valuable assets that are important for the case at bar and every other case you will try.

III. Brainstorming.

A third exercise that can be very useful both while interviewing or deposing key

witnesses and during the end-game storytelling, is brainstorming. Brainstorming is

recommended by many creative problem solvers in business, science, government and law. It is

based on the notion that what unimaginative problem solvers often do is to too narrowly focus on
51
a story or fact and miss the significance or the possibilities presented by connecting facts to other

major facts.

One way to demonstrate problem solvers tendency to narrow their focus too quickly is by

taking a look at the following simple problem. Assume that you have been asked to solve the

following problem: Connect the nine dots below using just four straight lines without your pen

ever leaving the page.

  

  

  

The problem is unsolvable if the problem solver sees the dots themselves as a boundary of

operation. Now consider one solution shown below. Note that the key is to extend the lines out

beyond the boundary created by the dots.

52
   

  

  

Other professions also struggle with a decision maker‘s tendency to narrow too quickly.

Our medical and business colleagues have the same difficulties with misdiagnosis. The tendency

to narrow too early may come from a lack of planning time, the impatience to wade through all

the facts, or from a style of learning that is uncomfortable to that decision maker (in Myers

Briggs terminology they may be a "judger" who has a low tolerance for the process of joint open

thinking). There are obviously some real risks in recommending factual theories without

engaging in some comprehensive thinking. One way of combating narrowing too quickly and

combating certain learning preferences that make it difficult for some to think more openly, is to

engage in a step by step process called Brainstorming.

A system of brainstorming that has proven very useful to trial lawyers has seven parts to

it, proceeding from listing Good Facts, to Bad Facts, Best Facts, to Worst Facts, Engaging in

Spin control, and the final step, that of selecting a Theme. We will take each step in order.
53
A. Good Facts.

Set your self up in a room where a group of your colleagues can also see a blackboard,

whiteboard, or some common surface to record the individuals‘ ideas. Designate a recorder.

Then encourage members of the group to call out facts that in their mind are helpful to the case.

Don‘t edit the ideas. Debate and ranking will come later. Now just get all the good facts out on

the board.

One useful addition to this process is for the recorder to reflect back the idea to the

proposer for two purposes. First it is important that the recorder records the person‘s facts and

not their conclusions or interpretation of the facts. Second, the recorder should make sure they

are recording facts and not inferences from those facts. For example, it would be incorrect at this

stage to record as fact that Hewitt is greedy. Instead, the group should call out facts that support

the inference that he may be greedy, that as a son of a famous father he was likely to want to

make it on his own, and while struggling for his father‘s approval, building a financial empire.

In addition, the recorder can be aware that they serve a very important function by

making the brainstormer be precise with their facts. By being sensitive to the fact/inference

distinction, the problem solver can be careful to be precise, and record for later reference where

the individual ideas are coming from. In serving this role the recorder keeps wishful thinking

from taking over the process. Many group planning sessions can be effected by a kind of ―group

tough‖ phenomenon where someone throws what may be a fact and the group latches on to it and

starts to plan as if that fact were proven. The story is told of a recent auto products liability case

where the defense latched onto the purported fact that ―the plaintiff would have died anyway

even if the gas tank hadn‘t exploded because he was dead at impact.‖ The problem was that no

one had bothered to interview one of the eye witnesses to determine that the plaintiff was seen
54
steering the pickup over the side of the road after impact. You can imagine their factual theory

would not fly in the face of such a counter fact. But, if the factual theory was that the plaintiff

died as a ―result of the impact, not the fire‖ then the theory can be made plausible and consistent

with the hard facts.

B. Bad Facts.

In addition, or simultaneously, the group should also call out bad facts. The recorder can

decide to try and hold all bad facts till after the good facts are exhausted, but often the group

recognizes that some facts are both good and bad, depending on the spin one puts on them. In

US v. Hughes, that fact that General Crystal is military hero is good, but that he trains men to kill

others with their bare hands, is bad. So the past military experience cuts both ways.

In State v. Cortez, the fact that Cortez has a black motorcycle is a bad fact. But what

about Grimes use of a gun owned by Cortez‘s wife?

That Grimes turned state‘s evidence is devastating for the defense. On the other hand,

the reason he now turns state‘s evidence is a greater understanding that he would be serving jail

time for murder. Or, for example, in Gonzalez v. Hewitt, Gonzales‘s idea for a new processing

of silver can be good if it shows the successful nature of the operation but bad if it shows he was

being secretive with his partner. Often recorders will divide the board in half and record bad

facts as well as good facts.

This process of calling out good and bad facts can take some time. If the history of the

case is lengthy and somewhat complicated, the recorder might break the brainstorming process

into segments according to a time line. This can be particularly helpful for getting the

brainstormers to reflect more broadly on the early history of parties, damages issues, or

―subsequent remedial measures‖ issues that they might otherwise miss. The recorder should be
55
careful to hear from everyone in the room. Also it is often in the waning moments that someone

thinks of something ―new‖ or missed, or tries out an idea that may give everyone a new

perspective. Give time for the individuals to exhaust their ideas. The process should also be

revisited as the legal and factual investigation evolves, more facts are learned and theories and

perspectives change or develop.

As the recorder looks back at the board, he or she should next encourage the group to

look for connections. Are there groupings of facts that belong together? Are there connections

that others had not seen before?

C. Best Facts.

At this point the group should start to prioritize and focus on what is most important.

One exercise has each brainstormer select the three facts they find most important. Ask them to

write them down, and prepare to defend their choices. Then go around the room and have the

individuals vote and briefly explain their vote. See if there is any consensus. Where there are

differences, see whether through persuasion and discussion the parties can come to agree on

what are the most important facts. Point out that these decisions will be very important for

focusing their presentations of facts.

D. Worst Facts.

The same process should be employed with regard to worst facts. This is important again

so that the litigators do not prematurely disregard important bad facts that mitigate against their

client‘s position. Next the discussion should turn to the rules of evidence and motions in limine

which may involve the process of asking a pretrial judge to rule before the trial commences to

keep out or restrict the use of proposed evidence. Is there any way to keep out the bad facts? Is

there any way of narrowing the focus of the dispute so that the bad facts become irrelevant. If
56
the question of scienter in determined at the time of the certifications, what is the relevance of

Baker‘s suicide? Or, in Gonzalez v. Hewitt, what is the relevance of the Senator‘s opinions about

the dangerousness of the Mexican drug cartels?

Alternatively, is there now a need for more discovery? What counter facts are there to

find? What additional facts may mitigate or overcome the otherwise bad facts? If U.S.

Presidential Candidate John Kerry only voted 17% of the time when he was on the National

Security committee, how often did U.S. Vice Presidential candidate Dick Cheney vote (Cheney

was on the ticket opposite Kerry)? In other words, the worst-facts-brainstorming should involve

a process very much like political spin control. It is why campaigns hire rapid response

researcher and prepare immediate responses to attacks on the candidate‘s character. It is also

why attack adds often lead to coubter-attack adds, at least until some truce is declared. It is also

why surprise attacks ads where there is little response time are often so devastating, whether in

court, or in campaigns. So if Hewitt complains about being kept in the dark about operations,

how often does he get information about operations in his other investments?

E. Spin Control.

There are a number of spin control options that should be considered One is to simply

admit some or all of the bad fact. Perhaps a word of explanation is in order here. Remember the

movie, Clear and Present Danger, starring Harrison Ford as Jack Ryan, advisor to the president

and all around good guy? The President has called his advisors to counsel him on what to tell

the press regarding his connection to a man who was recently found murdered off the coast of

Florida, in a boat filled with cocaine. Ryan comes late to the meeting, but just in time to hear

some advice from an aid to the President denying that the President even knew the man. We
57
also see others advising the President to say as little as possible and to say ―no comment.‖ Ryan

speaks up and advises that the President simply admit he was a very good friend of the man and

felt terribly that he has died. In justification for his advice he says, in essence, if you admit the

bad fact, simply, then what is there to investigate? The matter will end there.

Similarly, where a witness or party, without excuse or apology admits the bad fact and

owns up to it, it can cause numerous salutary effects. The witness looks refreshingly honest.

The audience is no longer curious about the matter and may leave it alone. If, however, the

witness denies the fact, and it is later proven anyway, the matter has been made twice as bad.

Of course another way to deal with a bad fact is to justify it or excuse it in some way. It

is important, though, not to be too defensive. Referring to principles of primacy and recency,

(that people remember best what they hear first and second best what they hear last, and

remember less well what they hear in between) juxtaposing a bad fact with a best excuse,

followed by a number of countervailing good facts, and placing the whole grouping about two-

thirds of the way through your argument, can help de-emphasize the bad fact.

Also you could deny that the bad fact happened, juxtaposing multiple facts and reasons

why the bad fact could not have occurred. You compare witnesses for bias, documents for

contradictions and omissions, and expert testimony for inconsistencies and overreaching. Again,

if the client‘s case comes out weakly, persuaders can also make sure to use juxtaposition with

stronger arguments to de-emphasize the weakness.

IV. Theme.

The subject of having a theme deserves separate treatment for a number of reasons. It

may be the most important way to address what will really matter to the court. Even if one does

not engage in brainstorming, having a theme or persuasive theory is vital to the lawyer's role as
58
persuasive story teller. What do we mean by ―theme,‖ and how does a lawyer "find" or create

one?

Remember, persuaders have known that audiences make up their minds not only with

reason and logic, but also from intuition and emotion. Aristotle described persuasion as the

taking of a person to a place in the mind where they felt ―at home.‖ Aristotle called this aspect

of decision making reliance on enthymemes. He described them as non rational bases of

decision-making based on deeply held feelings, or on basic norms of fairness. The world is too

complex and the need for decision making too great for audiences to wait for "scientific proof"

before they decide what to do. Persuaders have long known this. That is why they create

themes for their speeches and try to persuade with an eye on feelings and the heart, as well as the

head.

Two much-discussed recent lawsuits may help make the point. In the O.J. Simpson case

the defenses' theme was, "Rush to Judgment." The police were in a rush to judgment and they

mishandled and planted evidence to reach a foregone conclusion. (A second theme also surfaced

in the trial itself. This was the saying, "If it doesn't fit you must acquit.") The power of these

themes was that they captured the underlying unfairness of the prosecution‘s case, made the

defendants points memorable, and hung the multiple parts of their legal theory together on

something which was both catchy and gave the jury comfort that they were deciding the case

fairly.

Another memorable example is a simple alliteration in the phrase, "King was in Control."

In the first Rodney King case, a case tried in California, police officers were on trial for beating

the fleeing King and were found not guilty despite a video tape that showed officers pummeling

King with their night sticks. Many of the jurors were later interviewed to determine why they
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reached their verdict. These jurors often quoted the defense lawyer‘s theme, King was in

Control. Note that none of these jurors justified their decision with the words that the police

officers were acting out of justification, (self defense) in beating King for refusing to lie flat after

being ordered to do so. They simply felt that it was fair to require King to lie down when

ordered to, and that he was therefore in control of the situation. (In English what also made this

memorable was the fact that the words King and Control start with a hard ―C‖ sound, so the

―alliteration‖ make the phrase more sticky, or memorable.)

These examples demonstrate the importance of having a good theme that catches the

attention of the audience or factfinder, gives the client's case a feeling of unity, and speaks to the

underlying unfairness or fairness of the client's case. The power of a well chosen theme is

heavily documented. Whether by advertisers who make us remember their products when we go

shopping, or politicians, who repeat their campaign slogans ad nauseam, or preacher‘s sermons,

or titles listed on billboards, the world is filled with persuaders who have thought about the

power of a carefully chosen pitch or theme.

If lawyers agree that having a theme is important, they are of course only part of the way

there. They must find a theme that fits their case. Again, brain storming techniques can be

utilized. Everyone in your group calls out a catchy phrase, song title, biblical saying, or tries a

little alliteration to try to capture appropriate theme. Another device many trial lawyers find

useful is to try succinctly writing down an answer to the question, ―Why is it fundamentally fair

that we win?‖ Forget the law for a minute, why is it fair or just that we prevail?

Often what happens in these sessions is the group refocuses on the best facts or worst

facts in the case. Having a theme is sometimes as simple as noting an essential quote from a

witness or a document. Look for a good quote in Baker‘s report. Or, In the State v. Jackson
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case file, it can be a quote from a witness, that Arthur Jackson was desperate for money or from

Pincus, the expert, when he wrote in his report that the presence of George Avery‘s body in the

fire was ―disquieting.‖

In the Hewitt case file, for example, it could be the use of the simple phrase from Exhibit

11, ―I tired of dealing with these THs.” That could be Gonzales‘s theme, because it sums up his

position. That is no way to treat a partner of five years. It expresses his malice in making his

statements to bank loan officer Bauer. It‘s as simple as that.

One of the things that experienced lawyers tell us is that after a while the cases they try

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play out on a number of recurring themes. They play out on issues of credibility of the

witnesses, or the difference between direct and circumstantial evidence. They play out on the

fairness or unfairness of holding someone to their burden of proof, despite the fact that someone

has been injured. Other recurring themes for defendants in commercial litigation are that the

plaintiff is playing some version of the blame game, not taking responsibility for the choices they

have made. Looking back through the history of the dispute and noting the choices the plaintiff

made that contributed to their own injury can help the defendant tie their case together under one

unifying theme.

A. Normative Consideration.

Are there any constraints to this creative process? Will any story that does the job do?

While the adversary process does give the lawyer a lot of leeway in making the state prove its

case, and, in criminal matters, prove the case beyond a reasonable doubt, there are both strategic

and normative reasons why the lawyer ought to exercise restraint in trying to create the winning

story or theme. First, where the lawyer over promises what they will show or prove, and then are

shown by his opponent to have misled the jury as to a fact or theory, the decision maker will

likely disbelieve other important facts in the case, ―throw the baby out with the bath water.‖

After all, the single theme or single story theory of trial advocacy places a high premium on the

story and theme being consistent with all the hard facts.

It is important to understand the difference between arguing facts, and arguing proof. An

example from the O.J. Simpson case makes the point. Where the defense needs to offer an

explanation to the jury for who killed Mrs. Simpson, they are tempted to point to a specific

alternative killer. So they might be tempted to tell the jury about another boyfriend, or a drug

dealer, or a gang, out on the street that night that might just as likely have been the killer. But if
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the defense argues a fact, that a boy friend exists who was upset with Simpson, then the defense

better produce the name of the boyfriend and that the boyfriend is not accounted for during the

key time of the trial. The same holds if they name a drug dealer, or a gang of thugs. So while

the defense should argue that there are other explanations for the murder that the prosecution has

not excluded, the defense should not name a name with out a good faith basis for believing it is

so. Part of the advocate‘s decisionmaking process is to carefully examine the facts to see if

advocate‘s theory will hold water. To make up and suggest a boyfriend theory will backfire

without further proof. The jury would expect the defense to do its own investigation of a

boyfriend who had a fight, if one existed. There is less danger in creating a story of a gang or

drug dealer, but the argument is ethical only if it is unspecific. Once specific names are named

the lawyer is not only risking the state‘s proof that contradicts its theory, but also risks the

advocate‘s integrity of ―making up‖ facts to win the case.

Another example can be found in a wrongful death case involving a rear-end collision

with a pickup truck, where the plaintiff is alleging the pickup is defectively designed because the

gas tank is not adequately protected. If the defense creates a theory that the cause of death is not

the gas tank and fire, but the collision itself, then the defense must be careful that the medical

evidence supports its theory that there was internal bleeding that caused death, and little or no

smoke in lungs. Also the defense needs to make sure there are no witnesses who see the driver

struggle in the car after the collision, or steer it to the side of the road, before it bursts into

flames. Such a witness would contradict the time of death, requiring the defense to adjust its

theory to say that the death occurred as a result of the impact, but not ―AT IMPACT.‖

The point is that for the lawyer to put forward a theory or theme, the lawyer must test the

theory in the real world of facts and evidence. If there are contradictory facts, the lawyer lacks a
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good faith basis to believe the facts or story is true. The lawyer must then, think

comprehensively and brainstorm broadly, but must also test his or her theory in the real world.

Finally, part of this normative testing is based on what the client knows and understands.

So, truth does constrain the advocacy system. And the lawyer‘s relationship with her client

depends on the client revealing what the client knows and communicating what the client

remembers and believes happened. This is tricky business. The lawyer may be tempted to

believe that she does not want to know what happened. After all, if she learns of facts contrary

to the best story she can tell, she is prohibited from arguing those facts.

Still, the advocate is entitled to argue proof of facts, and that alternative explanations

exist, based on the evidence presented in the case. This is a fine distinction, but an important one

none-the-less. It requires the lawyer to pick her words carefully, couching her story in the

language of proof, and probability, rather than fact. But to do otherwise, without a good faith

basis, risks not only the successful outcome of the case, but also the integrity of the entire

adversarial process; a process that depends on the integrity of the advocate. We will show how

this distinction between making arguments stating proof as facts, and arguing lack of evidence,

or proof to rule out alternative explanations, affects the trial process, the way the advocate makes

her opening statement, asks questions on direct and cross, and makes her closing argument.

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 Chapter III
Direct Examination

I. Introduction.

For clients, direct examination is the means by which they have their day before the

decision maker, whether it be a hearing officer, or judge or jury in court. For example, for the

parents of a child in a wrongful death case, it is the way society learns about what it means to

lose a child, to think they hear their child calling from the child‘s bedroom in the middle of the

night, only to wake up and realize the child is gone. For the car repair business accused of

failing to make brake repairs, it is the way these clients teach us that injury can occur from this

process on them, too; a businesses‘ reputation is damaged when it is falsely accused and blamed

by someone without proof. In a white collar criminal case, it is the way that a defendant, like

Martha Stewart, will explain what she knew, and what she intended by selling her stock. Or, for

a defendant with a less than airtight alibi, it is the defendant‘s best chance to look the fact finder

in the eye and proclaim their innocence and describe the injustice of the false accusation.

The client wants and needs to tell his or her story. It‘s he or she who will pay the money,

or spend time in jail, or hear a verdict that is against him or her. The client needs to experience

that he was ―listened to,‖ his point of view was vigorously put forward, and that he had his

chance to tell his story.

The assumptions made by an oral adversarial system are that if a client, or witness call on

the client‘s behalf, come forward to testify to a fact finder, the opposition will be able to cross

examine that witness about facts in their past that might ―impeach‖ the witness‘s credibility so

that the fact finder can better assess whether the witness is telling the truth. As a result of these

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assumptions a witness might be asked about earlier statements the witness may have made, or

earlier bad acts they may have committed that relate to truth and veracity, or earlier crimes the

witness may have committed. And so, most trial lawyers say that direct examination is the

hardest and most dangerous thing they do at trial. In fact, in most criminal cases, lawyer‘s will

advise their client against taking the stand on direct, because of what it will open up in the way

of cross examination. In addition the examining lawyer must be careful that the witness does

volunteer testimony that could make relevant damaging evidence that would otherwise be

inadmissible.

For example, in the Hughes case, what if General Crystal were personally on trial for a

crime? Should he take the stand? Or, think about this possibility in the State v. Malack case, if

he had not testified in an earlier trial. What if the admissibility of the fact General Crystal

engaged in water boarding, or taught soldiers how to kill with their bare hands, or in Malack, that

he hit a woman in a fight, and broke her jaw, or shot at a guy who parked in his parking space

was opened up by his testifying? Does putting Malack on the stand and explaining his alibi and

his love for his girl friend make up for opening the door on prior bad acts such as these?

Or, think about this possibility in the State v. Cortez case, regarding Cortez. What is

gained and what is lost by his testifying? What in his criminal record now is relevant that would

otherwise not be relevant? How does your theory of the case effect your decision whether to do a

direct of the defendant?

Even in civil cases there are risks to both plaintiff and defendant in having certain

witnesses testify. Does their testimony open up lines of impeach for prior bad acts that will taint

not only that witness, but the whole case? For Gonzales, what is the effect on the jury of

Salazar‘s prior criminal conviction in Mexico?

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 Even when the decision is made to call a client or a witness in their behalf, the examining

lawyer must be careful that the witness does volunteer testimony that could make relevant

damaging evidence that would otherwise be inadmissible. For example, in US v. Hughes, should

Hughes, the CEO, offer his opinion about whether General Crystal is an honest person? Will

such an opinion be allowed in a civil case? And if it is, will such testimony open the door to

cross examinations about other ―prior bad acts of dishonesty? (Is torture a dishonest act if done

in violation of international law?)

Again, compare the different assumption made by an adversarial system as compared to a

civil non-oral or written system, where the court already has all the background information in

the file, whether it is fairly considered or not. In an adversarial hearing such background

information only would be put before the court if the witness ―open‘s the door‖ by something the

witness volunteers. In an oral adversarial system, not only does the defense give up control

during the cross, but it is also difficult to control what the client will say on the stand. That is

because, as we will say from the rules of evidence about questioning, the lawyer must give up

control by using open ended questions in order to develop the witness‘s credibility, and in so

doing, the direct examiner risks that the witness will give short shrift to key points, or will over

emphasize matters that are less important, or will be boring or arrogant, and, in the worst case,

even volunteer testimony that might damage the case.

The standard direct is also made difficult by the artificiality of the rules that govern the

setting. The court is trying to balance efficiency and fairness: efficiency by trying to insure that

the witness is given direction about what the court will admit as relevant evidence; and fairness,

by trying to provide the witness opportunity to tell his or her full story. The lawyer must ask

interesting questions in an interesting tone of voice, even though the lawyer may already knows
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the answer to the questions he or she is asking. The lawyer‘s task is to both develop the

witness‘s credibility but at the same time, ―direct‖ the witness to emphasize the matters that need

emphasizing, deal with the destructive matters, and deal efficiently with the matters that are

necessary, but are by their nature, boring.

As to this last point, regarding efficiency, it is important to know that judicial factfinders

in jurisdictions using oral adversarial rules often complain about how repetitive, boring and

condescending trial lawyers are during direct examination. Many times, in the attempt to

highlight and underscore matters, lawyers become redundant and repetitive, until these fact

finders want to yell at them, ―Okay. We got it already. Move on!‖ (British judges have a more

polite way of doing just this. They say, ―hmm, I take your point, please move on.‖ In addition

British barristers check in with the court to give the court an opportunity to move them on by

say, ―If you are with me, My Lord?‖..., and then move on.) Repeating the same testimony from

more than one witness, even when it is left unchallenged by the opposition, can lead the fact

finder to think that counsel thinks he or she is stupid. As a result, it is important to analyze your

witnesses testimony in the light of what is in conflict, and use the persuasion techniques and

skills described below to enable you to give detail and emphasis to the important points, spin

and/or de-emphasize weak points, and move efficiently and effectively through less important

matters.

II. Law for Direct Examinations.

Common law jurisdictions have explicit rules for guiding the direct examiner in how to

balance efficiency and fairness. For example, the Federal Rule of Evidence (hereinafter ―FRE‖)

611 sets out the law regarding the form of the question during direct examination. FRE 611 (a)

and 611 (c) should be read together, in order to get the full sense of the judge‘s discretion
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regarding questioning on direct. FRE 611 (a) provides:

Control by court. The court shall exercise reasonable control over the
mode and order of interrogation of witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of truth, (2) avoid
needless consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.

FRE 611(c) provides:

Leading Questions: Leading questions should not be used on the direct

examination of a witness except as may be necessary to develop the witness‘ testimony.
Ordinarily leading questions should be permitted on cross-examination. When a party
calls a hostile witness, an adverse party or a witness identified with an adverse party,
interrogation may be by leading questions.

Such rules are designed to give lawyers the control they need to direct the witness into what the

witness has to say, and puts the burden on the direct examiner to ask the right questions. After

all, the lawyer should have met ahead of time with the witness and there for will know what is

important better than the court will, (without the file.) On the other hand the court wants to

insure that the lawyer is not testifying for the witness, and that the witness owns his or her oath

to tell his her own truth, and he or she remembers it. So those rules provide the Court and direct

examiner with the freedom to lead the witness in areas that are not in controversy. They give

counsel the ability to move the witness efficiently through their testimony.

III. Questioning Skills and General Strategies on Direct Examination.

A. Avoid Leading questions.

1. What then are leading questions? Perhaps the best way to define leading questions

is to start with their opposite: Open ended questions. Open ended questions are questions

which invite the witness to talk. For example,

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 ―What did you do next?‖

―When you got out of your police car, what did you see on sidewalk leading up to the

house?

―When you leaned over the victim, what did you hear?‖

―How did you start your investigation?‖

―Why did you do it that way?‖

―Show us where the attacker put the knife.‖

―Describe what the attacker was wearing.‖

―Tell the jury about your meeting with Mr. Jones.‖

―Ms. Williams, how did you come to work for Flinders Aluminum?‖

Note something about these questions; they begin with words like: (i) What, (ii)Why, (iii) How,

(iv) Describe, (v) Explain, and (vi) Show.

Notice that not all ―reporter-type‖ questions open the witness to say much. Other kinds

of questions that reporters ask evoke short answers. ―When,‖ and ―Where‖ questions are often

answered with short answers. Even though open in form they do not get the witness to talk very

long. Even some questions that begin with ―What‖ don‘t ask for very much, like ―What is your

name?‖

The point is that most open ended questions are preferred on direct examination because

this form of the question gets the witness talking, which enables the jury to get a better sense for

the witness and how he or she sees the world. Tactically speaking, as a general rule, the more

the witness talks on matters of the interest to the jury, the more the jury can get the detail and

create a ―mind picture‖ of what is happening. The more they can create a mind picture, the
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greater are the chances that the jurors will remember what is being said, and relate to it.

2. Closed Questions. There are times during direct when you should use narrower

closed questions to draw attention to key points in your case, and to avoid evidentiary objections.

First, what are closed questions? Closed questions are questions that asked for short answers.

We have already seen some examples of closed questions. ―‗What is your name?‖

―‗Where do you live?‖ ―‗When did you have a meeting with Mr Jones?‖ ―‗Did you see whether

anyone was injured?‖ ―‗Did you hear what was said between Mr. Jones and the driver of the

other car?‖ ―How much money had Flinders Aluminum lost in the first half of last year?‖

These are all questions that can be answer with just a few words. When should you use

these kinds of questions? Try to avoid them at the beginning of the direct examination;

especially where the witness is unprepared. Closed-ended questions train the witness that they

should give short answers, and can train them to be very literal in what they need to do.

Especially where they have had their deposition taken and were prepared to give narrow answers

and not volunteer, the witness can carry over deposition preparation rules about testifying and

give inappropriate and cribbed answers. Often these answers make the witness look nervous or

evasive.

After the witness has gotten settled, it is a better strategy to use questions that will get the

witness to understand that they are to have a conversation with the jury. Start with, ―Introduce

your self to the jury‖.... Rather than, ―State your name for the record.‖ Ask, ―What is your job?‖

―What are your job duties?‖ before asking ―Where do you live?‖ and ―‗How long have you

worked at your job?‖ Save these more closed questions till later, unless you have a special need

to establish and emphasize a key point or key detail up front. For example, ―Introduce yourself

to the jury.‖ ―Mr. Cortez, right up front, have you ever even been to Schmidt‘s Restaurant, either
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inside or outside?‖ ―Where were you at about 8:45 pm on March 9?‖ These questions are

closed-ended questions, but the trial lawyer has chosen to violate the general tactical rule of

using open-ended questions in order to answer a question foremost on the jury‘s mind, or to give

appropriate emphasis to a fact or set a theme in the case.

A more closed ended question can also limit and direct the witness more particularly

about what they should talk about. These kinds of questions are particularly useful for slowing

down the action, and helping the jury to see these step-by-step, or frame-by-frame, through the

telling of some bit of action. For example, if you want the witness to describe what they did

step-by-step, add in time or other directives to slow their descriptions down.

Q: ―What did you do when you first got into the car?‖

A: ―I buckled my seatbelt.‖

Q: ―After you buckled your seatbelt, what did you do immediately after that?‖

A: ―I adjusted the mirror.‖‗

Q: ―After you adjusted the mirror; What did you do next?‖

A: ―I started the car.‖

Q: ―After you started the car, but before you pulled into traffic did you do anything else?‖

A: ― I checked my mirrors.‖‗

Q: ―Where are your mirrors located?‖

A: ―I have a side-view mirror located on the driver side door, and a rearview mirror located

on the front center of the wind shield.‖

Q: ―When you checked your rear view mirror, what did you see?‖

A: ―I saw that the left lane was clear.‖

Q: ―When you checked the side view mirror, what did you see?‖
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A: ―Again, the left lane was clear.‖

Q: ―After you checked your mirrors to make sure the traffic was clear, what did you do

next?‖

These more closed questions, using time directives, slow down the delivery and add

emphasis to how careful the driver was before pulling into traffic. They let the jury hear each

fact one at a time, as opposed a jumble of facts that are produced in a more narrative fashion.

Preparation Tip: Look over your direct examination. Are there events that need to be set apart,

filled with detail, or handled with care. Do you want to slow the witness down and highlight

certain facts over other facts? Use more closed questions, and more ―directed‖ questions in these

areas.

3. Leading Questions. So, what is a leading question? A leading question is a

question that unduly suggests the answers to the question asked. Consider the following

questions. Which ones unduly suggest the answers to the questions asked?

Did you see the light before you entered the intersection?

Did you see that the light had turned green before you entered the intersection? [The

answer is Yes. Note, if the expected answer is No, some lawyers argue the question not leading.

In England, for instance, it is common for a barrister to respond to a Leading Objection as

follows: AMy Lord, the expected answer is in the negative.‖ The objection is then overruled. In

the US, the better rule is that a negative response can be just as leading as an affirmative one.

For example, ―You would never lie to a police officer, would you? No.‖ is leading. ] Check out

these next questions to see if they are ―unduly‖ suggestive.

Were you in the cross walk?

Were you at all times legally in the cross walk before the car hit you?
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 Did you see Mr. Jones again that night?

Did you see Mr. Jones again that night at about 9:45pm?

Ms. Williams, Did you hear the conversation between Sonia Peterson and Arthur

Jackson?

Ms. Williams, Did you hear either Sonia Peterson or Arthur Jackson refer to George

Avery as a ―Torch?‖

Note a couple of things about these questions. Questions that start with verbs: Did you...,

Was there...., Were you..., Is there... are questions that are closed ended, at the very least, and

signal to the opponent that you may be asking a leading question. At the same time, a savvy

judge will know that a question that starts with a verb is not always a leading question. The

question is whether it unduly suggests the answer to the question in the question itself. Look

back at the questions above. Which ones are leading questions?

Sometimes closed ended questions are useful in avoiding evidentiary objections. They

help the witness provide the necessary foundation or information about the context of the

evidence for the court to understand that a hearsay exception applies. Some evidentiary

objections that are common are ―Lacks Foundation‖, or ―Assumes facts not in Evidence,‖ or

―Hearsay.‖ Your opponent may use these objections to highlight their theories that your witness

does not know or remember, or is assuming, or making something up, or is relying on unreliable

sources.

Opposing objections can technically be sustained where a question assumes a foundation

or assumes a fact not in evidence. The question, ―What did you do next?‖ assumes that

something was done next? There is a level of absurdity that can be reached with this objection.

The question, ―What is your name?‖ makes the assumption that the person has a name. Does a
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lawyer have to first ask, ―Do you have a name?‖ before asking, ―What is your name?‖ Of course

not! The trial judge will overrule this objection because it is so common and likely, and to

―move‖ or ―advance‖ the testimony, (the language of FRE 611) the judge in his or her discretion

can do so. With regard to what someone did next, the judge can assume that if nothing else was

done, the witness can say so.

If, however, the lawyer wants to emphasize a certain fact and draw attention to it, a

foundation set of more closed questions can do this. For example,

―When did you next meet?‖

―Where did the meeting take place?‖

―Who was at the meeting?‖

―Did you take any notes?‖

―How far away from the CEO Ken Lay were you?‖

―Could you hear him?‖

―Did he talk about accounting issues?

―Did he talk about documents that reflected the company‘s accounts?‖

―What did he tell you to do with those documents?‖

The earlier questions set up the foundation for the last question? The questioning lawyer

often wants to ―hug‖ the objecting lawyer for objecting on lack of foundation grounds in areas of

importance, for it signals to the lawyer that he should back up and give more direction to insure

that the jury understand the completeness of the witness‘s foundation. If it is an area of lesser

importance the opponent is not likely to object. But even then, after lack of foundation

objections, the lawyer can establish their case‘s credibility by ―proving‖ to the jury that

witnesses have the foundation for his or her testimony.

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 There are however forms of questions that are particularly objectionable because of their

unduly leading effect. Questions that repeat,

―So you are saying he told you to destroy the documents?‖

Or without getting the witness‘ version first, just launch into the topic with:

―He told you to destroy the documents, true?‖

These are legally impermissible leading questions. But they may not be objected to because they

are tactically foolish ways for the direct examining lawyer to establish facts. Remember the jury

is asked to evaluate the credibility of the witnesses, and if they remember that you fed the

witness the facts through your questions, it is likely that they will not believe the facts came from

the witness‘ memory. In closing your opponent may even comment on whose mouth certain

facts came out of first.

There is a word of caution that needs to accompany your decisions about what form of

question to use. If you are a criminal defense lawyer, a plaintiffs personal injury lawyer, a

medical malpractice defense lawyer, or a prosecutor with a ―roll-over‖ witness, (one who made a

deal in exchange for testimony) you may evaluate your witness and decide you want to control

them to the largest extent within the rules. You may believe that the witness is likely to

volunteer evidence you know to be false. You may fear the witness may open up areas of

testimony that will subject the witness to devastating cross examination. You may believe the

witness‘ arrogance, lack of credibility, or even stupidity, will be exposed if they feel too

comfortable or that it is their time to talk. In these situations you might use even the most

leading form of question, under the implied permission granted to the court under FRE 611 (c):

to ―advance the testimony‖ in areas that are not in controversy, and use very closed questions

with tight directions in other areas. For example you might say, ―Now you have served time for
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robbery, Right?‖ Instead of saying, ―Have you ever been convicted of a crime?‖, where you

want to let the jury hear it first from you, and you don‘t want the witness to volunteer time

served for crimes excluded under FRE 609. Or you might want to say, ―You are in between jobs

right now?‖, rather than, ―Where do you work?‖

In these situations, ask yourself, ―Is the matter in controversy?‖ ―Has the prosecution

ever contested this fact?‖ Then feel free to state the fact and get confirmation, in order to

―advance the testimony‖ quickly, and avoid long rambling explanations, and keep your witness

for getting into trouble.

One other way of getting and keeping juror interest, understanding, and attention is by

being careful about word choice in your questions.

B. Getting Rid of the Lawyer Language.

One way that trial lawyers can inadvertently bore or appear condescending to the trier of

fact is to use lawyer words and thereby exclude the trier of fact from the conversation. And so

instead of asking the question like a normal person:

―What did you do after you saw the green car run into the red car?‖,

The self-important lawyer says,

―Subsequent to observing the defendants vehicle collide with the plaintiffs vehicle, what,

if anything, do you remember, at this time, about the steps you took next relevant to that

occurrence. Because there are some lawyer words that are so easy to use, some trial lawyers

recommend the following rules:

Substitute For

before prior
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 after subsequent

see observe

job occupation

car vehicle

Could you tell Tell us

Would you describe Describe

In other words, use short questions and plain words to evoke interest and understanding.

C. Use Words to Evoke Mental Pictures.

One of the best ways to get the jurors to see what happened during a key event or

key meeting is to use questions which use words that evoke the senses. For example:

―When you got to the accident scene, what did you see?‖

―Did you see the driver of the green car?‖

―What did he look like?‖

―Did he look to you to be conscious?‖

―Was he making any sounds?‖

Or

―When you entered the operating room describe how the patient looked?‖

―Was the patient breathing on his own?‖

―What sound came from the respirator?‖

Or

―How did the food taste?‖

―What did the food smell like?‖

―What color was it?‖

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D. Use Action Verbs.

There is some evidence that a listener‘s mental picture of an event can be affected

by the questioner‘s word choice. If a listener is asked

How fast was the car going before it contacted, (31.8 mph)

hit, (34.0 mph)

bumped, (38.1 mph)

collided, (39.3 mph)

smashed ,(40.8 mph) into the green car, the

listeners seem to ―see‖ the accident and give higher estimates of the speed used. 1

The lesson for some trial lawyers is to use strong, evocative, action verbs in your

questions on direct.

Preparation Tip: After you compose your questions, go through and underline the verbs. Is there

a more powerful, active way to evoke an answer? Ex. Instead of .. Ms. Jones, did your attacker

appear to try to cut you with his knife.... Ms Jones, did your attacker appear to try to stab you

with his knife?

E. Headings and Transitions.

Other ways to direct or control the witness testimony and at the same time signal the jury

about what is coming, and what to take from or listen for in the next topic of the conversation, is

by use of Headings. These are particularly important if you are taking things out of

chronological order. You might say: ―Mr. Rodriguez, let’s turn the jury’s attention to your

retrofitting of Hughes helicopters, What was your experience retrofitting Screaming EaglesA

1
Elizabeth Loftus and Katherine Ketchum, Witness for the Defense: the Accused, the
Eyewitness and the Expert Who Puts Memory on Trial (New York St. Martins Press, 1991)

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so that the As would function like the later Screaming Eagles HLs? Or, Mr. Gonzalez, let’s

focus for a few minutes on your career as an engineer. What work did you do as an engineer

before going to business school?‖ Or, ―Before getting to what happened November, let’s

back up and focus on why you were being somewhat careful about what the world knew

about you new Silver mining processing. These headings tell the jury about what comes next.

Or, [and these are particularly useful for the defense] Now Mr. Malack, we’ve heard

accusations from the prosecution that you hit the victim. Did you ever hit anyone that night?

What were you doing the night of this robbery? These headings are then very useful in raising a

topic, shifting away from a topic, and directing the witness what to ―focus‖ on.

Note a couple of things about headings. They are not questions but statements and direct

examination is supposed to proceed by way of question and answer. A judge not used to the

benefits of headings or an understanding of how headings can lead to better comprehension by

the jury of the witnesses testimony might sustain the objection that counsel is testifying. Again,

however, this is a matter of discretion for the judge. The judge may know some learning theory,

and know that many jurors can learn better by understanding the topic or subject matter of what

is coming next. The judge can decide that because he or she controls the ―order and mode‖ of

proof, the heading will advance an efficient understanding of the witness testimony if the jury

can understand the topic that is to be covered.

In order to not lose the privilege, don‘t make your heading argumentative. Don‘t say,

―Now this next topic is very important. Tell the court, about your writing career.‖

F. Loop Backs for Emphasis.

Sometimes a witness, despite the best laid plans, gives conclusory and/or narrative style

answers to the questions asked that don‘t emphasize key facts. When this happens, don‘t panic,
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or become afraid to go back over a topic to ask for additional detail. One way to think of how to

handle this situation is to think of ―looping back‖ into the witness‘s answer and ask him or her

for more detail. ―When you say your father was concerned about the violence of the Mexican

drug cartels, did you ever feel concerns for your own safety when traveling to Mexico to do

business?‖ ―Officer, you said the victim noted the shoes were white with a checkerboard pattern

on the top, did you find any shoes meeting that description at the home of the defendant, Mr.

Malack? Tell us more about the shoes you found?‖ Or, ―Ms. Williams, you said Mr. Jackson

was desperate, what did he say that led you to that belief? Or, ―What was Flinders financial

condition in the six months leading up to the fire? Let‘s take these one at a time, tell us first

about the situation with the bank loan.‖

The advantage of the loop back is that you don‘t need to interrupt the witness, and

thereby make the witness feel like they are not doing well. It does require that you listen

carefully to the witness‘s answer, instead of focusing on your next question to figure out what

needs more detail and what you will repeat as a foundation to your next question. ―Loopbacks‖

also allow you to repeat certain details as a foundation to your next question. It also avoids the

asked in answered object that would be drawn by a question such as ―Did you just say General

Crystal threatened you?‖

―Objection, asked and answered.‖ Instead, ―When you said you felt threatened, what did

General Crystal say to make you fell threatened?‖

IV Organization.

Once you have your questioning skills down, you introduce a topic with headings, you

ask opened questions, (What, How, Why, Explain, Describe) unless you need to give a specific

context for key testimony, or to help the jury use their 5 senses to get a vivid memory of the
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event, you use plain language, and high impact verbs, and loop backs for emphasis and controlB

the next thing you need to do is to figure out what topics you will cover and in what order.

As to topic selection, here is where having done a case analysis session should really

come in handy. Consult your legal theory and fact investigation charts. What elements do you

need to prove to be successful? What facts do you need to prove under what elements, and what

is the source of those facts. What facts are important to establish your themes? If you have more

than one witness for key facts, ask yourself whether both witnesses need to prove the same set of

facts. Can one witness forgo altogether having to deal with a fact, and leave proving that fact to

another better-positioned witness? Can this witness deal with a particular fact in a more cursory

or corroborating way? If there are documents that prove facts, which documents are best brought

in through this witness? (Are there authentication issues, hearsay exceptions, original writing

exceptions, or relevance matters that can‘t be handled by requests for admissions, stipulations,

offers of proof, or pretrial motions, so that this witness will not be allowed to testify about this

particular document.) Charting out these elements and facts will help you decide which facts it

is necessary for this witness to talk about, and which facts are better left to another witness or

presentation of evidence.

For example, should the plaintiff in a bad accident testify to his or her own pain? Or

should the plaintiff instead testify to only to length of stay in the hospital, the number of

operations, what he or she could do before the operation, that he or she can‘t do now? Leave the

doctor to discuss the pain medication prescribed, and a close family member to tell what they

saw and heard that relates to pain. Some plaintiffs lawyers worry that if the plaintiff describes

their own pain, they may sound ―whiney‖ and the jury may discount it as self serving. They

might leave the description of the plaintiff‘s pain to other witnesses. Or, instead of asking the
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defendant, sole owner of the business, to describe his testing of his product, ask the defendant‘s

employee in charge of product safety, to testify to it.

A. Getting Started.

One way to set a nice tone at the start is to ask witnesses to introduce themselves to the

jury. As opposed to, ―State your name for the record,‖ asking the witness to introduce

themselves may have the added benefit of reminding the witness to include the factfinder in their

conversation with the lawyer.

In most court rooms across the country many trial lawyers will routinely next ask a series

of questions under the label background. The questions are relevant for the jury to understand

the witness‘s bias or lack of bias in the case, any expertise or special experiences they may have

had, and to help the jury judge the witness character by life experiences they may have had. So

it is customarily relevant to ask, ―Where are you from?‖ ―Where do you live?‖ ―Are you

married?‖ ―Do you have children?‖ ―Where do you work,?‖ ―How long have you worked there?‖

―What is your job title?‖ ―Describe for the jury what you do at your job?‖

B. Organizational Considerations in the direct of your client?

Some lawyers, however, vary the standard organization used on direct when they

examine their own client, or a victim. They may prefer to alter the introduction in order to create

a stronger impact. And so prosecutor might ask a victim, ―Mr. Rodrieguez, where were you

when you first learned that one of the helicopters you made at Hughes had crashed, killing 9

members of the Mexican military?‖ Even in a civil business case, a high impact beginning can

add significant drama to the case. ―Mr. Lubell, were you the person at Minicom responsible for

handling the purchases of computer parts?‖ Or, ―Ms.Williams, were you the bookkeeper at

Flinders Aluminum in the years leading up to the fire? Can you tell us about the financial
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condition of Flinders Aluminum in the months before the fire?‖ Or, ―Were you hurt as a result of

a car crash in September last year, with a car driven by the defendant, Mr. Smith?‖ ―Before we

get to what happened in the accident, will you tell the jury about your background?‖ Or, Q: ―Mr.

Smith, were you driving too fast on day of the accident?‖ A: ―No I was not.‖ Q: ―How fast

would you estimate that Mr. Jones was driving?‖ A: ―60 mph.‖ Q: ―Now before we go further,

let‘s back up and tell the jury about who you are.‖

If you have analyzed your case and determine that your strongest facts come from your

client, and that jurors are more likely to remember those facts if they hear them at the start of the

examination of you client, and before their attention might wander, then why wait? Get to the

strong facts right from the start.

C. Organizational Considerations in the direct of occurrence witnesses.

Similarly, if your ―occurrence witness‖ is not biased and had a close view of the accident,

you might start your examination with the question, ―Did you know either Mr. Jones or Mr.

Smith before the accident?‖ Or, ―Did you see the accident on September 15, last year, between

Mr. Jones and Mr. Smith?‖ ―Now before we get to what you saw on that day, will you first tell

the jury about yourself?‖ ―Where do you work?‖

Again, the high impact beginning will tell the jury what they are to be listening for in the

background. They will know to listen for the witness‘ lack of bias, and when they get to the part

where he sets the scene, they will judge whether he saw the accident. It will identify the witness

with his purpose for being there which often greatly aids in comprehension. If the witness

rambles on about his family background or work history, they don‘t know why it matters, or

what the witness will be eventually talking about. In some ways this organization serves as a

tickler. It tickles the factfinder‘s interest about what will come later, and may increase their
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attention span for what comes before if they know that eventually the witness will give them

some vital facts to help court reach its decision.

Whether examining the client or an occurrence witness, after the introduction and

background, the witness will typically need to be brought to the scene of some event or meeting.

Learning theorists tell us that comprehension improves if the learners, or fact finders, know the

context, or understand the scene, before they hear about the action or events.

For meetings, ask about Time, Place, Persons, and Circumstances leading up to the

meeting. For the occurrences, ask about time of day, weather, visibility, location of the witness,

and where they were looking before the event happened. For an important telephone call, ask

about when it was placed, where it was placed, whether the witness took any notes, and how long

the conversation lasted, before asking who answered, and what was said. Sometimes it is best to

use an Exhibit or diagram to set the scene.

If you chose to do this, even where the exhibit is pre admitted, orient the factfinder to

what you are doing. To accomplish this orientation, mark the exhibit for identification, (unless it

has been pre-marked), Show it to opposing counsel. Ask to approach the witness. Show it to the

witness with words, ―I show you what has been pre-marked as exhibit #___.‖ ―Do you recognize

exhibit __?‖ ―How do you recognize it?‖ ―Please tell us generally what it is?‖ ―Will Exhibit

#__ assist you in telling us what you saw?‖ ―Your Honor, I have prepared an enlargement

(slide) of Exhibit # __, for the purpose of showing the jury what it is.‖ ―May the witness step

down in front of the jury and show them Exhibit #__?‖ [When you are in front of the exhibit

with the witness, position your self so you don‘t block the factfinder‘s view.] Start by asking the

witness to ―explain to the court the markings on the diagram‖ or, ―If you would, start at the top

and work your way down through the exhibit.‖

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 After you set the scene, you can then ask the witness to mark where s/he was standing

and mark where the accident occurred. Then ask the witness to start describing step-by-step

what he saw.

An alternative organization with a witness who tells about an event is to first get an

overview narrative of what happened, and then use a diagram to get a second telling, and fill in

more specific details. You might use this technique when you don‘t want to delay the

factfinder‘s understanding of a key event, like the speed of the defendant‘s car. Then you can go

back to how the witness could judge the speed by using the diagram to show the length of time

that the witness saw the offending car.

In any event, there is no one right order to the use of the exhibit. And try the best you

can to separate scene setting from the telling of the action. This way the factfinder is not

frustrated by interruptions with details as they are trying to get an overview of what happened.

D. Dealing Defensively.

In any personal injury case that goes to trial, (and has not settled) there is likely to be a

dispute about the facts, either as to liability or damages. In either case, the plaintiff must answer

for his or her own conduct. The occurrence witness has to answer for bias, or for an argument

about their ability to perceive what they say they witnessed. If there are ―bad facts‖ it‘s best not

to let the court hear about them for the first time during the cross examination. [There are some

prosecutors, and a few plaintiff‘s lawyers, and criminal defense lawyers who dispute this. They

subscribe to the ―Sponsorship‖ theory of evidence presentation. They feel they should not

sponsor evidence that is damaging. By my informal poll I estimate about 15-20 percent of

lawyers subscribe to this theory, and a large percentage of these are prosecutors.]

It is true that a lawyer should not be too defensive about their case. Here is one way to
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decide whether to ―vet‖ the bad fact first on direct. Ask yourself if you believe you would feel

misled if you, as a juror, first discover this fact on cross examination. For example, how would

you feel if you were a factfinder and you did not know until cross examination that a witness had

made a deal with the prosecution in exchange for her testimony, or was convicted of a felony, or

had a bad back before the accident, or was previously convicted of passing bad checks? If you

would feel misled, then it is often best to air that issue with the witness‘s brief, narrative

explanation; rather than take an ostrich-like approach to the problem. In addition, if the

opposing lawyer flagged the bad fact in their Opening, then it is probably better to hear about the

fact when they can hear about your witness‘s explanation, then to let it go unchallenged.

Waiting for cross or redirect examination to give the explanation may seem defensive or like you

were trying to run from it.

If you have chosen to deal with a fact or issue defensively, deal with it after you have

described your affirmative evidence. Then raise the topic with a Headnote. For example, in the

Hughes case file, Q: Mr. Hughes, I need to turn for a minute to ―magnaflux‖ testing. How did

magnaflux testing get into your contract with the military?‖ Or, Q: ―I need to turn back for a

minute to your earlier time before you came to work at the business.‖ ―Mr. Hewitt, while you

were in politics did you ever get in trouble with the law?‖ Or, for the prosecution in State v.

Cortez, ―I need to jump ahead for a minute to the circumstances of your testifying here today,

Mr. Grimes. Did you testify to these same facts in an earlier proceeding? No, I did not admit my

involvement with Cortez. Why didn‘t you admit what you just told us?‖ Or, in an auto accident

where a defendant had a drink at lunch, ―I need to turn back for a minute to an earlier time before

the accident, at lunch? What did you have to drink at lunch?‖ A: ―I had 2 beers.‖ Q: ―What

else did you have for lunch?‖ And then, Q: ‗How were you feeling when you left restaurant?‖
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And Q: ―Now let me ask you about your speed. What is the speed limit on Jackson avenue?‖

Followed by, Q: ―How fast was traffic going that day?‖ Q: ―How fast were you going?‖ Q:

―Were you ticketed for speeding?‖

Get in and get out. These defensive points don‘t need exhibits or defensive details. They

need narrative responses that quickly and non-defensively deal with the matter. You need to

prepare the witness before they get on the stand to not be too defensive. Better for the witness to

say, ―I really don‘t know, but all I know is that fluorescent testing was equally good, in this

situation, and so, in this case it wasn‘t necessary to do. It would have only added delay and

expense without adding safety.‖ Or, ―I made a stupid mistake and wrote some bad checks.‖ I

paid the money back as a condition of my sentence.‖ Or ―I served time 8 years ago for armed

robbery. It was a mistake and I‘m very sorry for what I did. I served my time and I hope that

people won‘t hold it against me for the rest of my life,‖ than for the witness to say, ‗I served time

for armed robbery. It was a bum rap. I had a very poor lawyer who talked me into pleading

guilty, even though I did not do it. I was with my girl friend during the robbery, but she was mad

at me for sleeping with someone else and wouldn‘t help me with my alibi.‖

VI. End Strong.

Trial lawyers need to understand and use juxtaposition. Starting strong and ending

strong persuades the jury that the bad facts, sandwiched in between, are not that bad, in light of

all that happened. Often then plaintiffs end with damaging testimony. (Remember that the

plaintiff does not need to do it all. The plaintiff describes life before and after the accident. Their

treating physician testifies to their condition, ascribes cause, and testifies to the patient‘s

diligence in trying to get better. Family members corroborate where they can. For defendants,

they might emphasize how the accusations have affected their lives, and made them a victim, of
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sorts. Remember, the bad fact can become insignificant, in the light of the overall story. Within

any one examination, remember the rules of ―primacy and recency,‖ (that people remember best

what they hear first, and remember second best what they hear last) and end on an up-beat and

positive point.

VII. Communication Issues.

Voice Tone. Speak in a tone of voice that shows respect and deep interest in what the

witness is saying. Don‘t read your questions, or they will likely sound boring and monotone.

Gestures. Use questioning gestures to pump energy and interest into your presentation.

One questioning gesture that seems to work well is a one-handed open palm gesture while you

are asking the question, which hands, or serves up the question on platter to the witness.

Positioning. Ask if the court will allow you to move freely about the court room.

Recognize that some courts, most federal courts, are miked, and require you to stay at the

podium. Some state courts in the US, like Texas, and North Carolina, require questioners to be

seated at counsel table. If, however, you may move freely about the courtroom, take a position

over closer to the judge from the witness to force the witness to look toward the judge while

responding to your questions.

Notes. Position your notes where you can easily see them. Try to consult them only in

transitions, and only between your witness‘s finished answer and your next question. Write big

enough to be able to read them without leaning over. Position your notes to the side of you or at

an angle so that they don‘t draw your eyes down and away from the witness.

One way to keep your tone conversational and keep eyes on the witness and judge, is to

cover your written out questions with a cover sheet with a set of pointers, topic or headings.

These headings should keep you on track and key you into 90% of your questions. If you need
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to read a particular question, you know it is there and available under the cover sheet. Trust your

memory and you will be surprised to see how many of the questions you can produce word for

word. Then relax and listen. Have a conversation.

Eye Contact. Look at the witness while you are asking your beginning questions. Once

the witness gets established and comfortable, direct them with your eyes, by looking at the judge,

to tell the witness to include the judge in the conversation with the witness. Position your notes

where you can easily see them. Write big enough for you to be able to read them without leaning

over. This way your eyes can show interest for the witness, and work to include the judge in the

conversation.

VIII. Other evidence Issues in Direct Examination.

The direct examiner should be prepared to defend each and every question they ask and

subject they cover. To help you to be able to defend your questions and expected answers

review your topics, questions and answers for the following evidence issues.

What is the relevance of the background material I‘m asking about? Why is it relevant

that the occurrence witness is married and has a child with mental disabilities? If you have a

hard time answering the question, then perhaps you should leave it out.

Are any of your bad facts excludable as a matter of evidence law? If you can keep the

jury from ever hearing about a prior bad act on cross then there is no need to deal with it

defensively. Can you convince the court that it must be careful to try the defendant only on the

state‘s evidence presented in this case: that it must be careful to twice punish someone for crimes

done in the past. Afterall, the burden is on the state to prove its case beyond a reasonable doubt.

So, for example, in the US, the court doesn‘t even admit, and so doesn‘t consider prior

misconduct of the defendant, and is very careful to exclude from its consideration evidence of
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most criminal acts, if overly prejudicial. To help you see how this works you might check the

US‘s FRE 404, (forbidding using prior bad acts to prove an action in conformity therewith) and

FRE 608, (allowing character and prior bad acts in certain narrow circumstances) and FRE 608

(allowing evidence of felony convictions.) Counsel in civil law jurisdictions might make a

motion to a pretrial judge to exclude this kind of evidence from being presented to the judge

trying the case.

As to police officers on stakeouts or other investigators, do you have a reliability problem

because the witness‘s testimony is based on what someone else told them. In oral adversarial

jurisdictions, this reliability problem is called hearsay, and is based in part, on the defendant‘s

Constitutional right to confront witnesses against them in court. Reliance on out of court

testimony by witnesses of testimony by other witnesses not now present prohibits the decision

maker from learning about issues important to that witness‘s credibility. Was the witness unsure,

or sarcastic, or angry, or afraid. The factfinder can‘t judge the witness‘s credibility, and subject

it to cross examination. It is objectionable because it is ―hearsay.‖

Distinguish the above from situations where the hearsay is offered not for the truth of the

matter asserted, but to explain motive. For example, police or investigators are tempted to use

hearsay to explain why the witness was at the scene or in position to witness something.

Otherwise the court might think the police was just out to get the defendant. (The officer may

have received complaints, gotten a tip from a reliable informant, or the defendant was a

notorious crook.) How will a prosecutor ask the question to explain why the officer was there

without violating hearsay? Is the prosecutor offering it for the truth of the matter asserted, (FRE

801(c)) or to explain why he was at the scene?

Hearsay is allowed if it is offered for some other reason than to prove the truth of the
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matter asserted. That is, if its probative value is not substantially outweighed by its prejudicial

affect on the fact finder. These situations call for questioning techniques that allow the evidence

of motive in, but keep from the fact finder the prejudice. So, a leading question is in order. The

lawyer is allowed to ask a leading question to avoid unduly prejudicing the factfinder? The

prosecutor might ask that the witness limit the witnesses answer to a yes or no question, thereby

excluding evidence whose prejudice substantially outweighs its probative value. For example

the prosecutor might ask, ―As a result of being directed by your superiors, where did you go to

set up your stakeout?‖ You should take away the objection and unfair prejudice by asking,

―Were you directed to the scene as a result of information you received from authorities in your

office?‖

Will your witness offer evidence of conversations (either about what they said, or what

someone else said) that occurred out of court that will be offered for the truth of the matter

asserted? Most adversarial systems allow for some exceptions. For example, is your witness

expected to give evidence of an admission of a party (like that allowed in the US under FRE 801

(d) (2) and therefore not hearsay)? Or is it offered as an exception in the evidence law? If so

what exceptions are you relying on? In the US, consult sections of the FRE 803 and 804: FRE

803 (1) Present Sense Impression, or (2) Excited utterance, or (3) State of mind, or (4)

Statements for the Purpose of Medical Diagnosis or Treatment, or (5) Recorded Recollection, or

(6) Records of a regularly conducted (business) activity, or others, or under 804, (Declarant

unavailable, under FRE 804 (b)(1) Former Testimony, (b)(2) Dying declaration, (b)(3) Statement

against Interest, of other, or FRE 807 (the catchall, with prior notice to the other side.)

Will you ask the court to take judicial notice of any fact because the facts are so widely

considered true in a given community? For example the time it gets dark a certain time of year,
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or the weather conditions that were present at the time an event was observed. (For examples see

commentary to US FRE 201).

As to documentary evidence, have you accounted for the authentication of the

document, whether you need the original, whether it is relevant, whether it is privileged,

whether it is hearsay? Do you have stipulations or admissions in place to cover these issues?

Will you still lay a persuasive foundation for the use of the documents to help explain to the

factfinder why he or she can rely on it? This is especially true of pictures or photos that can be

photo shopped or created by tricks and manipulations.

As a result if you want to use illustrative and demonstrative exhibits, you should ask if

you need to lay a particular foundation? While there is often no specific rules dealing with

illustrative or demonstrative exhibits, the foundation for illustrative exhibits is the same as any

witness must give before being allowed to testify: does the exhibit or evidence assist the

factfinder or, instead confuse, mislead, or wastet the court‘s time. For demonstrative exhibits, the

court must think the exhibit is relevant and reliable and so the exhibit needs to fairly and

accurately depict what it purports to show.

It may become important for the lawyer to address these issues at your pretrial

conference, so that the court isn‘t frustrated with length objections which interrupt and delay the

presentation of the case. If, however, these evidentiary issues haven‘t been resolved, you must

prepare your direct examination with the evidence rules in mind. Then if you get an objection

you can respond with arguments about the reliability and relevance of the exhibits, or to why the

answer is admissible.

IX. Professional Responsibility and Ethical Considerations.

One of the most interesting matters that trial advocacy teachers and clinicians in the oral
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advocacy traditions have noticed is how many lawyers can perform direct examination skills in

simulated settings, but seem to leave those skills in the classroom when it comes to the real

thing. Why is this so often the case? One explanation is that trial lawyers are conflicted about

what they are doing, and the conflicts come from a ―disconnect‖ between who the client or

witness really is, what he or she did, and the story that the lawyer is telling through her direct

examinations.

If there has been a competent and full interview of the client the lawyer inevitably learns

of information about the client he or she just as soon the other side did not know about and at a

minimum has an effect on their personal feeling about the client. What should the lawyer do if

the client ―confesses‖ to criminal conduct, or immoral motives and conduct, or conduct that the

lawyer finds reprehensible. Where what the lawyer learns rises to a level of a conflict in interest

that affects the ability of the lawyer to render competent representation, the Model Rules of

Professional Responsibility say that the lawyer may and should refuse representation and/or

withdraw. Where the lawyer does not have a conflict, has not withdrawn, but does not ―believe‖

the client is a good person, the lawyer must act competently in his representation. The

underlying unresolved conflict may show up in disorganized and ineffective direct examinations.

Most of these matters are left to the jurisdictions ethical rules, or conventions that guide lawyers

about the out limits of their advocacy presentations.

Loyalty to the client, depending on these rules, can also have its limits. The lawyer may

not call the witness/client to the stand if the lawyer knows the client will lie. If the client or

witness lies, and the lawyer knows it, the lawyer must call a recess as soon as is reasonable,

confront the witness with the witness‘s obligation to tell the truth, and if the witness refuses to

correct his testimony, ask to withdraw. In addition the lawyer may not put on a fact witness,
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even if the client insists, where the lawyer knows the witness will lie. If the lawyer only

―reasonably believes‖ the witness is lying, the lawyer may refuse to put the witness on the stand.

If the client insists the witness testifies, the Model Rules are not clear as to who has the authority

to make this call. Is it an objective of the litigation, a matter the client controls, or a means by

which the objectives are met, a matter controlled by the lawyer, with consultation with the

client? In addition, does the foregoing suggest that if the lawyer‘s belief is based on a feeling or

intuition, and does not rise to the level of a reasonable belief that the lawyer then must call the

witness?

These issues are very important to trial lawyers and if left unresolved, will inevitably

affect the lawyer‘s performance in the presentation of evidence.

However once the decision has been made that the client and witnesses will testify, the

lawyer must exercise competency in presenting the most favorable case he or she can within the

rules. Conflicts between lawyer and client in the case cannot be worked out during the

presentation of evidence on the client‘s behalf, or the zeal with which the client is being

represented may be compromised.

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 Checklist for Direct Examination.

What will be my tickler if I’m using a high impact beginning?

What from the background of the witness is particularly important to be presented to

both make the witness credible, and to make the witness important to the resolution of a key

fact in the case?

Are there any relevance objections to any of the background information?

What is the relevance of each question I will ask on background?

How will I direct the witness to key topics and scenes?

What topics and scenes will I present?

What order should the topics and scenes be presented in?

Where credibility of the witness is at stake, do I ask Who, Where, When, What, How,

Describe, and Explain questions to get Witness talking?

Do I need to use any diagrams or exhibits to help illustrate the testimony?

What foundation needs to be laid for their use?

Will the diagram or exhibit tell the story, or corroborate a story already well told?

Is the witness relying on hearsay in the telling of their story?

Is the out of court statement they are relying on offered for a non hearsay

purpose? (To show notice) (Has independent legal significance because it is an offer or

acceptance or modification of a contract?

Is the out of court statement they are relying on from a party opponent?

Is the out of court statement a business record?

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Do I plan to deal defensively with any topics or facts?

Where will I place the defensive topic?

What heading will I use to introduce the topic in the most “matter-of-fact”

manner?

How will I get in and out most efficiently?

What topic will follow that will take me back on the offensive?

What is my big finish?

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 Preparation Chart.

Source of Fact for Refreshing

Introduction Tickler

Background Headnote for

Job,

Experience,

Family,

Other Relevant Information

Setting Scene or Topic Headnote

Rolling Action Chronology?

Highlight Points

Hearsay Issues

Topical ?

Exhibits to corroborate Admissible?

Foundation or Orientation

New Scene or Topic Headnote

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Description of Event Topics of Discussion

(Headnote for focusing

Answers)

Hearsay Issues

Exhibits to corroborate Admissible?

Foundation or Orientation

Defensive Topic(s) Headnote

Direction

Big Finish Headnote

Open Question with Topic

Direction

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 Chapter IV
Cross Examination

I. Preliminary Perspectives

Cross examination in an oral adversarial system is a time for the opposing lawyer to

challenge and confront the witnesses that testified against his or her client. Thus, with the

changes to the way that evidence is thought of in civil law countries that are reforming as oral

adversarial systems (evidence does not first exist in a file read by the judge and only confirmed

by witness, but is not admitted till a live witness lays the foundation for the evidence) the judge

or jury will not have seen witness statements before cross examination. Now is the time for the

cross examining lawyer to challenge the witness with other statements or other evidence that the

lawyer has a ―good faith basis‖ to believe is true. Using a combination of earlier statements, the

lawyers own fact investigation, and logic the lawyer challenges the witness by putting forward

the facts and exhibits that contradict or show bias or lack of consistency or foundation for what

the witness said on direct.

The court is not interested in the repeat of the direct examination, or that the lawyer

conduct a fishing expedition, hoping the witness will contradict him or herself. The court will

most likely gravitate towards allowing cross examining lawyers to ask leading questions.

Leading question will keep the witness from rehashing the direct. Leading questions will better

allow the cross examining lawyer to control the witness, to admit holes, inconsistencies, or bias

that may have affected the witnesses testimony.

A. Form of Question.

In our adversary system, cross examination is not a time to do discovery. Especially in

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civil cases, the deposition and discovery tools are for exploring theories and fishing for bad facts.

In criminal cases, the prosecution should have interviewed opposing witnesses in the course of

its investigation, and the defense should likewise have subpoenaed witness statements of

prosecution witnesses and secured reports from prosecution experts.

In the main, the cross examining lawyer has no obligation to engage in a process to

objectively search for the truth of a matter. (Though prosecutors may have more of an obligation

to search for the truth, even then, their obligation is to competently represent the state in its

prosecution of the case. They are not obligated to interrupt the state‘s case to make the defense‘s

case. ) Instead the adversary system assumes that the fact finders are better assisted in making

their decisions, if witness testimony is tested and probed for any weaknesses or inconsistencies:

so witnesses are examined for any interest, bias, or lack of perception they might have. In

addition they are challenged as to any facts that are inconsistent with their testimony, or any

contradictions, either from other physical world, or world of circumstantial evidence, or from the

world of common sense, that raise questions as to the believability of what they have to say.

The role of the cross examining lawyer is vital to the adversary system. In the criminal

context, it protects the unpopular, the poor, and the marginalized, from decision makers who

might otherwise rush to judgment. Its principles were born in the American Revolution, and the

colonists desire to throw off the bonds of British oppression. These principles are renewed in

modern times, from the experience of Jews sent to concentration camps by a society that

presumably was governed by the rule of law, by blacks in their use of courts to claim civil rights,

and by women and other minority groups seeking equal protection under the law.

These principles continue to be implemented to overturn and refine our understanding of

balancing fairness and diversity. The adversary system is vital to changing our perceptions of
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what is just and fair, whether in the lynching cases in early 1900s, the desegregation cases of the

1960‘s, the civil rights cases involving gender and sex discrimination, and in the innocence

projects of today. These principles are vital to counter act the tendency of courts to reach

decisions based on efficiency and the need to ―resolve disputes.‖ It counter acts societies‘

tendencies to make decisions too hastily, and ―paper over‖ by court decree, real people with real

problems, and disputes based on real principals.

If the time for discovery has past, then it follows that your client is not paying you to do

discovery during cross examination. Instead your client is paying you to make a series of points

about what the witness has said, or not said, from your client‘s perspective. So trial lawyers hold

to the following maxim: the cross examining lawyer should cross examine only to the extent

necessary to make his/her point for closing argument. The reason to take this limited view of

cross is that otherwise the witness will repeat and improve their story during your cross

examination and therefore make it easier for the jury to understand. The opposing witness will

be able to fill any gaps by responding to new questions in a way that makes his/her case even

better, and because the jury now has heard their facts twice, it‘s more likely they will remember

it. Where the witness is articulate and persuasive, as is often the case with the expert witness, it

is all the more important to control the witness on cross examination by using leading questions. 2

Remember, then the rules of cross examination: Rule 1. Refine the form of your

question to make it evoke as little curiosity as possible. This rule is often stated as: Always

lead the witness. Yet a further refinement is in order. As we‘ve discussed earlier in the Chapter

2
Some will recognize these points as four of Irving Younger‘s Ten Commandments of
Cross Examination, 1)Keep your Cross Examination Short, Succinct, 2) Don‘t let the Witness
Repeat Their Testimony, 3) Never ask a Witness Why, or Explain, 4) Always Use Leading
Questions on Cross Examination.

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on Direct Examination, there are three forms of questions that are available for use in court. The

first form, which shows the most curiosity from the questioner, are questions that start with Who,

What, Where, How, Why, Describe, Explain. These questions are most often used on Direct

Examination, and ask the witness to tell the jury in his/her own words what they know. Because

the witness becomes the center of attention the witness can develop rapport and establish

credibility by looking at the jury, and teaching the jury what he/she knows.

The second form of a question that examining lawyers use usually starts with a verb. For

example, Do you have an opinion whether the tire that exploded in this case was defectively

manufactured? Did you..., Was there..., Were you..., Is There..., Are you..., are examples of this

second tier type of question. This form of question is useful on direct examination as a way to

high light key facts for the jury. They are more pointed, and often can be answered with a yes or

a no. While they often ask for narrow short answers, they are not necessarily leading.

In addition, these second tier type of question, especially when asked with a neutral or

curious tone, are answered with a yes or a no, and then the witness will follow up with an

explanation. For example, in a commercial case, if a witness, a buyer of component parts for the

buyer‘s manufacturing process, is asked why he did not use a particular word in an order letter,

to make it cleared what he wanted, the witness will likely defend themselves if given any chance

to do so. Q: ―General Crystal, did you even know what magnaflux testing was for? A: Of

course I did, and I knew that both Rodrieguez and Lozano thought that fluorescent testing was

equally good for our case.‖ Or, Q: ―Mr. Buyer, did you use the word insurance in your order

letter in January? A: ―No, but I did not need to, because I had just talked to them on the phone

and told them I needed it.‖ If the examining lawyer shows the slightest curiosity or uncertainty

in their question there is a danger that a well spoken witness will take the opportunity to explain
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himself and do damage to the cross examiner‘s case.

Second-tiered questions that start with verbs are still not controlling enough. If, however,

the lawyer puts to the witness a series of short propositions that can be answered simply, with the

desired one word then control can be established. For example: Q: ―Mr. Crystal, you knew about

the problems Hughes had with Screaming EaglesAs cracking on landing? A: Yes. Q: And you

know that magnaflux testing was developed after these problems with cracking on landing were

discovered? A: Yes.‖ Or, Q: ―Mr. Malack, you own a hunting knife?‖ A: ―Yes.‖ Q: ―The blade is

about 5 inches long?‖ A: ―Yes.‖ Q: ―The color of the blade is black? A: ―Yes.‖

Or, Q: ―Ms. Williams, you and Mr. Jackson ended your relationship?‖ A: ―Yes.‖ Q: ―Mr.

Jackson demoted you back to bookkeeper?‖ A: ―Yes.‖ Q: ―Mr. Jackson hired Ms. Peterson?‖ A:

―Yes.‖ Q: ―After he hired Ms Peterson he and Ms. Peterson were spending more and more time

together?‖ A: ―Yes.‖ Q: ―You were angry with Mr. Jackson when he demoted you and hired Ms.

Peterson?‖A: ―Yes.‖

Or, Q: ―Mr. Hewitt, the e-mail you sent Bauer refers to Gonzales and Salazar?‖ A: ―Yes‖

followed soon there after with, Q: ―It contains the letters TH in the memo ?‖ A: ―Yes.‖ Q: ―And

T is the first letter in the word taco?‖ A: ―I guess.‖ Q: ― And H is the first letter in the word

head?‖ A: ―Okay.‖ Q: I‘m sorry, is that a yes? A: ―Yes.‖

Look carefully then at this third type of question. It is more in the nature of a statement

than a question. It proceeds in a Noun/Verb format. The examiner tells the witness what

happened and thereby tells the jury what happened. The lawyer bounces his question off the

forehead of the witness and into the minds of the jury.

Now, of course, there are no guarantees that a witnesses like Mr. Hewitt, or Ms.Williams,

will simply go along and not volunteer longer answers, or play cute at the end of a statement
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form of the question and ask, ... ―Is that a question?‖ (If the judge insists you ask a question you

can follow up your statement with the words ―Right,‖ or ―Correct‖ but after of couple of these

you should be able to go back to the simple statement. It should be clear to everyone in the court

room that your statement intends the witness to correct your statement if the witness can, and

therefore your statement is a question. While some judges may require a tag, either ―isn‘t that

right‖, or ―true‖, because the tag often recreates a double negative and causes confusion, ―It is

right isn‘t it that you did not use the word insurance?‖ The better technique is to eventually drop

the tag.

The judge controls the order and mode of proof and it is in their discretion whether to

require a tag line. The rules that control this issue and other form of question issues are FRE 611

and FRE 102. FRE 102 is a good one to remember when you are doing something new or

innovative. It says that the judge should interpret the rules with fairness and efficiency in mind.

In the context of cross examination, as long as the cross examining lawyer stops at the putting of

each fact, long enough for the witness to answer, and insists on an answer, the objection that

counsel is making a speech should be overruled. It allows for the lawyer to maximize the

lawyer‘s control, but not provoke repetitions of earlier testimony. Still, the trial judge may see it

differently, and if the judge sustains the objection, add the tag, (alternating between placing at

the front, middle, and back to avoid repetition of sound and undue emphasis on the tag, as

opposed to the fact you want the jury to hear. And then try dropping the tag altogether, because

the effect on many witnesses when the lawyer uses the Noun Verb format is to train the witness

to follow along with the lawyers logic, and not interrupt with long explanations.

Rule 2. There are a number of corollaries to the rule that you always use third tier Noun

Verb question statements to control the witness. The second rule then might be phrased, Keep
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your questions short. You will better control either the lay witnesses or the expert by keeping

the question short. Some recommend you try to limit the question to seven words or less -- some

aim for a five words sentence length maximum. ―You [Doctor] are not an epidemiologist? You

did not graduate from Harvard? You went to medical school. It was in Mexico? Your MD is

from Guadalupe.‖ The idea is that the shorter the question, the less time the witness has to think

and to quarrel. Also the affect you are hoping for on the jury is that they are ―baby stepped‖ into

your point, so that they discover for themselves your point, (that the doctor is not as qualified as

your doctor is). Learning theorists argue that if the jury discover the point of the cross

examination for themselves they will hold the point more firmly than if they feel they have been

ordered to hold a conclusion by the opposing lawyer.

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 Rule 3. Rule three acts as a corollary to keeping the questions/statements short, in order

to maximize control. You maintain control much better if your questions contain only facts and

not conclusions, adjectives or wiggle words. For example, compare the following two lines of

questions: Q: ―General Crystal, you know it is never right to lie.‖ A: Oh, I disagree, in matters of

national security, or when there are lives at stake, sometimes you need to make tradeoff,

especially when the fact in question is trivial.‖ Or, Q: ―Mr. Hewitt, as a partner you agree that it

is your fiduciary duty to provide all financing to GHA? A: ―I completely disagree and let me

explain....‖ (disagree that it is ―a fiduciary duty‖ and that he needed to provide ―all

financing‖....‖) And ten minutes later Hewitt will be defending his approach to his

understanding of the partnership. If you need to set up the Hewitt for his fiduciary obligations as

a partner, and for some counter punches, it is better to say: Q: ―Now, Mr. Hewitt, let‘s talk about

what was your understanding of a legal partnership, Ok? Q: You didn‘t form a corporation with

Mr. Gonzales? A: ―No.‖ Q: You were partners? A: ―Yes.‖ Q: ―Gonzales knew mining?‖ A:

‗Yes.‖ Q: ―That was his expertise.‖ A: ―Yes.‖ Q: ―He had done mining in the US before?‖ A:

―Yes.‖ Q: ―He presented you with a business plan?‖ A: ―Yes.‖ Q: ―He wrote the business

plan?‖ A: ―Yes.‖ Q: You didn‘t know mining so you didn‘t write the plan? A: ―No, I didn‘t

write the plan.‖ Q: ―But as a partner you were given an equal share in the profits? A: ―Yes.‖

Q: ―That is because you were providing the money to get started?‖A: ―Yes.‖ Q: ―Gonzales was

to be the Chief Operating Officer?‖ A: ―Yes.‖ Q: ―Now you know this meant you owed

Gonzales a duty?‖ A: ―I don‘t know what you mean?‖ Q: ―You did go to Goizetta Business

School?‖ A: ―Yes.‖ Q: ―You studied finance there?‘ A: ―Yes.‖ Q: ―You knew that you weren‘t

to compete with Mr. Gonzales?‖ A: ―Yes.‖ Q: ―That was because you owed him that much?‖ A:

―I guess.‖ Q: ―You couldn‘t steal from him?‖ A: ―No, of course not?‖ Q: ―That is because you
107
owed him loyalty?‖ A: ―Yes.‖ Q: ―It wouldn‘t be right to lie to him?‖ A: No. Q: ―Nor tell lies

about him to others?‖ A: No, that wouldn‘t be right.‖ Now, while the lawyer is sorely tempted at

this point to say, ―So explain, did you tell lies about him to Bauer?‖ (or worse, Why did you tell

lies about him to Bauer) to be more conservative and improve your chances that your point is not

lost in a witness‘ lengthy explanation of what happened, you should simply conclude that the

initials TH appear in his memo to Bauer. Then stop.

Again, it is better to baby step the jury into reaching the conclusion you want them to

reach then to lose control and allow for a lengthy explanation. Keep your questions short, one

fact per question, and try to save the conclusion for the jury during closing.

What you are trying for is to take all the excuses away from the witness for talking

beyond simply agreeing with the point you are making. If you have crafted these types of

questions; short, factual, and with a non-verb format, then when the witness adds an answer

beyond the simple yes or no, you can follow up with a number of other control techniques that

will demonstrate that the witness is not playing fair.

Are there any exceptions? Of course! For very experienced lawyers, who have

determined that this witness will not be able to explain themselves, or is so intimidated that they

will either go along or confess, or that the lawyer will be able to counter punch so effectively that

the lawyer will win in the case of disagreement, or where that they win any way that witness

answers, then it maybe worth the risk to open up the witness to a answer. They may feel that

hearing the damaging admission coming from the witness is more persuasive, than hearing the

admission from the lawyer followed by a yes.

Still, consider whether opening up the witness to give an answer that hurts you, is worth

the psychological advantage of hearing an expected answer from the witnesses own mouth.
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Remember, you can put emphasis on the facts you want the jury to focus on through dramatic

techniques you control: through voice tone, eye contact, and body position in the asking of the

question. You can walk closer to the witness, hand them a exhibit of a certification for the

Screaming Eagles, hand them a pen, stop, pause, and say, ―Circle for me where you tell the

government you used fluorescent testing instead of the magnaflux, because it was just as good?‖

Or, in Hewitt case file, hand Hewitt, the defendant, Exhibit 11, hand him a pen, stop, pause, lock

on the witness and say, ―Circle for me where you tell Bauer that Gonzales has been your partner

for 5 years and has never given you any pause about whether he was untrustworthy?‖[pause]

[When they look up say] ―You didn‘t say that did you.‖ A: ―No.‖ Q: ―Q: You left that out?‖ A:

―Yes.‖ Q: ―Thank you.‖

The word emphasis will help the jury hear what you want them to hear, and you don‘t

have to risk giving up control. Then you can pick up on your point on closing and argue it to the

jury, at a time when witness cannot think of counter facts to explain away your point.

II. Control Techniques for the “Run-On” Witness.

1. Repeat the Question.

Despite the best laid plans, where a witness adds to an answer to a tightly constructed,

one fact per question, short question, then one way to get the witness back in control is to simply

repeat your exact same question. The affect in the court room is really quite amazing. The affect

of the simple repeat is to point out to the jury that the witness really is not playing fair in that the

question did not call for a further explanation. For example, if the cross examiner asks, ―Mr.

Rodriguez, you knew on October 15, YR-3 that Hughes, your employer had filed a certification

that it had done Magnaflux testing when it had not done the testing?

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 ―You have to understand, it was no longer my responsibility to handle the certification.

Q: That was not my question, let me repeat my question: ―Mr. Rodriguez, you knew on

October 15, YR-3 that Hughes, your employer had filed a certification that it had done

Magnaflux testing when it had not done the testing?

A: That‘s right.

Q: You never told anyone in the US military that you thought the certification was false?

A: It wouldn‘t have done any good.

Q: Again, let me repeat: You never told anyone in the US military that you thought the

certification was false?

A: That‘s right.

Or, In State v. Malack, consider the following example:

Q: Megan Lee, when you first talked to the police you made no mention of a goatee?

―Well, I‘ll never forget it, I could see it when he bent over in front of me and threatened

to come back later and finish what he had started.‖

The cross examiner then simply says,

―Ms. Lee, I understand that is your position now, but you never told the police he had a

goatee when they spoke to you right after the assault?‖

Now if witness runs again, you can start to take the gloves off some more, and show the

jury the witness is not responding the fairness imbedded in the adversary system.

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 2. Use a Reverse Repeat.

―Excuse me, Mr. Rodriguez, or you now telling this jury you did tell the US military about your

view of the certification in October of YR-3?‖ Or, ―Ms. Lee, are you saying you did tell the

police that night about a goatee?‖ Or, ―Ms. Williams, are you saying you told the police your

concerns before the fire?‖ ―Are you saying you told the police about your suspicions before the

fire?‖

The reverse repeat sometime surprises the witness into answering shortly and sweetly.

Note that interrupting the witness, if not done nicely and politely can send an unintended signal

that you are afraid of what the witness has to say, or of the full truth. Even though it is hard, you

are probably better off to wait until the witness finishes answering before doing the reverse

repeat. Be ready, though, to follow up pretty quickly with, Q: ―You knew the US military would

have been very interested in your view of the certification process? A: Yes. Q: According to

you, the certification put lives in danger‖ A: ―That‘s right.‖

Or, in Malack ―You knew the police would turn around to try to find the person who

attacked you.‖ A: ―Yes.‖ Q: ―They asked you for details to help them find him?‖ A: ―Yes.‖

Or, Q: ―You knew that burning down a building was crime?‖ A: ―Yes‖ Q: ―You certainly

would want to prevent a crime if you had information that would keep it from happening?‖ A:

―That‘s right,‖

Or, ―Excuse me, Mr. Gonzales, Are you saying you did tell Mr. Hewitt about the R&D

project?‖ Be ready, though, to follow up pretty quickly with, Q: ―You knew he was wondering

where the profits were going from the lower wages for Mexican workers.‖ A: ―Yes‖ Q: ―In fact,

you admit that that was what you had told Bauer, to help get the full SBG line of credit?‖ A:

―That‘s right.‖ Q: ―But you never told Hewitt about your secret project?‖
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 3. Cross examine the witness with your eyes.

Another technique to gain and maintain control is to look the witness in the eye before

starting your examination. There are a number of benefits from locking into eye contact before

and during your question. First, you focus the attention of the courtroom on the witness and

impliedly say, ―I dare you to look me in the eye and lie.‖ Second, if you take a position center

stage and the witness must look you in the eye, then the witness can not look to the jury and will

likely soon forget that they are trying to persuade the jury as they are focused instead on the

direction of the attack. Third, examining by ―drilling the witness with eye contact‖, will give

you more clues if the witness is not going along with the question. If the witness starts to shake

his head, or looks at their lawyer, or starts to flip through their report, then you are about to lose

them. Better to rephrase the question so that the witness will go along with your point, rather

than plowing ahead and then facing the possible ruinous answer.

One tip that some lawyers give to young lawyers to help you deal with intensity of

looking a witness dead in the eye and challenging their integrity, is to tell the examiner to not

look exactly in their eyes, but look slightly above the witness‘ eyes, to their forehead, or

eyebrows. Looking just above the eyes may give you the look of control and intensity, but give

you a safer, less intense place to look while you think about what you are saying and pick just the

right words for your question.

4. Other Control Techniques.

If the witness still insists on volunteering, then you might further take on the witness.

One device is to raise your hand at the start of the question, and take a few steps toward the

witness, and preface your question by saying, Now, Sir, stay with me on this. Will you do

that? And then proceed right to your next question.

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 Or you might try to play, ―Let’s make a deal.‖ ―Ms. Witness, I‘ll make a deal with you,

first you answer my question, and then you can say what ever you want in addition.‖ Of course,

if the witness launches after answering, be careful of the ―Deer in the Headlights‖ look. Don‘t

position yourself in a way that forces you to look at her while she is answering. Depending on

the witness and whether you believe the jury has already figured out that she has lost her

objectivity and does not deserve your respect, then 1) you might go back to your notes and flip

through them, or 2) look at your watch and show some impatience, or even, in the most extreme

cases, 3) turn your back on the witness look at the clock, wheeling around when their finished

and saying; ―Are you done? Okay, now let‘s get back to the facts.‖

Still other control techniques include prefacing your question with a statement that

describes the purpose of cross examination. For example you might say,

Cross Examiner: ―Now, Mam, you understand your lawyer has already had a chance to ask

you all the questions he thought you needed to answer on direct, so if you would just listen to my

question and answer it. ... ―

Or: Q: ―When I‘m done your lawyer can go back and ask you again to repeat anything he

thinks needs repeating, you understand that. Now if you would please answer my question?‖

5. Don’t Go to the Judge Too Early, If at All.

Most trial lawyers say they never ask the judge for help. If they do they may not get it.

Or they are afraid it shows that they have lost control of the witness. Or they are afraid of

looking whiney, or like a cry baby, ... ―Judge, make her answer my question.‖ If, however, you

have been patient, there may be no need to make the request because the judge will jump in and

tell the witness to please just answer the question which has been asked.

6. Even if it is in your personality, watch out for sarcasm.

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Sarcasm can be appealing, especially to fellow lawyers. Two of my favorites are, (From a San

Francisco prosecutor, crossing a defendant) ―Are you saying that if you are not telling the truth,

…May lightning strike me dead, Is that what your saying?‖... Answer, ―That‘s Right.‖

Prosecutor, (pausing and backing up), ―Well then let me back up a few steps and get out the

way.‖

Or,

Prosecutor: Ms. Witness, would you agree with me that sometimes the truth is simple?

Witness: Sometimes.

Prosecutor: ―Well I believe that my question calls for the simple truth, and calls for a simple

yes or no answer. You made a deal with the prosecutor to avoid going to prison

and after the deal you say Jackson hired Avery for arson?‖

Still, because it is subtle, the jury might not follow the point, especially where the witness is

credible and sincere. Sarcasm in the first example is also hard to pull off, if the jury isn‘t up to

catching your tone or the inflection signals. As a general rule save the sarcasm for non jury trial

situations.

III. Putting it All Together.

The art of cross examination consists of taking the techniques discussed above and

constructing an examination which has a clear purpose or theme, so that the jury will ―get‖ the

points you are making with the witness and understand how they should think and feel about the

witness, even before the closing. In other words, the lawyer wants to control the witness by not

allowing the witness to retell her story, not becoming argumentative and asking Athe one

question too many‖ and keeping the witness friendly enough so that the witness will admit those

facts that they must admit, and yet make sure that the jury gets the opposing perspective.
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 The cross examiner should organize the cross to see if all the above goals can be attained.

The next important step in planning any cross, is stop focusing just on technique, but to look at

your case theory and ask which points you can make with any particular witness. Next you need

to edit down the number of points you could make till you have identified the points that you

must make, in order to make your closing argument in the case. Because jurors hate repetition,

and hate you spending time on trivial matters, or personal attacks that serve no purpose, an often

stated rule is that you should cross examine only to the extent necessary to make your closing

argument. (Irving Young, a famous New York state court judge, and trial lawyer, who

originated the famous ―10 Commandments of Cross Examination.,‖ says you should never have

more than three points on cross, two better than three, and one, best of all. Note, this does not

mean you simply ask three or fewer questions. It means that you may ask a number of questions,

until you establish a point with a witness, but limit the number of points you make to a

minimum.)

Yet even when you have edited the number of points down to only those you need, you

still need to organize the most persuasive way to make your points. For example, in the cross

examination of Lozano, consider that you could make the following points on cross.

1) Much of what Lozano has to say supports Hughes‘ immateriality

theory.

(2) Cheating on his exam.

(3) Lozano‘s responsibility to certify the Screaming Eagle.

(4) Magnaflux testing done state‘s side before cabin‘s sent to Mexico.

(5) Fluorescent testing on welds was sufficient.

(6) If cracks found under either testing, welding was the cure.

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 (7) Later checked other Screaming Eagles and tested for subsurface
cracks using magnaflux, no subsurface cracks found.

Or, for example in the cross of Officer Novak, State v. Malack, you have a number of

possible points to make for the defense.

(1) The witness has no first hand knowledge of any of the

actual events.

(2) Inability to find Sanjay Malack.

(3) If drug paraphernalia admitted, no evidence of who used it

or if or when. One bedroom apartment.

(4) No drugs found, and no arrest, or charge of Malack.

(5) Failure to follow up on finding Sanjay.

(6) Failure of Lee to give any information regarding a goatee.

(7) Vagueness of race identification.

Or, take for example the cross of Arthur Grimes in State v. Cortez. Your first step is to
brainstorm each point you could possibly make.

(1) Grimes caught at the scene and charged with the murder and the
robbery.

(2) The plea of guilty to the robbery.

(3) Awaiting sentencing for the robbery.

(4) Dismissal with leave of the murder charge.

(5) Maximum sentences for robbery (1-10 years) and

maximum sentence for murder (life imprisonment.)

(6) Prior Criminal Record.

(7) Witness doesn‘t want to spend a long time in jail and has
been out on bond since plea.

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 (8) Showing that Grimes‘ first statement to police is
inconsistent with trial testimony and was under oath.

(9) Showing the circumstances of viewing Cortez—police

already had someone.

(10) Plea Negotiations. (Made a deal. Maybe first question.)

(11) Grimes‘ second statement (made after all of the above contacts
with police.)

(12) Demonstration by Grimes of how handed the gun by Cortez—

showing the time the thumb was on the barrel of the gun pointing
toward the trigger.

Now the question becomes, how do I arrange the cross for maximum control and

maximum persuasive affect. Do you arrange your points according to their primacy and recency:

(start with your strongest point first, because it is likely the jury will remember it best, and end

with your second best point, because the jury will likely remember what you ended with second

best.) Or do you arrange your points for maximum control, starting with your points that are

safe, and constructive, and build to your points of contention? Here, you might decide that to

pick a fight early will cause you to lose control and make it more difficult to make the

constructive points: that Lozano confirms much of Hughes‘ immateriality theory. And so you

might leave off the cheating on his exam point all together, even though it might be admissible.

Or that Officer Novak confirms how dark it was in park, or as busy as the police are how

hard it is, to always follow up on potential witnesses. Or you might arrange your points

chronologically, on the theory that jurors learn best if they follow a narrative; in Hewitt cross for

example: the idea for the golf course, the expense involved, the need for money, if Gonzales paid

the penalty he wouldn‘t need to divest of any other investments, the conversations with Bauer,

and now in business with Bauer.

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 Or, take for example the problem of dealing with Gonzales, who you may feel is at fault

for not being more communicative with Hewitt. Again, your first job is to brainstorm all the

possible points you might make, but then arrange the cross in a way that doesn‘t play into the

―race card,‖ i.e., that Gonzales was made to pay the penalty because he was Mexican.

Whatever your choice, it is important that you develop a plan about how you should

arrange your points on cross. This way you can construct a cross that not only maximizes your

control over the witness, but also maximizes the chance that the jury remembers your points, as

they deliberate about how to decide the case.

Checklist for Cross Examination?

One way to help you prepare to conduct a cross examination is to go through a checklist

of following questions:

What points CAN I make with this witness on cross examination?

What points SHOULD I make with this witness?

How does each point relate to my legal theory, factual theory, and or theme?

Do I have to make this point with this witness, or can I make it through a direct

examination of a witness that I will be able to prepare?

Have I already made this point with other witnesses, and if I make it again, will it

annoy the jury?

As to each point, what facts support that point?

How will I control the witness or make the witness admit the fact if they disagree with

it?

What does the witness admit regarding that fact in the witness’s deposition or

sworn statement?
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 Have I precisely referenced the deposition or sworn statement so I can find

it if they disagree?

Have I characterized what they said, or does my question exactly track the

words they used in the deposition

What does the witness say about that fact in documents they prepared or signed?

Have I precisely referenced the document so I can find it if they disagree?

Have I characterized what they said, or does my question exactly track the

words they used in the document?

What does the witness admit about that fact in documents they admit having read

at a relevant time?

Have I precisely referenced the document so I can find it if they disagree?

Have I characterized what they said, or does my question exactly track the

words they used in the document?

Do I have pre-admitted documents that the court will let me show the witness that

will provide evidence for the fact I will asset?

Have I precisely referenced the pre-admitted document so I can find it if

they disagree?

Have I characterized what they said, or does my question exactly track the

words they used in the pre-admitted document?

If I don’t have a deposition, sworn statement, or document, how will I control the

witness?

Will I use physical evidence?

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 If I will be using a demonstration, have I practiced it till it is fail safe?

Will I use circumstantial evidence?

Will I use common sense and logic?

If I will use common sense or logic, have I prepared the precise

question I will ask, and prepared a response to every answer the witness can possibly give?

Have I ordered the facts I will use in a way that logically leads to the point I‘m making?

Have I taken out the adjectives and adverbs, or wiggle words to insure against arguments

with the witness?

Have I saved the conclusion for closing?

Have I asked any ―one questions to many‖ that will provoke the witness to fight?

Tip: Have I started any questions with ―So‖?

What headline can I lead with on the point I am making to signal to the jury what is

coming?

Have I organized my points in the most persuasive order?

Will I organize by primacy and recency, constructive to destructive, or by chronology?

Have I prepared for the Evidence issues the Direct Examination may raise?

Does the deposition of the witness contain form objections, I need to renew, or

hearsay, or rely on otherwise inadmissible evidence? One way to help you prepare for cross is

to fill out the following table, and then take with you to the podium the depositions, sworn

statements, and exhibits you need to control the witness on cross. You might prepare a trial note

book that include a sheet a table for each cross and copies of the depositions and exhibits that

relate to each cross. An example of table is on the next page.

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Officer Moss in State v. Cortez Cross Examination.

Order of Point Headline for Points Facts Supporting Each Source of Each Fact

Point for Control

Grimes Deal is too (1)Grimes caught at the Moss Police Report

Sweet. scene and charged with
the murder and the
robbery.

(2) The plea of

guilty to the robbery.

(3) Awaiting
sentencing for the
robbery.

(4) Dismissal with

leave of the murder
charge.

(5) Maximum
sentences for robbery
(1-10 years) and
maximum sentence for
murder (life
imprisonment.)

(6) Prior Criminal

Record.

(7) Witness doesn‘t

want to spend a long
time in jail and has
been out on bond since
plea.

(8) Showing that

Grimes‘ first statement
to police is inconsistent
with trial testimony and
was under oath.

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 (9) Showing the
circumstances of
viewing Cortez—police
already had someone.

(10) Plea
negotiations. (Made a
deal. Maybe first
question.)

(11) Grimes‘ second

statement (made after
all of the above contacts
with police.)

Topic Two- Suggestive ID

Topic Three Trying to Get Cortez?

Evidence Issues Form Obj. on Direct Hearsay Other Obj.

Adrienne Bauer Cross Examination.

Order of Point Headline for Points Facts Supporting Each Source of Each Fact

Point for Control

Bauer‘s Bias Towards Knew from High Bauer Depo and

Hewitt School Documents
Prominent Family
Father Senator
Solicited Banking
Relationship
Status Being His
Banker
Flattered by Golf Opp
Timing of Golf Opp
Money Needed for Opp
Now in Business with
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 Hewitt

Settlement for $250K

shows wrongdoing?

Evidence Issues Form Obj. on Direct Hearsay Other Obj.

A Practice Problem. What follows is a problem adapted from a NITA problem book, that

helps illustrate how you might construct a cross examination in an automobile accident case. It

is a simple problem but provides practice in planning and organizing a cross. If you work

through it before you do the assigned problem it will help you see the organization choices you

need to make in workshop problems.

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 Smith v. Barney

(Part 1 Hernandez)

On July 17, YR-3 the Plaintiff, Henry Scott, and the Defendant, Susan Barney, were
involved in a car accident at the intersection of 17 th Avenue and Pine Street in Nita City. The
accident occurred at 3:50 p.m.
The Plaintiff claims that as he was traveling north on 17 th Avenue in his Toyota he made
a right-hand turn onto Pine Street and was rear-ended by an east bound Chevrolet driven by the
Defendant. The Plaintiff claims that the light changed to green for the 17 th Street traffic just as
he turned. The Defendant claims that she entered the intersection on a greeen light and that the
Plaintiff turned right on red directly into the path of her car.
Within minutes of the accident Officer James White of the Nita City Police Department
arrived on the scence and conducted an investigation. Officer White determined that in addition
to the two parties there were two other witnesses to the accident: Rodrigo Hernandez, a
passenger in Scott‘s car; and Maria Harvey, a pedestrian. After separating the parties and the
witnesses, Officer White took statements from all four people. Smith and Barney gave
statements consistent with respective positions in the law suit. Rodrigo Hernandez gave the
following statement.
STATEMENT OF
Rodrigo Hernandez
My name is Rodrigo Hernandez. I am 34 years old and live at 1205 Hemlock Court in
Nita City. I am employed, together with Mr. Scott, as a warehouseman at the Flinders aluminum
Company in Nita City where we work the 4:00 p.m. to midnight shift. I was a passenger in Mr.
Scott‘s car at the time of the accident that just happened at about 3:50 p.m. We were on our way
to work at the time of the accident. I have known Mr. Smith for five years and in addition to
working with him we are social friends. He is my regular ride to work.
Just before the accident we were traveling north on 17 th Avenue and intended to turn right
on Pine Street. Flinders is located on River Road, just off Pine, about two miles from 17 th. As
we approached Pine Street on 17 th, the light was red for the 17 th Street traffic. As we got to the
intersection Mr. Smith slowed down. I looked at my watch to check the time and we started to
turn onto Pine Street. Just after we entered the turn we were hit from behind by the Chevrolet. I
can‘t tell how fast the Chevrolet was going but we were hit pretty hard. Fortunately, I had on my
seat belt. Since I wasn‘t looking at eh traffic light as we made the turn I can‘t be sure if the light
had changed to green for us. That‘s all I know about the accident.

James White Rodrigo Hernandez

Witness: Officer James White Rodrigo Hernandez
Date:July 17, YR-3

The case is now at trial, and Rodrigo Hernandez was called as a witness for the Plaintiff. On
Direct examination he testified, in part, as follows:

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Plaintiff‘s Lawyer: What happened as you go to the intersection of 17 th and Pine?
Hernandez: As we approached the intersection traveling north on 17 th, the light
was red for the 17th Avenue traffic and Mr. Smith slowed down. The
light then changed to green for our lane of traffic and we started into the
intersection. It was right then that the Chevy rear-ended us. I saw the
Chevy out of the corner of my eye just before it hit. I‘d estimate that the
Chevy was going about 40 mph. Pine Street has a 30 mph speed limit.

At his deposition in December of YR-1, Mr. Hernandez testified consistent with his trial
testimony but added his opinion that he Awas sure that the light had changed to green and the
Mr. Smith was not turning right on red because he did not come to a full stop before turning.‖
Defendant‘s lawyer also learned during Hernandez‘s deposition that Hernandez met with
Plaintiff‘s lawyer shortly after the accident and had discussed the accident wit her. That meeting
took place in October of YR-3. During the discussion with the Plaintiff‘s lawyer, Hernandez
gave the same version of the accident to with he testified at trial. Several months later in
February, YR-2, Hernandez was involved in a work-related accident and hired Plaintiff‘s lawyer
to represent him in his workers compensation claim. The litigation is ongoing.
End of Problem
__________________________________________________________________________

Even where the cross examiner is only making a few points he faces a number of

organizational choices. In the Hernandez cross these points can be summarized as, Smith was in

a hurry because he was late for work, Hernandez is Scott‘s friend and Smith is his ride to work,

so Hernandez would want to help Smith out, that Hernandez‘s earlier statement to the police says

he 1) Awasn‘t paying much attention,‖ 2) Acan‘t be sure if the light had turned to green for us,‖

and 3) A can‘t tell how fast the Chevrolet was going... .‖ The first option for the cross examiner

is to organize his cross on the principles of primacy and recency. Or he can go from friendly to

hostile. Or he can examine by attempting to tell a story about the witness. Let‘s take a look at

the advantages and disadvantages of each.

1. Primacy and Recency.

Learning theorist suggest that people remember best what they hear first, and second best

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what they hear last. Under this theory then, because the jury will be starting fresh when the cross

examiner starts his cross, the first point should be your strongest point. Of course, this raise the

question of which one of the above points is strongest. Many lawyers would feel that the

impeachment is the strongest point. The cross examiner of Hernandez does have the luxury of

knowing that Hernandez will be tempted to make an inconsistent statement on direct. And even

where the lawyer does not have notice that an impeaching moment is coming, the cross examiner

may chose to start strong by starting on the attack. Others may argue that the strongest point is

that Hernandez tells us that they were late for work. After all, Hernandez was even checking his

watch as they made the turn. Some would feel that starting with showing that Smith was in a

hurry, would be stronger, sandwich in friendship, do the impeachment, and then if the

impeachment does not give you the feel of the big finish, you can always end with the worker‘s

compensation/lawyer bias.

2. Start Friendly.

Where a lawyer is of two minds, on the primacy and recency theory, he might also find

guidance in the friendly to cross organizing principle. The theory here is that you may need the

witness to corroborate key facts that help your case. Where you need the witness, it is better to

start friendly and gently, in that you can Acatch more flies with honey than with a stick.‖

Starting friendly about how Hernandez and Smith were on their way to work, that as they

approached the intersection the light was green, that it was 3:50 p.m., that work started at 4:00,

that they still had two miles to travel, that they then needed to park the car, go into the building,

punch the clock, ... that as they approached the intersection, Hernandez had checked his watch.

Starting with this point may more easily establish that they were in a hurry, than if the cross

examiner starts out by calling Hernandez a liar.

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3. The “Tell Me a Story” Cross.

A third approach that bears careful attention can be thought of a the Atell me a story‖

cross. The lawyer asks himself, what am I going to say about Hernandez on closing. Because

jurors often learn the best if they can place a witness in a story, then the lawyer might say in

closing:

And now let‘s talk about Mr. Hernandez, and consider what he has to say. Well, we know

he and Smith ride to work together each day, that they are friends, and that they even socialize out

side of work. We know that July 17 was not a day like all others. We know that they were late

for work because it was 3:50, work started at 4:00, the speed limit on Pine was 30 mph, that they

still had two miles to go, that they then had to find a place to park, get out of the car, make their

way in and punch the clock before 4:00, that Mr. Smith checked his watch as they approached the

intersection.

We also know that the light was red for them as they approached and that Smith slowed

down. Now immediately after the accident, while the memory was still fresh, Hernandez made a

statement to the Officer White. Now what did he know? He knew that White was trying to find

out who was at fault, that his friend could be ticketed based on what he said. He also knew that

he had to be accurate, because he was asked to read over his statement and sign it. And what did

he say? Before he had a chance to talk with Scott‘s lawyer? He said, that he could not be sure

whether the light had turned to green, that he could not tell how fast the car was going. [And, if

done on cross, the cross examiner could end with Hernandez‘s relationship with Scott‘s and now

his own lawyer, or end with the point that Hernandez is still sharing rides with Scott, to this day,

that he depends on Smith for his ride to work.]

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 The point is that the organization of the closing ―story‖ can be helpful in organizing the

cross examination. It tells you where to start, and where to end, and tells where to do ―flash

backs‖ or ―flash forwards‖ in order to best organize the story you want to tell. Note a couple of

the advantages this last method suggests. It also starts friendly and therefore the witness may help

you out by more readily corroborating your ―they-were-in-a-hurry‖ point. It also does not depend

on your ability to call Hernandez a liar. For example, Hernandez might very well answer your

first question:

Q: Are you telling this jury today, over two and a half years after the accident that you saw the

light turn to green, before you made the turn.

A: ―No, I‘m not saying I saw it. I‘m saying that I know Scott, from riding with him for all these

years and he always comes to a complete stop on a red. That is why I know it turned green,

because otherwise he always stops. He is a very careful driver.‖

If you have started with their being in a hurry and Hernandez has already admitted as much, then

you are better set up to argue, that the jury should not rely on Hernandez‘s statement of Scott‘s

habit, because this day was not like all the others.

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 Chapter V
Impeachment
The subject of impeachment goes hand in hand with cross examination. Broadly speaking,

impeachment is the ―what‖ or ―subject matter‖ of cross examination. Your cross examination

lays out for the fact finder the reasons why what a witness had to say on direct examination

should not be believed. It reveals the witnesses interest, motive, bias, or prejudice that detracts

from the veracity of what the witness said. In addition, the cross examiner impeaches the witness

based on the inability of that witness to observe, perceive, and or know what they claimed to

know on direct. Impeachment also encompasses the subjects of: (i) the use of prior bad acts, (ii)

bad reputation or bad character, or (iii) prior criminal conduct, to attack the credibility of the

parties or witnesses.

All is not fair game on cross examination. The normative nature of the lawyer‘s trial skills

comes from ethics. The trial lawyer is prohibited as a matter of professional ethics from stating

facts in his/her questions if he/she does not have a good faith belief that they are true. For

example, a trial lawyer cannot say: ―When did you stop beating your wife?‖ without a good faith

belief that the witness beat his wife and a good faith belief that under the law such a fact is legally

relevant. What constitutes a good faith belief is not always that easy to say. What if the trial

lawyer thinks the fact ―might‖ be true based on other things the witness has said or done? What if

a lawyer‘s client tells the trial lawyer the client has heard rumors that a bad fact exists that relates

to the witnesses credibility? Each situation must be taken in the circumstances in which the bad

fact comes to the attention of the trial lawyer. Is the source of the information credible, is it too

convenient, is the bad fact marginally relevant but has significant prejudice. All these things must

129
be taken into account to determine whether the trial lawyer has a good faith belief that the bad fact

is true. Ethical and professional rules that exist in most adversarial systems depend on lawyer

integrity to protect its search for the truth. Most of these ethical systems prohibit lawyers from

taking a position merely to harass, annoy, or delay a matter before the court.

Trust your gut, and if the bad fact feels ―slimy‖ or a ―cheap shot,‖ leave it unasked. And

if you are at all unsure, do not spring it on the court. In common law adversarial systems, you

risk being lectured to by the judge and may be reported to the bar. In addition the lawyer is

prohibited as a matter of evidence law from asking about facts if those facts are irrelevant or

immaterial. These evidence rules are crucial tools to help insure that your client gets a fair trial.

(Evidence rules are to the trial lawyer like the rules of golf are to a golfer. It is no excuse for the

participants not to know the rules. The rules can determine, in many cases, who wins and who

loses.) In the US the evidence law for federal court comes in the form of a code, the Federal

Rules of Evidence (FRE). Logical and legal irrelevance is dictated by FREs 401-415, as well as

rules 607-609. While logical relevance —FRE 401—is very broad, and ―means evidence having

any tendency to make the existence of any fact that is of consequence to the determination of the

act in question more probable or less probable than it would be without the evidence. ..,‖ the court

has broad discretion under FRE 403 to exclude evidence if its probative value is substantially

outweighed by the danger of unfair prejudice, or if the evidence is confusing, misleading, or

wastes time.

FRE 404 works with FRE 608-609 and places limits on the use of character evidence or

prior bad acts of a witness or victim to prove up conduct in conformity with that character or prior

bad acts. Exceptions are made for criminal acts or other wrongs if they are proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

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When choosing what you will use to attack a witnesses credibility, you must carefully consider

the parameters of 404(a) and (b), and how it works with FRE 607, (you may attack the credibility

of a witness that you called to the stand) 608, (you may use character evidence of truthfulness if

the truthfulness of the witness has been attacked, and use specific instances of untruthfulness, if

the witness has opened the door by speaking about a party‘s character for truthfulness,) and 609,

allowing attacks on the credibility of a witness, subject to 403(b) by proof of felonies or crimes

involving dishonesty that occurred within 10 years. The court can go beyond the 10 year limit if

it decides the probative value of the conduct or conviction outweighs prejudice and the offering

side has given notice that it will seek to use convictions outside the 10 year period.

These rules apply in federal court, even where the court is trying the case without a jury.

The logic of the rules is that what is at issue in these rules is a balancing act. The court does not

want to become side tracked by marginally relevant evidence, especially if sorting it out will

create a trial with in a trial about the existence of this marginally relevant fact. So, where

character is not in issue, (as it is in, for example, defamation cases, where the issue is always

whether the plaintiff‘s character or reputation has been harmed by the defendant‘s statement) the

court does not want to hear about prior behavior and past conduct that has little if any relevance

as to what happened in this case between these parties. If the witness is not a party, it is even less

relevant to what happened between the parties, if that witness has done something bad before. Of

course if that something bad is relevant to the witness‘s credibility, bad acts relating to truth and

veracity, then the prior bad acts may be come relevant. In addition, if the party is denying they

were motivated to harm another, then it was a mistake what happened, or are innocent of the

charges, prior instances of where they may have harmed others in similar situation can show

motive, lack of intent, a common scheme or plan. For example for the news, if Michael Jackson
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on five different other occasions sexually molested other young boys, in similar situations to the

one before the court, then these prior bad acts are relevant to show that he had a motive, it was not

a mistake, and that he had a common scheme and plan to molest the victim. The trial lawyers

help the judge from being distracted by making objections to the admissibility of irrelevant or

unduly prejudicial evidence.

Thus, a trial lawyer in an adversarial system needs to be familiar with the other distracters

for the case before the court. For example in the US the rules found in the FRE 400 section also

raise bases to object to the admissibility of evidence: FRE 406 Habit and Routine, FRE 407

Subsequent Remedial Measures, FRE 408 Compromise and Offers to Compromise, FRE 409

Payment of Medical Expenses Is Inadmissible to Prove Liability, FRE 410, re admissibility of

Pleas, and Plea Discussions, FRE 411, re Inadmissibility of Liability Insurance, (except allowed

to prove agency, ownership, or control, or bias or prejudice of a witness, and FREs 412-416

regarding special relevance rules that are applicable to sexual crimes and child molestation cases.

Note also that Hearsay in the form of a Learned Treatise can be used to attack the credibility of an

expert witness. It will be interesting and vital, then for the Mexican trial lawyer to know what

will develop as evidence law that will provide the bases for lawyer objections to the admissibility

of evidence.

As we have already described in Chapter III on Cross Examination, the techniques for

making your attack on the witness involve controlling the witness through short, one fact, no

wiggle words, leading questions. These same techniques are important to the last area of

impeachment that this chapter will discuss. It is a type of impeachment that may be the hardest to

pull off, but if done right, the most dramatic and perhaps the tipping point moment in a closely

contested trial. It is impeachment by inconsistent statement or omission.

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 The technique for conducting this type of impeachment by inconsistent statement at trial is

instructive not only to trial work, but any public setting where you want to ―prove‖ to an audience

that this witness‘s credibility is questionable. Consider the many situations in which you as a

lawyer may need to question someone and impeach them with an inconsistent statement. It might

be in a political debate, or in a board meeting, or at a school board meeting, or on an academic

panel. Whenever someone is proposing a position that is inconsistent with what they have said

before, one can question their motives or credibility. So for example, if a Republican Senator is

calling for the end of the use of filibusters to block judicial nominations, but advocated the use of

filibusters as a hallmark of liberty and an important check on the majority, when in the minority,

―impeachment‖ by inconsistent statement is an important tool of advocacy. It can be used to label

a person as being slick, or as a ―flip flopper‖

Still, the first time it happens to you in court, (or in a meeting, or legislative hearing, or

arbitration) it may shake you to your core. ―YOU SAID WHAT?‖ ―YOU ARE LYING!‖ ―YOU

CHANGED YOUR STORY!‖ ―THAT IS NOT WHAT YOU SAID BEFORE!‖ ―WAIT, YOU

ARE ADDING TO YOUR TESTIMONY!‖ But after it happens to you, ever after you will

prepare a technique or system of questioning a witness who changes or improves his or her

testimony. In fact, in debates, hearings and courtrooms, you should prepare for this eventuality

right from the beginning.

So, how do you prove to an audience that a speaker, debater, or witness has changed their

story and the audience jury and court should call their credibility into question?

I. Preliminary Considerations.

B: A. Examine the Nature of the Inconsistency.

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 In the heat of battle it is hard not to hear every inconsistent statement as a big deal. But

check yourself. How does the change in story affect your theory of the case and your persuasive

argument? Does it help or hurt? If the witness says they don‘t know something that they knew

before, does the new version help your case? Or if the witness gets a date wrong, does it affect a

material argument in the case? Witnesses are nervous. Are you going to look too strident and

unreasonable by making a big deal out of a little thing? Or what if they say it differently then

they said it before, will they be able to explain it away? For example, now the witness says he

was upset, and then he said he was angry. Do you want to spend much time clearing that

difference up by Aimpeaching‖ him? If the difference is minor you might choose to leave it

alone.

In addition, if the differences are minor, they may be ―collateral‖ and, if collateral, you

may not be able to offer ―extrinsic‖ evidence of the inconsistent statement. In other words, if the

matter is collateral, the court will not tolerate a separate trial on that matter by admitting the

written proof, or other witnesses testimony of the out of court statement of the witness. In these

cases the cross examiner is stuck with the witnesses answer as to whether they did or did not

make the statement. See FRE 613.

There is a major exception to not impeaching on minor differences. If there are many

minor inconsistencies, they may add up to a significant point, that the witness may not remember

the event at all. We will talk more about the exception later in the chapter.

In the context of a trial there are other preliminary considerations that relate to the law of

evidence.

B. Is the witness a party, or an agent of a party?

Again, much of oral adversarial procedures depend on how or if the particular hearing
134
officer, or arbitrator, will restrict themselves by evidence rules designed to keep them carefully

focused on relevant, material, and unbiased evidence. Different rules may apply depending on the

status of the witness. If the witness is a party or party agent, most adversarial systems do not treat

these as hearsay, or unreliable. Party admission that are inconsistent out of court statement may

be admissible as substantive evidence, or for the truth of what they assert. In the discretion of the

court, if adverse to the witness‘s position in the case, an inconsistent statement may be read

directly to the factfinder as a party admission. In some jurisdictions, (California) it need not

even be put to the witness in the form of a question.

A trial lawyer may prefer putting the facts about the earlier out of court statement to the

witness in the form of a series of questions. That way the factfinder can consider the

circumstances of the out of court statement and the contextual reliability of that statement –closer

in time to the events described , under circumstance where the need for accuracy and

completeness was present—in deciding which statement to believe.

If the witness is not a party or party agent, then the evidentiary rules get a little tricky in

most common law adversarial systems. For example, FRE 801 (d) (2) provides that the use of the

inconsistent statement as substantive evidence will depend on the circumstances under which the

out of court statement was made. If it was made as prior sworn testimony, (including deposition

testimony) where there was an opportunity of cross examination, then the testimony is not

hearsay, and presumably can be used as substantive evidence.

In all other kinds of out of court statements, (the vast majority of times impeachment by

inconsistent statement arises) statements in letters, oral statements, reports, etc. these statements

are not hearsay if they are not used for a hearsay purpose (a purpose to prove the truth of what is

asserted). In other words non-party non-sworn-to out-of-court statements that are inconsistent
135
with the witness‘s trial testimony are not admissible for the truth, but only to attack the credibility

of the witness. This evidentiary distinction makes for subtle differences in the techniques used to

handle the inconsistent statement, (see examples described below.) For these reasons it is

important, as a preliminary matter, to examine whether the inconsistent statement is of a fact

witness or a party.

C. Is the Statement Inconsistent at all?

In addition, the statement needs to be inconsistent. While inconsistency is broadly

interpreted, (Saying, ―I don‘t remember‖ is likely inconsistent with earlier knowledge of a fact) it

does have to be inconsistent to keep the use of the statement of a non party witness, or statements

of a party witness that are not adverse, from being hearsay. Silence or omissions can also be

inconsistent statements. Note that most oral adversarial law courts provide that silence post arrest

and pre Miranda (if the witness is given notice of his rights to remain silent and to a lawyer) is

inadmissible as an inconsistent statement. However, inconsistent statements made pre or even

post Miranda, or even in violation of Miranda warnings are admissible, if the witness takes the

stand and testifies inconsistently with those statements. So check, when in an international

setting, does the jurisdiction give the defendant a right to a lawyer, and or a right to remain silent?

And when do such rights attach, so that a defendant‘s silence might be construed as an adoptive

admission, and used against the defendant?

D. Who made the out-of-court statement?

Finally, is the inconsistent statement a statement made by the testifying witness? The

court usually does not allow the use of an inconsistent statement by a third party to impeach the

credibility of the testifying witness. (There are some exceptions to this rule where there are pre-

admissibility rulings in place where the court has already ruled as to the admissibility of that
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statement on some other basis. Where this is the case, then under FRE 611, the issue is whether,

at discretion of the court, the jury is assisted in determining the credibility of that witness by also

hearing, or having read, or being shown the inconsistent statement by the other witness.

E. Are You Calling the Witness a Liar or Simply Mistaken.

Calling someone a liar is powerful and highly dramatic, but also very risky if it does not

work. Calling someone mistaken is still powerful, and does not take on the burden of proving

someone‘s mind set. Before calling someone a liar, ask yourself, at closing, what are you going

to say about the witness. Do you need to call them a liar about this, or simply mistaken. While

there is little choice with a roll over witness like Arthur Grimes, with other witnesses there is

usually a better option. But what about a witness like General Crystal? Is he lying about having

talked with Calderon‘s attache‘?

In an example regarding an officer in a company who misstates a significant point of

proof, you may want to go for lying. After all if he is lying about this one thing, you can more

easily argue that it is in his character to lie. If he is lying here where it is convenient, he may be

lying about almost anything else. On the other hand, might you leave this for the jury to

conclude, rather than having a fight with the officer about a less vital matter? You might just

need him mistaken on a key element of proof. Different lawyers may disagree about when to call

someone a liar.

F. Do You Want to Argue about the Truthfulness of the Out-of-Court Statement?

What, exactly, would you like to argue about the out-of-court statement? Will you claim

it is true, or simply an example of the witness‘s character? For example, in a murder case for the

defense, if the eye witness on the stand says now that he knows your client did the shooting, and

earlier, before he made a deal, said he knew nothing about it, you may think that he did the
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shooting himself. So these cases are called ―roll over‖ cases, where the witness who is the real

bad guy ―rolls over‖ on the defendant to save his own skin. Note that your impeachment does not

claim the out of court statement is true, but that the witness lies whenever it is convenient.

G. Find the Earlier Inconsistent Statement.

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 During the witness‘s testimony, you or your trial staff, should locate the source of

the inconsistent statement and read it carefully. Is it a deposition, in a statement or

affidavit, a statement from another hearing, or proceeding? Is the statement in a

document the witness signed, (in circumstances where they should have read it over

before they signed it) in a document sent to them, (in a circumstance they would have

protest the statement if it were false,) in a business record they created, or in testimony of

another witness who claims the testifying witness told him or her something different.

Each of these different sources of the inconsistent statement will raise slightly different

techniques. There are a number of common fundamentals, however, whenever you are

impeaching by inconsistent statement. These fundamentals are as follows:

II. Impeaching By Inconsistent Statement or Omission: The Three C’s.

The three common fundamentals to any impeachment by inconsistent statement or

omission are Commit, Credit, and Confront. Let‘s take each in turn.

A. Commit.

Commit the witness to the witness‘s in court testimony. The reasons for doing so

are three fold. First you don‘t want the witness to quarrel with you later that what he

testified to is not what he said at trial. If so you have to interrupt your questioning and

get a ―read back‖ from the court reporter, the factfinder can lose track of your point.

Second, what you are about to do ―looks like‖ and sounds like hearsay, unreliable

because the court did not get to observe the manner the witness spoke and it context,

when it was first said. By locking the witness into an earlier statement, you let the court

know that you are setting up an inconsistent statement impeachment, something that will

refer to an out of court statement, but is not hearsay, because you are offering it under
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FRE 801 D (1) or (2). Three, though you do not need to do this as a matter of evidence

law, to some it seems fair to commit the witness with their statement to give the witness a

chance to change it—―Oh, if I said that I miss spoke,‖ before you call them a liar. In any

event, it signals to the jury that you want them to focus on a particular part of the

witness‘s testimony and challenge the witness about it.

How then do you set up the commitment? There are two main ways, (with a

number of slight variations.) The first we will call the traditional approach, the second a

more aggressive and Amodern approach.‖

The traditional approach commits the witness to their earlier in court statement

by asking the witness to repeat it: ―Did you just claim here today, in front of the jury, that

you told Calderon‘s attache‘ you didn‘t do magnaflux testing?‖ Or, ―Did you just say that

you did not have any ill will towards Mr. Gonzales around August 15?‖ Or, ―Did you

just say that you picked out the defendant, Mr. Malack in the first photo array?, ―Did you

say to this court, over two years after your purported conversation with Ms. Bauer, that

you now remember Ms. Bauer telling you that she had found out that Salazar was a drug

dealer?

Notice a couple of features about these questions. The questions do not say, Did

you just testify.... . The word, testify, is too neutral, and does not tell the jury that you

disagree with what has been said. When you repeat testimony in a neutral way, through

voice tone and inflection, and word choice, the court will hear that the witness really

believes what the witness said, and sticks with it. The court needs to instead focus on

your disagreement, rather than that the witness is confirming his or her earlier testimony.

Use chunking, word emphasis, and fighting words, or words of disbelief to make

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your meaning clear.

“Did you say to (or claim, or tell) this court, that the night of the incident you told

the police the man who assaulted you had a goatee?

or

“Did you say to (or claim, or tell) this court, over two years after the purported

conversation with Ms. Bauer, that you now remember Ms. Bauer telling you

that Salazar, was a drug dealer?”

The more modern approach takes the witness on more directly. Born out of a

profound discomfort with violating one of Judge Irving Younger‘s Ten Commandments,

to not let the witness repeat his or her in court direct testimony, many lawyers will

commit the witness through a reverse repeat of their testimony, saying the testimony the

way they want the court to hear it.

―General Crystal, you never told the attache‘ anything about Magnaflux.‖ Or ―Mr.

Hewitt, Ms. Bauer never told you anything bad about Salazar?‖ Or,―Ms. Lee, you did

not tell the police anything about a goatee until after they twice showed you the picture of

a person they suspected had assaulted you, who had a goatee,‖ or ―Mr. Gonzales, Your

wife never told Mr. Hewitt about the silver processing you say you created?‖ Again,

notice a number of features to this phrasing of the commitment. It is much more

argumentative. It borrows from the British approach that requires the barrister to ―put it

to the witness‖ if they are going to argue later that they were mistaken or lying.‖ Putting

it to the witness is done this way. ―I put it to you that you are lying, [Or Mistaken] when

you say that Mr. Hewitt promised he would take care of all financial matters, no matter

what the sort.‖ The point of the question is the mistake or lie. American laws of

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evidence don‘t require that the phrase, I put it too you, accompany this commitment, so in

US courts the reverse repeat comes out even stronger. ―You are mistaken... You are

lying, …Mr. Hewitt never said such a thing about being your open check book.‖ Or in a

case of misidentification: ―Mr. Wilson, the man you saw that night was wearing a blue

shirt, not a white shirt?‖ By reversing the repeat of the witness‘s testimony you point is

stronger because it tells the story the way you want it told.

III. Credit.

The next step is to credit, (or more precisely, to ―accredit‖ the out of court

statement, but it does not make a ―C,‖ so you can better remember the second step as

credit.) Look at the out of court source and examine it to determine what makes it more

likely to be true and correct. (Of course you do not emphasize the truthfulness of the

inconsistent statement if you are not claiming it is true) Where you are claiming the prior

inconsistent statement is true, it is better to plan out in your mind what facts make the

earlier statements true. Is it closer in time, under serious circumstances, where the

witness needed to be careful, did he read it, sign it, and know that he needed to be

accurate and complete? Had the witness received training in making reports? Was there

a court reporter present?

1. Accrediting in the Context of a deposition in a civil case:

L: Mr Big, you came to my office about 6 months ago?

E; Yes.

L: With your lawyer?

E; Yes.

L: You were under oath?

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 E; Yes.

L: Same oath you took here today?

E; Yes.

L: You told the truth?

E: Yes. I tried.

L: You didn‘t try to mislead?

E: No I didn‘t

L: You had a chance to read it over

E: Yes.

L: You signed it?

L: I have in my hand a copy of Mr. Big‘s Deposition that I would like marked by

the court reporter, (or has been pre-marked as Exhibit 5-B.)

May I approach? Showing you a document entitled Deposition of Mr. Big, at the

end here is your signature?

E: Yes it is.

L: Let me read for you a portion of you deposition

Counsel page 22, lines 10-15,

2. Crediting a Statement to a Police Officer, or Other Investigator.

L: You gave a statement to a police officer the day of the incident?

W: I did.

L: The crime had just happened

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W: Yes

L: The events were clearly in your mind?

W: Yes.

L; The police officer asked you some questions?

W: Yes

L: And he took down what you said?

W: It looked like it?

L: Well you read it over?

W: Yes?

L: And you signed it?

W: Yes.

Optional more lengthy accrediting...

L: You knew the officer was trying to find out what you saw?

W: Yes.

L: You were trying to be accurate?

W: Yes.

L: And complete?

W: Yes.

L: You knew that officer might make an arrest based on what you said?

W: Yes.

L: And you didn‘t want the wrong person arrested or charged?

W: No, I did not want that.

L: Would the court reporter please mark this Document as Exhibit 16? Showing

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it to opposing counsel, (give opposing counsel a copy) Your honor, May I approach?

J: Yes

L: Showing you a document that has been marked as Exhibit 16, for the record, a

document entitled Statement of Mr. Wilson, … You recognize your signature?

W: Yes.

L: You made some changes to the document?

W: Yes

L: You changed your street address?

W: Yes, it was wrong.

L: Exactly, you read it and changed it to be accurate?

W: Yes.

L: And you changed your occupation?

W: Yes.

L: You made no other changes?

W: No I didn‘t.

Think about how you credit earlier testimony in an earlier criminal case that

resulted in a dismissal for another reason, say, a procedural defect. Here you have to be

careful not to describe the earlier proceeding so the court learns of the earlier verdict.

What is important is for the jury to understand the witness was in court, before a judge,

under oath, and the hearing was close in time to the events that were testified to.

Please note that the shorter the questions the more control you will get. Try not to

let memory get involved, because it creates room for the witness to think and explain.

Use, ―A court reporter was there,... He was taking everything you said down?‖ Do not

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say, ―Do you remember that a court reporter was there? ... Do you remember whether he

was taking down everything?‖ When you ask about memory you usually get a long

explanation of how they were feeling, or how traumatic and unfair you were during the

deposition, or a guess or vague answer, (―I think so.‖ ―I don‘t know,‖ or ―Could be.‖.)

Better for control purposes to keep memory out, unless you have a specific reason for

doing so. Before a judge, who understands a deposition, the crediting can be shortened

greatly. You were deposed, your lawyer was there, you were under oath will probably do

it in most cases.

IV. Confront.

The confrontation of the witness with his out of court statement must be carefully

thought out and very tightly constructed. It is particularly important to keep memory out

of the confrontation or you will get a long explanation or attempt to reconcile the two

statements. Too often the cross examining lawyer thinks there is no way for the witness

to explain, but people are often distracted, their memory jogged by other events or

circumstances, and you don‘t want those explanations coming out at this point in the trial.

The confrontation should be as follows:

1. Depositions:

[Where you have made a copy of that portion of the deposition and given

him a copy of it to read along, or displayed a copy of it (as an illustrative aid, no need to

offer into evidence, and can‘t be offered into evidence because it is extrinsic evidence of

the prior inconsistent statement) so that witness and court can read along ]

L: Mr. Lewis, let me read from your deposition, and you tell me whether I

read it correctly, Line __, Q: What did Mr. Hewitt say when you asked
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 him about the Mexican business? A: He said he was looking for a buyer

for a Mexican Mine and wondered if he had any legal obligation to his

partner. Q: Did Hewitt say anything else about other promises he may

have made A: No., ....

L: I read that correctly?

W: Yes.

C: Statements to Police Officers and Investigators:

[Where you have made a copy of the statement and given him a copy of it

to read along, or displayed a copy of it (as an illustrative aid, again can‘t be offered into

evidence, unless pre-admitted, because it is extrinsic evidence of the prior inconsistent

statement) so that witness and court can read along ]

L: Mr. Wilson, let me read from your statement, and you tell me

whether I read it correctly, 2d paragraph, third sentence, The man was

short, about 5‘4‖ and was wearing a blue tee shirt.... I read that correctly?

W: Yes, that is what it says.

Statements from a prior trial.

L: Ms. Lee, let me have you read over your answers to the police‘s

questions about your initial identification to the police of your attacker. It

says nothing about a goatee? It is not there..

V. Optional Fourth C: Contrast

Before leaving the 3 C‘s, some experienced trial lawyers would argue to add a

fourth C regarding how to get the most contrast between what the witness says now

versus what the witness said under oath or in an earlier important time. Notice that so far
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the jury is hearing the testimony, and getting the information only through their ears. The

longer the accreditation takes, the tougher it is the jury to hold in their minds the point of

contrast with what the witness said earlier. There are a number of ways to deal with this.

1. Repeat the commitment just before the confrontation.

After the accreditation and before the confrontation say:

Deposition:

―Now let me remember, you are now saying Mr. Hewitt told you all about his

relationship with Gonzales right?...

[Then read the last two questions and answers.]

Statement to an Investigator:

―Mr. Wilson you hold to your story that the man you saw was wearing a white

shirt?

[Then read the last two sentences, with emphasis on blue shirt.]

2. Reverse the order: Go with accreditation before Commitment.

Where you need to impeach on a number of points, from the same source, (with

medical records, or with a deposition,) by the doing the accreditation up-front before the

commitment, you can move directly from commitment to confrontation.

3. Use an illustrative exhibit.

Record on a flip chart or black board as you get answers the information under the

headings

Shirt Color

Claim today, 2 years After Day of incident

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White Blue

Look at the following chart for another example. How might headings improve it?

The Deal
What she was looking at: What she got:

• ARSON • CONSPIRACY
– 10 to 25 years – 3 years probation

– Up to $10,000 fine – No jail time

• CONSPIRACY – No fine

– Up to 10 years – Immunity

– Fine of $5,000

– Or both

The headings can make your case and argue what it means. Pick them with care.

They can‘t be argumentative but they should let the jury in on your point.

4. Impeachment by Omission.

One problem where the impeachment is by omission is in the confrontation

section. If you read what is there, you may repeat a significant portion of damaging

testimony against your case, in order for the jury to hear what is not there. Is there a way

to impeach by omission with out repeating the damaging testimony? You might try one

of the following during the confrontation:

Q: General Crystal, read over to your self the paragraphs following my question
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about what you talked about with Rios.... your answer on lines 5-17, page 9 of your

depositon... and when you have done so will you please look up....,

Q: No where in that paragraph do you say anything about >>>>>?

A: No, I guess not.

Or, to be more dramatic:

Q: General Crystal, take my pen and circle for me where you say you told him

anything about the Magnaflux testing?

[Let him flip and look... then at some point say]

Q: It is not there is it?

A: No, its not there.

You also need not display the impeaching statement in these situations because

you don‘t want the court to read for themselves other damaging statements. Unless you

have very good reasons don‘t show the the court the statement when you‘re doing an

impeachment by omission. You are not trying to mislead the court, but to focus its

attention on the key inconsistency that challenges the credibility of the witness testimony.

Practice Point: Deposition Practice and Impeachment by Omission.

The best deposition takers understand the trial use of the deposition for

impeachment purposes. They start right from the beginning of the deposition to take

away the excuses they hear from trial witnesses to explain away inconsistencies. You

can always tell a trial lawyer by the way they start the deposition.

Q: Mr. Witness you have just taken an oath?

A: Yes.

Q: You understand that oath is the same oath that you take at trial?
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 A: Yes.

Q: If you do not hear a question I ask, will you let me know?

A: Yes.

Q: If you need to take a break, will you let me know?

A: Yes

Q Now we may need to finish a particular line of questions before taking break,

but please let me know if you need one so we can take one very soon there after, will you

do that?

A: Yes.

Q: If you do not understand a question I ask will you let me know that, too?

A: Yes.

Q: If during the deposition you remember something that adds to or corrects what

you have already said, will you let me know that?

A: Yes.

Q: Is there any reason as you sit hear today that you cannot give me full and

complete answers to the questions I ask?

A: No, nothing I can think of.

This litany at the front of the deposition arms the trial lawyer to impeach the

witness if that witness at trial gives any of the typical excuses. I must not have heard

your question, or understood it, or I was not feeling well, will be met by the trial lawyer

with a read back of the beginning question where the witness was invited and promised to

tell the lawyer if any of those issues were on the witness‘s mind.

In addition, trial lawyers know that they can get better drama and more control

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out of a clean impeachment where the fact they want to emphasize stands on its own. A

trial lawyer during a deposition will periodically sum up what the witness has said with

short leading questions. Q: That was all you told Rios? Q: You never said anything more

about the nature of the risks he would be taking in getting delivery of the Screaming

Eagles on time?

In addition, and most importantly, the trial lawyer deposer will ask the deponent if

that is all the witness remembers on a given important subject. The deposer ―exhausts‖

the witness‘s memory of a subject, or ―bookends‖ it with what the witness remembers,

and what the witness does not remember. If the deponent remembers something else and

adds to the witness‘s testimony, continue to follow up until he or she says that is all he or

she remembers. Without specifically following up, it is fair for the witness in court to

look up and say, ―you didn‘t ask me that at the deposition,‖ and the impact of

impeachment is significantly neutralized.

Practice Point: Getting Witness Statements and Impeachment by

Omission.

If you instruct an investigator in getting witness statements have them end their

statements with the following sentences, placed right above the signature line and date

line.

That is all I know about this incident. The foregoing is true and correct of what I know

about this incident.

__________________________________

____________________________

Signature Date
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153
The Rule of Completeness: FRE 106

It is important to see if you are a proponent of the witness that the court might be

misled by an inconsistency if an impeaching statement is taken out of context. So, in the

U.S. the evidence code provides a way for the lawyer to make sure the court is given the

complete statement. FRE 106 provides: when a writing or recorded statement or part

thereof is introduced by a party, an adverse party may require the introduction at that

time of any other part or any other writing or recorded statement which ought in fairness

to be considered contemporaneously with it.

In the context of impeachment by inconsistent statement or omission, if the

opposing party can find some place else in the deposition where additional explanation or

clarification occurs consistent with their version of the facts, that part will be read to the

jury immediately. FRE 106 applies to other letters, documents, or evidence that may not

be contained in the very deposition or letter or document that you are impeaching from.

The directing lawyer should look for such a statement during the impeachment to

rehabilitate the witness immediately.

Prior Consistent Statements.

As Yogi Berra says, ―It‘s not over till it‘s over.‖ Before doing an impeachment,

remember that in doing the impeachment you may be opening the door to an earlier

consistent statement. If a witness overstates his own character, or volunteers testimony

that is contradicted by contrary facts or evidence, it is only fair for the court to hear those

contrary facts. FRE 801 d (1) (B) provides: Statements which are not hearsay if....

consistent with the declarant‘s testimony and is offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive...

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 In other words if the declarant has told someone earlier the they did offer her a

ride in the car, or that the shirt was white, before the time that the declarant experienced

an improper influence or motive, then the consistent statement may be used. Note the

fabrication need be recent, meaning that the law suit itself doesn‘t trigger admissibility of

all prior consistent statements. Otherwise witnesses should and would go around telling

many others their stories in order to bolster their testimony. AI not only told my friends

the shirt was white, but I told my pastor.‖ If bolstering were allowed court would be

faced with endless hearsay. No, prior consistent statements are only allowed to rebut a

charge of recent fabrication.

Organizational Choices Where You have an Impeachment.

Order of Cross Organized According to Type of Impeachment

Constructive to Destructive Primacy to Recency Primacy to Recency Alt.

Perception Bias Impeachment

Memory Perception Perception

Impeachment Interest Memory

Interest Memory Interest

Bias Impeachment Bias

VI. Video Impeachment.

1. Impeachment by inconsistent statement, or even by inconsistent and flippant

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attitude, can be greatly assisted by video depositions. In civil cases, the federal rules

provide that video depositions can be taken of witnesses simply by giving notice to

the other side that you will be videotaping. Once the deposition is taped there are a

number of ways that you can access the incriminating portion of the deposition to

show in court.

a. You can plan for it by loading onto power point key portions of the

witness‘s deposition in case the witness varies from their deposition

testimony in those key respects. You can load the slide with just the text

of the impeaching statement, and prepare it to reveal line by line to high

light the inconsistency.

b. You can plan for it by loading the video and having the segment ready to

play.

c. You can prepare a slide with both the transcript and the video so that the

jury can read along as well as hear the inconsistent statement

d. You can use Trial Director or Summation software and bar codes for easy

video and transcript access.

Note that whether you are reading from a transcript, or displaying the transcript

through an evidence camera, or showing the video, or simultaneously showing the

video and transcript to illustrate the impeachment, you are not offering the deposition,

or transcript of the video into evidence. (Remember that most often you are not

offering the inconsistent statement into evidence because it is not offered for the truth,

but solely to impeach the credibility of the witness.) Three things follow from your

publishing of the deposition testimony for this limited purpose: 1) you do not need to

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lay a separate foundation that the video or transcript as read or displayed is fair and

accurate, 2) the video or otherwise displayed transcript is an illustrative aid in helping

the jury see, hear and learn about the inconsistency, and 3) because the impeachment

is so powerful you will likely only be able to do it one way, (in other words, you can

not first read it, then show it through the document camera or Powerpoint, and then

also show the video.) You will likely have to choose one.

Having said that it is an illustrative aid and not offered into evidence, does not

mean you should rush its presentation or fail to inform the jury about what they are

about to see. So you should take the time in your accreditation to prepare the jury for

what is coming.

Q: At the deposition there was a court reporter present?

A: Yes

Q: In addition there was a videographer there video taping what you said at the

deposition?

A: Yes.

Q: Let‘s see what you said on this point at your deposition. Mr. Johnson, (the

computer operator) could you show us what Mr. Big said at his deposition, starting on

page 30, lines 15-32?

Show the video.

Q: That is what you said at your deposition?

A: Yes

2. Strength of Video Impeachment

a. Drama of seeing a person say it differently. The drama of seeing a person

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 say something different from what they have just sworn to in court can be

very powerful. Catching the CEO of a major corporation saying something

else out of court can make the court feel the disrespect the witness has toward

the truth, the process of adjudication, and to the court, to think that the witness

would feel he could lie to the court and get away with it.

b. In addition, the video better catches the attitude of the witness, his cavalier

attitude, or arrogance, or the game playing the witness and or opposing lawyer

and party engaged in. Just ask Bill Gates in U.S. v. Microsoft whether he

should have chosen a different attitude for his deposition, if he knew that

Judge Jackson was going to see it in court.

c. It disciplines the opposing counsel and keeps down the game playing and

obfuscation that too often otherwise accompanies depositions.

d. You can stop and start it.

3. Weaknesses of Video Impeachment

a. Prepared slide use subject to Rule of Completeness Objections.

b. Some times the inconsistency is hard to hear, or hard to make out, because

it is buried in a long answer. Again, you can fix this problem by breaking

out separate questions and answers for important facts. Sometimes,

however, in the deposition, the fact was not important or controversial,

until the witness made it so based on his in court testimony. Where this

happens, it is important for the trial lawyer to set up the court to hear the

inconsistency in the testimony.

So the lawyer should say in trial cross examining Salazar:

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Q: Now the deposition with me last year was August 17, YR-1, I believe?

A: Yes.

Q: You know I was trying to find out what reasons the Bank might have had

for not extending Gonzales his line of credit to purchase bank the mine from

Hewitt?

A: Yes.

Q: You claim that if the bank had a clear understanding of your net worth

they should have let you at least co-sign to get Gonzales the line of credit he

needed?

A: I guess?

Q You are claiming today that you provided the bank with audited financial

statements of your net worth?

A: Yes?

Q: As I said, this is not the first time we have spoken about your meeting with

the bank

A: No?

Q: It was at your deposition?

A: Yes.

Q: You were under oath?

A: Yes.

Q: And a videographer was there, too?

A: Yes.

Q: Taping your testimony?

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 A: Yes.

Q: And an interpreter was there, as there is now?

A: Yes.

Q: Let‘s see what you said at the deposition about whether you said you

provided the bank with audited financial information? Mr Johnson, will you

please play what Mr. Salazar said (as interpreted) at his deposition, Counsel,

page 39, lines 27- page 40, line 5.

That way the jury knows what is coming and what to listen for.

4. Sometimes choose the old fashioned Impeachment

a. Better to control the inconsistency, with a piece of paper in hand,

and physically closer to the witness.

b. Sometimes you will get better contrast by your reading back the

witnesses out of court statement using the your word emphasis

than what comes across when you hear the witness say it. This is

especially true if the consistency is buried in a long answer, filled

with other damaging information.

c. Some trial lawyers feel they can use better ―adlibs‖ in and around

the inconsistent statement if they are reading and controlling both

pace and tone of the examination the old fashion way.

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 Chapter VI
Tactics for Handling Exhibits
Exhibits that help the factfinder ―see‖ the facts as opposed to being told about

them by others are powerful evidence. When they help demonstrate the path the bullets

took, show the match between finger prints, show the viewers of the exhibits a new angle

or perspective, they can dramatically affect how the evidence is put together and what it

means. They corroborate the lawyers perspectives on the evidence helping the decision-

maker choose between competing presentations.

One way to establish your credibility in making a presentation on behalf of a

client is being organized and prepared. There is no better way to show your preparation

and organization than by the way you handle your documents. An approach that simply

tries to put in mounds of documents will communicate that you do not know your case

well enough to point out the most important documents for the decision-maker to

consider. On the other hand, using too few documents violates the principal that detail

and unimpeachable documentary evidence is often key to persuasion. The issue for the

advocate is how to give the decision-maker enough to persuade and establish credibility,

without giving him too much, or boring him with presentations that force the decision-

maker to sort the wheat from the chaff. The presentation of exhibits and the

documentation key to your case is especially important in an international arbitration

since tribunals traditionally give significantly more weight to the documentary evidence

than to testimonial evidence. However, testimonial evidence still plays a key role, but it

is important for those lawyers used to aggressive examination of witnesses to avoid

needless theatrics for fear of coming across as rude and offensive, especially to those

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when the setting is before an audience unfamiliar with the adversarial system of proof.

One way to sort out whether a document should take up the decision-maker‘s

time is with reference to your case theory. Those documents that support the key factual

points of your case, and those that provide evidence for your side‘s view of those facts,

need to be highlighted and featured in your presentation. All other documents—those for

rebuttal, or corroboration of uncontroverted facts, or documents establishing background

or context facts, should be kept to a minimum. In fact, a good rule of thumb is that you

should not take up the decision-maker‘s time with more than a dozen documents in any

case. Of course there is not absolute magic to the number 12. But experienced lawyers

have found it is about right, in light of the decision-maker‘s need for direction and focus

in order to handle its work load. If you cannot tell your story in 3 days, and with 12

documents, you are not sufficiently prepared or focused for the hearing.

Once you have selected and ordered your presentation and decided which

exhibits are necessary to a concise persuasive presentation, you must learn to handle the

documents with confidence, alacrity, and flair.

Part I. Dancing with Documents.

One important way to establish control of the hearing is to move with

confidence and efficiency. This first section provides a set of steps and moves that you

can commit to memory and use whenever you handle a document.

The first step is to let the decision-maker in on what you are about to do.

Assuming that the documents have been pre-marked, there is no need to separately get

each document marked at the time of presentation. Your memory trigger for handling a

document can start with, Your honor (or Mr./Mrs. ____ if the decision-maker is not a

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judge), I have in my hand a document that has been pre-marked for identification as

Exhibit 13. The decision-maker then can look at his list of documents and learn what is

coming. If, however, your setting or jurisdiction, as is the case in a board room or to the

media, or in many international hearings, does not pre-mark exhibits, then your memory

trigger will start with, ―Members of the board,‖ or, ―Panel Members,‖ or ―Your honor, I

would ask that this document be marked for identification as Exhibit # 1.

After getting the document pre-marked, make the Athree-step exhibit circuit‖

when presenting an item of evidence at the hearing. When you are ready to present an

exhibit to the witness, open your folder of copies of that exhibit and take three copies in

hand. Ask the decision-maker for permission to approach the witness (if you have not

presented documents to this witness before, and if you are allowed to leave the lectern).

First, on your way to the witness, place one copy on opposing counsel‘s table, saying,

―Counsel‖ audibly, so that it is apparent to all that you have given her a copy. Second,

say, ―Your honor, would you like a copy?‖ Third, hand the witness a copy, saying, ―Mr.

Hobart, I‘m handing you Exhibit 13 for identification.‖ (Of course, if the decision-maker

and opposing counsel have been provided prior to the hearing with a ―hearing bundle,‖

then you can simply refer counsel and court to the bundle at the appropriate page.) The

first step prevents opposing counsel from interrupting your examination about the exhibit

by asking for time to find his copy or by insisting that he needs to compare his copy with

the one the witness is using. The second step makes certain that the decision-maker is

following the examination with her copy of the document; if the decision-maker has her

copy, she‘ll say, ―Thank you.‖ That‘s nice. If the decision-maker does not have her

copy, she will take one from you, and say, ―Thank you.‖ That‘s nice, too. The third step

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makes it clear in any record that the witness has a copy of this particular exhibit in front

of him, without the need for any artificial statements, such as, ―Your honor, I would like

the record to reflect that I am handing the witness . . . .‖

Next, you should have the witness lay the foundation for the exhibit before

asking questions about its contents and substance. It is necessary to draw the decision-

maker‘s attention to the foundation of admissibility of the document, in order to enhance

the decision-maker‘s understanding of the relevance and credibility of the document. By

laying a foundation of the relevance and admissibility of a document before discussing

the contents of the document, there will be fewer problems with objections and the

possibility that the decision-maker will exclude the document for relevancy, privilege, or

other reasons. While laying the foundation of a document in your hearing might not be

strictly required as, for example, it is in American courts, the use of this technique is

useful as it immediately points out the document‘s relevancy to the decision-maker and

leads to a smoother, uninterrupted examination of a witness.

You should keep in mind that, if possible or practical, copies of a complicated

exhibit should be distributed to the decision-maker (if they do not already have a copy)

after the testimony about it. If the testimony about an exhibit will take a few minutes, as

when there are several portions of the exhibit to discuss, hold the decision-maker‘s copies

until the testimony is completed so that they will watch the overhead or blow-up and hear

the testimony. If they receive their copies too early, they will busy themselves with

reviewing them and miss portions of the testimony. If the exhibit is relatively

straightforward, and the testimony is short, you could distribute the copies before the

testimony.

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 The next important decision for presenting exhibits involves considering the

advantages and disadvantages of three different display options: the evidence camera -to-

screen option, the computer-to-screen option, or the computer or video recorder-to-a-box

or monitor. The evidence camera-to-screen option is the most versatile display option

and easiest to operate. It requires only that you know how to turn on the camera‘s power,

place the exhibit (document, picture, or object) under the lens, push the focus button, and

move the exhibit to show what you want to show. The camera will then show a picture

of the exhibit on a display screen. It also has a zoom button to allow you to focus the

decision-maker to important details. This option is a great back up if any of the other

options goes wrong. As long as you have made a backup copy of your slides or exhibits

you simply put them under the evidence camera and turn on the machine.

A second option is the computer-to-display-screen option. Many venues

today have projection systems that will project images from computer programs onto a

large screen. Power Point, Corel Presentations, and other trial evidence software can

access slides or files containing exhibits, pictures and videos, with a sweep of a bar code,

or the push of a button, and, if hooked up properly to a compatible projector, project the

exhibit for all in the room to see. Of course you want to see if the details of the exhibit,

simulation, and the size of the lettering, can be seen by all those necessary. This requires

some knowledge of the lighting of the room and the projection capabilities of the

projector. Regarding size of lettering, some use the following formula to determine

whether an audience will be able to read the screen. D x 0.05 ‗ H. D‘ distance in feet to

farthest person in the room. H‘ height in inches of letters or symbol on your screen,

board or flip chart.

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 A third option is the computer/video-to-monitor. Again, depending on the

number of and size of monitors in the room, the Abox‖ method may be the best. If the

monitors each have good sound systems, and sound is important, the monitor may be the

best option. In addition, the box does give the display the look and feel of a TV news

cast, which may enhance the credibility of the showing. If the decision-maker and/or

witness also have monitors, it allows them to preview and lay the foundation without

straining to see a single projection located far away from them.

Whatever your option, remember these ten tips for visuals. 1) Billboard

advertisers shoot for one picture and no more than seven words. 2) Use professional

colors and graphic devices such as boxes and borders. 3) Avoid overly slick displays,

especially where you want the decision-maker to later handle and discuss the exhibit

during their deliberations. 4) Don‘t talk to your visual. 5) Stand along side the visual

and face the audience. 6) Don‘t show the visual before you begin speaking about its

subject. 7) Point to the appropriate places as you speak, or reveal and cover to improve

reader focus. Old fashioned pointers are better than laser pointers, because up to a third

of the males in the courtroom cannot see red and so the laser pointer is useless to them.

8) Think of the three Ts. Touch, Turn, and Talk. On direct-examinations make it the

witness (especially if an expert) who is doing the three Ts. On cross-examinations,

opening or closing statements, make it you. 9) Flip charts, do not talk and write

simultaneously. 10) For special emphasis and drama, pause mid-sentence, turn, face the

chart or screen, and write or reveal without speaking, then turn back and re-establish eye

contact.

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 A good rule to follow is to present your exhibits (and your overall story) in

chronological order. The exceptions to this approach may overwhelm the rule;

nevertheless, your first approach to organization of the story, and of the exhibits with the

story, should be chronological. First chart out the story; then arrange the witnesses to

cover the period of the story (with overlapping coverage); then rearrange the witnesses

after determining their availability; and finally arrange the exhibits, first chronologically

and then distributed among the witnesses as necessary to permit foundations to be laid.

Some hearings might require that the exhibits be numbered in the order in which they are

offered; the only practical way to do that is to number them as they are offered (and have

a member of your team help number the copies for opposing counsel and your files

simultaneously).

If you plan on distributing exhibits to the decision-maker, when possible try to

limit handing them only your most important exhibits. When the 12 documents that win

your case are buried among 312 other documents, the decision-maker may not give them

proper attention; in other words, the impact of the most important documents will be

diluted by the presence of the other documents. During your opening statement, tell the

decision-maker that you will give them copies of the most important documents; then,

when you do give them a document, it will come with your implicit certificate of

importance. If, at the end of the hearing, your 12 or 27 documents are aligned against

your opponent‘s 327, you can argue that your opponent has tried to confuse the issues

and the evidence, has refused to focus on the actual dispute, and has cluttered the record

with irrelevancies, in his documents and, undoubtedly, in his testimonial proof. If,

however the decision-maker insists that all documents be given to them, ask your

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witnesses, ―Which of these three documents was more important to you in deciding to

enter this contract?‖ ―Which of these photographs did you find most useful in

understanding the causes of the fire?‖ ―Which of these charts provides the best summary

of the performance of this industry during the 1990‘s?‖ Then, in closing, you can recall

that testimony for the decision-maker and invite them to make a note of those more

important documents.

You also need to remember to preview and obey the sight lines in the hearing

room when you are presenting visual evidence. It is very frustrating for a decision-maker

to be presented with a chart, document or photograph which is just a little bit too far

away, or on too much of an angle to read easily, or which is obscured by a glare from the

window. Before the hearing, check out the room sight lines at several times during the

day, so that you can see how the light changes. Put a colleague in the place of the

decision-maker, another on the witness stand, and determine where you can place the

easel or screen to allow clear viewing. You should not block your opponent‘s sight lines

of the exhibits or of the decision-maker or the witness behind the exhibits, but if there is

no reasonable way to arrange the exhibits without blocking the opponent, you should

explain that to the decision-maker and ask their permission to locate the exhibit so they

and witness can see it, with the opposing counsel being invited to move around to the

front of the exhibit to participate in the examination. If you cannot work out an

arrangement in which the decision-maker can see the exhibit from her seat, then explain

that to her and provide the decision-maker with an additional copy of the exhibit, perhaps

larger than previous copies, to permit her to follow the examination. Of course, if the

witness is doing something to the exhibit, or on the exhibit, then your choreography must

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allow the decision maker to observe the testimony. The previously described evidence

cameras, or ―Elmo‘s,‖ mounted vertically and aimed downward to capture an image of a

document or item which then present the image on a large screen, make this

determination of sight lines much easier.

Part II. Foundation for Specific Exhibits.

This section gives you specific questions that will lay an evidentiary foundation

for visual evidence to further enhance its credibility and relevancy to the decision maker.

A photograph is more relevant on evidence that it fairly and accurately depicts a relevant

scene at a relevant time. The focus in analyzing foundation for photographic evidence is

whether the relevant view seen by the witness is fairly and accurately depicted in the

photograph. Therefore, it does not matter whether the exhibit was photographed (or

recorded by whatever process) at a relevant time (anymore than a chart prepared for an

accountant‘s testimony must have been prepared at the same time that the sales and

revenues were earned).

A specific example of a foundation for photograph 1, from the State v. Malack

case, showing the bruises to the face of Lee Megan, might be laid as follows.

Q: Officer Novak, did you take any photographs of Ms. Lee that night?

A: Yes.

Q: What did she look like?

A: She was badly beaten in the face and bruised.

Prosecutor: I have in my hand a document I‘d like marked for identification as State‘s

Exhibit 1. [Marking with the court reporter.] Showing it to opposing counsel. May I

approach the witness?

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Judge: Yes.

Prosecutor: Showing you, Officer, what has been marked for identification as States

Exhibit 1. Do you recognize States 1?

A: Yes

Prosecutor: Please tell us generally what it is?

A: It is a photo of the face of Ms. Megan Lee that I took on the night of robbery.

Prosecutor: Does States Exhibit 1 for identification fairly and accurately show how

Megan Lee‘s face looked on the night of the robbery?

A: Yes.

Prosecutor: I move Exhibit 1 for identification into evidence as States Exhibit 1.

Defense Lawyer: No Objection.

Court: It‘s received.

Prosecutor: For purpose of showing Exhibit 1 to the jury I‘ve prepared a blow up slide

of the picture. Could Officer Novak step down and take the pointer to assist the jury in

understanding what Exhibit 1 shows?

Court: Yes

Prosecutor: Officer, please tell us what we are looking at and help us understand the

savagery of the beating that had occurred to Ms. Lee.

A: On the left side of her face you can see how swollen her jaw was….

[As a vehicle for convincing the courts in developing nations that domestic

violence should be taken seriously as a matter of fundamental human rights for women,

photographs are invaluable. Whether in Liberia, or Kenya, or the International Tribunal

for Rawanda, photographic evidence is a vital tool for persuading fact finders of the

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brutality of sexual violence, whether as a method of war, the aftermath of war, or simply

the devastating side effect of extreme poverty.]

Where there is no witness that can testify as to whether the picture accurately

shows what that witness saw, the admissibility of the photo is placed in doubt. How do

we know the photo wasn‘t‘ photo shopped, or is taken at a different place and time and

even of entirely different event? So, in the Hughes case, for the US, if the US attorney

gets the photos of the helicopter crash after Baker dies, and hasn‘t found another witness

who was part of the investigative team, the photos can‘t be authenticated. One of the nice

problems, then if Hughes will not stipulate to the admissibility of the photos, how will the

photos come into evidence? But perhaps Hughes Inc., wants the photos in evidence to

argue the wreck would make it impossible to tell if there was a crack in frame. If they

want it in, they also don‘t have a witness to authenticate the photo. Can they establish its

authentication through some ―business record‖ exception: that it is contained in their files

as a part of a regularly conducted business activity? On the other hand, wasn‘t the

investigation done outside the scope of business and in anticipation of litigation? (See

FRE 803 (6).)

Also, if the photo was part of Baker‘s internal report, then the question is whether

it is privileged. Was the photo inadvertently produced and subject to some sort of a

privilege clawback? (See FRE 502(b)). How did the US get its hands on the photo?

Clearly the photo depicts the scene for the fact finder that is very relevant, but privilege

trumps relevance.

If the individual ―frame‖ of a graphic exhibit is fair and accurate, whether there

are thousands which comprise a motion picture, or one which comprises a still

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photograph, the exhibit is more credible and relevant, unless there is something about the

motion—perhaps the speed—which renders the series unfair 3 even though the individual

frames, taken one at a time, would not be. For example, a video tape of a police officer

arresting a suspect might, when played at normal speed, accurately show the events

which led to the policeman using his baton to subdue the person. If the tape were shown

at slow speed, however, it might give the appearance that the policeman had more time to

control the person without the use of force than was in fact the case. Similarly, any

cropping of photographs—stills or movies—might place undue emphasis upon certain

portions of the picture or scene, just as omitting portions of a document might result in an

unfair or incomplete understanding of the document, and this is obviously true even when

the original pictures are themselves fair and accurate. When a witness has testified that a

depiction is fair and accurate, the evidence gains credibility and the burden of proving

any faults with the evidence shifts to the opponent, who must present evidence that the

depiction is unfair itself, or has been presented or altered in some unfair way.

This is not to say that the decision-maker will be comfortable in admitting

computer simulations as readily as they admit photos, and for good reason. It is very

hard to cross examine a movie or computer simulation, once it has been seen. Some

lawyers would go so far as to say you can only counteract a memorable movie or

computer simulation with one of your own—where you show the decision-maker what

the event would look like by importing in your own facts and perspective. American

courts are split on the issue 4, so be mindful to check on the rules or limitations regarding

3 For example, in the U.S. it might be deemed unfair under rule 403 of the Federal Rules of
Evidence.
4 Some American courts agree that the movie or computer simulation may be too powerful and
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computer simulations and the legal background of the decision-makers before using one

in an international setting.

Videotapes require the same foundation as standard motion pictures. The

technology employed in making the record, in creating the visual exhibit, is not an

element of the foundation itself, but may be relevant in persuading the decision-maker

that the depiction is not fair and accurate because the process was subject to abuse and

was, in fact, abused. Therefore, unless there is some showing that videotapes can be

more easily altered than normal photographic motion pictures, the analysis of

admissibility and credibility will be the same for either technology. If there is a challenge

to admissibility made based on a claim of alteration, then differences in the ability to alter

the pictures would be relevant.

Remember that photographs and movies of a re-enactment are not inadmissible

simply because they portray a re-enactment; if they are fair and accurate, and the scene is

relevant, they are admissible. In other words, if there is evidence that the signing of the

Declaration of Independence looked ―just like‖ it looks in this photograph or that movie,

will not let a computer simulation or movie in unless the court is convinced of its accuracy and
reliability. (They seem to analyze a computer simulation like an expert opinion on cause and
effect, based on a mathematical model, or like a Daubert v. Merrill-Dow problem. Remember that
in Daubert , the court acts as a gatekeeper, determining as a foundational matter, whether the
model controls for all the important variables, and has been subject to the other tests of relevance
and reliability of scientific modeling.) Other American courts treat movies and computer
simulations like photos. They hear arguments that refer to four rules. FRE 403 is one of the main
rules of discussion, (evidence which is unduly prejudice and misleading to the factfinder is
excluded) along with FRE 102, ( the rules are to be construed to secure fairness, eliminate
unjustifiable expense and delay, and promote the growth of the law of evidence to the end that
the truth may be ascertained), and FRE 104(b), (evidence conditioned upon a showing sufficient
to support a finding), and finally FRE 611(a) (which provides that the court shall exercise
reasonable control over the mode and order of interrogating witnesses and presenting evidence
so as to (1) make the interrogation and presentation effective to ascertain the truth, (2) avoid
needless consumption of time,... .) Under FRE 611(a), if a picture is admissible because it avoids
needless consumption of time, (is worth a thousand words), then a computer simulations should
be doubly and triply so. And many courts do experience technology as producing substantial
time savings in trials.
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and the scene is relevant to the case, it will be admissible. This principle flows from the

basic evidentiary requirement that the recorded evidence be a fair depiction—if the

witness can testify that the reenactment fairly and accurately depicts the relevant scene as

that witness saw it, the fact that it is a reenactment is irrelevant. For example, the actors

in the movie—those who are portraying the participants in the events at suit B are not

themselves vouching for the accuracy of their actions or the resulting scene; that is

dependent upon the testimony of the sponsoring witness as to the ―fairness and accuracy‖

of the depiction.

The analysis of a computer re-enactment is conceptually a bit more difficult,

because often there is no one who can testify directly as to the fairness and accuracy of

the scene shown. For example, a computer re-creation may be used to show the locations

and movements of all the vehicles relevant to a traffic accident, perhaps from an

overhead perspective unavailable to any person at the time of the accident. Here, the

―fairness and accuracy‖ of the computer recreation depends upon the testimony of the

witness, normally a witness who is familiar with or participated in the preparation of the

re-enactment. If that witness can identify bases for the computer inputs, and he (or

another witness) is able to testify to the reliability of the methodology (the computer

programs) used to generate the re-creation from that data, then the fairness and accuracy

of the computer-generated evidence will have been established. By way of analogy, we

accept testimony that acid added to a basic solution results in the combining of hydrogen

ions (H-) with hydroxyl ions (OH +), forming neutral water and releasing hydrogen gas,

even though the chemist does not actually see the interaction between the molecules and

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their electrons. The key to admissibility and credibility is the demonstration of the

reliability of the methodology employed. 5

Even though computer-generated simulations or re-enactments have greater

credibility if they are fair and accurate depictions, the possibility of improper

manipulation (because of computer technology) is an issue that you should keep in mind

when using this kind of evidence. Because the technology is now available to alter

photographs and videotapes at a very fine level (that is, by changing individual pixels, the

small elements which, when combined in groups of hundreds of thousands, form the

picture), the proponent of the visual evidence certainly should recognize the skepticism

which the decision-maker may feel toward important visual evidence. Such concerns

may persuade the proponent to ask at least a few questions to demonstrate through the

witness that there has been no tampering. As a matter of presentation, these questions

should be in the form of, ―Has anyone had an opportunity to manipulate either the data or

the program?‖, rather than, ―How do you know that the data are accurate or were

accurately manipulated?‖, on the grounds that the latter formulation presents too direct a

challenge to the testimony of the proponent‘s own witness.

Anyone who viewed the actual scene at a relevant time can testify to the fairness

and accuracy of the visual evidence. There is no requirement that the foundational

witness be a party to the lawsuit or, alternatively, that the witness be uninvolved in the

lawsuit. The only requirement for a foundational witness is that she has been able to

5 This approach was emphasized by the United States Supreme Court in Daubert v. Merrill-Dow
Pharmaceuticals. Again, the court seems to reason like with experts, that if the methodology B
here, the computer program is shown to be reliable, and if the data input are shown to be reliable,
and if the scene is relevant, then the visual re-creation or re-enactment will be admissible, even
though no human being had ever actually seen the events depicted.
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perceive the relevant scene at a relevant time (or, in the case of computer-generated

evidence, that she have the competence to testify to the reliability of the program used

and the data input). We test the foundational witness‘s competence to lay the foundation

for visual evidence in the same way that we test her ability to testify directly to the scene

which she saw: if she can say, ―Then I saw him lift the baseball bat over his head,‖ she

will also be allowed to say, ―This picture of him fairly and accurately shows the way in

which he lifted the bat over his head.‖ In the computer context, if the foundational

witness would be allowed to testify that, in her opinion, the processes would have certain

results, then she will also be allowed to testify that a visual exhibit showing those results

is fair and accurate.

For example, if the actual scene was not witnessed (or could not be witnessed,

like if the scene is a view of the inside of an operating nuclear reactor), foundation

testimony will need to include technical testimony to connect the data input with the

graphic output, using reliable methodology. As other examples, statistical calculations

performed by computer, or DNA comparisons shown on charts, or chemical analyses

displayed in summary charts have to be founded on testimony as to reliability of the

methodology used to manipulate and display the data.

Likewise, x-rays require foundational evidence that links the particular film to the

specific patient. This is a matter of simple authentication, nothing more. The technology

of the x-ray process has been sufficiently established over the years that courts no longer

require any expert testimony to demonstrate that there is a reasonable basis for believing

that what is seen is actually what is inside the patient‘s leg. In contrast, however,

consider magnetic resonance images and CAT-scans. A reasonable decision-maker could

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very well require some foundational testimony to establish it‘s credibility and reliability,

not only that this image came from that patient, but also that this process is showing

something which is actually inside the patient. (The question of whether the image

shown in fact is useful goes to its relevance, the other portion of the ―reliability-

relevance‖ requirement under FRE 703.)

Evidence in the form of documents read by a party that contains proof of

knowledge by one of the parties of key facts also has substantial persuasive impact if

handled with technical and legal acuity. In US v. Hughes, think about how the US

attorney would use Exhibit 2, excerpts of the contract between Hughes and the US

military, and in particular, DOD 76-415.45(a), which provides that: ―[a]ll flight critical

components fabricated from metal alloy shall be subject to Magnaflux and visual

inspection by certified inspectors.‖

Q: [By the US Attorney]. Mr. Hughes, you are the owner of Hughes Aircraft, Inc.?

A: Yes.

Q: And you‘re the person who initially negotiated the contract between Hughes and

the US military that we are here about?

A: Yes.

Q: You read the contract before you signed it?

A: Yes.

Q: This was sometime before December 16, YR-6?

A: Yes.

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Q: I have in my hand a document previously marked for identification as exhibit 2.

For the record it appears to be excerpts of the contract between Hughes and the US

military. Showing it to opposing counsel. [to the court] May I approach?

Court: Yes

Q: I show you what has been marked for identification as Exhibit 2. You recognize

Exhibit 2?

Hughes‘s Lawyer: Objection, Hearsay.

US Attorney: Your honor, it is the contract, it is not hearsay, but a legally operative fact.

Court: I‘ll allow it.

Q: Again, I ask you, do you recognize Exhibit 2.

A: Yes, but I don‘t remember when I first read it?

Q: Well, we will get to that. I move Exhibit 2, into evidence?

Hewitt Lawyer: Same objection.

Court: Over ruled. It‘s received.

Gonzales Lawyer: Your honor, for the purpose of publishing Exhibit 2 to the jury I

would ask that Exhibit 2 be shown on the screen to the witness and jury.

Court: Yes.

Q: Mr. Hughes, let‘s look at Exhibit two together. You agree the heading says

―excerpts of the contract‖ and down below it say it is stipulated as relevant terms of the

contract?

A: Yes.

Let‘s call out the DOD 76-415.45(a) and see what it says. ….

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 Or, in Gonzales v. Hewitt, consider how the lawyer might use Exhibit 10, e-mail

from Hewitt to Bauer for persuasive effect. (Note also that the form of the question on

cross can be leading.)

Q: [By Gonzales‘s Lawyer]. Mr. Hewitt, you are the owner of Hewitt Financials?

A: Yes.

Q: And Adrienne Bauer certainly knew Hewitt Financials?

A: Yes.

Q: And Adrienne Bauer certainly knew you?

A: Yes.

Q: It was about 4:00 pm in the afternoon?

A: Yes.

Q: Bauer had called to find out what you wanted her to do about the loan?

A: I don‘t know what you mean?

Q: Well, whether you were in favor of the bank helping GHA buy the mine back

from you without paying the penalty?

A: I think Bauer was just trying to assess the risks.

Q: And of course, if the Bank didn‘t extend the line of credit to 4 million, and the

deadline passed, you would make about two million dollars

A: Yes.

Q: And so you thought about?

A: Yes.

Q: And then you sent an e-mail to Bauer?

A: Yes.

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Q: I have in my hand a document previously marked for identification as exhibit 10.

For the record it appears to be an e-mail from the witness, Mr. Hewitt to Ms. Bauer.

Showing it to opposing counsel. [to the court] May I approach?

Court: Yes

Q: I show you what has been marked for identification as Exhibit 10. You recognize

this?

Hewitt‘s Lawyer: Objection, Irrelavant. Immaterial and 403. No showing Bauer ever

read the e-mail.

Gonzales‘ Lawyer: Your honor, let me refer you Bauer‘s return e-mail, Exhibit 11. I

have a copy for the court. It is timed and dated as having been sent shortly after the time

and date on Exhibit 10. It refers to e-mail Exhibit 10 when it says, don‘t worry. I believe

I have made the requisite showing (that a reasonable jury could conclude he read the

document as part of her job at SBG) and under FRE 104 that establishes the relevancy

and makes the matter a jury question.

Court: I‘ll allow it.

Q: Again, I ask you, do you recognize Exhibit 10.

A: Yes, but I don‘t remember when I first read it?

Q: Well, we will get to that. I move Exhibit 10, as a party admission?

Hewitt Lawyer: Same objection.

Court: Over ruled. It‘s received.

Gonzales Lawyer: Your honor, for the purpose of publishing Exhibit 10 to the jury I

would ask that Exhibit 1 be shown on the screen to the witness and jury.

Court: Yes.

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Q: Mr. Hewitt, let‘s look at Exhibit ten together. You agree the from line says Mark

Hewitt?

A: Yes.

…..

Evidence which possesses substantive value because it is the particular item used

in the relevant event, such as the weapon used in the assault, may need to be connected

by evidence of unique identification or chain of custody to solidify that particular piece of

evidence‘s credibility in the eye of the decision-maker. Authentication of real evidence

satisfies our concerns that the item under consideration is the actual item and that it was

not altered or tampered with in any material way. The police officer‘s initials scratched

in the handle of the gun at the time it was taken from the murder suspect allow the officer

to identify the gun as the right one, distinguishing it from all other guns of the same

manufacturer and model; an initialed seal on the contaminated bottle of champagne may

mark it sufficiently unique to permit it to be introduced in the food-poisoning trial. Items

which cannot be so marked must instead be tracked through a chain of observation and

possession, a chain of custody, so that some sequence of witnesses can testify that they

had control of, or sight of, the item continuously, from the time at which it gained

relevance to the time that its integrity becomes unimportant.

For example, cocaine that a police officer takes to a lab for chemical analysis

presents a chain of custody problem. The white powder taken from the street dealer is

placed in a plastic bag, sealed, initialed, and locked in the officer‘s cruiser. It is then

placed in the evidence lockup, then signed out to the chemical laboratory. The lab tech

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opens the sample and conducts the tests, recording the results which show that the

powder is cocaine. The tech seals and marks the remainder, so that the defense can be

given an opportunity to test the same sample. In order to connect the powder in the

pocket to the test results presented in a hearing, the prosecutor brings in the police

officer, the evidence lockup custodian, and the lab technician, each of whom testifies to

the state of the evidence at the time they handled it. (In reality, the police officer may be

able to provide sufficient evidence of the regularity and reliability of the evidence lockup

that the custodian will not be needed; instead, the officer‘s statement that he signed it in

and was the only one to sign it out will be accepted.) In fact, the chain of custody is

simply the sequential presentation of evidence of unique identification; that is, the police

officer can uniquely identify the powder because he kept control of it; the lab tech has the

same ability to uniquely identify it. Each witness, showing control or continuous

observation of the item of evidence, provides a link in the chain of custody. The gun that

is uniquely identified in court as the relevant gun by the officer‘s initials carved in the

handle could also be identified as the relevant gun by showing—the links in the chain of

custody--that it was under continuous observation and could not have been subjected to

tampering.

The chain of custody need only extend to the point in time at which the reliability

questions are no longer at issue. In the example given above of the white powder taken

from the suspect, it is necessary to track the custody and treatment of the powder from

the time it was taken from the suspect to the time it was tested by the lab tech. The same

is true for any chemical analysis of the ashes of a fire for traces of an accelerant or

hydrochloric acid. After the laboratory tests are completed and the results are recorded,

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there is no particular need to be concerned with the possibility of tampering or alteration

(putting aside the questions relating to the continued integrity of the sample preserved for

the defendant‘s own testing). Therefore, the chain needs to extend only from the frisk

and seizure to the completion of the lab test. If, on the other hand, something is to be

shown in a hearing with the exhibit—such as the besotted appearance of the mouse inside

the champagne bottle—the chain of custody will have to extend to the time of

presentation at the hearing.

Keep in mind that the attorney must sometimes be careful not to become a link in

the chain of custody. Until the relevant period for the integrity of the item of evidence

has ended, the attorney should not take possession of the evidence. For example,

continuing with the example of the contaminated champagne, if the contamination is to

be shown in court, the relevant period for the integrity of the evidence does not end until

the bottle and its contents are shown at the hearing. Therefore, the attorney should not

take the bottle from the witness outside of the hearing and then hand it up to the witness

on the stand for identification (unless the bottle has been sealed in some unique way). If

the sample has been in the attorney‘s possession, then its integrity depends in part on the

testimony of the attorney that the evidence has not been altered. Since the attorney

should not normally testify on such a substantive matter, the chain of custody cannot be

completed, and the foundation will be inadequate.

Demonstrative evidence has intrinsic substantive value and therefore may be the

basis for findings of fact; illustrative evidence has no evidentiary value beyond the

testimony it illustrates. The results of a demonstration are intended to have evidentiary

significance. For example, an admissible demonstration in which sparks from an

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electrical short circuit ignite vapors from jet fuel may be relied upon as the decision-

maker comes to conclusions about causation, regardless of whether there is

accompanying testimony. On the other hand, an illustration of the appearance of the

intersection at the moment of the collision, introduced to assist the decision-maker in

understanding the witness‘s testimony, has no life beyond that testimony, and will not

survive if the testimony is stricken or discounted by the decision-maker for some reason.

Exhibits that are intended merely to illustrate a witness‘s testimony are admissible

as to that testimony and no more. If a witness presents an exhibit to ―show what he is

talking about,‖ like a graph or sketch or diagram, and his testimony is then excluded or

rejected, the illustrative exhibit will likewise be excluded or rejected. ―Illustrative‖

exhibits have no substantive probative value of their own, but derive their probative value

entirely from the testimony which they illustrate. ―Demonstrative‖ exhibits, in contrast,

normally have independent substantive value (as, for example, a demonstration of the

effect of mixing two chemicals provides information to the decision-maker which may be

used to support findings), even though the demonstrative exhibits may also illustrate

points made in the witness‘s testimony. ―Substantive‖ exhibits obviously have

substantive value, that is, they can provide support to findings of fact; they may be

demonstrative, they may be illustrative and substantive, but they are never merely

illustrative. So for example, the pictures of the magnaflux testing equipment are not

meant to be the actual testing equipment used, but illustrative of the type of equipment

that could have been used on the helicopters.

Part III. Common Problems with Graphics.

To show comparisons such as differences over time, growth, or response to

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variables, present a graphic exhibit which displays the two conditions side-by-side. If the

changes are displayed in a series of graphics, so that the decision-maker did not see them

simultaneously, they must rely on their memories for the quantity and even location

(from 1,573 to 1,945; this row, that column; that door, this window; or right lung, lower

lobe). This is the problem described by master graphic philosopher Edward Tufte of

Yale as, ―one damn thing after another.‖ Instead, display the before and after (or healthy

and sick; or unmodified and modified) views on the same graphic, at the same time, side-

by-side, with the differences colored or highlighted or circled so that they appear

visually.

Remember to guard against misleading icons in your graphics, and in your

opponent‘s graphics that would cause the decision-maker to discount its credibility and

reliability. Misleading icons are symbols which unfairly exaggerate relevant information

in a graphic and therefore, can cause rejection by the decision-maker. An example of this

would be an oil barrel graphic which doubled in height and width to show a doubling in

oil imports from one year to the next. This would be misleading because doubling both

dimensions gaves the ―doubled‖ icon not two but four times the area of the undoubled

icon. The visual impact, especially if the error continues through further increases, can

be enormously misleading. You also need to guard against misleading labels in your

graphics and in your opponent‘s graphics. Misleading labels can exaggerate the extent of

change or difference. As an example, a graph showing yearly sales volumes (and perhaps

even entitled, ―Yearly Sales Volumes‖) is misleading if the last amount shown is for less

than a year (a problem which can be thought of as an ―apple-orange problem‖). On a

much more subtle level, a bar graph showing growth in profits from $10 million to $13

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million will show the second bar as 1.3 times as high as the first; but, if the Y-axis is

labeled to begin at $9 million, the first bar will be one unit high (showing $1 million over

the baseline) and the second bar will be three units high, or 3 times the height of the first.

Keep in mind that graphics which are misleading because of icon, label, axis/baseline,

Aapple-orange,‖ or other problems, might be excluded or ignored by the decision-maker

because of a lack of relevancy or reliability.

You should experiment with different displays, changing variables and axes, until

the desired emphasis and message is achieved. Graphics which contain information

about multiple variables often do not provide sufficient emphasis to the data on the

particular variable which is most important, such as the illegal profit, the increasing white

cell count, or the decline in garbage tonnage. Simplify the display by eliminating

variables which are not relevant or significantly explanatory. Try different colors (or a

single color against black and white ―other‖ data). Do not be satisfied with the exhibit

until a lay person, looking at it for the first time, is able to state the point you want to

make with the data you are relying upon. Graphic evidence must have immediate visual

impact to be effective.

When opposing graphic evidence, look for changes in scale, or perspective which

might exaggerate or unduly emphasize the point being made. Remember the magician‘s

trick; stacking objects one in front of another creates the illusion that they are close to

each other and that there is little or no space between them to hide things in. Also, even a

grid-graph can be tilted to cause the decision-maker to see some things more easily than

others. For example, does the graph present a ―bird‘s eye view,‖ which no one had, and

which suggests the defendant saw all the danger points without obstruction? Also, when

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opposing, look carefully at the labels used on exhibits and consider the appropriateness of

the label to the particular use at trial. Do the labels argue or lead a witness in an unfair or

improper way? Do the labels mischaracterize? Do the labels represent as evidence,

things not entered into evidence?

Do not mistake big exhibits for graphic evidence. A ―blow-up‖ of a document,

especially of a text document, is merely a big text document: It does not tell a story

visually. Pictures, charts, graphs, tapes or computer animations make effective visual

exhibits if they produce an immediate reaction in the viewer which supports the theme of

your case. To cite an extreme example, an accounting worksheet or table, filled with

rows and columns of numbers, has little visual impact (unless the theme is boredom); but,

if the final number in the far right column, bottom row, stands out because it is written -

$15,000,000, then the viewer‘s immediate reaction to the exhibit is that somebody lost a

lot of money. Having isolated the elements needed to promote visual impact, you should

then ask why the other elements are necessary-- all those other rows and columns of

numbers have become nothing more than background. Perhaps they should be dimmed,

like the computer programs do with commands that are unnecessary or unavailable at a

particular time.

Also look at your opponents tools of emphasis when opposing exhibits. Do they

shout, shout, shout, SHOUT, SHOUT at the decision-maker. The

exhibits should only be allowed to the decision-maker, analogous with limits they would

put on the way that witnesses speak on the stand. After all, the decision-maker should

take the evidence as a whole and presenters should not be allowed to unduly emphasize

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one part of the evidence over all the rest.

Even enlarged exhibits which are pictures are not effective if the relevant details

are lost among other items in the scene. By direct analogy to the accounting worksheet

discussed above, a pictorial scene may contain the relevant information but not display it

effectively because of the clutter caused by other items in the scene. To avoid any

charges of unfairness or tampering, present the enlarged picture without enhancement,

and then present alongside the original an enhancement which circles the relevant item

and dims the remaining scene; or which circles the relevant item and ―calls it out‖ with an

arrow to an enlargement of that portion to the side; or which in some other way attracts

attention to the important component and leaves the remainder as background.

Otherwise, you could just as well hand small versions of the visual exhibit to each

decision-maker for his close inspection. The advantage presented by visual exhibits is

that they provide the opportunity to reinforce particular information through the eyes of

the viewer.

You should be careful that your graphics do not themselves distract or detract

from the seriousness and credibility of the evidence. Just as you would not dress your

key witness in a yellow suit with a clown tie, keep your backgrounds professional and

pick font sizes and colors to match or ―go‖ with the evidence.

Remember that an opponent‘s graphics should not be altered. You should not

mark or edit your opponent‘s graphic evidence or have your witness alter it. You may,

however, make your own copy and mark it; or overlay your opponent‘s original with an

acetate sheet, have your witness or the opponent‘s witness mark the sheet, and then offer

the marked copy or graphic in evidence. Assuming that the markings are relevant, the

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marked-up copy is as admissible as the original exhibit and should be considered by the

decision-maker along with that original. There is little satisfaction greater than turning an

opponent‘s graphic evidence against him by pointing out errors or inconsistencies, or by

highlighting portions that support your case, especially if his witness can be enlisted in

the effort.

Part IV. Choosing the Medium and the Occasion.

If you have picked an important document, laid a persuasive foundation, and

smoothly moved through any technical foundation issues, the decision-maker should be

anxious to see what the document shows. In high tech venues, it is important to

recognize you have a number of options for displaying an exhibit. During testimony, you

can do it the old fashion way by handing a copy to be passed around. This is slow and a

waste of time. The decision-maker may even try to get you to wait and admit the exhibits

all at once at the close of your case, which of course disconnects the exhibit view from

the testimony that explains it. Or, you might make enough copies for everyone to speed

things along. You might make a blowup, or present it by evidence camera, on a magnetic

board, or by scanning it into a power point slide, or by displaying it on a TV screen or a

panel in front of the decision-maker. This section describes some of the choices and

contexts for the different display options.

You should be allowed to use exhibits in an opening statement if you have a good

faith basis for believing they will be admitted in evidence. If the opening is indeed

supposed to present a preview of the evidence, that preview should include the visual

evidence as well. If there is visual evidence which presents an unusually serious danger

of unfair prejudice, it could be considered prior to the hearing and the decision-maker

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could reject it at that time, or reserve a ruling until the foundation is heard at the hearing

and direct that the particular exhibit not be used in the opening statement. There is no

reason for a blanket rule excluding all visual exhibits from opening when rulings on

particular exhibits are available. However, you should always check to see if use of

exhibits in opening statements is allowed before using them.

Prior to the hearing, you will want to know what your opponent will be using in

opening. For example, your opponent may attempt to use some super graphic or

computer simulation his expert created as illustrative evidence in opening that could be

devastating to your case. As we will learn in the chapter about opening statements, the

law allows a lawyer to preview in opening what their expert witness will say verbally, so

it is likely that the lawyer will try to show the exhibit as part of this preview; a computer

simulation shown early in the case could be have high impact. As an opponent, you

should want to see ahead of the time of presentation not only all of your opponent‘s

charts and exhibits, but also anything that moves or that has animation. Remember that

once the decision-maker sees a scene or re-enactment, either on a board, or on a screen,

or in a box (TV), it will be very hard for them to unlearn it. You should insist on

previewing any animation so that you can object if its foundation or admissibility is in

doubt.

In your closing, review the important visual and documentary exhibits, not all the

exhibits. You must avoid overwhelming the decision-maker, especially after she has just

sat through the typically over-long presentation of the entire case. Once again, select the

exhibits that make a difference, just as you select certain testimony to emphasize. Where

you used a series of exhibits at the hearing or in your briefings of the case (for example,

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to show growth or change or other comparisons), consider whether you could present the

first and last exhibits in the series, to help the decision-maker remember the scope of the

change or difference.

With regard to PowerPoint or Corel presentations, remember that less is more, or

it soon becomes one damn slide after another. The technology of presentations software

is seductive because it so both fun to create and because it allows you to share your notes

with the decision-maker during your closing. Yet you need to stay in touch with the

decision-maker‘s nonverbal clues as to interest and skepticism. If you are too wedded to

your prepared presentation, you are likely to loose your decision-maker. Also, the power

of the screen means that the decision-maker will likely stop paying attention to you and

watch the screen. They will also need time to read the screen and so you will be tempted

to speak ―over the top‖ of their reading. To avoid both the competition with the screen

and the boredom of too many slides, mix your medium. Start by talking to the decision-

maker directly, next use time lines and charts, and only a few slides of only your most

important pictures and documents with call-out. Then, in closing, turn the technology

off, retake center stage, and look them in the eye and talk to them. Regarding the many

different technologies available for use, less is more on closing.

Time lines are essential exhibits. Events happen in the flow of time

chronologically and often can be understood only against a background of a time line.

Some call time lines, anchors, because they will anchor the decision-maker in your key

events if they can place them as to when they occurred. Time lines are not vertical lists

of events with times attached; they are horizontal calendar-bars, into which events have

been asserted. If the decision-maker is presented with a time line exhibit early in the

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case, they will be able to follow the flow of events more easily and therefore will

understand the facts more clearly. If your version of events depends upon showing

confusion, disorganization, or lack of coordination, such as where you are trying to show

absence of conspiracy or plan in defending a racketeering case, or a failure to respond

appropriately to an emergency in prosecuting a personal injury case, then your goal

would be to display many events on a time line, emphasizing the lack of chronological

relevance among them. A time line exhibit created in front of the decision-maker, event

by event, in a sense invites their participation; as a result, they become invested in the

exhibit and protective of it, resisting and resenting efforts by opposing counsel to dismiss

it or to change it without sufficient basis.

In addition to time lines, magnetic cards that stick up on a whiteboard are a very

effective way to present theme words, category titles, and essential quotes. The process of

adding, subtracting and rearranging words and phrases is neat, quick and simple. You

can emphasize the subject of particular testimony, give a heading to a listing of factors, or

add a picture to a speaker‘s words, without distracting from your own performance by

relying on your own poor public penmanship. You can also color code the magnetic

cards so that related ideas are immediately associated with one another. In theory, velcro

stick-ups should work just as well, but they do not, because they are not actually magic

like magnetic cards. Magnetic tape with an adhesive back can be purchased very

cheaply; then a couple small pieces are cut from each card.

Use multiple easels to display different exhibits simultaneously. There are times

when you need to show two boards, so that the decision-maker can appreciate the

difference or the progression—the comparison—without going through Tufte‘s ―one

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damn thing after another.‖ (See, Part III., above.) In fact, putting a visual exhibit on

easel A, then a different one on B, then a new one on A, and so on, keeps the show going

while allowing the audience always to see where it has been. If a computer graphic is

projected on a screen between the two easels, then a little coordination results in a multi-

media tour de force.

Television sets are sometimes more effective than big screen projection; and

sometimes they are not. Analysts report that people tend to believe what they see on

television, because of their association of television with Walter Cronkite and other

trusted commentators, and televisions can be seen in normal room lighting. Similarly,

big screens are often associated with ―Star Wars,‖ ―Indiana Jones,‖ ―Pocahontas,‖ and

other fables and fictions. Also, big-screen movies promise excitement and entertainment.

On the other hand, television is very common and, at home, can become part of the

background noise. Here is a guide to choosing among static boards, displays on

television, and projections on a big screen: (1) If motion is not important to the point

being made, use boards on easels; (2) If the segment depends on motion, like a deposition

or demonstration, and it is short, use the televisions, because they are bright, on and off,

and very reliable; and (3) if the exhibit needs motion, but is longer, use the big screen

projection, so that background distractions are reduced and the main points are clearly

shown. Remember, with any of these presentation modes, the material must be high-

interest; the decision-maker would prefer to see live cross-examination, experts

defending their opinions to the death, and battles between real flesh-and-blood lawyers

who succeed by their wits and wiles.

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 With magnetic or velcro cards, or small items of real evidence, hold them while

you talk about them. The decision-maker looks from you to the witness and back while

they listen to the questions and answers. You present a memorable picture if you are

holding a foamboard card that reads, ―Nicotine is addictive,‖ while you question the

expert about label warnings; or a card that reads, ―No reliable studies,‖ while you cross-

examine on basis for expert testimony; or a piece of rusted metal from the actual building

while you ask the architect questions about the adequacy of corrosion protection of the

steel embedded in the foundation. In other words, do something with your visual

evidence in addition to putting it in front of the jurors‘ eyes. Talk about it; walk with it;

handle it; hand it to your witness as she steps from the witness box and ask her to put it

up on the magnetic board, or to hold it in the same position it had in the building. Then,

when that line of questioning is finished and you ask the decision-maker for two minutes

to check your notes, ask if the document or item of real evidence can be passed to them

for their examination.

Part V. Foundation For Exhibits.

In addition to ―doing the dance‖ just before a document is to be admitted, looking

at foundations applicable to visual exhibits, and studying your publication options, you

also need to be aware of broader evidentiary objections that are available to your

decision-maker and opponent on the admissibility of any document. 6 This next part

6 In general, most decision-makers outside of common law courts, have ultimate discretion in determining
the admissibility of evidence, largely with relevance as the main constraint. However, the IBA Rules on
the Taking of Evidence in International Commercial Arbitration (―IBA Rules of Evidence‖), adopted in
1999, has become a popular guideline and blend of common and civil law principles that is frequently used
in international arbitrations. Article 9, ―Admissibility and Assessment of Evidence,‖ reads in part as
follows:
1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of
evidence.
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examines tips for preparing to handle any objection to any document you might want to

admit by establishing the importance and credibility of those documents. The five main

elements of foundation that go directly to the heart of the credibility of evidence,

especially in the mind of any decision-maker with a common law background, are

original evidence, privilege, relevance, authenticity, and hearsay.

One way of establishing credibility for an item of evidence is by offering the

original. This is really common sense, since a decision-maker will obviously give more

weight to an original over an inferior secondary piece of evidence. In American courts

this is known as the Original Writings Rule and is concerned only with whether an

offered document is an original or a copy. Nowadays this rule is known as ―the rule

requiring the production of the original document.‖ It states that, if a document is being

offered to prove its contents, and those contents are closely related to the resolution of an

important or controlling issue in the case, then the original of the document should be

presented, or its absence explained, similar to provision 2(d) of Article 9 of the IBA

Rules of Evidence (See footnote 4, above): ―It was burned;‖ ―It is in the possession of

the opponent who has not produced it after request;‖ or ―It is lost;‖ are examples of

2. The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from
evidence or production any document, statement, oral testimony or inspection for any of the
following reasons:
(a) lack of sufficient relevance or materiality;
(b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal
to be applicable;
(c) unreasonable burden to produce the requested evidence;
(d) loss or destruction of the document that has been reasonably shown to have occurred;
(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be
compelling;
(f) grounds of special political or institutional sensitivity (including evidence that has been classified
as secret by a government or a public international institution) that the Arbitral Tribunal determines to be
compelling; or,
(g) considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be
compelling.
***
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acceptable excuses. 7 The U.K. also has a similar best evidence rule with regards to

documents. Naturally, in an international setting, even if an original is not required for

use as evidence, using an original will only further strengthen the credibility of your

evidence in the eyes of the decision-maker, especially those who come from legal

backgrounds that have best evidence rules.

Originals include, as duplicate originals, photographic and xerographic

counterparts, counterparts produced simultaneously with the original (such as carbon

copies), computer-generated counterparts, and any other counterparts produced in a

manner assuring accuracy and genuineness. Of course, if the primary original was

signed, and the signature is significant to the use of the document in the lawsuit, then

unsigned duplicate originals would not be ―originals‖ for evidentiary purposes. Rules

regarding duplicate originals are sufficiently flexible to allow new forms of duplicate

originals as technology progresses. For example, when the American rule was drafted,

facsimile machines were not widely used, but their product clearly qualifies as duplicate

originals; computer files can be printed multiple times, and each is identical, and a

duplicate original; scanned documents also become duplicate originals. Tomorrow‘s

technology has probably been anticipated adequately for evidentiary purposes by the

rules regarding these types of evidence. However, a good lawyer always checks the

applicable rules concerning the acceptable forms of evidence allowed in any particular

proceeding.

Keep in mind that an original might not always be required or necessary. If the

contents of the document are not important to resolving issues in the case, an original

7 The U.S. rule is embodied in FRE 1002-1004.

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might not be required. For instance, the American rule and the IBA Rules of Evidence

embody a preference for the most reliable proof of a document‘s contents which is

practicably available, but the emphasis is on ―practicably.‖ The requirements of this rule

will give way readily to considerations of avoiding confusion and waste of time. The

most important thing to remember is to focus on establishing the credibility of your key

documents by using originals if available, not necessarily worrying about originals for all

the documents that are not important to the underlying issues of the case.

The best way to establish the credibility of evidence is through use of an original,

but if there is no original, then secondary proof of the evidence will have to suffice.

Once it has been determined that there is a satisfactory explanation for the absence of the

original (including any duplicate originals), the proponent may offer secondary evidence

of the contents: testimony, other documents, or circumstantial evidence, and there is no

preferred status given to any of these other methods of proof. Thus, if a letter is

important to an issue in the case, and no original is available, a witness could testify as to

what she read of the letter, or a draft could be introduced, or the reaction of the recipient

could be described as a basis for inferring the contents (―He read the letter, then

immediately started to cry and said, ―I have to go home to my dog‘s funeral.‖)

The fact that a historical incident may have been recorded in a document does not

preclude the oral testimony of an eye-witness to that same incident. The mere fact that an

event has been captured in a document does not mean that other evidence is less

acceptable or admissible. For example, an eyewitness to the funeral of President

Kennedy can testify about what he saw, even though those events were also written in

thousands of newspapers; an astronaut can testify about what he saw on the surface of the

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moon, even though movie cameras recorded every instant. In such examples, the attempt

is to prove the event, not the content of the document; indeed, the fact that a document

records the event is only coincidental.

While problems concerning original evidence are rare, it is still an important

consideration to keep in mind. Sloppiness and a lack of diligence by a lawyer with

regards to presenting the best available evidence (the original when available) can only

lead to bad results. At a minimum, the credibility of your evidence is weakened, or

worse yet, the evidence might be excluded altogether.

Another foundation of evidence that affects the credibility of a particular piece of

evidence concerns privilege issues. The law of privilege is unique to each particular

forum, so you will always need to familiarize yourself with those rules regarding

privilege before attempting to present certain evidence. The IBA Rules of Evidence

specifically take into account the possible existence of differing privilege and other legal

impediments that may exist as a result of differing legal backgrounds of the parties in a

dispute. (See Article 9.2(b) in footnote 4, above.) If the foundation for a document

demonstrates the existence of a privilege, that document might be excluded. This is the

only element of foundation for which the burden is on the party opposing admission.

With respect to the other elements—original evidence, authenticity, relevance and

hearsay, the proponent will have his evidence weakened or excluded if the evidence is

insufficient for any of these reasons. With respect to privilege, however, if there is no

evidence concerning privilege (and other elements are satisfied), the document is

admissible and capable of carrying significant weight. However, most privilege

problems should be sorted out during the exchange of documents before any hearing.

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Just remember to dispel any notions that a document might be privileged to avoid the

possibility that a decision-maker might attach less weight to a document he feels might be

privileged.

Relevance is perhaps the most important element of the foundation for any item

of evidence and goes to the heart of the credibility of that item of evidence.8 Only

relevance and authenticity are required for every piece of evidence (if ―authenticity‖ is

stretched to include ―first-hand knowledge‖ or ―perception‖ for testimonial evidence).

Relevance is the tendency of any item of evidence real, documentary or testimonial to

make a fact at issue more or less likely than that fact would be without the evidence.

Relevance is determined by facts at issue. The facts at issue are determined by the

briefings of the dispute and witness credibility. In a simplistic example, in a contract

matter, the facts at issue are whether a contract was formed, whether a contract was

breached, whether there were damages from the breach, and whether witnesses are telling

the truth. If the document offered is a letter from the defendant advising his friend that he

cannot take a weekend trip because he has promised to paint the plaintiff‘s house, this

letter is relevant because it makes more likely the existence of the contract asserted in the

complaint. In the same case, a picture of the plaintiff in a wheelchair, with a leg cast and

a neck brace, would not, without more, be relevant. Attempts to get such a picture before

the decision-maker by seeking to ask the defendant whether this was the person with

whom he had discussed house painting should be seen as a sham, since identity was not

actually placed in issue by the pleadings. If the decision-maker has difficulty with that

analysis, the defendant can simplify it, in this case by stipulating to the identity of the

8 This is shown by the IBA‘s choice to put ―relevance or materiality‖ as the first reason for exclusion of
evidence in Article 9.2(a).
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plaintiff, thereby taking the fact out of issue and rendering the document irrelevant.

While more complex cases make this analysis more difficult and extended, the principles

remain the same: No evidence is relevant to facts which are not in issue. Remember,

however, that witness credibility is always in issue and exhibits that seek to impeach or to

rehabilitate, are therefore relevant. The more you can make evidence seem relevant in

the eyes of the decision-maker, the more weight and credibility she will give to that

evidence.

Yet another important step in the process of establishing the credibility of

evidence is that of authentication. Authentication means that the item of evidence is in

fact what the proponent claims that it is. Thus, if an item is offered as the jewelry box in

which Grandma kept her brooch, there must be some proof that it is indeed that box; for

example, testimony from someone who saw Grandma take her brooch from the box or a

document could provide a description of the box. Authentication applies to documentary

and real evidence, but not normally to live witness testimony. A document offered as the

Last Will and Testament of John Asinius must be shown, by direct or circumstantial

evidence, to be that document; Grandma‘s brooch box needs authenticating evidence also

through testimonial or documentary evidence; but the testimony of a witness is not

―authenticated.‖ Instead, we ask whether testimony (or the witness) is competent, by

which we normally mean whether the witness is appropriately speaking of matters which

he has sensed (seen, felt, heard, tasted, or smelled) or which are within an expert‘s field

of demonstrated expertise. (The broader meaning of witness competence, of course,

encompasses the ability to comprehend the oath, the ability to recall, and the ability to

recount, as well as the ability to perceive.) Exhibits which are authentic and relevant

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could nevertheless be excluded because they violate other evidentiary or policy

considerations listed in the Article 9.2 of the IBA Rules of Evidence. They may invade a

privilege, be unreasonably burdensome to produce, or include commercial or government

secrets.

Something that might also arise with respect to authentication is the concept of

self-authentication, under which some exhibits are considered so likely to be genuine,

that is, to be what their proponent says they are, that a rebuttal presumption of

authenticity is attached to them. A list of examples includes such exhibits as those

bearing trade inscriptions (like soft drink cans and cartons of asbestos insulation),

letterhead, newspapers, domestic public documents under seal, and commercial

instruments. The unifying principle among these examples is the extreme minimal

likelihood of forgery, coupled with the need to spend time on issues more seriously in

dispute. Thus, items such as these will be presumed authentic unless the opponent to the

admission comes forward with evidence suggesting that the presumption is inappropriate.

Even if the item is received based on the presumption of authenticity, however, the

decision-maker could conclude that it is not the genuine article.

The final foundational consideration that affects the credibility of evidence relates

to any possible hearsay problems. While evidence that might be deemed hearsay is not

going to be excluded under the IBA Rules of Evidence if it is relevant and does not

violate any other evidentiary concerns, it is still important to know the concept in the

event that a decision-maker might come from a legal background that still excludes

hearsay evidence. Your evidence will be admissible in this instance but the decision-

maker could very well attach little or no weight to that piece of evidence because he

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views that evidence as what would be hearsay evidence in his home legal system. While

hearsay rules were largely a part of the common law legal systems, many common law

countries have abandoned a strict exclusion of all hearsay evidence. The U.S, Canada,

and Australia still generally prohibit hearsay evidence, this rule is subject to a myriad of

exceptions over the years that have weakened the exclusionary rule‘s effect. For

example, in Australia, hearsay evidence is allowed in civil trials where the declarant is

not available or the calling of that witness would cause undue hardship.9 In Scotland10

and the U.K11, the rule against hearsay has been abandoned in all civil lawsuits. As

opposed to some of the common law traditions, civil law legal systems, like those in

Germany and France, generally have no exclusionary hearsay rules. Therefore, it is vital

to know the legal background of any decision-maker so that you can address any issues

regarding hearsay evidence that might affect the credibility or weight given to that

evidence by some decision-makers.

If an exhibit contains a statement which was made out of court and which is

offered for its truth, a hearsay rule (or, technically, a rule excluding hearsay) would apply

in a jurisdiction employing that rule. Although normally stated as though there were two

elements to the definition of hearsay—―out-of-court‖ and ―offered for truth‖—there are

actually three, because the evidentiary material must constitute a statement that is

intended by the declarant, the ―stating‖ person, as a statement which depends on his

credibility. To use a famous example, if a witness testifies that he knew it was raining

because people seen through the window had umbrellas up, the testimony would be

9 Evidence Act, 1995 §§ 63-64 (Austl.)

10 Civil Evidence (Scotland) Act, 1988
11 Civil Evidence Act, 1995
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admissible over a hearsay objection, because the people outside did not intend their

activity as a statement, and their behavior was a circumstance that the witness could use

as one basis for a lay opinion that it was raining. However, if the witness testifies that he

asked his friend to open his umbrella outside the window if it was raining, then the

friend‘s action was intended by the friend to constitute a statement, and we are concerned

because we do not have the friend, the maker of the statement, on the stand for cross-

examination. To state this more directly, if the exhibit is intended to take the place of

speech, it will be judged as hearsay. Do not forget that internal statements in graphic

exhibits—statements indicating source, or limitations, or time periods, for example--are

normally out-of-court statements offered for their truth.

Exhibits often present hearsay problems because they summarize out of court

statements or utilize them as sources. While exhibits may be specially prepared and

offered as summaries of complex or voluminous underlying data or material—

accounting, economic and scientific graphs or video demonstrations and re-creations

being prime examples—the summary exhibit incorporates all of the hearsay deficiencies

contained within the underlying data. No surprise here; you cannot eliminate hearsay

problems merely by incorporating the data into another exhibit. As a corollary, in

evaluating an opponent‘s exhibits, consider the foundation for all data underlying

summary exhibits. (See, Part III, above for a discussion of the display options for

publishing statements to the decision-maker.)

Applying the hearsay rule to your evidence is a good way to make your evidence

more credible and reliable. It makes sense that you would rather have the witness that

made a statement testify rather than having a different person testify as to what somebody

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else said. Similar to the best evidence principle, avoiding any possible hearsay problems

acts to reinforce the credibility of your evidence. Your goal is to put forward the most

persuasive and credible evidence available. You should also remember that the

credibility of you or your opponent‘s evidence can be affected if only a portion of a

document is used while purposefully excluding other relevant parts. If part of an exhibit

is accepted in evidence, the opponent may offer other portions which the decision-maker,

in fairness, should consider at the same time.

Part VI. The Next Level of Persuasion.

Whether offered pursuant to a stipulation, during the course of discovery, or by

pre-admission, every exhibit needs to be set up so that the decision-maker knows what

they will be looking at and why it is important for them to view the exhibit now. This

part examines how often the plain meaning of the technical foundation can enhance the

persuasiveness and understanding of the exhibit to the decision-maker and how to

enhance the drama in the display of important exhibits.

Every exhibit has not only a legal foundation, but also a persuasive foundation—a

set of questions for the witness that will explain to the decision-maker the events that

took place that persuade them on a key issue in the case. Too often lawyers get to the

exhibit too early and miss the underlying importance of the factual context of the exhibit.

For example, an exhibit may merely corroborate that an important event, like a telephone

call, was made where goods were ordered. The exhibit must not ―step-on‖ the

importance of the witness‘s memory of making the phone call and placing the order.

Sometimes the context is independently persuasive. For example, interrupting a police

officer‘s telling of what he saw when he arrived at the scene of an accident, just when he

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is about to tell about the condition of your client, with a question like, ―Now officer, did

you prepare an diagram that shows where the cars came to rest?‖ misses the fact that the

officer could describe how your client looked, bloodied and unconscious, because the

lawyer is preoccupied by the legal technicalities of the admissibility. Or the lawyer may

miss the chance to get a point told twice by going to the exhibit too early. If a witness

can describe an event orally, with drama, then the lawyer can go back over it with more

detail a second time with a document.

Even the technical foundation should not be rushed. If a document is a business

record, let the decision-maker in on the persuasive nature of the witness‘s foundational

testimony concerning the document. By asking about the importance of records to a

particular business, who looks at them, and why they need the records to be accurate, the

proponent will lay this Apersuasive‖ foundation in a narrative fashion so the decision-

maker understands why business records would be accurate. The technical, by-the-rules-

leading questions can be asked for the benefit of the decision-maker, just before the

document is offered: ―Was Exhibit 3 prepared in the ordinary course of business, by

someone with knowledge, at or near the time of the events it records, and was the

document kept as a part of a regularly conducted business activity? Yes.‖ Or, the

lawyer can simply say, ―We now offer Exhibit 3 pursuant to the stipulations of the

parties,‖ or ―pursuant to a pre-hearing ruling.‖ Again, in these situations, do not go to the

legal foundation until you have laid the persuasive foundation.

Make sure you observe the ―do not walk and talk‖ rule. In the theater, when one

character is delivering an important line or monologue, the other actors refrain from any

activity which would distract the audience‘s attention; otherwise, they are guilty of

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―upstaging‖ the actor during the scene, or ―walking on his lines.‖ In court, when you are

handling your own exhibits, remember this same rule. It is okay to walk and talk when

you are not saying anything important; for example, when you are merely doing the

exhibit circuit and delivering copies of the exhibit to the opponent, the decision-maker,

and the witness. However, when you are asking substantive questions about an exhibit,

stand still; when your witness is speaking about an exhibit, stand still; when you have just

handed an important exhibit to the decision-maker, and you want them to see the clarity

with which it makes your point, stand still. Otherwise, your motion around the room will

make your audience think that they need to watch, that something more interesting than

the exhibit might be about to happen.

You should also observe the ―gold and dross‖ rule. Many attorneys carry all

documents around the courtroom as though they were as important as a brown bag lunch,

papers bunched in fist, arm swinging at side, eyes on the witness or decision-maker. That

is a fine way to carry an opponent‘s exhibit; the implicit message is that the exhibit is not

worth any more attention or care than that; those exhibits are the dross, the metallic

impurities which are discarded during the smelting of gold. However, with one‘s own

exhibits, treat each sheet as though it was engraved on gold foil, as though it had

substantial weight, as though each time you looked at it you were once again impressed

with its significance. Hold your exhibit in two hands as you carry it across the room,

return it to your table or folder as though you cared about keeping it organized and

undamaged. With your most important exhibits (just a few), keep your copies in

envelopes, and put them back into those envelopes after you ask your questions. Then,

during closing argument, you can take them out of the envelopes again and the decision-

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maker will remember that these are important.

It is always better to get the bad news at the deposition or written witness

statement or otherwise at some time before a hearing where the witness will testify.

Some attorneys find good information in documents during discovery and before any

hearing and then shy away from asking about that information during deposition or

witness interviews because they do not want to give the witness a chance to explain it

away. The simple fact is this: if the witness is going to explain the document away, you

had better learn about the explanation as early as possible, so that you can create a plan

for dealing with that explanation at any hearings before the decision-maker. If you do not

hear the explanation until the hearing, it will likely be too late.

Tell a story with the exhibits. Especially during opening and closing speeches,

you must use the exhibits to tell the story, to support the theme you have chosen for the

case. If the documents do not directly support the theme, then they necessarily detract

from it. Often, there are too many documents (see the next rule), or they are not well-

organized (not chronological or not sufficiently clearly related to the point being made).

As a test of the effectiveness of the organization and choice of documents, arrange them

on a story board of their own, and ask a focus group or a group of non-attorneys in the

office to review them for fifteen minutes and report to you on the meaning that they have

gained from the collection. If it is not substantially in line with your theme and theory,

re-think your selection and organization.

Remember the ―12 document‖ rule. In every dispute, no matter the subject

matter, there are only 12 documents which will determine the decision-maker‘s decision.

You may need to massage that many documents, or ten times that many documents, to

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obtain the information you will present; but the decision-maker can not make intelligent

use of hundreds of documents in coming to a decision. Instead, they will make their own

selections of what they see as the most important documents, or the most reliable

documents, or the documents which best stand for a larger mass of evidence. If, instead,

you emphasize the 12 documents which tell your story, illustrate your points, or sum up

your theme and theory, the decision-maker may accept your selection. Of course, the 12

may actually be 7, or 24, but it will not be 50, and it will certainly not be 1,400 or 14,000

or 140,000.

Part V. The Mechanics of Pre-Rulings on Exhibits.

Much of the technical analysis and evidentiary work can be done well before any

hearings as all of the evidence for both sides will be available through the initial

exchange of documents each party intends to rely on through document requests. This

part examines some issues to prepare for in the pre-hearing stages of the dispute. Many

decision-makers nowadays might not want to take hearing time to hear argument about

foundation for exhibits; they therefore require exchange and objection to occur prior to

the hearing and they might not hear objections later that could have been made pre-

hearing. Any objections to documents for privilege, trade secrets, relevance, etc. reasons

should be stated at the earliest possible time and not later at a hearing so these objections

are not waived.

Objections to exhibits which are made and overruled before a hearing should be

renewed at the hearing if the documents are being used in the hearing and are vital to the

ultimate issue. Unless the decision-maker states on the record or in a written order that
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she will not allow exhibit offers to be renewed at a hearing if she has sustained an

objection to the exhibit earlier, the objecting attorney should renew the objection when

the exhibit is offered at the hearing. The objection might be stated during a bench

conference or in any the morning or evening housekeeping session but it should be in the

presence of the reporter so that it is on the record. It is true that some decision-makers

get testy about attorneys restating objections that the decision-maker thought were

completely and properly handled earlier; if the decision-maker seems perturbed, explain

that you are concerned about having an adequate record and do not intend to re-argue the

ruling, just to make certain that it is clearly not waived and on record for any possible

appeals.

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 Chapter VII
Technology Displays to Assist Teaching and Advocacy
Presentations
We have long known that a majority of us are visual learners. Presenters, teachers

and advocates have learned that their audience‘s comprehension is greatly assisted by

visual displays. Many members of an audience need ―to see it to believe it.‖ In school,

visual learners ask for decision trees to help them see what they are expected to learn.

The media, both print and TV have seen the teaching advantages of using visuals to

explain and persuade. Pictures and reenactments accompany history documentaries.

Graphs and computer animations teach us about weather, politics, and sports. News

media covering trials show us the evidence, and ―calls it out,‖ highlighting and animating

language from key documents that raises liability and culpability implications. Media

presentations then integrate the evidence with timelines of the key events to show the

audience why there is a dispute, and help it share the factfinder‘s experience.

Obviously, media techniques have also shaped expectations of clients, arbitrators

and judges. Clients expect visuals when they receive counsel from their lawyers. Courts

and other decisionmaking bodies expect visual presentations so that they can more easily

learn about a dispute. The public gets its information from TV, or ―the box.‖ They are

taken ―live‖ to the scene to see an event for themselves. Proof is in the seeing, not the

telling.

As a result of both advances in understanding of educational theory, the courts,

both in bench trials and jury trials, since the 60s, have permitted lawyers to address

factfinders in their opening statements, directs, cross examinations, and closing

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arguments, assisted by charts, blowups and graphs of key evidence. They have allowed

lawyers to assist the court with demonstrative aids, day in the life videos, re-enactments

and courtroom demonstrations. Expert witnesses use prepared charts, computer

simulations, and on the scene and in the lab video explanations. All of these supplements

to oral presentations are judged by a court under a simple standard. Will the exhibit

assist the court in understanding the case? If the exhibit is not misleading, and if it assists

the court, then, under evidence rules (in the U.S., FRE 611), the judge controls the order

and mode of proof and has the discretion to let it in. In the exercise of that instruction,

the court is advised by FRE 102 that if the presentation is ―efficient, fair, and promotes

justice,‖ the judge should exercise that discretion to let the presenter present the visual.

The first thing, then, to understand about so called ―high tech presentations‖ is

while older members of the bar might tell you that presentations with slides, video,

computer simulations, graphs, and animations are too slick and ―high tech,‖ that their

comments evidence more about their own fear in understanding it, than reflect the views

of the decisionmaker‘s and judges or arbitrators. All the social science research tells us

that students, audiences, TV or otherwise, boards of directors, jurors, fact witnesses, and

other lay listeners do not think these presentations are high tech at all, but expect that

they will be used in any competent presentation.

Whether making a presentation to the media, in a board room, or in a courtroom,

lawyers need to understand the principles of persuasion that are inherent in visual

displays and animations if they are to best represent, teach and persuade. This chapter

lays out these principles so that you can learn to prepare with visuals in mind, and so that

you can edit your visuals for maximum effect.

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 The Tools for Visual Presentations.

A. The Evidence Camera.

This is an evidence camera. It has been around since 1985. It is a favorite of U.S.

Attorney‘s who are trained to use it to display witness statements for impeachment, (and

then when U. S. Attorney leave for private practice, these U.S. trained lawyers love to use

the evidence camera to help them cross examine a doctor about his medical records and

experts about inconsistencies and errors in their reports. You can often tell a former U.S.

Attorney by his or her ability with an evidence camera.) The evidence camera has a small

video camera in the box on top of the arm, two lamps on the side arms, and a flat surface

on the which to put things that you want to be within the focus of the video camera.

About 95% of us know what a video camera is and does, so an evidence camera is not a

mystery to our audiences that needs to be explained.

The evidence camera is a great tool for the trial advocate to get started on,
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because the best practices for using an evidence camera are instructive for the use of any

display technology. These best practices are

 Start with a bird‘s eye view before you zoom to the fine points, in order to

best orient the jury to what they are looking at.

 Reassure the court by narrating to the court while you are using the zoom

feature, ―Now let‘s zoom in on the bullet so we can compare the markings

on the bullet with another bullet we know has been fired from the same

gun.‖

 Reassure the court that he or she will be able to hold the exhibit and take a

close look at it for itself, (to insure that no tricks are being played while

the lawyer is displaying the exhibit.

B. Monitors and Flat Panel Screens.

Often, the way that decisionmaker will get the picture is through monitors or flat

panel screens that are strategically located for them to view. The judge will have one and

so will counsel at counsel table.

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 C. The Projector and Screen.

Or, you may be going to use a digital projector with a big projection screen

instead of computer monitors. This is a good choice unless you are real proficient with

courtroom equipment. The problem with individual monitors is that the viewer will all

be turned to the box and away from the presenter. There are all kinds of problems with

viewers focusing on the screen or box and missing your best lines.

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 Screen or Box

D. The Laptop and Telestrator.

Of course your audience understands laptops and how by connecting the laptop to

a projector you display on the big screen what is on the monitor. So there is no mystery

there. Using the cursor in the computer, you can move it to point out information to the

audience that is on the screen. Most modestly equipped courtrooms have some kind of a

telestrator or light pen. These operate in the same general way that John Madden made

so popular drawing Xs and Os to help audiences understand football plays.

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 E. The Printer.

There should be a printer connected to the system somewhere so that you can

capture what is illustrated for the record. Or, now, computer software and print screen

and save functions can help you save the illustrations electronically. This means that

someone can scribble on the screen or use a finger (heat sensitive screens) to draw on a

diagram or a document. Because your opponent has a right to have your witnesses

testimony preserved it is important to figure out how the telestrator markings will be

captured, but, again, most courtrooms will have printers and captures to help you do it.

F. Video Conferencing.

If your courtroom has video conferencing capability, then you might have the

option of having a witness appear from a remote location. Here is how such a set up

would look in the courtroom.

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G. Finally, all this equipment in one courtroom can be easily coordinated through

a smart podium. Below is a picture of one such courtroom set up.

Courtroom 23 – Orlando, FL

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 Principles of Persuasion in the Use of Visuals.

A. Let‘s look at communications from the point of view of the Audience first.

The first key factor is the architecture of the room. When an audience comes into

a room and sees screen, or when a jury comes in and sees monitors and boxes, they know

that they will be shown something on the screen; that should not be so hard to

understand. The place is made less forbidding to the audience if they know that they will

be respected enough to be shown what they need to know.

Visuals can have great impact on the credibility of the speaker. In a given

situation where an audience has to depend only on what they pick up through their ears,

they may worry that they will not understand what they are being told, and have to

depend on their impressions of how clever, well spoken, or interesting the presenter is in

presenting, to determine what they are to think. Like a jury trying to make out what to do

with a scientist expert witness, the audience may give up on understanding, in favor of

using entertainment and charisma to tell them whether the speaker is telling them the

truth. But when they look at the big screen, most audiences make up their own minds.

Even though, on reflection, audience‘s know that what is being put on the screen

probably was made by a professional for the purpose of persuading them, when they

examine a labeled photo, a time line, a relationship chart, an animation, or a similar

visual display, the audience doesn‘t feel uncomfortable about being asked to make a

decision.

For this reason, the big screen is, in fact ―testifying.‖ It is talking to the audience

independent of the speaker, witness, or lawyer making the argument. And the audience

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will use what the big screen tells them as important testimony or evidence in reaching a

decision. If you stand and put up something interesting on the screen, everyone will look

at the screen and no one will look at you. And while the audience is looking at the screen

it will be much harder for them to absorb what the speaker is saying. If the audience has

been day dreaming, their attention will immediately return to the presentation. If it is on

the screen it must be important, because it is being shown, so they must remember it.

So we can now add to our best practices more principles as follows.

1. You cannot compete with a visual. If a visual is presented while you are

talking, the audience will focus on the visual and have a difficult time

listening to what you have to say. As a result, you need to know the following

rules regarding visuals:

 Only show the visual when you want to have the audience focus on it.

Otherwise, use a black screen, (slide 1) or the B key (in power point,

hitting the B kill will blacken the screen.) You then reveal the screen

by hitting the B key again, or by hitting any key on the key board.

 Take the visual down, when you are done with it.

 Take your opponent‘s visual down before you begin to speak, unless

you can immediately make the exhibit speak for you.

 Do not overuse the visuals. If you use visuals to repeat what you have

just said, or only as an outline of what you will say, your audience will

soon learn that they need not pay attention to either, because if they

miss one, they will get the other. It will create the dreaded ―one damn

PowerPoint slide after another‖ affect.

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  If one presenter uses digital displays, the other side will be at a

substantial disadvantage if it does not. One presenter gets the

advantage of the ―extra‖ witness saying its message over and over.

 Designing a clear path through your presentation requires strong

editing and conceptual coherence. So designing a visual will help you

prepare your case, focus your factual theory, and best capture your

theme.

 When you use visuals you need to be sure to direct the audience‘s

attention to the relevant points. Just showing a photo helps; showing a

photo with a label, or indicating exactly what is relevant is better.

 Visuals expose your case theory. If you do not have one that is viable,

the visuals will hurt you, because you cannot make a picture the will

overcome your theory‘s incoherence.

Principle 2 can be stated as follows:

2. Clarity and Viewability

A visual cannot show or teach if it cannot be seen. If the information is in the

form of text in a document the font has to large enough and clear enough for the

viewer to read it for themselves. Look at Exhibit 1 below. Even on a large screen

Exhibit 1 is largely useless as it is presented.

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For Exhibit 1 to be readable it needs have the text called out. Make sure to check

the call out to insure that it is readable from a distance the jury will view it from.

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One problem with callout is that it blocks a view of what is behind it, and if

animated, it moves. Both of these factors decrease the credibility of the

presentation of the document. So, the document below has the following design

features:

 It is labeled as Grimes arrest report

 It is preceded by a slide that has a box around the text that is to be

called out

 The call out has lines around the text exactly where the text exists in

the original that are the same color as the box that precedes the call out

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The effect is as follows

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Some slide designers prefer no animations or movements. (Movements may

remind the audience of a magician‘s slight of hand.) They would recommend a

second slide with the call out already enlarged.

Below is a second example from the report of the medical examiner in State v.

Cortez. Think how such an exhibit could be used by the defense during a cross of

the medical examiner regarding the exact cause of death of Joseph Schmidt.

Principle 3. Color Enhances Clarity and Credibility

3. Color and Reveals

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Because the copy of this hand out is in black and white, you have to confirm some

of the points below by going to the State v. Cortez and State v. Malack

PowerPoint slides you‘ve been provided, or by copying these slides into a

PowerPoint presentation for yourself. But for the first point the grays and blacks

and whites make the point. Your color combinations will either distract, or make

your presentation clearer. If you use a magenta background, for example, the

audience may remember magenta, but will likely forget what the object on the

slide was saying. Also a black font on a dark color back ground may look good

on your computer screen, but it will be hard to see when projected on a screen.

 Use professional colors for backgrounds. Blues, Grays, Blacks, like a

witness dressed in conservative suit colors, give your visual speaker

professional attire.

 Use color combinations for Font that contrast well with the back ground.

So use white font on black background for Exhibit numbers. Use White

on Black or White on Gray. Some slide designers suggest you avoid

Black on a White backgrounds, because too much of a white background

can make the eyes tire. Save Black on Yellow, for your most important

points.

If you look above at the medical examiner call out, or at the slide below, slide

126, from the State v. Cortez materials, you will see that the key portion of the

document is boxed or underlined in red. Use colored under line or circles to

focus the audience on important language or individual words.

225
 Exhibit 11

226
 Persuasion from the Point of View of the Presenter.

Now let‘s look at communication from the point of view of presenter. For

lawyers, technology makes one the most significant contributions to advocacy,

(whether courtroom, or board room) since the American profession decided not to

wear wigs and gowns any more. It levels the playing field. And it does this with

essentially no barriers to entry.

The English had their lawyers wear wigs and gowns mostly to make them

all look alike and to try to take away, or at least minimize, the natural advantage

that lawyers have who are tall, trim, good looking, and who have a great speaking

voice. The wit-and-gown idea seems a little silly to us, but it is rooted in

fundamental understanding of the jury system. To win a jury case, or get an

audience to listen to you, you have to get these audiences to listen to you. Your

audience has only so much listening power—and it does not last for a three hour

session in the morning and a four hour session in the afternoon as is common in

many courtrooms. It is easier to listen to someone with good physical assets. A

tall person‘s voice projects better, particularly when the lawyer is working in a

―well‖ down in front of the judge and jurors. A great speaking voice rolls out the

words in a way that makes listening a pleasure. So those of us who are not so tall

or have a squeaky voice start out with a decided tilt against us when we are up

against someone with better physical assets. That‘s just reality.

Now, add to the physical assets factor, the ability to use words to conjure

up images. Some people are great story tellers. They have terrific command of

the language. Or they have a wonderful soft southern accent that makes them

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 seem like such nice folks. They are formidable opponents in a courtroom, even

when the substance of their case is not so great.

Using digital displays is a great leveler. The images—photos, diagrams,

maps, charts --- are all on the big screen. My screen is just a big as yours,

whether it is a projection screen like the one in an auditorium, or a monitor or flat

panel. And images on a big screen can tell a story in a compelling way. You

have been provided a couple of argument slides on the Gonzalez v. Hewitt disk as

examples of what you might do even as a plaintiff in a commercial case. I‘ve

included some additional ones below to help inspire you to make your own.

Types of Slides For Teaching and Persuasion.

What sorts of slides are useful to a presenter who intends to teach and

persuade his or her audience. There are six basic types:

 Bulleted Lists

 Character Charts

 Argument Charts

 Pictures, Diagrams, Timelines, Charts

 Documents

 Video clips

An example of each is given below. Comments follow each slide to point out

recommended design features.

Bulleted List.

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 August 15 Interference
• GHA‟s Healthy Balance Sheet
• Bauer calls
• Topic: Bank Loan
• Hewitt discusses Salazar
• Hewitt “Taco Heads”
• New Golf Partnership Discussed

Note the color choices. The back ground is basic black. The font is blue against a light

yellow background. The heading focuses the audience‘s attention. Each line is edited to

make the point as concisely and it can be made. The reveals for each bullet are ―Wipes‖

from left to right. For a more sophisticated example, look at how a bulleted list can be

turned into a rising graph and build up step by step to make a point.

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 NESC’s Higher Common Sense Duty

NESC
Magnitude of

.
Risk

Superior
.
Knowledge
Superior
Their Duty Required
More Common Sense
Awareness of
.
Danger
Ability to

.
Repair

Violation of

.
company standards

Violation of
Industry Rules (NESC) Single Impulsive Act

For a third example of how to use color, look at the following ―Character Chart‖ from a

medical malpractice case.

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 HMO Mrs. Murphy
Medical Inc. Independent
“Surgery” Opinion?

Dr. Marx
“surgery”

Dr. Bates Dr. Anders

“surgery” “surgery”

This slide teaches by color that the named doctors all worked for the same HMO and

were likely controlled and not independent. Introducing characters by color and

consistently using the same color for the some characters can greatly increase

understandability of the players in the case.

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Argument Chart

The shape of the box points the way, or directs the reader to the conclusion. It argues by

design. Note the color choices. The back ground is gray. The font is white against a

black background. The bottom shape contains the conclusion and is a rectangle. The

―reveals‖ for box are ―Wipes‖ from top to bottom.

GHA‟s Healthy Balance Sheet

Hewitt discusses Salazar

Hewitt calls G and S “Taco Heads”

Bank denies Loan

Hewitt Interferes With Loan

Above is a second argument chart: the ―All Roads Lead to Rome,‖ type. It also argues by

design.

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GHA‟s Healthy Hewitt discusses
Balance Sheet Salazar

Hewitt
Interferes

Hewitt calls G & SBG denies

S “Taco Heads Loan Extension

233
Pictures, Charts, and Diagrams.

A picture of a power station where your 12 year old client was burne could

reinforce your theory that the station was readily climbable, emphasizing the superior

knowledge and opportunity the defendant had to fix the risks.

“Readily Climbable”
Loose Ground
Low clearance from ground Wire

Low ladder-like lattice

Note the use of the heading. It is an argument. This heading should not be used on a

slide in opening argument. Some might argue that asking a rhetorical keeps the heading

from being a argument. While it may disguise it more, it still is an argument and should

be removed. Or, consider the heading on simple graph of most hours billed.

Because visuals in court move so fast, and can be very powerful, it is important

for you to see your opponent‘s visuals before they are used. You should request at a

pretrial conference to see your opponent‘s slides. Look carefully at the headings for
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argument, and the animations and shapes for subtle messages and illogical inferences.

Timelines

Before closing argument it is probably best to leave the slide heading ―Cortez has

no alibi‖ off the slide.

Cortez’s Alilbi?
2/3 2/17 3/9 8/4
8:10 9:00 9:20 9:30

Met in C‟s home

Called Vic‟s Tavern

Family in Basement

Father calls– will be late

Back Home
Grimes Picked Up
J. Schmidt Shot
Bandana given to Grimes

The best timelines move left to right, though some argue that a vertical time line

can also be effective. Look at the one below a see which one you think is more

persuasive in its design.

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 Feb 3 Met in C’s Home
Called Vic’s Feb 17

March 9 Pastor calls

8:15 Will be late
Calls Grimes 9:00pm
Given Bandana
9:20
Schmidt Shot 9:30
9:35 Police called
To Shooting
Time to Get
Back?

Maria downstairs 10:00 pm Pastor Unger arrives

Graphs ( The following graph is not related to any of our case files.)

Who billed the most?

2100
2050

Average 2000
Yearly Hours 1950
Billed 1900
1850
1800
DeAngelo Hancock Polisi Kramer

Associate

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Documents

Again, note that the document is much less persuasive without the visual cues.

Circles or boxes can then juxtapose key facts to make effective arguments.

One warning for pretrial discovery. You do not need to be Dan Rather to know

that digital displays, (Whether by Adobe, or a Tif file) can be altered. Check the

digital display against the original whenever possible.

Videos

Think about how powerful the use of the video may be in persuading a factfinder

how serious is the crime of felony murder by showing blood and broken glass and

overturned tables at the scene of the crime. If there is news video it is worth

hunting down for use in court.

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 Chapter VIII

Direct Examination of Expert Witnesses

Preliminary Perspectives on Expert Testimony

In analyzing the admissibility of expert testimony, Professor Imwinkelreid, a

famous evidence scholar in the US, has provided a useful framework in an article

entitled, ―The Bases of Expert Testimony: the Syllogistic Structure of Scientific

Testimony. 67 North Carolina Law Review 1 (1988). (Professor Imwinkelreid‘s views on

experts are interesting not only because of his eloquence as a writer and his powers of

evidentiary analysis, but also because he eventually assisted the plaintiffs in the

presentation of the briefs to the Supreme Court in Daubert, the leading case in the U.S.

on expert witnesses. His insights into useful approaches to offering, analyzing, and

challenging expert testimony therefore have special weight.)

In that article, Professor Imwinkelreid suggests each expert presents a dichotomy

when appearing in court; the major premise of that dichotomy, which in broad terms

coincides with the requirements of any reliable oral testimony, that the witness have a

good foundation for what the witness will have to say. A reliable foundation consists of

those characteristics the expert brings to the case: scientific field, credentials, credibility,

experience, judgment, values, research, related engagements and all those things make

the witness the expert that he or she is. Imwinkelreid‘s minor premise, roughly coinciding

with the requirements of any syllogism, consists of sufficient information the case

provides to the expert: the facts, the data, the hypothetical, the character and credibility of

the other witnesses, and the legal standards.

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 In trying to determine how to approach an expert witness, either for the purpose

of organizing and simplifying direct examination or for the purpose of marshaling a

challenge for cross-examination, this dichotomy is a powerful analytical tool. Consider

one of the most uses of scientific evidence in criminal cases: that of DNA evidence.

Inwinkelreid‘s dichotomy is particularly useful to the trial lawyer who is getting

ready to move from the investigation setting to the trial setting. With the dichotomy in

mind, the prosecutor may be able to structure direct examination more clearly to highlight

the expert‘s qualifications to give testimony and to display the extensive information

available to the expert on which she bases her testimony. Armed with the report and

findings of the expert, the prosecutor can identify potential major premise attacks and

differentiate them from the minor premise attacks as a final step in the preparation for

both the direct and the cross-examination at trial.

Preparing the Expert for Direct Examination

Before trial, the expert witness again needs to be prepared to give her testimony.

Here the focus needs to be on the fact finding needs of the court. The expert needs to turn

his or her attention from persuading police to teaching the court in a way that will make

the testimony understandable and consistent with the court‘s common sense. This means

the prosecutor should remind the witness where he or she fits into the theory of the case;

reminding the witness of the documentary evidence that he or she will need to refer to,

including the three or four most important documents he or she has prepared or will be

shown to support his or her opinion; and taking the expert through a rehearsal of the

actual direct examination and cross-examination in order to give the expert the

confidence that comes from already having been put through the process. This also

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reminds the expert of things he or she has said in the report to protect him or her from

impeachment.

Now, counsel should work hard with his expert to come up with those teaching

devices, which will help a court to follow and to understand the expert‘s testimony.

Visual aids need to be created. The expert will have to do dry runs at using the board,

demonstrating key parts of the testimony and describing analogies that are

consistent with what the attorney knows about the judge‘s life experiences.

One additional issue to raise with the expert is where the expert ought to look or

where his or her eyes ought to be during the direct examination. Some experts just read

from their report: others ―mug‖ to the court too much. The expert‘s eyes should be on the

examining attorney while he is asking a question on direct examination, and the expert

should play to the judge only where the focus of the testimony is on teaching it about the

opinions expert has in the case. Smiling to the judge or rolling his or her eyes while the

cross-examiner asks a question gives the impression the expert is insincere and does not

take the proceeding seriously enough. The expert should be polite and patient in his or

her answers on cross-examination. Counsel should tell the expert it is not his or her job to

win the case. There is no need to repeat testimony, the attorney will do that if it is

appropriate when he makes his closing argument. The most important thing for the expert

to do is to maintain the expert‘s appearance of objectivity and to focus his or her energies

on teaching the court about the case and about his or her expert opinion.

In commercial arbitrations where there have been made videotaped depositions to

preserve expert testimony, the attorney should have the expert use the actual visual

exhibits and then splice in close-ups of those exhibits when he presents the tape at trial,

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while he places the actual exhibit in front of the court next to the screen or television.

This mixed-media presentation of the exhibits, which the expert is using in the

deposition, gives them more reality and allows the arbitrator to follow the deposition

testimony. After the testimony is over, counsel should provide the panel with individual

copies of the visual exhibits; if he does it during the testimony, the panelists may look at

the exhibits instead of listen to the expert witness. The arbitration room board showing

the exhibits can be moved around, used with other witnesses, and left on the easel during

other parts of the attorney‘s case in order to give the exhibits more substance and reality

in the judge‘s and or arbitrators minds.

Include the expert in site photographs or videotapes of demonstrations and views.

Such photographic evidence not only shows the jury what the site looks like or how the

test or experiment was done (crash tests, accident reconstructions, product experiments),

but it also shows the expert was right there, sleeves rolled up, involved in the gathering of

genuine, honest-to-goodness evidence that the attorney cannot find in a classroom or

library. Such credibility enhancement is so valuable the attorney should actively look for

these opportunities to involve his expert.

Expert Direct Examinations

Outline of Testimony

The attorney‘s task is to persuade the factfinder to believe her expert and to accept

her opinions over those of some opposing expert. To begin, put one principle above all

others: interesting expert testimony persuades jurors. By definition, the subject of an

expert‘s testimony is not well known to the average juror. Work hard to maintain their

interest so that they will be sufficiently persuaded to make a ―leap of faith,‖ accepting

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the expert‘s opinions as true even if they do not understand all the technical details.

A well-organized direct examination contributes greatly toward creating the necessary

interest. Logically organized material encourages the jury to conclude that the opinions

supporting the case were logically developed.

For every case, the attorney should organize his expert‘s direct examination

following this outline of testimony, with some minor variations thrown in depending on

the exact type of expertise and need for contrast with the opposing expert:

1. Introduction

2. Tickler

3. Qualifications

4. Tender

[4.a. Sometimes do a Method of Analysis here. See Private Investigator example]

5. Opinions

6. Bases for the opinions

7. Anticipating cross-examination

1. Introduction

During the first few minutes of his expert’s testimony, the attorney should

establish rapport between the witness and the court. For example, he should show

the court that his expert is a real person, a neighbor, perhaps. Note the following

exchange, as it might have happened in the case of “State v. Malack”:

Question:

What is your profession, Dr. Harney?

Answer:

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I am a medical doctor, with a specialty in genetics, and work here in Mexico City with

the Mexico City Police department.

Question:

And where do you live?

Answer:

I live just outside the city on Sherman Avenue in Evanston near the Universidad

PanAmericana. I‘ve lived here for twenty-three years.

Another way to establish rapport is to associate the expert with a local, well-respected

institution. By this, counsel should emphasize the fact that he has not brought in a ―hired

gun.‖

If the expert has no local ties, counsel will want to demonstrate that she comes

from a prestigious institution or is so well recognized as a leading expert in the field, that

where she comes from is irrelevant. Mentioning these associations in the introduction

immediately shows the court that this witness is special and worth consideration.

2. Tickler

The attorney should make his introduction brief, so he can spend most of his

time persuading the court. Capture its attention by immediately explaining the

expert’s relevance to the case. The following question from “State v. Malack”

demonstrates this point:

Question:

Dr. Harney, have you come to court today prepared to state your expert opinion on

whether you found DNA evidence on Mr. Malack‘s shoes that has similarities to the

DNA of Ms. Lee, the victim in this case?

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Answer:

Yes, I am prepared to state my opinion as to whether the DNA taken from the

defendant‘s shoes has similarities with Ms. Lee‘s DNA.

This device, called the ―tickler,‖ enables skilled attorneys to ―tickle‖ the the

court‘s imagination by stating the theory of the case almost as soon as the witness takes

the stand. The tickler also suggests to the court that the expert agrees with that theory.

To insure success with this approach, the lawyer should alert his expert in

advance that he will ask the question in just this way, and he does not want her opinion at

that point. Neither the court, counsel‘s opponent, would be ready for it.

At this point, the court will have heard the attorney‘s theory of the case twice, first in his

own words in the opening statement and again in his ―tickler‖ question to the expert. This

repetition of the theory and themes effectively nudges the court toward the conclusion

that his theory is correct.

3. Qualifying the Expert

As the attorney moves from the tickler to his witness‘s qualifications, he should

create a transition that explains the relevance of these qualifications to the case the jurors

must decide.

Question:

Before we get to that opinion, Doctor, I would like to ask you about your training and

education which qualify you to form such an opinion.

The attorney is now ready to address his expert‘s qualifications. Credentials give

weight to the expert‘s opinions. However, human nature being what it is, the judge is not

automatically interested in someone else‘s education and job history. Persuade court it is

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in its interest to pay attention to these credentials. Continue in the qualifications with the

approach that was begun in the tickler: establish a connection between the expert and the

case. Show the court these background facts have a direct relationship to the expert‘s

opinions and to their decision.

Imagine how this might have been done in the case of Dr. Harney:

Question:

Dr. Harney, as part of your studies for your doctorate in genetics, what courses did you

take that related directly to your work in this case on the DNA analysis you performed?

Answer:

Well, I had several. One course was concerned entirely with ―isolating DNA from a DNA

soup and then ―growing‖ that DNA into a reliable sample in order to test its

characteristics. I used that information extensively when I tested the swab I took from

Mr. Malack‘s right black and white checked shoe.

Question:

What is DNA evidence, Dr. Harney?

At the heart of DNA evidence is the biological molecule itself, which serves as an

instruction manual and blueprint for everything in your body. A DNA molecule is a

long, twisting chain known as a double helix. DNA looks pretty complex, but it's really

made of only four nucleotides: Adenine, Cytosine, Guanine, Thymine. These nucleotides

exist as base pairs that link together like the rungs in a ladder. Adenine and thymine

always bond together as a pair, and cytosine and guanine bond together as a pair. While

the majority of DNA doesn't differ from human to human, some 3 million base pairs of

DNA (about 0.10 percent of your entire genome) vary from person to person.

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In human cells, DNA is tightly wrapped into 23 pairs of chromosomes. One member of

each chromosomal pair comes from your mother, and the other comes from your father.

In other words, your DNA is a combination of your mother's and your father's DNA.

Unless you have an identical twin, your DNA is unique to you. This is what makes DNA

evidence so valuable in investigations -- it's almost impossible for someone else to have

DNA that is identical to yours. But catching a criminal using DNA evidence is not quite

as easy as "CSI" makes it seem, Our first step in exploring DNA evidence is the evidence

found and preserved during the police investigation.

Question:

Take us to what the police found in this case and tell us what you did, what you found,

and what it means?

Answer:

For many years, fingerprints were the gold standard for linking suspects to a crime scene,

or a victim to piece of evidence. Today, the gold standard is DNA evidence because

DNA can be collected from virtually anywhere. Even a criminal wearing gloves may

unwittingly leave behind trace amounts of biological material. Or a victim can leave

traces of the victims DNA on clothing found to be what the criminal was wearing at the

time of the assault. It could be a hair, saliva, blood, semen, skin, sweat, mucus or

earwax. All it takes is a few cells to obtain enough DNA information to identify a suspect

with near certainty.

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For this reason, law enforcement officials take unusual care with evidence that might link

the victim to the suspect. Police officers and detectives often work closely with

laboratory personnel or evidence collection technicians to make sure evidence isn't

contaminated. This involves wearing gloves and using disposable instruments, which can

be discarded after collecting each sample. While collecting evidence, officers are careful

to avoid touching areas where DNA evidence could exist. They also avoid talking,

sneezing and coughing over evidence or touching their face, nose or mouth.

The following list shows some common sources of DNA evidence:

 A weapon, such as a baseball bat, fireplace poker or knife, which could contain

sweat, skin, blood or other tissue

 A hat or mask, or in this case, shoes, which could contain saliva, sweat, hair or

dandruff

 A facial tissue or cotton swab, which could contain mucus, sweat, blood or

earwax

 A toothpick, cigarette butt, bottle or postage stamp, all of which could contain

saliva

 A used condom, which could contain semen or vaginal or rectal cells

 Bed linens, which could contain sweat, hair, blood or semen

 A fingernail or partial fingernail, which could contain scraped-off skin cells

When investigators find a piece of evidence, they place it in a paper bag or envelope, not

in a plastic bag. This is important because plastic bags retain moisture, which can damage

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DNA. Direct sunlight and warmer conditions may also damage DNA, so officers try to

keep biological materials at room temperature. They label the bags with information

about what the material is, where it was found and where it will be transported. These are

chain-of-custody procedures, which ensure the legal integrity of the samples as they

move from collection to analysis.

Question: Now, Dr. Harney, what professional position did you hold before you came to

work as the medical examiner for Mexico City?

Answer:

I was the assistant criminal scene investigator for the city of Misquoc for 10 years .

Question:

Did your work as assistant criminal scene investigator relate to the work you did in this

case?

Answer:

Yes. In fact, it related very closely to this work. As the ACSI I noticed that often

attackers who were in a rage during an assault, often kicked the victim in the face. The

face of the victim may have already been bloodied by the attack. I learned to look for

DNA evidence on a persons shoes.

Question:

And how does that relate to the work you did here, Dr. Harney?

Answer:

In the present case, I knew the victim had been kicked in the face, and so was eager to

test the shoes found in the suspect‘s apartment.

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Question:

Dr. Harney, let‘s turn to your work on the shoes. . .

The phrasing of these questions told the factfinder before they heard the answer

that the expert‘s work and experience related to their work on the case in a direct and

understandable way. That motivates the court to pay attention to her qualifications and

any other aspect of this expert‘s background that was pertinent to the testimony.

During this phase of testimony, the attorney will present the expert‘s list of

credentials. Have it marked by the clerk and authenticated by the witness, and then offer

it in evidence. Although it is hearsay, the court will normally receive it because it is

efficient to do so.

Do not recite the resume. Select some of the most relevant books, articles, jobs, or

speeches, and have the witness tell the jury of their relevance to the case. Back to DNA

Expert:

Question:

Doctor, have you written any articles relating to the question of how to examine shoes

found by police?

Answer:

Yes. In fact, I have written one paper, which relates to this situation, exactly, which was

used by the Federales to put its crime scene investigators on notice for what to look for

on shoes.

Question:

Would you tell us how that article relates to what you did in this case?

Answer:

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Of course. This article deals with special situations encountered as we try to gain information

about DNA from shoes. It describes the type of collection techniques that need to be employed

to gather DNA evidence that may have been left on shoes.

Question:

Doctor Harney, would it assist you in describing the work in that article to use a diagram?

Answer:

Yes, it would. In fact, we have one that was printed with that article.

Question:

Alright, with the court‘s permission, will you step down to the easel and continue your

answer, using this exhibit?

Answer:

Yes, of course.

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 In this case, we are looking at whether a victim has left DNA on a shoe. In this
situation, investigators take a DNA sample from the victim, send it to a lab and receive a
DNA profile. Then they compare that profile to a profile of DNA taken from the shoe.
There are three possible results:

 Inclusions -- If the victim's DNA profile matches the profile of DNA taken from
the shoes, then the results are considered an inclusion or nonexclusion. In other
words, the victim is included (cannot be excluded) as a possible source of the
DNA found in the sample.
 Exclusions -- If the victim‘s DNA profile doesn't match the profile of DNA taken
from the shoe, then the results are considered an exclusion or noninclusion.
Exclusions almost always eliminate the victim as a source of the DNA found in
the sample.
 Inconclusive results -- Results may be inconclusive for several reasons. For
example, contaminated samples often yield inconclusive results. So do very small
or degraded samples, which may not have enough DNA to produce a full profile.

The attorney should note that although he is still concentrating on qualifications, he

already has his witness giving opinions and testimony linking her expertise to issues of

the case, which moves the factfinder along the path of persuasion.

If counsel‘s jurisdiction discourages or prohibits qualifying a witness in open

court, he should remember the court will also consider qualifications as bases for expert

testimony. He should simply postpone and slightly reword his questions to accomplish

everything he needs to display the expert‘s credentials. For example:

Question:

Dr. Barney, we have now looked at several of the bases for your opinion that DNA taken

from the Defendant‘s shoes matches in part with DNA of the victim. Are there others?

Answer:

Question: How did your article in Federales CSI affect your conclusion the victims DNA

251
correlates in some significant way with the DNA found on the defendant‘s right shoe?

Answer:

Bases are qualifications, and qualifications are bases. The attorney should think of

qualifications as the portion of the expert‘s bases he displays for the court, preliminarily,

to satisfy the judge that it makes sense to allow his expert‘s opinion testimony. Whether

presenting qualifications or bases, the attorney‘s questions are intended to impress the

factfinder with the reliability of his expert‘s work in the case, so that they will give

weight to these opinions. Of course, counsel should ask his expert about the demanding

work of preparing an article for publication in a peer-review journal because that is not

known to the factfinder.

During the attorney‘s persuasive qualification of his expert, his opponent may offer

to stipulate to this foundation in order to limit testimony. If the court encourages the

attorney to accept the stipulation, he can still make an effort to get the qualifications into

the record at that point simply by responding:

Lawyer: Your Honor, I appreciate the offer to stipulate to the qualifications and expertise

of Dr. Barney, and I accept it. I would like the court‘s permission to briefly touch on a

few elements of Dr. Smithson‘s education and experience as a professional astronomer so

the court can decide how much weight to give her testimony.

As illustrated, respond by emphasizing the court‘s responsibility to determine the

weight to give testimony, expert or non-expert. And, if the attorney says ―briefly,‖ he

should be brief! He should avoid abusing the court‘s good graces. If the court cuts him

off, he should simply ask about the important qualifications during the bases part of his

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examination.

Some, like noted U.S. trial lawyer Michael Tigar, suggest an organization of a

direct examination that would move the attorney quickly through qualification by saying

to his expert: ―Have you prepared a list that will summarize your experience, education,

and training?‖ ―Yes I have.‖ ―I show you Exhibit 15.‖ ―What is this?‖ ―It is the list that I

have prepared.‖ ―I move to admit Exhibit 15 into evidence.‖ Then counsel shows on the

overhead and highlights to the court the three most important qualifications in this case.

This approach has the advantage of brevity. However, it does not seem to play a

significant role in satisfying the burden of persuasion that belongs to counsel and his

expert. While most courts will permit the introduction of the resume or list of credentials

without question (even though it is technically hearsay), the more important question

remains whether the credentials, when presented in this way, fulfill any role beyond

satisfying the judge that the expert may be heard.

4. Tender

After laying a reliable foundation to qualify the advocate‘s expert to offer opinion

testimony, the attorney is then ready to make what is traditionally called the ―tender‖ of

the witness. The tender is the formal presentation to the court of the expert and her

qualifications. A properly phrased tender concisely summarizes the expert‘s testimony up

to this point. It aims to signal to the court and his opponent that the attorney has

completed qualifying his witness as an expert and is ready for his opponent‘s voir dire of

the witness and the court‘s ruling whether the witness may testify as an expert. In an oral

adversarial system, the court will likely give the opponent a chance to challenge the

expert‘s qualifications, before being prejudiced by an unqualified opinion. A formal

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tender, when permitted by the court, also reminds the court of the relevance of the expert‘s

opinion testimony. And signals to the opponent, now is the time to raise any challenges.

Depending on where the attorney practices, a tender of the witness may be

permitted or even required. The following example in the case of DNA expert

demonstrates a formal tender:

Lawyer:

Your Honor, I tender Dr. Barney to the court as an expert in the field of DNA evidence

gathering and analysis and submit she is qualified by reason of her education, experience,

and training to provide expert opinion testimony on the question of whether the victims

DNA significantly correlates to DNA taken from the right shoe of the defendant.

The formal language of this tender, while sounding somewhat stilted, actually

accomplishes five objectives:

1. It signals the court that the attorney has finished the qualifications, and it is now

time for the court to rule whether his expert may give opinion testimony.

2. It reminds the court of the relevance of the expert‘s testimony.

3. It gives the attorney another opportunity to present his theory of the case.

4. It defines the scope of the expert‘s testimony so the court can decide whether the

testimony is within the expert‘s qualifications.

5. It signals that it is time for voir dire by opposing counsel.

Even if the court frowns on formal tenders, the attorney can usually signal the

court he has completed the qualifications and is ready to proceed:

Question:

Your Honor, we have now completed the portion of Dr. Harney‘s testimony dealing with

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her credentials as an expert in DNA. May we proceed?

5. Opinions

Make the presentation of the opinion dramatic. Draw the court‘s attention to it. Set

it apart from what led up to it and from what follows it. Pause, then do something as simple

as clearing the board of graphics. Get a different notebook from the lectern or simply

change position in the courtroom before resuming the questioning. Counsel should

remember the court knows from his ―tickler‖ question that his expert will render an opinion

on the subject in question, and they should be prepared to hear it. Counsel should ask for

his expert‘s opinion in formal language to call attention to it and to assure the judge he has

followed the legal formalities.

In the case of DNA, the expert witness examination might proceed as follows:

Question:

Dr. Barney, we have now reviewed your qualifications as an expert to present your

opinion on whether this DNA found on the defendant‘s shoe,. Now, let us get to that

opinion itself.

Do you have an opinion that you hold with a degree of certainty reasonable in the field of

astronomy as to whether traces of DNA found on the shoe correlate in a significant

statistical way with the victim‘s DNA?

Answer:

Yes, I do.

Question:

And what is that opinion, Doctor?

Answer:

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Traces of DNA found on the shoe correlate with the victim‘s DNA and the DNA of one

in 960 people in the metropolitan area.

The formal language used here calls attention to the opinion and gives it weight. The

terminology, ―reasonable degree of certainty,‖ is also required in virtually identical

language in almost every jurisdiction.

Where the expert will give more than one opinion:

1. Determine what are the major opinions and what are subsidiary. State them

consistently with the theory.

2. Highlight the major opinions by mounting them on a board, poster, or flip chart.

3. Put all the major opinions on the board, projector, or pad simultaneously to serve

as an outline of the opinion testimony for the jury to follow.

4. Introduce the major opinions with the same language, ―an opinion that you hold

with a degree of certainty reasonable in the field,‖ to alert the jury an important opinion is

coming.

5. For the minor opinions, use less formal language, and introduce them in a more

conversational way. This leaves the most emphasis on where the attorney wants it: on the

major opinions.

6. When eliciting multiple opinions, each with more than one basis, use graphics for

the bases and color-code the opinions and the bases: everything on the board that has a

green strip relates to the green-coded opinion. If the attorney has outlined his expert‘s

major opinions on a board, he should list bases and minor opinions under the major

opinions they support.

7. As the attorney completes the discussion of the opinion and its bases, he should

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restate the opinion to reinforce it with the jury and to signal that he has finished

discussing that opinion.

Question:

Now Dr. Barney, have we discussed all of your bases for concluding that you had a

sufficient sample of DNA from the victim?

Answer:

Yes, we have.

Question:

All right. Let‘s turn then to your second opinion about the DNA found on the shoes . . .

This transition introduces the next opinion.

6. Bases

After all of the major opinions have been introduced, the attorney should go back to the

first and tell the witness (and implicitly the court) that he wants to outline the process by

which the expert arrived at that opinion. He should also remove references to the other

major opinions from his graphics board. His questioning should assume the following

format:

What did you do?

Why did you do that?

How did you do that?

What result did you get?

What is the significance of that result?

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 This is how these questions might have been used in the case of a DNA expert

Question:

Dr. Barney, what did you do in ―swabbing‖ the shoes?

Answer:

Question:

Why did you do that?

Answer:

To then grow DNA in order to examine it.

Question:

How did you grow the DNA you were able to recover?

Answer:

….

Question:

On this enlargement of the exhibit will you show us what you did?

Answer:

Question:

What result did you get?

Answer:

I found three markers in the DNA I grew

Question:

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What significance did those markers have on your investigation?

Answer:

That provides me with one half of the information I need to determine if I have a

statistically significant match between the victims DNA and the DNA on the shoe. I

turned next to the DNA of the victim.

As always, the attorney should visually support the expert‘s testimony with graphics.

Additionally, with an expert he normally wants to ask a question such as:

Question:

What significance does that result have in coming to your opinion that the DNA found on

the shoe correlates to the victims DNA?

Having outlined the process for arriving at a major opinion, go back and recreate the

analysis leading to the opinion. Consider this example:

Question:

[In front of board with several opinions on it] Dr. Barney, you have told us you have

opinions on each of these subjects. Let me clean this board off, and let‘s go back to the

first opinion you stated, that the DNA found on the defendant‘s shoes correlates with the

victims DNA.

Doctor, let‘s now discuss your bases for that opinion. Could you outline them for us, and

then we‘ll come back and discuss them in more detail?

Answer:

Yes. My first basis was the determination of the three DNA markers I was able to take

from the shoes.

Question:

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If I put ―markers‖ up here, will that help keep track of that point?

Answer:

Yes, I should think so. My next basis is the markers I found from the known DNA

sample from Ms. Lee, Here is an exhibit I prepared that shows Ms. Lee‘s markers.

Question:

I‘ll put ―Ms Lee‘s markers‖ on this exhibit, O.K.?

Answer:

Yes. Next, I looked on these markers between Ms. Lee and the population of Mexico

City, generally.

As his expert testifies, counsel should follow with visual reinforcement to increasingly

involve and persuade the court of the importance and logic of his expert‘s testimony.

7. Anticipating Cross-examination

In any case the attorney can anticipate at least two likely lines of challenge to his

expert‘s testimony. One questions his expert‘s assumptions; the other questions all the

things the expert did not do, materials not reviewed, people not interviewed, and

calculations not made. The attorney should prepare the court for these likely approaches

to cross-examination by bringing at least some of the questions up himself, thereby

defusing any possible negative impact his opponent‘s questions might otherwise have

with the jury.

Regarding assumptions, the attorney should ask his expert whether she had to

make any assumptions. He should ask why she made those assumptions and whether

those assumptions are more reasonable than other assumptions that could have been

made.

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 Counsel should also ask his expert whether contrary assumptions would have

substantially affected the final opinion. This establishes the expert‘s opinions are not

particularly sensitive to the assumptions made, and those opinions remain consistent

throughout the entire range of reasonable assumptions. Note how this technique would

work in the case of DNA expert.

Question:

Dr. Barney, in making your measurements and calculations from the DNA samples you

had, did you have to make any assumptions?

Answer:

Yes, I did.

Question:

What assumptions did you make?

Answer:

Well, I had to assume a relatively consistent population of Koreans in Mexico City.

Question:

Why did you make that assumption?

Answer:

Because if there was a high concentration of blonds in a particular part of Mexico City

where the attack took place, this would change the reliability of the correlations.

Question:

Did you do anything to determine concentrations of blond‘s in the populations of Mexico

City?

Answer:

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Yes. I queried the registrar for the percentage of population of Europeans, Nordics, or

Scandinavians at the University, and was able to determine it was the same as the

population of Mexico City in general.

Question:

Do you have an opinion on whether that assumption was reasonable?

Answer:

Yes, I believe that it was reasonable.

The attorney should also show the witness‘s opinions are not sensitive to things his expert

did not do, and it was reasonable not to do them.

Question:

Dr. Barney, did you speak with any of Mexico City‘s sociologists who focus on

immigration in the city, specifically regarding German immigrants, to determine where

German‘s are concentrated in Mexico City?

Answer:

No, I did not.

Question:

Perhaps that was on advice of counsel. But let me ask you, Ms. Lee German or of

German extraction?

Answer:

No, she was not.

Question:

Dr. Barney, did you use any other sources to check your calculations?

Answer:

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No, I did not.

Question:

Why didn‘t you?

Answer:

Well, these calculations are so straightforward that it is really not a question of using the

right sources. In fact, they are what they are, a statistical correlation between DNA.

Not only does this provide the expert the opportunity to defend her opinions in a

friendly atmosphere, but the attorney has also shown the court he is not afraid to ask the

hard questions and to deal with what might be seen at first as weaknesses in his case. His

ability and his expert‘s ability to face these questions head-on gives court added reason to

believe his witness.

After the attorney has finished his questioning in anticipation of cross-

examination, he should take the opportunity to ask a final question, which presents his

theory of the case one more time:

Question:

Dr. Barney, we have talked about assumptions you did make; we have talked about things

you did, and things you didn‘t do. Does reconsideration of any of those subjects lead you

to change your expert opinion that there is a significant statistical correlation between the

DNA of the victim and the DNA found on the defendant‘s right shoe?

Answer:

No, it does not; that is still my opinion.

The effective direct examination of the expert witnesses is the result of careful

planning by the attorney and his expert. It must coordinate a presentation of expert

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opinion testimony and its necessary legal foundation with the use of supporting exhibits

and graphics.

A persuasive presentation weaves testimony about the expert‘s qualifications and

the bases for her opinions into a supporting background fabric for the opinion testimony.

Relating this testimony to the court‘s task while creating rapport between the court and

the expert creates a bond between witness and court that promotes persuasion. The

skillful use of repetition and visuals reinforces with the court the attorney‘s theory of the

case. The techniques shown are adaptable to the presentation of any expert‘s testimony

in every case. The integration of these techniques into the attorney‘s trial presentation

will insure that in every case he presents persuasive, winning expert testimony.

Now let‘s try an example with an experienced based expert: a consultant and

retired (5 years) deputy fire Marshal who has been asked by the defendant to determine

the origin and cause of a fire at an aluminum plant the defendant owned. This example is

taken from the NITA case file, State v. Jackson.

1. Introduction

Question:

What is your profession, Mr. Pincus?

Answer:

I have for most of my adult life been a fire investigator of some sort. For approximately

20 years I worked as a Deputy Fire Marshal in Nita City. For the last 6 years I have left

the public side, and started a forensic consulting business that consults on criminal and

civil cases concerning the origin and cause of fires. My firm also works with businesses

about fire safety matters.

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Question:

And where do you live?

Answer:

I still live here in Nita City. I‘ve lived here for over 30 years.

Question:

Are you active in the community?

Answer:

Yes. I am a member of NITA State Association of Firefighters, a member of the Joint

Task Force for NITA City/County Arson Investigation Modernization, and a member and

Past Vice-President of the National Emergency Response Team. I am also a Boy Scout

leader, and serve as a Deacon in my church.

2. Tickler

Question:

Mr. Pincus, have you come to court today prepared to state your expert opinion on

whether, from the evidence presented, the fire at the Flinder‘s plant was an accident?

Answer:

Yes, I am prepared to state my opinion on the cause of the fire?

As the attorney moves from the tickler to his witness‘s qualifications, he should create a

transition that explains the relevance of these qualifications to the case the jurors must

decide.

Question:

Before we get to that opinion, Mr. Pincus, I would like to ask you about your training and

education which qualify you to form such an opinion.

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 3. Qualifying the Expert

Question:

Mr. Pincus, How did you get started as a fire investigator?

Answer:

Well, I think it was in my blood from being a little boy. I always would chase after fire

trucks on my bike and loved to watch the fire fighters put out fires. When I left high

school I went into the Navy, and fought fires aboard an aircraft carrier, and then applied

to the Nita Fire Department as a fire fighter when I got back from my service.

Question:

How may years did you work for the NITA Fire Department?

Answer:

Over 26 years. I was promoted to Deputy Fire Marshall in YR-25 and served in that

capacity till I left six years ago.

Question:

How many fires did you investigate?

Answer:

Well over 1000 fires.

Question:

How many of those fires were chemical fires?

Answer:

I‘d say close to 200.

Question:

I take it you know Fire Marshal Olsen?

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Answer:

Yes. I worked for Olsen for many years. He was a good fire Marshal. He treated people

fairly and was competent as an administrator. After 20 years on the job, there was no

way for me to advance. Olsen wasn‘t going anywhere and I‘m not political enough to

find a way to take his job. I was ready for more responsibility, so I left and started my

own fire investigation business.

Question:

Back to the chemical fires, did you have any special training in investigating chemical

fires?

Answer:

Yes. My course training started in the Navy. You may have seen the chemicals fire

fighters on ships use to put out fires. We were trained what chemicals worked on which

kinds of fires. I also took several courses at the state fire investigation academy. They

offered courses each year, and I took every course they offered on chemical fires. I found

the subject fascinating, and it was vital to learn how to recognize chemical fires, to

determine not only how to prevent them, but also how best to fight them. I have also

taught courses on the subject, because of my interest and expertise were recognized by

others I worked with.

Question:

Have you also published in the area of fire investigation?

Answer:

Yes, I have published two works that relate in particular to my investigation of this fire.

One was for the National Association of Fire Fighters Newsletter, ―Short Fuse Ingnition

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Devices in Intentionally Set Fires,‖ Vol. 4: 28-32 (1993). The second was a book

Chapter, ―Modern Techniques for Site Recovery of Accelerant Residue,‖ in Arson

Investigation, Houghton Miflin (2000). It is the standard text in the field.

Question:

And how did the courses, teaching and publications you took in chemical fire

investigation relate to the work you did here, Mr. Pincus?

Answer:

In the present case, I knew the hotspot was located near the place that the plant stored

HCL. I also had learned early in my career as a firefighter that when HCL comes into

contact with hot ferrous metal (Iron that is in machines that have been running) that a

hydrogen gas can be created. Hydrogen is extremely explosive and can be ignited by the

slightest spark, be it static electricity or a faulty light switch. It can create a very

dangerous situation. As a firefighter you have to be on the watch for such combinations

as a matter of self preservation.

I was also interested in Olsen examination of the ashes and what techniques and

conclusions he reached with regard to evidence of accelerants, and chemical traces of

igniters.

The attorney should note that although he is still concentrating on qualifications,

he already has his witness giving opinions and testimony linking her expertise to issues of

the case, which moves the jury along the path of persuasion.

Again, if counsel‘s jurisdiction discourages or prohibits qualifying a witness in

open court, he should remember the factfinder can also consider qualifications as bases

for expert testimony. He should simply postpone and slightly reword his questions to

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accomplish everything he needs to display the expert‘s credentials. For example:

Question:

Mr. Pincus, we have now looked at several of the bases for your opinion that the fire was

an accident. Are there others?

Answer:

Yes, one further basis. One basis is my knowledge of the chemical properties of the

materials that were present at the time the fire started.

Question:

As a consultant fire investigator, what experience have you had that prepares you as an

expert in this case?

Answer:

As a consultant I have gained experience in chemical handling and storage. In addition, I

have investigated other chemical fires, and have advised clients both how they should

better handle their chemicals, and whether a given fire was of suspicious origin whether

a fire was an accident, employees were negligent, or whether the fire was intentionally

set. I‘ve taken the tools I‘ve learned from my experience as a fire Marshal and applied in

the sophisticated and complex world of business, opining as objectively as I can about

fire cause and prevention.

4. Tender

Depending on where the attorney practices, a tender of the witness may be

permitted or even required. The following example in the case of Mr. Pincus again

demonstrates a formal tender:

Lawyer:

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Your Honor, I tender Mr. Pincus to the court as an expert in the field of the nature and

origin of fires. He is qualified by reason of his education, experience, and training to

provide expert opinion testimony on the question of whether the fire at the Flinder‘s plant

was intentionally set, or was an accident.

Again, such a tender accomplishes five objectives:

1. It signals the court that the attorney has finished the qualifications, and it is now

time for the court to rule whether his expert may give opinion testimony.

2. It reminds the jury of the relevance of the expert‘s testimony.

3. It gives the attorney another opportunity to present his theory of the case.

4. It defines the scope of the expert‘s testimony so the court can decide whether the

testimony is within the expert‘s qualifications.

5. It signals that it is time for voir dire by opposing counsel.

Even if the court frowns on formal tenders, the attorney can usually signal the court he

has completed the qualifications and is ready to proceed:

Question:

Your Honor, we have now completed the portion of Mr. Pincus‘s testimony dealing with

his credentials as a fire investigator. May we proceed?

4(a). Method of Analysis.

Here you might inject, before switching to his opinion, a description of Mr.

Pincus‘ methodology. This is particularly important for an expert who was not able to

examine the scene itself. The jury needs to know why fire investigators, (or psychiatrists,

or medical doctors), can give second opinions based on reports of others. They need to

be told why it is acceptable in the particular field of expertise to work this way.

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Question:

Mr. Pincus, let‘s turn to your examination of the evidence in this case . . . Take us

through what you did, what you found, and what it means.

Question continues:

All right, with the court‘s permission, will you step down to the easel and continue your

answer, using this exhibit and list for us the steps in your investigation?

Answer:

Yes, of course. First I had an advantage. I had examined the Flinder‘s plant during my

days working for the fire department. I had done a safety inspection at the plant some 10

years before the fire.

Question:

Would you write up ―Personal Fire Safety Inspection.‖

Answer:

Yes.

Question:

What else did you do in your investigation?

Answer:

I examined Olsen‘s report?

Question:

Why did you do that? Why not do your own investigation?

Answer:

Well, for a number of reasons. First by the time I knew about the plant, the area had been

bulldozed for rebuilding. Second, it is the Fire Marshal‘s‘ job to include in his report all

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the bases of his findings. This is his duty as a fire investigator, and it is the necessary

first step in building the evidence in any arson investigation-- that the prosecutor be given

all the evidence to determine whether to charge a suspect.

Question:

Why is that?

Answer:

The law of fire investigation is that the investigator must rule out all accidental causes

before determining that a fire is arson. I was taught from day one as a fire investigator

that the accusation of arson is so defaming, and the presumption of innocence is in play.

As a result the police, [of which the fire marshal‘s office is a part] have to temper their

enthusiasm to solve fires by ruling out in their report the accidental causes.

Question:

Please write up two items on your list: ―Olsen‘s Report,‖ and ―Rule out Accidental

Causes.‖

Answer:

Okay.

Question:

Is it usual in your field to give opinions on fires without having personally investigated

the fires?

Answer:

Yes, I have to do it all the time. Just like doctors give opinions based on the work of

other doctors and nurses who take a patient‘s personal history of symptoms, so we fire

investigators review reports of other fire fighters in our investigations to determine

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whether arson has occurred. Everybody in the field understands this, and it is why report

writing is so vital to a determination of arson. And in some ways this is the same thing

that Olsen did. He arrived at the scene long after the fire started, and when the fire was

nearly finished. He relied on other witnesses and investigators for their views and

memories of what happened. I‘m doing the same thing.

5. Opinions

Make the presentation of the opinion dramatic. Draw the court‘s attention to it. Set

it apart from what led up to it and from what follows it. Pause. Then do something as

simple as clearing the board of graphics. Get a different notebook from the lectern or

simply change position in the courtroom before resuming the questioning. Counsel should

remember the court knows from his ―tickler‖ question that his expert will render an opinion

on the subject in question, and they should be prepared to hear it. Counsel should ask for

his expert‘s opinion in formal language to call attention to it and to assure the judge he has

followed the legal formalities.

In the case of Mr. Pincus, the expert witness examination might proceed as

follows:

Question:

Mr. Pincus, we now understand your method. Now, let us get to that opinion itself.

Do you have an opinion that you hold with a degree of certainty reasonable in the field of

fire investigation as to whether this fire was arson, or whether it needs to be classified as

an accident?

Answer:

Yes, I do.

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Question:

And what is that opinion, Mr. Pincus?

Answer:

The fire on November 16 was not arson. Iit was a fire that needs to be classified as

accidental in nature.

The formal language used here calls attention to the opinion and gives it weight. The

terminology, ―reasonable degree of certainty,‖ is also required in virtually identical

language in almost every jurisdiction.

As the attorney completes the discussion of the opinion and its bases, he should

restate the opinion to reinforce it with the jury and to signal that he has finished

discussing that opinion.

Question:

Now Mr. Pincus, have we discussed all of your bases for concluding that the rapid spread

of the fire does not rule out accident?

Answer:

Yes, we have.

Question:

Alright, let‘s turn then to your second opinion concerning the igniter.

When the witness answers yes, move the strip for that opinion to the side, and move

another opinion strip to the center of attention. This transition introduces the next

opinion.

6. Bases

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 After all of the major opinions have been introduced, the attorney should go back

to the first and tell the witness (and implicitly the jury) that he wants to outline the

process by which the expert arrived at that opinion. He should also remove references to

the other major opinions from his graphics board. His questioning should assume the

following format:

What did you do?

Why did you do that?

How did you do that?

What result did you get?

What is the significance of that result?

This is how these questions might have been used in the case of ―State v. Jackson

during the examination of Chief Olsen‖:

Question:

Chief Olson, what did you do to determine the origin of the fire?

Answer:

Well, I look for two things, a ―V‖ pattern of charring on the floor and walls, and I looked

at the depth of the burn on the wood in the floor as a way to measure where the fire had

been burning the longest.

Question:

Why did you do that?

Answer:

Fire seeks oxygen to burn and the charring or ―V‖ show the path it took in finding

oxygen and fuel, so one needs to look at the charring edge to follow the path back to the

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point where it all started. At that point there should be a ―hot spot‖ or point of longest

burn.

Question:

How did you determine the ―hotspot‖?

Answer:

The scarring on the cement floor and the walls was a classic ―V‖. It led to the machine

shop. There I measured the depth of the burn in the floor, and it was deepest there of any

place in the building.

Question:

On this diagram, Exhibit 7, will you show us what you did?

Answer:

Yes. After the fire was put out, and while the ashes were still hot and smoking, I entered

here, in the old reception area, and with my flash light, looked for patterns on the floor. I

also took some measurements of depth of burn on the floor as I walked through the

building.

Question:

What result did you get?

Answer:

The combination of charring and burn depth pointed toward the Machine Shop. And of

course, that is where I also discovered the body of George Avery.

Question:

What significance does finding of the hotspot and the finding of George Avery at that

same spot have in coming to your opinion the fire at Flinders was intentionally set?

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Answer:

For the body to be found at the place of deepest burn is very significant. ….

7. Anticipating Cross-examination

In any case the attorney can anticipate at least two likely lines of challenge to his

expert‘s testimony. One questions his expert‘s assumptions; the other questions all the

things the expert did not do, materials not reviewed, people not interviewed, and

calculations not made. The attorney should prepare the court for these likely approaches

to cross-examination by bringing at least some of the questions up himself, thereby

defusing any possible negative impact his opponent‘s questions might otherwise have

with the court.

Regarding assumptions, the attorney should ask his expert whether she had to

make any assumptions. He should ask why she made those assumptions and whether

those assumptions are more reasonable than other assumptions that could have been

made.

Counsel should also ask his expert whether contrary assumptions would have

substantially affected the final opinion. This establishes the expert‘s opinions are not

particularly sensitive to the assumptions made, and those opinions remain consistent

throughout the entire range of reasonable assumptions. Note how this technique would

work in the case of ―State v. Jackson‖:

Question:

Chief Olsen, in coming to your conclusion that an igniter was used to start the fire, did you

have to make any assumptions?

Answer:

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Yes, I did.

Question:

What assumptions did you make?

Answer:

Well, the amount of water had washed away a lot of material that would have otherwise

been available so I had to rely on the circumstances that I did have available. First, I

assumed that since Avery was near the hotspot at the time the fire started. While no one

saw him start the fire, the firefighters had secured the scene, were constantly witnesses

during the fighting of the fire, and had not seen anyone enter the fire area, so I think it is

safe to assume Avery was at the point of origin at the time the fire started. That suggests

either he started the fire, or was extremely unlucky not only to have been caught in the

fire, but to have been caught at the exact place it started.

Now, while I found no accelerant, I assume an accelerant was used.

Question:

Why did you make that assumption?

Answer:

Because HCL and hot ferrous metal can cause Hydrogen gas, but the gas still needs an

igniter. And it is common for an arsonist to build a fuse into an explosive gas. The

benefit of this device is that the explosion also destroys evidence of the accelerant and the

igniter. I assume that is what happened in this case.

A persuasive presentation weaves testimony about the expert‘s qualifications and

the bases for her opinions into a supporting background fabric for the opinion testimony.

Relating this testimony to the court‘s factfinding task while creating rapport between the

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court and the expert creates a bond between witness and court that promotes persuasion.

The skillful use of repetition and visuals reinforces with the court the attorney‘s theory of

the case.

The techniques shown are adaptable to the presentation of any expert‘s testimony in

every case. The integration of these techniques into the attorney‘s trial presentation will

insure that in every case he presents persuasive, winning expert testimony.

Two more examples follow in the next chapters: one involves the direct

examination of a damages expert in a commercial case, the second is the examination of a

neurologist who gave an opinion that a plaintiff‘s claim that his epilepsy was caused by a

collision between his motorcycle and the defendant‘s car is not supported by medical

science.

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 Chapter IX

Experts and Exhibits

Experts require effective exhibits because expert testimony requires explanation.

The entire premise of expert testimony is that the expert presents some information to the

fact finder that is beyond their ken; therefore, exhibits and experts must work together.

The trial lawyer must know the law of evidence with regard to exhibits, must know the

role the pretrial conference plays in getting documents admitted, must be able to make

strategic choices in the way the exhibits are created, and must see and contest the

impermissible choices the opponents may make in the creation of their exhibits. Finally,

the lawyer must know strategies for using, displaying, and handling exhibits in

openings, examinations of witnesses, and closing arguments.

The purpose of expert testimony is to help the lay fact finder understand a process

like the conversion of gasoline into energy to move a car, a relationship like that between

a tainted vaccine and the disease it causes, or a phenomenon like an avalanche in the

Rocky Mountains. The judges must find the expert to be credible and must understand at

least the structure of the methodology the expert has employed; then they can rely on the

expert‘s testimony. The jurors do not have to be trained so they can independently

replicate the experts studies, experiments, or clinical investigations, but on the other

hand, the expert testimony cannot remain Edgar Degas‘ ―conversation of specialists,‖

where one understands nothing. Therefore, exhibits for use with experts must be

especially helpful, especially interesting, and especially memorable.

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Exhibits and Evidentiary Foundations

Illustrative or Summary Exhibits

Even before trial, an expert has a head start in preparing exhibits to support her

testimony. Most oral adversarial systems, including international arbitrations, require

exports to submit expert reports so that the opponents can either call an opposing expert,

or prepare a cross examination, if they have challenges to the expert‘s opinion. For

example, under U.S. civil procedure rules, essential portions of the expert‘s Rule 26(b)

report should provide themes for illustrative or summary visual exhibits. Yet, while the

expert‘s report may be required in discovery, it is unlikely to be exciting. It contains more

information than the fact finder needs to remember because it is intended (1) to reveal

all of the expert‘s bases and opinions, (2) to serve as a vehicle for pretrial discovery, and

(3) to provide a basis for the court‘s rulings on admissibility of the expert‘s testimony.

However, an outline of the report will provide a list of its most important points; from

that list, the attorney can probably identify essential opinions and bases; which will

suggest interesting graphic exhibits of their own. If this outline approach does not suggest

effective exhibits, create a new list of high-level opinions with the expert and brainstorm

on ways to visualize them.

The court might have concerns about the reliability of the expert‘s exhibit

depending on what kind of exhibit it is. The foundation for illustrative exhibits with

experts is primarily an educational one, that the exhibits will assist the expert in giving

his or her testimony. When counsel reaches the appropriate point in the expert‘s direct

examination, he should ask the expert, ―Have you prepared any exhibits to help you

explain this to us?‖ (Notice the phrase is ―to us,‖ not ―to the court.‖ To avoid separating

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himself from the court or suggesting that he is better informed than the court, the attorney

should not ask the expert, ―Can you explain this to the court?‖) For variety, the attorney

may also ask, ―Can you show us what you mean?‖ or ―Is there some way we can see

that?‖ or any other question that cues his expert it is time for pictures.

Some lawyers make the mistake of trying to admit exhibits as summaries. The

evidentiary hurdle for summaries is higher than for illustrative exhibits. Summaries, or

charts, should only permitted for efficiency purposes and where the underlying data is

voluminous; it must indeed save the court time and not mislead the court. For example,

the U.S. system, FRE 1006, which deals with summaries, requires originals or duplicates

be made available to the opposition at a reasonable time and place. If the opponent offers

a computer simulation as a summary, and in the U.S., FRE 1006 is a way for counsel to

argue his opponent be required to turn it over to him well in advance of trial and in a

format (computer language or otherwise) his expert can read and change. Of course, the

opponent may contest there is free riding on his expert‘s work. (It may have cost

thousands to make the simulation, but once in a system, it can be easily manipulated by

simply changing a few key pieces of data.) Yet, in any oral adversarial system, fairness

and the requisite opportunity to attempt to rebut the factual assumptions the computer

simulation employs may require the early exchange of the simulation. If the court has

been made to have concern that a proponent of a computer simulation has not been given

a chance to rebut it, then the court may reject it. (See the discussions of things to look for

in the opponent‘s exhibits at the pretrial conference, infra.)

Hearsay

Another concern the court will and should have about expert exhibits is contained

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in evidence rules concerning the out of court or second hand evidence, otherwise known

as hearsay. (As we have explained before hearsay is a reliability issue, which mostly

raises issues of concern that the speaker or originator of the evidence is not confronted by

the opponent of the evidence, nor is the originator subjected to cross examination, in

order for the court to assess the speaker‘s credibility. In Mexico, these concerns may just

go to weight as opposed to admissibility. Still, for the advocate, the advocate must spot

these reliability concerns in order to point out to the court how the court out to weigh the

evidence. The U.S. evidence law, then, while not applicable regarding the evidence‘s

admissibility in Mexico, points advocates to an understanding of the reliability concerns

in the second hand presentations of evidence often contained in experts reports.

In the U.S., exceptions to the rules that exclude hearsay in exhibits or otherwise

are contained in FRE 803 and 804, and they are construed strictly and conservatively.

Since the codification of the Federal Rules of Evidence, no new exceptions have been

created in the federal system, and the existing exceptions have consistently been

interpreted to reject expansion. In general, the courts have proclaimed the exceptions will

be strictly construed so that circumstances, which come close to satisfying an exception,

will not be approved under that exception or under the ―catch-all‖ exception now

contained in FRE 807 (previously FRE 803(24) and 804(b)(5)). There is a genuine

concern that these exceptions be kept within their traditional bounds, or they will swallow

the rule. The catch-all exception, especially, is intended to allow courts to exercise

discretion when faced with circumstances beyond the contemplation of the drafters of the

original rules—not for circumstances which come close to satisfying an established

exception, but which fail for technical reasons. (To take advantage of the 807 exception,

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the proponent needs to give the opponent notice at pretrial that he will use 807 as a basis

for the admissibility of the proffered evidence.)

Exhibits used with experts often present hearsay problems because they present,

summarize, or utilize out-of-court statements. (Of course, if the statements are non-

hearsay party admissions, there is no problem.) While exhibits may be specially

prepared and offered as summaries of complex or voluminous underlying data or

material, accounting, economic and scientific graphs, or video demonstrations and

recreations being prime examples, the summary exhibit incorporates all the hearsay

deficiencies contained within the underlying data. However, the attorney cannot eliminate

hearsay problems merely by incorporating the data into another exhibit. As a corollary,

when evaluating an opponent‘s exhibits, consider the foundation for all data underlying

summary exhibits.

The attorney‘s evaluation starts with FRE 703: ―If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences upon the subject, the facts

or data need not be admissible in evidence.‖ The first level of response to a hearsay

objection is to say an expert may rely on hearsay. Still, in presenting hearsay in an

illustrative exhibit, counsel‘s opponent may object that the exhibit gives hearsay too

much emphasis or is misleading to the jury and should be excluded under FRE 403

because it presents the hearsay as an established fact. In opposing an expert exhibit on the

basis that it contains this kind of hearsay, the opponent should at least get a limited

instruction from the court that specified data on the exhibit is only there to help the jury

know the facts upon which this expert relied to reach her particular opinion; that these

facts are contested, and the expert‘s exhibit is not itself evidence of these facts. In

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presenting an expert‘s illustrative exhibit which contains hearsay, a safe exhibit should

not represent the hearsay evidence as fact, but instead, it should clearly represent the

evidence under the heading, ―reasons‖ or ―bases.‖ (Revisions to Rule 703 would preclude

displaying ―inadmissible bases‖ to the jury; it remains to be seen whether courts will

exercise discretion to allow explanation of inadmissible bases, by exhibit or otherwise, if

that is necessary to avoid confusion about the expert‘s opinions.)

Exhibits can be useful in a number of additional evidentiary situations, even

where the exhibit will not actually be entered into evidence. An exhibit may be used to

impeach an expert, or to refresh recollection, or as past recollection recorded; in such

uses, it is read to the expert and into the record, but the document itself is not received or

provided to the jury during their deliberations. The concept is identical for all exhibits

intended to refresh memory or to stand in place of a witness‘s testimony (and for learned

treatise, if such are allowed into evidence, after the court considers the treatises reliability

under statutes like U.S.‘s FRE 803(18), which may supplement or contradict an expert‘s

testimony). Since the material is essentially being offered either as a substitute for or in

contrast to the expert‘s testimony, it is received orally, just like the expert‘s testimony, so

the jury is not led to place inappropriate weight on a testimonial substitute merely

because it is on paper. (Note again that as an illustrative aid to that oral testimony, an

overhead or other presentation might be shown to the jury and again in closing argument,

but it will not be received into evidence.) Another basis for admissibility of exhibits

during expert testimony is if they merely present market reports or commercial

publications (stock data from the Wall Street Journal) that meet the jurisdictions

admissibility requirements like those of FRE 803(17).

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Knowledge concerning the rule of completeness is also vital to respond to the opponent‘s

use of proffered exhibits, especially as to parts of the expert‘s report or deposition, which

may be offered to impeach the expert. If part of the expert‘s report or deposition is

accepted into evidence, the opposing lawyer may (at the judge‘s discretion) offer other

portions which the court, in fairness, should consider at the same time. Taking things out

of context is protected against to insure a fair presentation of evidence. For example,

FRE 106, the ―rule of completeness,‖ is intended to prevent an advocate from misleading

the jury by presenting only a portion of an exhibit. The proper functioning of the rule

permits the opponent to request the court to authorize the admission of additional

portions at the same time, so the jury has the complete context. In practice, courts often

respond to such requests by stating, ―Well, you have cross-examination.‖ Of course, the

opponent had cross-examination without FRE 106, so such a ruling completely defeats

the important purpose of the rule. If the document in question is a formal deposition, the

attorney may also cite procedural rules like the U.S.‘s Fed. R. Civ. P. 32(a)(4) to provide

additional comfort and guidance to the court.

Foundations for Specific Exhibits

Photographs

A photograph is admissible in evidence that it fairly and accurately depicts a

relevant scene at a relevant time. The focus in analyzing the foundation for photographic

evidence is whether the relevant view seen by the expert is fairly and accurately depicted

in the photograph. Therefore, it does not matter whether the exhibit was photographed (or

recorded by whatever process) at a relevant time (anymore than a chart prepared for an

accountant‘s testimony must have been prepared at the same time the sales and revenues

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were earned).

From Photographs to Movies to Computer Graphics

Think how powerful a movie of a fire might be for helping the jury to judge its

power and amount of devastation, as a reason to believe the fire was arson. If the

individual ―frame‖ of a graphic exhibit is fair and accurate, whether there are thousands

that comprise a motion picture, or one that comprises a still photograph, the exhibit is

admissible unless there is something about the motion—perhaps the speed—that renders

the series unfair (under FRE 403) even though the individual frames, taken one at a time

would not be. For example, a videotape of a plane crash, when played at normal speed,

accurately shows the events; if the tape were shown at slow speed; however, it might give

the appearance the pilot had more time to control the plane and to avoid the accident than

was the actual case. Similarly, any cropping of photographs, stills, or movies might place

undue emphasis upon certain portions of the picture or scene—just as omitting portions

of a document might result in an unfair or incomplete understanding of the document

because if the attorney does not see everything relevant in the picture, he may think the

missing thing was not there. When an expert has testified a depiction is fair and accurate,

the burden of proving lack of foundation shifts to the opponent, who must present

evidence that the depiction is unfair itself or has been presented or altered in some unfair

way.

As a matter of evidence and trial procedure, the attorney needs to know that the

admissibility of a photograph, movie, or computer simulation may be opposed on the

basis that the expert lacks a foundation for testifying that it is relevant. For example, an

expert may be vague in establishing that she had a similar view, or that the actors and

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their actions were similar to the parties involved or cannot say the facts entered in the

mathematical model used to create the computer simulation are relevant to anything at

issue in the case, and then the admissibility question is handled in an oral adversarial

system under evidence provisions related to conditional relevance. See, e.g. FRE 104(b).

The relevancy is conditioned on a fact, and the proponent only needs to provide evidence

that would support a finding that the expert had the perspective to say the photo, movie,

or computer simulation is fair and accurate in order for it to be admissible. The rest of

the challenge goes to weight. Determinations of preliminary matters regarding

admissibility like these may be conducted by a pretrial magistrate which will all the

determination of admissibility to be conducted out of the hearing of the ultimate judge,

when interests of justice require it. FRE 104(c). (Mexican pretrial hearing may also

evolve to make determinations of other questions of admissibility, like for instance, for

illegal searches, or involuntary confessions.)

This is not to say the court will be comfortable in admitting computer simulations

as readily as it admits photos. It is very hard to cross-examine a movie or computer

simulation once the court has seen it. Some lawyers would go so far as to say counsel can

only counteract a memorable movie or computer simulation with one of his own—where

he shows the court what the event would look like by importing his own facts and

perspective. Some courts agree the movie or computer simulation may be too powerful

and will not let in a computer simulation or movie unless the court is convinced of its

accuracy and reliability. (They seem to analyze a computer simulation like an expert

opinion on cause and effect, based on a mathematical model, or like a FRE 702

problem.) Remember that in the U.S., in Daubert,v. Merrell Dow, the court acts as a

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gatekeeper, determining as a foundational matter whether the model controls all the

important variables and has been subjected to other tests of relevance and reliability of

scientific modeling.

Other courts treat movies and computer simulations like photos. Again, for comparison

purposes, in the U.S., they hear arguments that refer to four rules. FRE 403 (evidence that

is unduly prejudicial and misleading to the jury is excluded) is one of the main rules of

discussion along with FRE 102 (the rules are to be construed to secure fairness, eliminate

unjustifiable expense and delay, and promote the growth of the law of evidence to the end

that the truth may be ascertained), FRE 104(b) (evidence conditioned upon a showing

sufficient to support a finding), and finally, FRE 611(a) (provides that the court shall

exercise reasonable control over the mode and order of interrogating experts and

presenting evidence so as to make the interrogation and presentation effective to ascertain

the truth and avoid needless consumption of time). Under FRE 611(a), if a picture is

admissible because it avoids needless consumption of time, then a computer simulation

should also be admissible. And many courts do appreciate technology that produces

substantial time savings in trials.

Videotapes require the same foundation as standard motion pictures. The

technology employed in making the record, in creating the visual exhibit, is not an

element of the foundation itself, but it may be relevant in persuading the court the

depiction is not fair and accurate because the process was subject to abuse and was, in

fact, abused. Therefore, unless there is some showing that videotapes can be more easily

altered than normal photographic motion pictures, the analysis of admissibility will be the

same for either technology. If there is a challenge to admissibility based on a claim of

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alteration, then differences in the ability to alter the pictures would be relevant.

(Videotapes that incorporate computer simulations raise a deeper analysis. Because the

computer simulation can be so easily manipulated once the mathematical data has ben

entered, the court does have a cause to be more skeptical of the entire video. See the

discussion below.)

Photographs and movies of a reenactment are not inadmissible simply because

they portray a reenactment; if they are ―fair and accurate‖ and the scene is relevant, they

are admissible. In other words, if there is evidence that the signing of the Declaration of

Independence looked ―just like‖ it looks in a photograph or movie and the scene is

relevant to the case, it will be admissible. This rule flows from the basic evidentiary

requirement that recorded evidence be a fair depiction if the expert can testify that the

reenactment is relevant. For example, the actors in the movie, those who are portraying the

participants in the events at suit, are not themselves vouching for the accuracy of their

actions or the resulting scene; that is dependent upon the testimony of the sponsoring

expert as to the ―fairness and accuracy‖ of the depiction. The analysis of a computer

reenactment is conceptually a bit more difficult often because there is no one who can

testify directly as to the fairness and accuracy of the scene shown. For example, a

computer recreation may be used to show the locations and movements of all the vehicles

relevant to a traffic accident, perhaps from an overhead perspective unavailable to any

person at the time of the accident. Here, the ―fairness and accuracy‖ of the computer

recreation depends upon the testimony of the expert, normally an expert who is familiar

with or participated in the preparation of the reenactment. If that expert can identify bases

for the computer inputs, and she (or another expert) is able to testify to the reliability of

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the methodology (the computer programs) used to generate the recreation from that data,

then the fairness and accuracy of the computer-generated evidence will have been

established. By way of analogy, testimony can be accepted that acid added to a basic

solution results in the combination of hydrogen ions (H -) with hydroxl ions (OH+),

forming neutral water and releasing hydrogen gas, even though the chemist does not

actually see the interaction between the molecules and their electrons. The key to

admissibility is the demonstration of the reliability of the methodology employed in

creating the exhibit, as was emphasized for the expert‘s methodology overall by the

Supreme Court in Daubert v. Merrell Dow Pharmaceuticals. Again, the court seems to

reason if the methodology—here, the computer program—is shown to be reliable, if the

data input are shown to be reliable, and if the scene is relevant, then the visual recreation

or reenactment will be admissible, even though no human being had ever actually seen

the events depicted.

Computer-generated simulations or reenactments are admissible if they are fair

and accurate depictions, but the possibility of improper manipulation (because of

computer technology) will have to be met. Because the technology is now available to

alter photographs and videotapes at a very fine level (that is, by changing individual

pixels, the small elements which form the picture when combined in groups of hundreds

of thousands), the proponent of the visual evidence certainly should recognize the

skepticism the jury or court may feel toward important visual evidence. While the jury

does not have the opportunity to rule on accepting the evidence into the record, it

certainly decides whether to accept the evidence into its deliberations. Such concerns

may persuade the proponent to ask at least a few questions to the expert to demonstrate

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there has been no tampering. As a matter of presentation, these questions should be in the

form of, ―Has anyone had an opportunity to manipulate either the data or the program?‖

rather than, ―How do you know that the data are accurate or were accurately manipulated?‖

because the latter formulation presents too direct a challenge to the testimony of the

proponent‘s own expert.

Anyone who viewed the actual scene at a relevant time can testify to the fairness

and accuracy of the visual evidence. There is no requirement that the foundational

witness be a party to the lawsuit or the party‘s expert; alternatively, it is not necessary

that the witness be uninvolved in the lawsuit. The only requirement for a foundational

witness is she must have been able to perceive the relevant scene at a relevant time (or in

the case of computer-generated evidence, she must have the competence to testify to the

reliability of the program and data used). The attorney should test the foundational

witness‘s competence to lay the foundation for visual evidence in the same way he tests

her ability to testify directly to the scene which she saw. If she can say, ―Then I saw the

plane crash on the runway‖, she should also be allowed to say, ―This picture of a plane

crash fairly and accurately shows the angle that the plane hit the runway.‖

In the computer context, if the foundational expert would be allowed to testify

that, in her opinion, the processes would have certain results, then she will also be

allowed to testify that a visual exhibit showing those results is fair and accurate. For

example, if the actual scene was not witnessed (or could not be witnessed, for example,

the scene is a view of the inside of an operating nuclear reactor), foundation testimony

will need to include technical testimony to connect the data input with the graphic output,

using reliable methodology (consistent with Daubert v. Merrell Dow). Statistical

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calculations performed by computer, DNA comparisons shown on charts, or chemical

analyses displayed in summary charts all have to be founded on testimony as to the

reliability of the methodology used to manipulate and display the data.

Again, the use of illustrative aids to testimony may be an attempt to evade these

foundation requirements for the admissibility of certain exhibits. Exhibits, which are

intended merely to illustrate an expert‘s testimony, are as admissible as that testimony—

and no more. If an expert presents an exhibit to ―show what she is talking about,‖ like a

graph or sketch or diagram, and her testimony is then excluded or rejected, the illustrative

exhibit must likewise be excluded or rejected. ―Illustrative‖ exhibits have no substantive

probative value of their own but derive their probative value entirely from the testimony

they illustrate. ―Demonstrative‖ exhibits, in contrast, normally have independent

substantive value (for example, a demonstration of the effect of mixing two chemicals

provides information to the trier-of-fact, which may be used to support findings).

Demonstrative exhibits may be solely demonstrative, they may be illustrative and

substantive, but they are never merely illustrative.

In civil cases, discovery rules may evolve in Civil law countries that mirror those

of the U.S. In the U.S., exhibits divulged or obtained as part of mandatory ―voluntary‖

disclosures under Fed. R. Civ. P. 26(a) are supposed to relate to the ―issues‖ in the case.

This rule sounds direct enough to cause few problems, but it is not. First of all, it leaves

to the judgment of the disclosing attorney the decision as to what ―relates‖ to what.

Second, the question of what are the issues is complicated, even without interposing an

advocate‘s biased judgment because matters are technically put ―in issue‖ by the

pleadings—complaint and answer—and the answer may not yet have been filed. As a

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result, the initial disclosures by the attorneys are likely to be incomplete and give rise to

time-consuming challenges or more likely, the opponents may try to bury each other in

discovery as broad as that which occurred before the disclosure procedure was adopted.

Nevertheless, admissions are contained in discovery productions: the act of

returning an exhibit in response to a document request, an interrogatory, or an initial

voluntary disclosure constitutes an admission regarding portions of the foundation for the

exhibit. For example, if a document request calls for the production of ―all documents

that show profits earned between May 1995 and May 1996,‖ then the return of twelve

documents constitutes a party admission of two facts: the twelve documents are relevant

to profits in that period, and the opposing party has no access to any other documents,

which are relevant to profits during that time. Therefore, in discovery the attorney should

never ask for ―documents sufficient to show‖ because he does not obtain the benefit of

this second party admission.

Parties will often provide documents in response to an interrogatory, as they are

allowed to do by the rules. That response constitutes an admission that those documents

answer the interrogatory, i.e., they are relevant to the subject. Exhibits, which are

provided in an initial voluntary disclosure, are, at the least, admitted to be relevant to the

issues; technically, they are admitted to be all of the documents that the party has that are

relevant to the issues, but it is likely to be very difficult to persuade a court to apply the

language of the voluntary disclosure rule quite so strictly.

The Role of the Pretrial Conference

Typical in modern adversarial jurisdictions are pretrial standing orders, or local

rules, which require exhibits to be identified, exchanged, and offered by the final pretrial

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conference. Most judges nowadays do not want to take trial time to hear argument about

foundation for exhibits; they, therefore, require exchange and objection to occur prior to

trial, and they will not hear objections later that could have been made pretrial. Again,

Civil law countries may a evolve a role for a pretrial judge who is different for the trial

judge to make these determinations. If it does, objections based on relevance and the

various policies embodied in rules regarding cumulativeness, confusion, unfair prejudice,

and waste of time, will often be deferred until trial because the judge feels he or she

needs the advantage of context to make a proper ruling. They should nevertheless be

stated pretrial, so they are not waived.

Motions in limine are used to get advance rulings of admissibility, as well as

advance rulings of inadmissibility. Under Daubert, when it is difficult to forecast in

advance whether a particular judge will find a foundation to be adequate for an expert‘s

testimony, a request for an in limine ruling may be essential, and that request should include

the expert‘s exhibits also. The presentation supporting that request for a ruling may include

live testimony under the procedures of FRE 104(c). It is a common misunderstanding, based

on a mistranslation of the phrase ―in limine‖ (which means ―at the threshold‖ of the

courtroom or chambers or trial), that such motions are only useful ―to limit‖ the evidence.

If the lawyer has an exhibit where he anticipates a challenge, and it is sufficiently important

to the flow of his case that he does not want to wait until trial to find out whether it is going

to be admitted, he should ask for an in limine ruling. Of course, if the court has scheduled

an ―exhibit day‖ during the pretrial sessions, the lawyer can obtain his ruling at that time.

However, there are judges who prefer to postpone routine exhibit rulings until they come

up at trial. When the lawyer is in front of one of these judges, a request for in limine rulings

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on important exhibits is appropriate.

Staying Organized During the Pretrial

Use an ―exhibit book‖ or ―trial notebook‖ during pretrial and trial arguments on

the expert‘s and all of the attorney‘s exhibits. For the exhibit day, if counsel is dealing

with 200 to 300 exhibits, he should put copies in one or two notebooks in numerical

order. Note with care which exhibits the expert needs to have admitted in order for her to

be able to refer to them as a basis of her opinion. If the opponent has conceded the

admissibility of the exhibit, counsel should indicate it at the top in some bright color. For

those exhibits for which admissibility has not been conceded, write ―OPRAH‖ vertically

at the top of the first page of each exhibit. OPRAH stands for Original Writings,

Privilege, Relevance, Authentication, and Hearsay. Then the lawyer should consider how

he would respond to any objection on any of those elements of foundation, and he should

make a note opposite the element.

Objections to exhibits made and overruled at pretrial should be renewed at trial.

Unless the judge states on the record or in a written order that she will not allow exhibit

offers to be renewed at trial if she has sustained an objection to the exhibit during pretrial,

the offering attorney should renew the exhibit offer at trial. An offer or objection might

be stated when the jury is out, during a bench conference, or in the morning or evening

housekeeping session, but it should be in the presence of the reporter so it is on the

record. It is true some judges get testy about attorneys restating objections or offers that

the judge thought were completely and properly handled at pretrial; if the judge seems

perturbed, the attorney should explain he is concerned about having adequate record and

does not intend to reargue the ruling but is just making certain to the appellate court his

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position is not waived.

If the offer in evidence is not explicitly limited, then it is general. There are times

when an exhibit is offered for a limited purpose, such as showing that a statement has

been made, regardless of its truth, thereby avoiding a hearsay objection. If that is the

proponent‘s purpose, then she should say, ―Your Honor, we offer Plaintiff‘s Exhibit 13 in

evidence for the limited purpose of showing the store claimed to offer 50 percent off on

the gas barbecue grills that day.‖ When such a limited offer is made, the court will

normally be advised by opposing counsel, in this example that they should consider the

exhibit only to show the statement was made, not for the truth of the statement itself. The

attorney should remember to record any limited admissibility ruling the court makes, so

he can guard against the general offer and the impermissible general use by the opponent.

The Lawyer as Protector of Fairness: Edit and Critique Experts‘ Exhibits

Counsel should guard against misleading icons in his graphics and in his opponent‘s

graphics. Misleading icons are symbols that unfairly exaggerate relevant information in a

graphic; therefore, they are cause for rejection: an oil barrel graphic that doubles in height

and width to show a doubling in oil imports from one year to the next is misleading

because doubling both dimensions gives the ―doubled‖ icon four times the area of the

undoubled icon. The visual impact can be enormously misleading.

Misleading Icons

Counsel should guard against misleading labels in his graphics and in his

opponent‘s graphics. Misleading labels can exaggerate the extent of change or difference.

As an example, a graph showing yearly sales volumes (and perhaps even entitled ―Yearly

Sales Volumes‖) is misleading if the last amount shown is for less than a year (a problem

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that can be thought of as an ―apple-orange problem‖). On a much more subtle level, a bar

graph showing growth in profits from $10 million to $13 million will show the second

bar as 1.3 times as high as the first, but if the Y-axis is labeled to begin at $9 million, the

first bar will be one unit high (showing $1 million over the baseline), and the second bar

will be four units high, or four times the height of the first.

Graphics that are misleading because of icon, label, axis/baseline, ―apple-orange,‖

or other problems are likely to be excluded under FRE 403. Once proper objection is

made, misleading graphics will be rejected until they are corrected; therefore, if the error

is not discovered or disclosed until trial, there may be no opportunity to correct the

problem and the evidence may be lost. Of course, if there is some reason to believe the

error was known but objection was withheld intentionally, the court might find waiver of

the objection.

The lawyer should be careful that his graphics do not distract or detract from the

seriousness and credibility of the evidence. Just as the attorney would not dress his key

expert in a yellow suit with a clown tie, he should keep his backgrounds professional, and

pick font size and colors that match or ―go with‖ the evidence.

On the other hand, experiment with different displays, changing variables and axes

until the desired emphasis and message are achieved. Just as witnesses can be instructed to

speak up to help the jury understand and better hear their point, graphics that contain

information about multiple variables often do not provide sufficient emphasis to the data on

the particular variable that is most important, such as the illegal profit, the white blood cell

count, or the decline in garbage tonnage. Simplify the display by eliminating variables that

are not relevant or significantly explanatory. Try different colors (or a single color against

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black and white ―other‖ data). The lawyer should not be satisfied with the exhibit until a

layperson, looking at it for the first time, is able to state the point he wants to make with the

data he is relying upon. Graphic evidence must have immediate visual impact to be

effective.

Adjust the expert‘s mode of presenting data and numbers so the important

numbers and comparisons will stand out. To show comparisons such as differences over

time, growth, or response to variables, present a graphic exhibit that displays the two

conditions side by side. If the changes are displayed in a series of graphics so the jurors

do not see them simultaneously, they must rely on their memories for the quantity and

even location (from 1,573 to 1,945; this row, that column, that door, this window, or right

lung, lower lobe). This is the problem described by master graphic philosopher Edward

Tufte of Yale as ―one damn thing after another.‖ Instead, display the before and after (or

healthy and sick or unmodified and modified) views on the same graphic, at the same

time, side by side, with the differences colored, highlighted, or circled so they appear

visually.

Do not mistake ―big exhibits‖ for ―graphic evidence.‖ A blowup of a document,

especially of a text document, is merely a big text document; it does not tell a story

visually. Pictures, charts, graphs, tapes, or computer animations make effective visual

exhibits if they produce an immediate reaction in the viewer that supports the theme of

the case. To cite an extreme example, an accounting worksheet or table, filled with rows

and columns of numbers, has little visual impact (unless the theme is boredom), but if the

final number in the far right column, bottom row, stands out because it is written

$15,000,000, then the viewer‘s immediate reaction to the exhibit is that somebody lost a

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lot of money. Having isolated the elements needed to promote visual impact, the attorney

should ask why the other elements are necessary, all those other rows and columns of

numbers have become nothing more than background. Perhaps they should be dimmed, as

computer programs do with commands that are unnecessary or unavailable at a particular

time.

Even enlarged exhibits, which are pictures, are not effective if the relevant details

are lost among other items in the scene. By direct analogy to the accounting worksheet

discussed above, a pictorial scene may contain the relevant information but not display it

effectively because of the clutter caused by other items in the scene. To avoid any

charges of unfairness or tampering, present the enlarged picture without enhancement,

and then present alongside the original an enhancement that circles the relevant item and

dims the remaining scene, or circles the relevant item and ―calls it out‖ with an arrow to

an enlargement of that portion to the side or which in some other way attracts attention to

the important component and leaves the remainder as background. The advantage

presented by visual exhibits is they provide the opportunity to reinforce particular

information through the eyes of the viewer.

Opposing Graphic Evidence at the Pretrial Conference

When opposing graphic evidence, look for changes in scale or perspective which

might exaggerate or unduly emphasize the point being made. Remember the magician‘s

trick: stacking objects one in front of another creates the illusion they are close to each

other, and there is little or no space between them to hide things, where things may have,

in reality, been hidden. Also, even a graphic can be tilted to cause the trial judge to see

some things more easily than others. For example, does the graphic present a ―bird‘s eye

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view,‖ which no one had and suggests the defendant could see all the danger points

without obstruction?

When opposing, look carefully at the labels used on exhibits, and consider the

appropriateness of the label to the particular use at trial. Do the labels argue? Not allowed

on opening. Do they lead? Not allowed on direct examination. Do the labels

mischaracterize? Not allowed on direct or cross. Do the labels represent as evidence

things not entered into evidence? Not allowed on closing.

The attorney should look at his opponent‘s method of emphasis in the exhibits.

Do words or data contained in the exhibit shout at the jury? The exhibits should only be

allowed to ―speak‖ to the jury, analogous to limits a court would put on the way experts

speak on the stand. After all, the jurors are instructed to take the evidence as a whole

and presenters should not be allowed to unduly emphasize one part of the evidence over

all the rest. Advertisers know how to do this; the opposing expert may also. Especially

check for boxes with black text on bright yellow or orange background (like yield signs),

which may unduly emphasize some information in a document over its context.

At pretrial, in limine, if not before, counsel wants to know what his opponent will

be using in opening. If the opposing expert has created some super graphic or computer

simulation as illustrative evidence, she may attempt to use the computer simulation in

opening, which could be devastating to the proponent‘s case. The attorney wants to see

ahead of time not only all of his opponent‘s charts and exhibits, but also anything that

moves or has animation. Remember, once the trial judge sees a scene or reenactment

either on a board, on a screen, or in a box (TV), it will be very hard for the court to

unlearn it. The attorney should insist on previewing any animation, so he can object if the

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foundation is in doubt. (Remember to use arguments like those we discussed: e.g. FRE

611 (the court controls the mode of the presentation of evidence) and FRE 1006 (if the

computer simulation is offered as a summary) to insure the court recognizes its obligation

to insure counsel has been given a fair chance to see, understand, and respond to the

underlying data.)

Handling Documents at Trial: Dancing with Documents

The attorney should let the judge know what he is about to do. Assuming the

documents have been premarked, as is the case in most courts, there is no need to get the

court reporter to mark a document separately. The memory trigger for handling

documents can start with ―Your Honor, I have in my hand a document that has been

premarked for identification as Exhibit 13.‖ The judge then can look at her list of

documents and learn what is coming.

Make the ―three-step exhibit circuit‖ when presenting an item of evidence at trial.

When the attorney is ready to present an exhibit to the expert, he should open his folder

of copies of that exhibit and take three copies in hand. He should ask the court for

permission to approach the expert (if he has not presented documents to this expert before

and if he is allowed to leave the lectern). First, on his way to the expert, the attorney

should place one copy on opposing counsel‘s table saying, ―Counsel‖ audibly so it is

apparent to all that he has given him a copy. Second, he should say, ―Your Honor, would

you like a copy?‖ Third, he should hand the expert a copy saying, ―Mr. Hobart, I‘m

handing you Plaintiff‘s Exhibit 13 for identification.‖ The first step prevents opposing

counsel from interrupting the attorney‘s examination about the exhibit by asking for time

to find his copy or by insisting he needs to compare his copy with the one the expert is

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using. The second step makes certain the judge is following the examination with her

copy of the document; if the judge has her copy, she‘ll say, ―Thank you.‖ If the judge

does not have her copy, she will take one from counsel and say, ―Thank you.‖ The third

step makes it clear in the record that the expert has a copy of this particular exhibit in

front of her, without the need for any artificial statements such as, ―Your Honor, I would

like the record to reflect that I am handing the expert . . .‖ [This is important if the

appellate court will only be provided with a written transcript of the record at the trial

court.]

Have the expert lay the foundation for the exhibit before asking questions about

its contents and substance. Until the court has ruled upon whether there is a proper basis

for admitting the exhibit in evidence, its substance and content should not be put into the

record or discussed in front of the jury. Of course, with some exhibits reference to the

contents is necessary in a limited way in order to identify the contents as relevant. For

example, a photograph of the accident scene would have to be identified by someone as a

fair and accurate depiction of the relevant scene at a relevant time. Testimony on the

contents beyond that would be inappropriate until the exhibit is received, so the expert

should not be asked before receipt, ―Is that how the plaintiff‘s body looked as it protruded

through the windshield of the defendant‘s truck?‖

Offer the exhibit in evidence before asking questions about its contents and

substance. After the attorney has completed the foundation for the exhibit, he should say,

―Your Honor, I offer Plaintiff‘s Exhibit 13 in evidence.‖ Nothing more complex is

required. It is not necessary to say, ―Your Honor, we move the admission of Plaintiff‘s

Exhibit 13,‖ or anything to that effect. The simple ―I offer‖ if sufficient. In olden times or

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in very formal jurisdictions counsel sometimes says, ―I offer Plaintiff‘s Exhibit 13 for

identification in evidence and ask that the identifying mark be stricken,‖ but since there

is not real possibility of ambiguity as to what is happening, this is mostly excess

verbiage.

During direct examination, the lawyer should bring his expert off the stand so she

can work with visual exhibits. Getting the expert out of her chair in the witness box

allows her to move around, to talk with more animation, and to teach the court more

naturally. On direct examination, use visual exhibits to provide an opportunity for the

expert witness to come down and interact. Say, ―Your Honor, may the witness come

down to use an exhibit in explaining this point?‖ Schedule the use of exhibits for times

when attention and energy in the jury box (or on the bench) may be low: midmorning,

right before lunch, late afternoon.

Counsel should make sure he rehearses with the expert so she does not

inadvertently get in the way of the exhibit or misuse it.

In contrast, during cross-examination keep the opposing expert in her seat and

resist her attempts to get in front of the court with an exhibit. On cross-examination, the

attorney should watch for attempts by the well-prepared opposing expert to maneuver

him into letting her come down and explain something with visual exhibits. Beware the

opposing expert who says on cross-examination, ―Well, counsel, if I could just come

down and show you what I mean on an exhibit I used earlier,‖ or ―Counsel, it might help

the judge if I just showed the court a diagram that I have in my exhibit case.‖ Respond to

those requests with something like, ―Let‘s just talk about this point for a moment, and

then we can decide if we need the exhibit,‖ or ―Let me ask something else here, and then

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perhaps we‘ll come back to that area if we have time.‖ Of course, whether counsel

actually does come back to that area later depends upon a host of factors; chief among

those factors is whether he ever wants to come back to that area.

Consider the advantages and disadvantages of three different display options:

the evidence camera-to-screen option, the computer-to-screen option, or the computer

or video recorder-to-box or monitor. The evidence camera, or ―Elmo,‖ to screen option is

the most versatile display option, and the easiest to operate. It only requires the

knowledge of how to turn on the camera‘s power, to place the exhibit (document, picture,

or object) under the lens, to push the focus button, and to move the exhibit to show what

the lawyer wants to show. The camera will then show a picture of the exhibit on a display

screen. It also has a zoom button to allow the lawyer to focus the court on details. This

option is a great backup if any of the other options goes wrong. As long as the lawyer has

made a backup copy of his exhibits, he simply puts them under the evidence camera and

turns on the machine.

A second option is the computer-to-display screen option. Many courtrooms

today have projection systems that will project images from computer programs onto a

large screen. PowerPoint, Corel Presentations, and other trial evidence software can

access slides or files containing exhibits, pictures, and videos with a sweep of a bar code

or the click of a mouse and, if hooked up properly to a compatible projector, project the

exhibit for all the court to see. Of course, the lawyer wants to see if the details of the

exhibit, simulation, and/or the size of the lettering can be seen by the court. This requires

some knowledge of the lighting of the courtroom and the projection capabilities of the

projector. Regarding size of lettering, some lawyers use the following formula to

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determine whether an audience will be able to read the screen: D X 0.05 = H. D is the

distance in feet to the farthest person in the room. H is the height in inches of letters

or symbols on the screen, board, or flip chart. Thus, if the farthest person is thirty feet

away from the screen, 30 x .05 = 1.5, and 1½ inches is the smallest lettering the lawyer

should use. (Actually, this seems too small to the authors; we would go with 0.1 as the

multiplier, arriving at three inches in this example.)

A third option is the computer/video-to-monitor. Again, depending on the number

of and size of monitors in the courtroom, the ―box‖ method may be the best. If the

monitors each have good sound systems (and sound is important), the monitor may be the

best option. In addition, the box does give the display the look and feel of a TV newscast,

which may enhance the credibility of the showing.

Whatever the option, the attorney should remember these ten tips for visuals: (1)

billboard advertisers shoot for one picture and no more than seven words, (2) use

professional colors and graphic devices such as boxes and borders, (3) avoid overly slick

displays, especially if the attorney wants the jury to later handle and discuss the exhibit in

the jury room, (4) do not talk to the visual, (5) stand alongside the visual and face the

audience, (6) the attorney should not show the visual before he begins speaking about its

subject, (7) the attorney should point to the appropriate places as he speaks, or he should

reveal and cover to improve reader focus (old-fashioned pointers are better than laser

pointers because up to a third of the males in the courtroom cannot see red; therefore,

the laser pointer is useless to them), (8) think of the three Ts, touch, turn, and talk. (And

on direct, make it the expert who is doing the Ts; if cross, opening, or closing, the

attorney should do the Ts), (9) with flip charts, do not talk and write simultaneously, and

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(10) for special emphasis and drama, pause midsentence, turn, face the chart or screen,

and write or reveal without speaking, then turn back and reestablish eye contact.

Counsel should try to present his exhibits (and overall story) in chronological order. The

exceptions to this approach may overwhelm the rule; nevertheless, the first approach to

organization of the story and the exhibits with the story should be chronological. First,

chart out the story; then arrange the witnesses to cover the period of the story (with

overlapping coverage); then rearrange the witnesses after determining their availability;

and finally, arrange the exhibits, first chronologically and then distributed among the

witnesses as necessary to permit foundations to be laid. Some courts require the exhibits

to be numbered in the order in which they are offered; the only practical way to do that is

to number them as they are offered (the attorney should have his backup help number the

copies for opposing counsel and his files simultaneously). If the documents are

prenumbered and then introduced out of numerical order, find some opportunity in

opening or at the time of the admission of the first document to explain to the jury that

the numbers have nothing to do with the importance of the document, they are just a way

to keep track of sheets of paper and other items, and they should not be concerned about

the number sequence.

Court notebooks should segregate counsel‘s important documents, into one

executive summary or tab. If the fourteen documents that win the case are buried among

312 other documents, the court will not give them proper attention; in other words, the

impact of the most important documents will be diluted by the presence of the other

documents. During his opening statement, counsel should tell the court he will give the

court copies of the most important documents for the judge to place in its file; then, when

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he does give the court a document, it will come with his implicit ―certificate of

importance.‖ If, at the end of the trial, his fourteen or twenty-seven documents are

segregated neatly and tabbed, against his opponent‘s 327, counsel can argue his

opponent has tried to confuse the issues and the evidence, has refused to focus on the

actual dispute, and has cluttered the record with irrelevancies in his documents and,

undoubtedly, in his testimonial proof. If, however, the court insists all documents be

placed into the file, counsel should ask his experts on the stand, ―Which of these three

documents was more important to you in coming to your conclusions? Which of these

photographs did you find most useful in understanding the causes of the fire? Which of

these charts provides the best summary of the performance of this industry during the

1990s?‖ Then in closing, counsel can recall that testimony for the court and invite the

judge to make a note of those more important documents.

Remember to preview and obey the sightlines in the courtroom when presenting

visual evidence. It is very frustrating for a judge to be presented with a chart, document,

or photograph that is just a little bit too far away, or on too much of an angle to read

easily, or is obscured by a glare from the window. Before the trial, the attorney should

check out the courtroom sightlines at several times during the day so he can see how the

light changes. Put a colleague in the judge‘s chair and another on the expert stand, and

determine where to place the easel or screen to allow clear viewing. The attorney should

not block his opponent‘s sightlines of the exhibits, or of the court or the expert behind the

exhibits, but if there is no reasonable way to arrange the exhibits without blocking the

opponent, he should explain that to the court and ask the court‘s permission to locate the

exhibit so the court and expert can see it, with the opposing counsel being invited to

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move around to the front of the exhibit to participate in the examination. Of course, if the

expert is doing something to the exhibit or on the exhibit, then the choreography must

allow the judge to observe the testimony. The evidence cameras, or ―Elmos‖, video

cameras mounted vertically and aimed downward to capture an image of a document or

item which then present the image on a large monitor screen make this determination of

sightlines much easier.

Choosing the Medium and the Occasion

The attorney should be allowed to use exhibits in opening statement if he has a

good-faith basis for believing they will be admitted in evidence. In some jurisdictions the

use of visual exhibits in opening statement is generally forbidden, apparently on the

theory that the jury should not be exposed to material which has not been admitted into

the record. Where the judge is the trier-of-fact, this should not be as much of a problem.

If the opening is indeed supposed to present a preview of the evidence, that preview

should include the visual evidence as well. If there is visual evidence which presents an

unusually serious danger of unfair prejudice, it could be considered on motion in limine,

and the court could reject it at that time, or reserve a ruling until the foundation is heard

at trial and direct that the particular exhibit not be used in the opening statement. There is

no reason for a blanket rule excluding all visual exhibits from opening when rulings on

particular exhibits are available.

During opening and throughout the trial, times lines are essential exhibits. Events

happen in the flow of time chronologically and often can be understood only against a

background of a time line. (Some call time lines anchors because they will anchor the

jury to the key events if they can place the events when they occurred.) Time lines are not

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vertical lists of events with dates attached; they are horizontal calendar-bars, into which

events have been inserted. If the court is presented with a time line exhibit early in the

case, the judge will be able to follow the flow of events more easily, and therefore will

understand the facts more clearly. If counsel‘s version of events depends upon showing

confusion, disorganization, or lack of coordination such as where he is trying to show

absence of conspiracy or plan in defending a RICO case or a failure to respond

appropriately to an emergency in prosecuting a personal injury case, then his goal would

be to display many events on a time line, emphasizing the lack of chronological

relevance among them. A time line exhibit created in front of the jury, event by event,

invites their participation; as a result, they become invested in the exhibit and

protective of it, resisting and resenting efforts by opposing counsel to dismiss it or to

change it without sufficient basis.

The Next Level of Persuasion with Exhibits

Every exhibit has not only a legal foundation but also a persuasive foundation, a

set of questions for the expert that will explain the events and persuade the court on a key

issue in the case. Often the lawyers get to the exhibit too early and miss the underlying

importance of the factual context of the exhibit. For example, an exhibit may merely

corroborate an important event, like a telephone call where goods were ordered. The

exhibit must not ―step on‖ the importance of the expert witness‘s memory of doing the

test or discovering the key result. Sometimes the context is independently persuasive. For

example, the attorney should not interrupt a police officer, who is describing the scene of

an accident, just when she is about to tell about the condition of his client. Nor should the

attorney interrupt his expert when she is about to state her causation opinion with a

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question like ―Now Dr. Done, did you prepare a diagram that shows the shape of

molecules known to cause birth defects and the shape of Bendectin?‖ That will distract

the court from Dr. Done‘s opinion that Bendectin caused birth defects because the lawyer

is preoccupied by the legal technicalities of admissibility. Or the lawyer may miss the

chance to get a point told twice by going to the exhibit too early. If an expert can describe

an event orally, with drama, then the lawyer can go back over it with more detail a

second time with a document or graphic. Finally, even the technical foundation should

not be rushed. If a document is a business record, let the court in on the persuasive nature

of the Federal Rules of Evidence. By asking about the importance of records to a

particular business, who looks at them, and why they need the records to be accurate, the

proponent will lay this ―persuasive‖ foundation in a narrative fashion so the court

understands why business records would be accurate. The technical, by-the-rules leading

questions can be asked for the benefit of the court just before the document is offered:

―Was Exhibit 3 prepared in the ordinary course of business by someone with knowledge

at or near the time of the events it records, and was the document kept as a part of a

regularly conducted business activity?‖ ―Yes.‖ Again, in these situations do not go to the

legal foundation until you have laid the persuasive foundation.

In a bench trial, you do not need to ask to the court to ―publish‖ admitted

document; ask instead to be allowed to show the document or piece of evidence to the

court. This is not a big deal, just a minor quibble. Each time the attorney uses specialized,

legalistic language, he reminds the court of reliability concerns. Since his goal is to

communicate, to relate, to teach, his method should be to use language with which his

audience is familiar, not language that requires constant interpretation and translation.

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 Observe the ―do not walk and talk‖ rule. In the theater, when one character is

delivering an important line or monologue, the other actors refrain from any activity that

would distract the audience‘s attention; otherwise, they are guilty of ―upstaging‖ the actor

during the scene, or ―walking on his lines.‖ In court, when counsel is handling his own

exhibits, he should remember this same rule. It is okay for counsel to walk and talk when

he is not saying anything important. for example, when he is merely doing the exhibit

circuit and delivering copies of the exhibit to the opponent, the court, and the expert.

However, when counsel is asking substantive questions about an exhibit, he should stand

still; when his expert is speaking about an exhibit, he should stand still; when counsel has

just handed an important exhibit to the court and he wants the judge to see the clarity

with which it makes his point, he should stand still. Otherwise, his motion around the

courtroom will make the judge think he or she needs to watch, that something more

interesting than the exhibit might be about to happen.

Use multiple easels to display different exhibits simultaneously. There are

times when the attorney needs to show two boards, so the court can appreciate the

difference or the progression, the comparison, without going through Tufte‘s ―one damn

thing after another.‖ In fact, putting a visual exhibit on easel A, then a different one on B,

then a new one on A, and so on keeps the show going while allowing the judge to see

where it has been and where it is going. If a computer graphic is projected on a screen

between the two easels, then a little coordination results in a multi-media tour de force.

Television sets are sometimes more effective than big screen projection, and

sometimes they are not. The U.S. experience here may be instructive, even for courts and

judges. Jury analysts report jurors tend to believe what they see on television, because of

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their association of television with Walter Cronkite and other trusted commentators.

Additionally, televisions can be seen in normal room lighting. Similarly, big screens are

often associated with ―Star Wars,‖ ―Indiana Jones,‖ ―Pocahontas,‖ and other fables and

fictions. On the other hand, television is very common and can become part of the

background noise at home, while big-screen movies promise excitement and

entertainment. So, here is a guide to choosing among static boards, displays on television,

and projections on a big screen: (1) If motion is not important to the point being made,

use boards on easels; (2) If the segment depends on motion, such as a deposition or

demonstration, and it is short, use the televisions because they are bright, easy on and off,

and very reliable; and (3) if the exhibit needs motion but is longer, use the big screen

projection, so background distractions are reduced and the main points are clearly

shown. Remember, with any of these presentation modes, the material must be high-

interest; the jury would prefer to see live cross-examination, experts defending their

opinions to the death, and battles between real flesh and blood lawyers who succeed by

their wits and wiles, just like on ―L. A. Law,‖ ―The Practice,‖and ―Law and Order.‖

An opponent‘s graphics may not be altered. Counsel may not mark or edit his

opponent‘s admitted graphic evidence or have his expert alter it. Counsel may, however,

make his own copy and mark it, or overlay his opponent‘s original with an acetate sheet,

have his expert or the opponent‘s expert mark the sheet, and offer the marked copy or

graphic in evidence. Assuming the markings are relevant, the marked copy is as admissible as

the original exhibit and should be considered by the judge along with that original. There is

much satisfaction by turning an opponent‘s graphic evidence against him by pointing out

errors or inconsistencies, or by highlighting portions that support the attorney‘s case,

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especially if his expert can be enlisted in the effort.

Expert‘s exhibits can be attacked with the same tools used to attack expert

testimony. As presented elsewhere (see, chapters 9 and 10), expert testimony can often be

attacked by identifying things the expert did not do, information the expert did not

consider, and assumptions the expert had to make. To the extent the expert‘s exhibits

reflect or illustrate the opinions that suffer from these weaknesses, they may be turned to

the advantage of the cross-examiner. For example, if the expert has calculated the present

value of a future income stream, which requires assumptions to be made about future

interest rates and inflation rates, an exhibit showing that calculation embodies whatever

assumptions the expert made about those variables. Using the expert‘s deposition

testimony on the range of assumptions that were reasonable and the same computerized

formula that generated the expert‘s results shown on the chart, the attorney should first

have the expert ―guide‖ him through duplicating the expert‘s result (displaying it side by

side with the expert‘s own chart to show they are identical); then he should have the

expert assist him in entering his chosen, reasonable alternative assumptions. The resulting

chart should present the alternative assumptions next to the different results (e.g., the

expert‘s 4.7 percent next to his $2 million, and the attorney‘s alternative 5.5 percent next

to his $43.18). Use the opposing expert to lay the foundation for each of these additional

exhibits, which are merely variations on his own, by leading him through the appropriate

testimony. During such examination, it is important to emphasize through repetition that

the attorney and the expert are following the same methodology as she did in creating her

original exhibit.

If the attorney creates a new exhibit during expert cross-examination, he should

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number it and offer it in evidence. It may be merely illustrative if it has no intrinsic

substantive value but merely illustrates the expert‘s testimony (or his cross-examination),

or it may be substantive if the expert has allowed the attorney to lay the foundation for

new substantive information, which is contained or displayed in the exhibit (perhaps from

a ―learned treatise‖ that the attorney has used pursuant to FRE 803(18)). Regardless of its

status, the attorney should get it numbered and admitted, even if it is for a limited purpose

so he can refer to it during later examinations and closing argument.

Counsel should prepare his own expert with the ammunition to counter attempts

to create new ―cross-examination exhibits.‖ He should remember to tell his expert during

preparation for testimony at trial that opposing counsel may try to create new exhibits or

alter the expert‘s own exhibits. Counsel should tell his expert that, when it is true, she can

disagree with the cross-examiner‘s new exhibits by saying, ―That‘s not my methodology,

but I can explain further,‖ or ―That‘s not what I did, but I will be happy to show you my

approach.‖ The cross-examiner must rely on the hostile expert to lay the foundation for

the new exhibit. Therefore, if the expert understands that, she can say, ―I think your new

exhibit is misleading.‖ The court may not receive the exhibit, or the judge may not give it any

weight. Of course, the expert needs to be educated that there are trigger words like

―misleading, ―incomplete,‖ or ―confusing,‖ that are more effective than others in

frustrating such cross-examination.

Observe the ―gold and dross‖ rule. Many attorneys carry all documents around

the courtroom as though they were as important as a brown-bag lunch—papers bunched

in fist, arm swinging at side, eyes on the expert or court. That is a fine way to carry an

opponent‘s exhibit; the implicit message is the exhibit is not worth any more attention or

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care than that; those exhibits are the dross, the metallic impurities that are discarded

during the smelting of gold. But with one‘s own exhibits, treat each sheet as though it

was engraved on gold foil, as though it had substantial weight, as though each time

counsel looked at it he was once again impressed with its significance. Counsel should

hold his exhibit in two hands as he carries it across the courtroom, or he should return it

to his table or folder as though he cared about keeping it organized and undamaged. With

his most important exhibits (just a few), counsel should keep his copies in envelopes and

put them back into those envelopes after he asks his questions. Then, during closing

argument, counsel can take them out of the envelopes again, and the court will remember

these are important.

In the closing, the attorney should review the important visual and documentary

exhibits, not all the exhibits. He must avoid overwhelming the court, especially after it

has just sat through the typically overlong presentation of the entire case. Once again, the

attorney should select the exhibits that make a difference, just as he selects certain testimony

to emphasize. Where counsel used a series of exhibits at trial (for example, to show growth,

change, or other comparisons), he should consider whether he could present the first and

last exhibits in the series to help the jury remember the scope of the change or difference.

Remember that merely illustrative exhibits are often excluded from the jury room; if

counsel highlights those exhibits in his closing, the court could be disappointed or

confused when the illustrative exhibits are not available to them during deliberations.

With regard to PowerPoint or Corel Presentations during closing argument, remember

that less is more, or it soon becomes ―one damn slide after another.‖ The technology of

presentations software is seductive because it is both fun to create and because it allows

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the attorney to share his notes with the court during his closing. Yet, the attorney needs to

stay in touch with the court‘s nonverbal cues as to interest and skepticism. If the attorney

is too wedded to his prepared presentation, he is likely to lose the court. Also, the power

of the screen means the court will likely stop paying attention to the attorney and watch

the screen. The judge will also need time to read the screen, so he will be tempted to

speak ―over the top‖ of their reading. To avoid both the competition with the screen and

the boredom of too many slides, the attorney should mix his medium. Start with talking

to the court directly, then use time lines and charts and only a few slides of his most

important pictures and documents with call-outs. And wrapping up, the attorney should

turn the technology off, retake center stage, look at the factfinder, and talk directly to him

or her. Regarding technology, less is more on closing.

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 Chapter X

Cross-Examination of an Expert Witness: Control

A credible opposing expert represents a substantial threat to the lawyer‘s case.

The trial attorney must exercise close control to prevent cross -examination from

becoming a vigorous restatement of the expert on direct. Control begins with properly

formed leading questions devoid of argumentative adjectives and adverbs, and continues

using repetition, reverse repetition, eye contact, pleas for reciprocal fairness, and (as a

last resort) instructions from the court.

Witness control is important for cross-examination of lay witnesses; for experts,

it is even more important. The trial lawyer should review the principles of cross-

examination generally and look at how those principles are applied to cross-examination

of an expert.

Form of Question

Cross-examination is not a time to do discovery. The lawyer should cross-

examine only to the extent necessary to make his point for closing argument. The

reason to take this limited view of cross, particularly with an expert, is that otherwise

the expert will repeat and improve her story during the cross-examination and therefore

make it easier for the jury to understand. In other words, the expert will be able to fill

the gaps left from direct by responding to new questions in a way that makes her case

even better. Where the witness is articulate and persuasive, as is often the case with

the expert witness, it is all the more important to control the witness on cross -

examination.

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 Whenever the lawyer is cross-examining an expert witness, he should refine the

form of his question to make it display as little curiosity as possible. This rule is

sometimes stated: Always lead the witness. Yet a further refinement is in order. There are

three forms of question that are available for use in court. The first form, which shows the

most curiosity from the questioner, is a question that starts with the following: who, what,

when, where, how, why, tell us, describe, explain. These questions are most often used on

direct examination, and they ask the witness to tell the jury in her own words what she

knows. Because the witness becomes the center of attention, the witness can develop

rapport, establish her credibility by speaking to the jury, and teach the jury what she

knows.

The second form of questions, which start with verbs, may or may not be

objectionable leading questions. For example, ―Do you see the person in the courtroom

whom you saw hold up the clerk?‖ does not unduly suggest the answer, although it does

suggest the person is in the courtroom. Nevertheless, the question focuses everyone on a

particular point of importance to the examiner, the identity of the criminal. However, it is

still not completely controlling. Suppose, however, the attorney asks the witness, ―There

is a person sitting next to defense counsel wearing a green tie and a yellow jacket. That‘s

the same man you saw hold up the clerk, isn‘t it?‖ he would be leading the witness, and

he would be diminishing the witness‘s credibility by reducing her role to that of merely

confirming that what he says is true.

Look carefully at this third type of question. It is more in the nature of a statement

than a question because its syntax is ―noun-verb‖ instead of the inverted ―verb-noun‖

syntax, which is normally used to signal a question. The examiner tells the witness what

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happened and thereby tells the jury what happened. The lawyer bounces his question off

the witness and into the minds of the jury. ―Mr. Pincus, you are consultant on fire

forensics?‖ ―Yes.‖ ―You were not brought into the case till month after the fire

occurred?‖ ―Yes.‖ ―You did not talk to the fire fighters who fought the fire?‖ ―No.‖

―You did not see the fire?‖ ―No.‖ ―You did not see the color of the flames?‖ ―No.‖ ―You

did not walk through the building and see the burn pattern?‖ ―No.‖ ―You did not see the

body of George Avery at the point of the hot spot?‖ ―No.‖

As a further example, ―Dr. Done, you reviewed the epidemiological studies on

Bendectin?‖ ―Yes.‖ ―The studies you examined showed no significant difference in the

rate of birth defects in the children of women who took Bendectin?‖ ―That is right.‖

Of course, there are no guarantees an expert like Dr. Done will not volunteer longer

answers or try to be cute at the end of a statement form of the question and ask, ―Is that a

question?‖ (If the judge insists the attorney ask a question, he can follow up his statement

with the words ―Right?‖ or ―Correct?‖ but after a couple of these, he should be able to go

back to the simple statement form.) It is clear to everyone in the courtroom that the

attorney‘s statement invites the witness to correct him if the witness disagrees, and

therefore, it is understood and accepted as a question. The effect on many witnesses from

using this noun-verb form of question is to train the witness to follow along with the

lawyer‘s logic without interrupting with long explanations.

There are a number of refinements to the first rule: always lead the witness. This

brings us to the second rule of expert cross-examination: keep the questions short. The

attorney will obtain better control of expert (and lay) witnesses by keeping the question

short, so the witness has fewer words to quibble with. Some commentators suggest the

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attorney keep his questions to seven words or fewer: ―Doctor, you are not an

epidemiologist? You didn‘t graduate from Harvard? You went to a foreign medical school?

Your medical degree is from Guadalupe?‖

The shorter the question, the less time the witness has to think of an escape route or

to quarrel with the attorney. Short questions also allow the jury to appreciate the ultimate

point as it develops, so they discover it or anticipate it for themselves (―Oh, it sounds like

this doctor is not nearly as well qualified as the doctor this attorney presented yesterday.‖)

When jurors come to their own conclusion on such a point, they will hold that conclusion

more firmly than if they feel it is merely an argument from the lawyer.

Now consider the third rule that maximizes control: use only facts and not

conclusions, adjectives, or wiggle words. For example, compare the following two

approaches. First:

Question:

Chief Olsen, you completely violated your own expert standards in coming to your

conclusion in this case:

Answer:

No, I ruled out accidental causes by what the evidence showed me was present at the time,

and let me explain! Look, you could say that I didn‘t rule a lightening strike, but there has

not been any suggestion that there was a thunder storm that night. Similarly, while I agree

that Avery may have been caught in an accidental explosion, I can rule out accident because

of his involvement in other similar fires, the large amounts of hydrochloric acid found at

various locations throughout the plant, the rapid spread of the fire, and the total

consumption of the building. These help rule out that the fire was an accident. .

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A factual approach gives more control.

Question:

Chief Olsen, the standard fire investigators use that you must rule out accidental causes?

Answer:

Yes.

Question:

You found no fuse?

Answer:

No.

Question:

You found no accelerant, no shampoo or gas traces, or other evidence of a fast burning

material?

Answer:

Well I did find in the coroner‘s report some trace of shampoo on Avery?

Question:

But that was on his face?

Answer:

Yes.

Question:

You do agree that men often use shampoo on their faces when they shave?

Answer:

Yes.

Question:

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And other than shampoo on Avery‘s face you found no evidence of shampoo?

Answer:

No.

Question:

Nor any other accelerant?

Answer:

No.

Question:

And as to the wiring, it was destroyed?

Answer:

Yes.

Question:

So you couldn‘t test it to see if there as any uninsulated wiring in the machine shop?

Answer:

No, but I had inspected the plant before and I do not remember any wiring problems.

Question:

But you did know the plant was some 30 years old?

Answer:

Yes.

Question:

And that wiring initially put in to a building can become old, and wires can rub and lose

their insulation?

Answer.

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Yes.

Or, as a different example compare the two approaches below.

Question:

Dr. Done, you take the unwarranted and unreasonable position that Bendectin causes birth

defects?

Answer:

Well, I disagree that it is unwarranted and unreasonable because . . .

Ten minutes later Dr. Done will still be testifying.

Second:

Question:

Now, Dr. Done, you say that Bendectin causes birth defects?

Answer:

Yes.

Question:

You‘ve looked at existing epidemiological studies?

Answer:

That‘s right.

Question:

Their conclusions don‘t support you?

Answer:

That‘s true.

While the lawyer is sorely tempted at this point to say, ―So, how can you

conclude that Bendectin causes birth defects?‖ the danger is Dr. Done will be ready with

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an answer. ―Because I find support in the animal studies showing birth defects in animals

that were injected with Bendectin. I also know the shape of a key molecular component

of Bendectin is very close to the shape of a molecule we know is related to birth defects

in humans, and I have also amalgamated and reanalyzed all of the data, which allows me

to be confident enough to draw my recent conclusions.‖

Again, it is better for counsel to lead Dr. Done into his point by keeping his

questions leading, short, and factual. ―Dr. Done, let‘s talk about animal studies. Many

scientists are cautious about them? Drugs can affect animals and humans differently? The

effects of drugs on animals are maybe unreliable to predict a drug effect on humans? You

worked at the FDA? You never approved a drug as safe, based solely on animal studies?‖

Counsel‘s goal is to avoid all the excuses for the witness to talk beyond simply agreeing

with the point he is making. If in response to such question, the witness adds an answer

beyond a simple yes or no, counsel can follow up using a number of other control

techniques that will demonstrate the witness is not playing fair.

Control Techniques for the ―Run-On‖ Witness

1. Repeat the question

Where a witness adds to an answer in a tightly constructed, single fact, short

question, one way to reassert control is to repeat the exact same question. The effect in

the courtroom is really quite amazing because this technique points out to the jury that

the witness really is not playing fair because the question did not call for a further

explanation. For example, if the cross-examiner asks, ―Dr. Done, no epidemiological

studies connect Bendectin to birth defects?‖ and Dr. Done volunteers, ―No, but that

doesn‘t matter because I have developed additional methodologies for analyzing the

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existing data, which I think are quite effective‖ the cross-examiner simply then says, ―Dr.

Done, no studies connect Bendectin to birth defects?‖ If the expert runs on again, the jury

will see his avoidance as advocacy and discount his credibility. If Dr. Done runs on

again, counsel can start to take the gloves off some more.

Again, if the cross examiner asks Chief Olsen, ―You point to no studies that say

that when someone dies in a fire, that a persons death in a fire alone makes it more likely

than not that there was arson?, he might answer, ‖No, but certainly if that person was

found at a hot spot, it makes it more likely?‖ Then the cross examiner should repeat the

question, ―but you point to no studies that is true.‖ ―And it is true, that people who die in

fires can also get caught in an explosion.‖ Yes.‖ ―That would mean that they would be

found near the hotspot of that explosion, whether it was an accident or not?‖ ―Yes.‖

2. Use a ―Reverse Repeat‖

―Excuse me, Dr. Done, are you saying there are epidemiological studies that

show a statistically significant correlation between Bendectin and birth defects?‖ The

reverse repeat sometimes surprises the witness into answering shortly and directly. The

cross-examiner should not interrupt because it appears rude and suggests he is afraid of

what Dr. Done has to say. Even though it is difficult, it is probably better to wait until the

witness finishes answering, unless the answer is unfairly prejudicial and inadmissable.

Note also that the language of the reverse repeat is more specific and defined than the

global terms used in the initial question. The cross-examiner has, in effect, raised the bar

through this question. To defend his position now, the expert needs not just to identify

―studies that connect‖ the original question, but ―epidemiological studies‖ that ―show a

statistically significant correlation.‖ So, in the initial global question, the cross-examiner

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tries to exclude the universe of studies; in the reverse repeat question, he forces the expert

witness to identify a very specific type of study the cross-examiner knows does not exist.

The result of his denial in response to the reverse repeat is the trier of fact assumes there

are no ―studies that connect,‖ just as the cross-examiner wanted to prove with his initial

question.

A further example may clarify this point of rhetorical art. The attorney asks,

―There are no good violinists from New Jersey,‖ and the witness waffles, ―Well, I have

certainly seen and heard a number of quite competent violinists as I traveled through New

Jersey and other northeastern states.‖ The attorney then asks the reverse repeat, ―Doctor,

are you saying that there are violinists born and trained in New Jersey who have won

international acclaim for their musicianship and who have gone on to become first

violinists with the symphony orchestra in any major American city?‖ The attorney knows

there are no such people because he has added qualifications his research reveals no one

meets, just as he knew there were no ―statistically significant epidemiological studies.‖ If

the reverse repeat is simply a repetition in a different syntax, it will receive the same

unwanted answer; it must add qualifications, which seem fair and relevant to the jury and,

at the same time, force the witness to give the answer the cross-examiner wants.

3. The attorney should cross-examine the witness with his eyes

Another technique to gain and maintain control is to pause and look the witness in

the eye from ―center stage‖ before starting the examination. This focuses the attention of

the courtroom on the witness and impliedly says, ―I dare you to look me in the eye and

lie.‖ Second, if the attorney takes a position center stage and the witness must look him in

the eye, then the witness cannot look at the jury without appearing to be avoiding him.

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This may make the witness forget she is trying to persuade the jury as she focuses instead

on the cross-examiner, the source of the attack. Third, intense eye contact with the

witness will give the attorney more clues that the witness is not going along with the

question. If the witness starts to shake her head, to look at her lawyer, or to flip through

her report, then he can see he is about to lose her. It is better for the attorney to withdraw

the question, so the witness will not have the chance to debate his point, rather than to

plow ahead and face the possible harmful answer.

4. Other control techniques

If the witness still persists in volunteering, counsel might decide it is necessary to

take on the witness even further. One technique is for the cross-examiner to raise his hand

at the start of the question, take a few steps toward the witness (where allowed), and

preface his question by saying, ―Now, Ma‘am, stay with me on this. Try to give me a ‗yes‘

or ‗no‘ here, okay? Will you do that?‖ (The ―Ma‘am‖ works well for one of the authors,

who can be an ―aw shucks‖ kind of guy, but does not work at all for the other. The

―ma‘am‖ may be too Jimmy Stewart for some attorneys who should instead just use ―Dr.

Smith.‖) Then proceed right to your next question.

Or counsel might try to play ―Let‘s Make a Deal.‖ ―Dr. Smith, I‘ll make a deal with

you. First, you answer my question, and then you can explain whatever you want in

addition.‖ Of course, if the witness accepts that invitation to insert additional information,

be careful to avoid the ―deer in the headlights‖ look. The cross-examiner should not

position himself in a way that forces him to look at her while she is answering. If he

believes the jury has already figured out that she has become an advocate and does not

deserve his full attention, the attorney might go back to his notes and flip through them,

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or look at his watch and show some impatience, or even, in the most extreme cases, turn

half away from the witness, look at the clock, and then turn back when she is finished,

saying, ―Are you done? Okay, now let‘s get back to the facts.‖

Another control technique is to preface the question with a statement that

describes the purpose of cross-examination. For example, the attorney might say, ―Now,

Dr. Smith, you understand your lawyer has already had a chance to ask you all the

questions he thought you needed to answer on direct, so if you would just listen to my

question and answer it,‖ or ―When I‘m done, your lawyer can go back and ask you more

questions, but now you need to listen to my question and try to answer me.‖

5. Do not go to the judge too early, if at all

Most trial lawyers say they never ask the judge for help. They are concerned that

if they ask, they may not get it, or they are afraid that asking for help shows they lost

control of the witness; or they are afraid of looking whiny or like a crybaby (―Judge,

make her answer my question‖). If, however, counsel has been patient and reasonable,

there may be no need to make the request because the judge will jump in and tell the

witness to answer the question that has been asked. In any event, counsel should seek the

court‘s help infrequently and only when the answer sought is necessary to allowing him

to continue with other portions of his cross.

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 Chapter XII

CROSS-EXAMINATION OF AN EXPERT WITNESS:

IMPEACHMENT

Once again, the danger posed by clever opposing experts is they are more likely

to recognize attempts at impeachment from a distance and to take steps to avoid any

damage. Nevertheless, thorough fact investigation through pretrial discovery and

successful depositions can provide material for impeachments by prior inconsistent

statements, by omission (of the pertinent facts from a prior statement), by chart cross-

examination, by learned treatises, for financial or other bias or prejudice, and for bad

character. (Challenges to the reliability of expert testimony may take the form of

impeachment, for example, challenging the reliability of the methodology because it is

apparently internally inconsistent but the interesting part of such cross-examination is the

substance of the challenge, not the form as impeachment; therefore, the discussion of

reliability challenges need to always be understood in light of the jurisdiction‘s law on

the admissibility of expert testimony. For example, in the U.S. see cases: Daubert and

Kumho Tire.)

Impeachment by a Prior Inconsistent Statement

Much cross-examination consists of impeachment (or attempted impeachment).

Not only does the attorney attempt to impeach a witness for bias, prejudice, lack of

perception, prior bad acts, and past crimes, but every once in awhile the witness says

something at trial, and he has a record of an earlier statement in a letter, report, or sworn

testimony that contradicts the statement made in court. Whenever this happens, the

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attorney should determine the significance of the inconsistency. If the inconsistency is

trivial or easily explainable, then he should not interrupt his prepared cross to point the

inconsistency out to the court. In other words, the attorney should resist his ―instinct for

the capillary‖ and use his cross for more important matters. However, if the attorney has

a number of individually minor inconsistencies, these may add up to a showing that the

witness is not credible on any one thing. Next, the attorney should examine whether he

believes the earlier statement is true. If it is not true, is he still tempted to use it because it

shows the witness simply does not know what happened or has little regard for the truth?

But, if the witness is saying in court the opposite of what she said earlier and what the

attorney thinks is true, then he needs to demonstrate the truth of the earlier statement by

taking the jury and court through four important steps remembered as ―commit, credit,

confront, and contrast.‖ These steps (the ―four Cs‖) will keep the attorney organized in

the face of the lying witness and help him demonstrate what he knows.

Counsel‘s first job is to let the court know what is coming because whenever he

picks up a piece of paper, the court‘s immediate reaction is to think the paper may be

hearsay. While prior inconsistent statements are not hearsay, the court does not know his

purpose or the nature of the document the attorney has in his hand, so the first step in any

impeachment is to ―commit‖ the witness to her previous in-court testimony. There are

two basic ways to do commitments. First, counsel can do it the ―old-fashioned way.‖

Question:

Did you tell this jury today that you believe the data were sufficient to support a

statistically reliable conclusion?

Answer:

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That‘s right.

Note a number of things from this old-fashioned approach to commitment. The

cross-examiner must distance himself from the witness‘s in-court statement by using a

fairly incredulous tone of voice. The examiner says, ―tell,‖ ―say,‖ ―claim,‖ or ―is it your

story?‖ instead of saying, ―is it your testimony?‖ because using the word ―story‖ makes it

sound like he does not believe what he heard. It also tells the judge something else is

coming that will prove the witness‘s statement is untrue.

Yet, some lawyers feel using tone and word choice to evoke incredulity is still too

subtle. Some are worried that by repeating the testimony, the court will more likely

remember it the way the witness now says it happened. One alternative approach that we

discussed in Chapter 6, on Impeachment, is to use a reverse commitment, asserting the

truth of the earlier statement and the opposite of what the witness said in court:

Question:

Data were insufficient for statistical accuracy, weren‘t they?

Answer:

No, no, that‘s not correct. The data were generally sufficient.

Question:

But, they were insufficient to allow any conclusions as to cause and effect?

Answer:

No, I disagree.

This last statement is now the statement the cross-examiner impeaches (for

example, with deposition testimony that data were insufficient). The advantage to this

approach is the words the court hears from the examiner are always his version of the

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story, and he is not repeating the witness‘s lies or misstatements. The witness‘s final

disagreement is what is impeached with the earlier statement.

Yet, some find the modern approach too argumentative, too much like the British

method of ―I put it to you, Dr. Smith, that you are in error when you say that the various

data can be merged to achieve quantitative sufficiency for statistical purposes.‖ In other

words, it may simply be too heavy-handed for some.

Under either the old or new approach, however, the attorney next needs to move

to the second ―C,‖ his crediting, or accrediting, of the out-of-court, inconsistent

statement, demonstrating circumstances that make that statement more likely true. For

example:

Question:

You wrote an early report to your lawyer in this case?

Answer:

Yes.

Question:

He wanted your help in determining the cause of the birth defects?

Answer:

Yes.

Question:

You told him the truth?

Answer:

Yes.

Question:

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You wrote it up in a letter to him, which you signed?

Answer:

I don‘t remember precisely, but that sounds right.

Counsel:

Your Honor, I have here a document, which has previously been marked Defense Exhibit

117 for identification. May I approach the witness?

Court:

Yes.

Question:

I‘m showing you Exhibit 117. You are the Dr. Smith referred to here?

Answer:

That‘s right.

Question:

Exhibit 117 is entitled ―Draft Report of Dr. James Smith‖?

Answer:

Yes.

Question:

It contains three pages?

Answer:

Yes.

Question:

This is your signature here, at the bottom?

Answer:

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Yes.

Question:

And the letter is dated August 24?

Answer:

Yes.

Question:

August 24, that was three weeks after you were hired?

Answer:

Yes.

This cross-examination displays the circumstances surrounding the creation of the

early statement, which makes it more likely to be true. Of course, if the accrediting

document is a deposition, letter, or the witness‘s final report, then the questions will reflect

what makes those documents important and credible.

One difficulty that can arise is if the cross-examiner takes too long with the

accrediting portion of the impeachment, the court can lose track of the earlier in-court

statement. Some lawyers prefer to go directly to the impeaching statement, and if the

witness is quarrelsome, do the accrediting questions as counterpunches. For example,

some prefer:

Question:

Dr. Smith, the data were not sufficient for statistical purposes, were they?

Answer:

No, they were sufficient.

Question:

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They were not sufficient because there were not enough data points, right?

Answer:

No, I disagree.

Question:

Well, Dr. Smith, you wrote an early report that said, [picking up the statement and reading]

―Additional data sources will be needed to permit valid statistical analysis.‖

Answer:

I don‘t recall that.

Question:

Well, let‘s take a look. Your Honor, I have here a document entitled ―Draft Report of Dr.

Smith.‖ I‘d like it marked as Exhibit 117. May I approach the witness? Dr. Smith, let me

hand you a copy of Exhibit 117.

Answer:

Yes.

Question:

That is your signature at the bottom?

Answer:

Yes.

[Other accrediting questions]

Question:

Now read along and tell me if I read this right.

The advantage to the second approach is the cross-examiner gets the contrast out

up front, have the accreditation, and then gets to reread the impeaching statement. And,

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of course, there are other variations on this theme. The examiner can commit, accredit,

and then recommit or reverse commit just before he confronts, or he can use the

blackboard or flip chart and list the in-court testimony under the heading ―Claim Today‖

and the early statement under ―Previous Claim.‖ (This technique is particularly effective

if the examiner has a number of inconsistencies, which individually may not sound like

much, but when taken together, show the witness either is confused or lying. For

example:

SUBJECT CLAIM TODAY PREVIOUS

CLAIM

Adequacy of data Perfectly adequate Inadequate

Additional data Available Unavailable

Statistical certainty Greater than 95% Unacceptable

Additional work Unnecessary Desirable

Calculated risk 2.7–3.5 Less than 2.0

This kind of presentation is sometimes called a ―chart cross-examination.‖ It is especially

effective where the significance of an individual inconsistency is not especially clear to the

jury, but they can appreciate the fact of inconsistencies, which all show a bias to the other

side. Of course, if there are inconsistencies going both ways, the chart would emphasize

those inconsistencies that result in a change in favor of the expert‘s client; perhaps

another chart, on less substantive topics, would show changes going both ways to support

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the argument that the expert is confused in her analysis or is trying to satisfy everyone.

Impeachments by Omission

Experts often add information to their in-court testimony. They had a chance to

say the same thing in their witness statement or deposition, but they did not do so. The

challenge for the cross-examiner in this situation is to show these key facts would have

been included earlier if they had been true, so their omission indicates they are untrue. The

cross-examination suggests that intervening conversations with the lawyers or their clients

with whom they want to help have caused them to shade the truth (or flat-out lie) now

that the case has come to trial.

Again, the cross-examiner must be careful that he is not going after a capillary or

using a gun to kill a gnat. If the omission, or a number of omissions taken together, shows

an expert witness is improving her story to help her side, then impeachment by omission

can be as devastating as impeachment by prior inconsistent statement. Using as an

example, an expert witness (of sorts), a police officer, may improve her identification of a

witness on the stand by testifying as follows:

Question:

How did she appear at that time?

Answer:

I saw a 5'5" white female, approximately 125 pounds. She had short brown hair almost

like a man, was wearing glasses and had several earrings in each ear. She was wearing a

tan trench coat, belted at the waist, knee-high brown leather boots, and she was carrying a

brown leather shoulder bag on her right shoulder.

A cross-examiner might question as follows:

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Question:

Special Agent Rodriguez, you‘re a special agent with the Federal Office of Judicial

Investigations?

Answer:

Yes.

Question:

You have been trained in making witness identifications?

Answer:

Yes.

Question:

Special Agent Rodriguez, you would agree that some identifications by witnesses are

better than others?

Answer:

I don‘t know what you mean.

Question:

Well, all things being equal, an identification that included the sex of the suspect would be

better than an identification that didn‘t mention the sex?

Answer:

Yes.

Question:

And an identification that included something distinctive about the suspect‘s hair would

be better than one that didn‘t have anything about the hair?

Answer:

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Yes, though hair can be cut.

Question:

Yes, but it is difficult to grow it in a short period of time, wouldn‘t you agree?

Answer:

Yes.

Question:

That‘s why you will often note cut of hair, if you know it? And certainly its color, if you

know it?

Answer:

Yes.

Question:

And distinctive footwear? In these days after the famous trials, noting distinctive footwear

can make an identification better?

Answer:

I guess.

Question:

And distinctive jewelry should also be noted, if you see it?

Answer:

I guess.

Question:

And a report should include what a person is carrying? And perhaps how they are

carrying it can tell you something about whether they might be r ight-handed or left?

Answer:

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It might.

Question:

Noting what they are carrying can also make an identification better than an identification

which does not note whether the witness is carrying anything?

Answer:

Yes.

Question:

Now Officer, today you claim that over a year from the night you saw the suspect on

Front Street, the suspect was (I wrote this down when you testified because I wanted to

almost like a man, was wearing glasses, and had several earrings in each ear. [Suspect]

was wearing a tan trench coat, belted at the waist, knee-high brown leather boots, and

was carrying a brown leather shoulder bag on her right shoulder?

(Note the lawyer says ―claim.‖ Even in the commitment stage, the lawyer should not

adopt the witness‘s version of the events. He should never put in the sex of this client nor

use his client‘s name when confirming the witness‘s story.)

Answer:

Right.

Question:

Officer, you made a report the morning after you saw the suspect?

Answer:

Right.

Question:

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You have been trained in making reports?

Answer:

Yes.

Question:

At Federal Office of Judicial Investigation‘s special training facility?

Answer:

Yes.

Question:

You were taught about the importance of making reports?

Answer:

Yes.

Question:

That you must be accurate?

Answer:

Yes.

Question:

That they must be complete?

Answer:

Yes.

Question:

That other officers will use the report to try to find and arrest a suspect?

Answer:

Yes.

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Question:

And the more important details you include, the better?

Answer:

Yes.

Question:

That often the Prosecutor might review these reports for accuracy? And to evaluate

whether to even bring the case?

Answer:

I guess.

Question:

I have in my hand Exhibit 34 for identification, a document entitled ―Report of Officer

Rodriguez.‖ May I approach the witness?

Answer:

Yes.

Question:

Officer, Exhibit 34 is a copy of your report of what you saw at 2:00 A.M. on November

14 of last year?

Answer:

Yes.

Question:

Let me give you this pen. Would you please circle for me where you identified the

suspect as female?

Answer:

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 5 pounds.

Question:

It doesn‘t say female, does it?

Answer:

No.

Question:

In fact, you mention a trench coat, but where do you say the trench coat is belted?

Answer:

It is not there.

Question:

Now about earrings, circle for me where you say the suspect was wearing earrings.

Answer:

I don‘t.

Question:

That‘s right; it‘s not there, is it?

Answer:

No.

Question:

And where do you say that the suspect has short hair?

Answer:

I don‘t.

Question:

Well, you do say it was brown, right?

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Answer:

I think so.

Question:

Well, circle it for me, will you?

Answer:

It‘s not there.

Question:

And how about footwear, where do you say the witness was wearing knee-high boots?

Answer:

I guess I didn‘t mention it.

Question:

It is not there?

Answer:

Right.

Question:

So, how many items are circled because you included them in the report, Officer?

Answer:

None.

Now imagine as the cross-examiner asked the above questions, the jury was watching

him prepare a chart like this:

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Good Identification Claimed If Seen, Should Was In Fact Reported

Today Be Reported

Sex Y Y N

Hair cut Y Y N

Hair color Y Y N

Jewelry Y Y N

Footwear Y Y N

Carrying anything? Y Y N

In his closing, the examiner could bring back this chart, and cross out the ―Claimed

Today‖ column.

Using Learned Treatises under Cross-Examination

If a cross-examiner understands how to cross-examine a witness who has made a

prior inconsistent statement (see above), then he understands how to cross-examine a

witness who has said something inconsistent with a learned treatise. The steps are much

the same with some minor variations. The witness should first be committed to the in-

court statement that will be contradicted.

Question:

Dr. Done, your position is that animal studies and similarities in molecular structure

between Bendectin and a known agent of birth defects can lead a cautious scientist to

conclude fairly that Bendectin causes birth defects?

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Answer:

Yes.

Some may argue this in-court commitment through repetition of the expert‘s testimony is

unnecessary. It gives too much credence and emphasis to the opposing expert‘s position.

As discussed earlier, some attorneys suggest that it is better to start the topic by stating

their version of the issue to be discussed. For example the cross-examiner might say:

Dr. Done, I next want to talk about the unique scientific method you used in this case.

The next step is to accredit the learned treatise. (In the U.S, Federal Rule of Evidence

803(18) provides a number of ways to lay the evidentiary foundation for using a learned

treatise.) The best is to have the expert herself admit on cross that the writing is

authoritative. This can be done using the expert‘s deposition or by way of a request for

admission. Even where the opposing expert or party refuses to recognize the writing as

authoritative, the attorney‘s own expert can testify to its authoritative nature. If his expert

has not yet testified, the attorney can make an offer of proof to the court, based on his

expert‘s anticipated testimony, and ask the court to permit the text to be read into

evidence.

Finally, the court itself could take judicial notice that the text is authoritative.

Certain well-known texts and treatises are often referred to in court. For example, The

Physician’s Desk Reference or The Merck Manual of Diagnosis and Treatment might be

recognized by the court without other foundation. The important point is the offering

lawyer should ―trumpet‖ the proffer of the treatise as authoritative. The lawyer would

almost welcome a hearsay objection, so the court could rule that the text is authoritative

and admissible for the jury‘s consideration.

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 Where the author has impressive degrees, it might also be worth a few questions

to contrast the qualifications of the author with those of the opposing expert. For

example:

Question:

Let me show you XYZ Treatise. You see in the biographical section of the introduction

that the author is Professor I.M. Pressive?

Answer:

Yes.

Question:

It says she teaches at the Harvard Medical School?

Answer:

Yes.

Question:

That she has been doing research for twenty years. Is that true?

Answer:

Yes.

Question:

That she has been recognized by the Academy of Scientists of the Americas?

Answer:

Yes.

If the attorney wants to be certain the jury appreciates the point, he might go on:

Question:

And Dr. Done, you don‘t teach or do research at Harvard?

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Answer:

No.

Question:

And you haven‘t been recognized by the Academy of Scientists of the Americas for your

work?

Answer:

No.

The next part of the cross is to confront the expert with the contradictory section

of the text. For example, the cross-examiner might present to the court through a blowup,

overhead, evidence camera (―Elmo‖), or PowerPoint slide on a computer screen, the

paragraph he wants the jury and expert to read. Then using call-outs, highlighting, or

zoom, he asks the witness:

Question:

Now, Dr. Done, read along with me and tell me whether I read this right.

Answer:

Okay.

Question:

Chapter 1, page 10, first full paragraph:

Without other epidemiological support, it is simply bad science for a researcher to

conclude he or she knows that a particular drug is the cause of a disease or condition by

merely studying the drug’s molecular structure or the results of animal studies. There are

too many differences between animals (even chimpanzees) and humans for scientists to be

able to safely conclude drugs that are safe on animals, or not safe on animals, are similarly

349
safe or not safe on humans, without substantive confirming information.

Question:

Did I read that right?

Answer:

Yes, but I don‘t agree.

Question:

But you agree that Professor Pressive wrote that statement in her book?

It is important to try to control the expert‘s tendency to want to explain away the

difference. The cross-examiner should keep it safe by asking a narrow, very well-tailored

question. Go for what the text says; do not try to get a confession. Counsel should just

ask whether he read the portion correctly. He should also be prepared to repeat his

question (or to reverse repeat it) in order to retain or maintain his control.

Use the Expert‘s Report to Assert Control

Another key to control is to use the expert‘s own report, especially when the

cross-examiner intends to challenge the expert in her area of expertise. In her answers,

listen if she improves on the opinions or bases she gave in her report. If the improvement

is significant, the examiner may attempt a classic impeachment by omission because the

expert is often required by the civil Rules of Procedure to provide in her report the bases

for her opinions and to supplement her opinions if she does substantial additional work or

makes material changes in her opinions or bases. As the expert becomes more of an

advocate, she may be tempted to ―improve‖ on her analysis. She may have also gained

some idea of where the examiner might attack by analyzing his expert‘s report and

thinking about his deposition. If he exhausted her reasoning and studies at the deposition,

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if he clarified both the exact nature of her expertise and the limits of what she has been

asked to do, and if she has not supplemented her report, then the expert should be readily

impeachable if she tries to surprise the cross-examiner in court with new or altered

opinions or bases.

Cross on Financial or Other Bias

Most often, where there are experts on both sides of an issue, there is reduced

benefit from showing how much the experts are being paid. There is little benefit to be

gained from showing the opposing expert is being paid $250 an hour, when the attorney‘s

own expert is making about the same. In fact, some lawyers believe jurors may be

impressed by high fees, saying to themselves, ―That expert must really know her stuff if

she gets paid $600 an hour.‖ If his expert is superior in education or area of expertise, the

attorney will normally profit more from cross on those matters instead of fees. It is too

easy for an experienced expert to defend herself against clumsy challenges for bias.

Question:

Dr. Winsome, you are getting paid $250 an hour for your testimony here today?

Answer:

Mr. Barrister, I‘m being paid for my time just like you are.

So, lawyers often leave the topic alone.

Yet, sometimes there is a real point to make about the relationship between the

expert and the lawyer (or client) on the other side. Consider the following situation with

Dr. Rosenberg, expert for the defendant, in a motorcycle accident case. Where his expert

is the treating physician, the attorney can present genuine contrast between his expert

and the defendant‘s expert on the issue of bias. When the attorney has this opportunity,

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he should watch out for two things.

First, the attorney should save the point for the end or for a time when the expert

is already resisting him. If he leads with financial bias, he has essentially called the

witness a liar whose opinion is for sale. She is not going to cooperate with any

constructive examination that might narrow the issues, show agreement on basic facts, or

demonstrate her support of his expert. It is better to wait to see if she turns into an

advocate, who will not give the attorney concessions on the most basic matters. When she

becomes an advocate, he can introduce financial bias to explain what motivates this

witness.

Second, if the attorney conducts cross on financial bias, he should make it more

than a one-shot affair. Do not just stop at what she makes an hour. He should do some

research and background work in his deposition, so he can do an examination like the

following:

Question:

Dr. Rosenberg, you are a neurologist?

Answer:

Yes.

Question:

But you also spend a good deal of time testifying in court?

Answer:

Some.

Question:

Correct me if I‘m wrong, but you testify approximately twenty-five times a year, don‘t

352
you?

Answer:

Something like that.

Question:

And each time you testify, you prepare a report?

Answer:

Yes.

Question:

And you charge $1,000 per page for the report?

Answer:

Yes.

Question:

And then you are often deposed?

Answer:

I‘d say about half the time that I testify.

Question:

You testify at trial twenty-five times a year.

Answer:

Yes, approximately.

Question:

You are often deposed even when there is no trial?

Answer:

Yes, that‘s right.

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Question:

Because many of the cases settle before they get to trial?

Answer:

Yes.

Question:

And there‘s also a report prepared every time you are deposed?

Answer:

Yes.

Question:

So would it be fair to say you also testify in a deposition about twenty-five times a year?

Answer:

I guess.

Question:

And you charge $1,500 a day to testify at a deposition?

Answer:

Yes.

Question:

And you charge $2,000 a day to testify at trial?

Answer:

Yes.

Question:

So that is (putting the figures on the blackboard) let‘s see, $1,500 times twenty-five

equals $37,500 plus $2,000 times twenty-five equals $50,000 or (pausing and looking at

354
the jury to check the math) a total of $87,500 a year for testimony?

Answer:

I guess.

Question:

And then fifty reports on top of that, at $1,000 per page per report? And the reports

average what, five pages?

Answer:

That‘s about right.

Question:

So that‘s fifty times five, times $1,000 equals $250,000?

Answer:

Yes, that‘s the math.

Question:

Totaling $337,500 in a year?

Answer:

Well, that much testimony is a lot of work.

Question:

And that is just this year?

Answer:

Yes.

Question:

Now, Doctor, you testify primarily for defendants?

Answer:

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I don‘t know.

Question:

Well, isn‘t it true you estimate that you work for defendants about 80 percent of the time?

Answer:

Okay.

Question:

But now Doctor, you have never come into a courtroom and testified, under oath, that an

injured person should recover any money for the injuries they have suffered?

Answer:

That‘s, uh, that‘s correct.

By making the hourly or daily rate into a ―lifestyle‖ issue, an issue that supports the kids

going to college, buys expensive suits, or country club dues, the bias of the expert is more

dramatically shown. The pressure on the expert from wanting to do well for a particular

side in litigation in order to ―grow‖ the business can provide a juror with reason to reject that

expert and to favor the attorney‘s expert.

Of course, it is important to realize even a treating physician can have some

bias. The treating physician can lose perspective because she ―cares for the patient‖ that

is, she is emotionally invested in the matter on a personal level. Furthermore, if there is

any question about the adequacy or competency of treatment, the treating physician may

feel a judgment against the defendant will exonerate her for her own treatment decisions.

Impeachment by Prior Bad Acts

There are two areas of evidence law that need to be consulted when a cross-

examiner is considering whether to cross an expert witness on prior bad acts in an oral

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adversarial system. The first area concerns using the witness‘s earlier bad acts or

misconduct to impeach the expert‘s testimony. In the U.S. rules concerning past ―bad

acts‖ or wrongs are contained in FRE 404(b) and 405, which read:

FRE 404(b). Other Crimes, Wrongs, or Acts

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identify, or absence of mistake or accident, provided that upon request by the

accused, the prosecution in a criminal case shall provide reasonable notice in advance of

trial, or during trial if the court excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce at trial.

FRE 405. Methods of Proving Character

(a) Reputation or opinion. In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made by testimony as to reputation or

by testimony in the form of opinion. On cross-examination, inquiry is allowable into

relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or trait of character of a

person is an essential element of a charge, claim or defense, proof may also be made of

specific instances of that person’s conduct.

It is not easy to predict whether evidence is admissible under 404(b). The

advisory committee‘s notes reveal only, ―The determination must be made whether the

danger of undue prejudice outweighs the probative value of the evidence in view of the

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availability of other means of proof and other facts appropriate for making decisions of

this kind under Rule 403.‖ The rule does seem to be one of inclusion rather than

exclusion, so the discretion of the court should be exercised to favor admissibility.

When the court evaluates whether there is sufficient evidence of the prior bad act to

provide the requisite foundation for asking the questions, it examines whether the lawyer

has a good-faith belief that the information is true. Then, under Huddleston v. United

States, 485 U.S. 681 (1988), ―other acts‖ are admissible if, using a preponderance of the

evidence standard, there is evidence sufficient to support a jury‘s finding the defendant

committed a similar act, and the other act is probative of a material issue other than the

defendant‘s character. While no preliminary inquiry under FRE 104(a) is necessary, the

notice provisions contained in the body of FRE 404 suggest it is prudent for an attorney

in a criminal matter to be certain of the sufficiency of evidence of prior bad acts before

surprising a witness with it on cross. This will likely be the same in the Mexican system.

If the prior bad act evidence is of a criminal conviction less than ten years old, the

trial lawyer must consider the second area of evidence law regarding impeachment

through prior bad acts using specific crimes. Again, the U.S. FRE 609 is instructive of

the unfairness indiscriminately using past criminal conduct to impeach an expert. FRE

609 reads:

Rule 609. Impeachment by Evidence of Conviction of Crime.

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than the accused is convicted of a crime shall be

admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in

excess of one year under the law under which the witness was convicted, and evidence

358
that an accused is convicted of such a crime shall be admitted if the court determines that

the probative value of admitting this evidence outweighs its prejudicial effect to the

accused; and

(2) evidence that any witness is convicted of a crime shall be admitted if it involved

dishonesty or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of

more than ten years has elapsed since the date of the conviction or of the release of the

witness from the confinement imposed for that conviction, whichever is the later date,

unless the court determines, in the interest of justice, that the probative value of the

conviction supported by specific facts and circumstances substantially outweighs its

prejudicial effect. However, evidence of a conviction more than ten years old as

calculated herein is not admissible unless the proponent gives to the adverse party

sufficient advanced written notice of intent to use such evidence to provide to the adverse

party a fair opportunity to contest the use of such evidence.

An impeachment with such evidence with an expert does not differ from an

impeachment with a lay witness.

Question:

Dr. Jones, you once lived in Nita City, Nita?

Answer:

Yes.

Question:

In fact you lived there in June, YR-5?

Answer:

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Yes.

Question:

And on June 30, YR-5, in federal court Nita City, you were convicted of falsifying a

record filed with the United States Patent Office?

Answer:

Well, that was a mistake. The forms were confusing.

Question:

Were you convicted?

Answer:

Yes. Yes, I was.

Question:

Lying to the government is a federal crime?

Answer:

Yes.

Question:

A felony?

Answer:

Yes.

Question:

You received three years probation, didn‘t you?

Answer:

Yes.

Under FRE 403, the court must consider whether the probative value of the

360
evidence is substantially outweighed by the danger of unfair prejudice.

If written evidence of a prior bad act is admitted, the cross-examining lawyer can read

it to the jury. If the evidence is of a criminal act, the cross-examiner is often limited to

reading only the bare bones information of crime, date, and sentence. If prior crimes or

acts are too remote in time under FRE 609, their probative value may be substantially

weakened so that, on balance, they should be excluded. If the act is a crime more than ten

years old, and therefore outside the allowable limits of FRE 609, then the cross-examiner

may still try to use it under FRE 404(b), regarding absence of mistake or lack of intent.

Federal Rule of Evidence 404(b) does not contain the time restraints of FRE 609(b). The

court will have to conduct a balancing test under FRE 403 to determine its admissibility,

and the opposing party should be given notice that such a conviction may be used.

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 Chapter XII

Cross Examination of an Expert Witness:

Organizational Choices
Expert cross must be organized so the court perceives the theme. From the points

the attorney can make with the expert, he selects the points he must make in order to

support his closing argument. And so there are a number of different organizational

choices that might not only support a good closing but also provide a high-impact cross.

Organizational choices include constructive and destructive cross-examination, ―primacy

and recency,‖ storytelling and fact gathering, and substance versus impeachment. As

with lay cross-examination, cross of an expert often will start with a strong point, which

sets a different tone in the courtroom. Examine on less certain (but still necessary) points

in the middle, and save an impressive point for an exit line. Often, the two opposing

experts in a case will be in agreement on 90 percent of the expert issues;

demonstrating the extent of that agreement on cross-examination enhances the

attorney‘s own expert. In planning expert cross-examination, it is often helpful to

distinguish between ―minor point‖ cross-examination, and ―major point‖ cross-

examination and to remember the way in which an eighth grade science teacher

explained concepts to his students.

Putting it All Together

The art of cross-examination consists of taking the techniques described above

and constructing a cross that has a clear purpose or theme, so the court will ―get‖ the

362
point the attorney is making about the witness and decide how the factfinder will feel and

think about the witness, even before the closing. In other words, the lawyer wants to

control the witness by preventing the witness from retelling her story; the lawyer wants to

avoid becoming argumentative and asking ―the one question too many,‖ and the lawyer

wants to keep the witness cooperative enough so the witness will admit those facts that

she must admit, all the while making certain the judge gets the point.

The cross-examiner should organize the cross to see if all the above goals can be

attained. The next important step in planning any cross is to move beyond technique, to

look at the case theory and ask which points could be made with any particular witness.

Next, the examiner needs to edit the number of points he can make until he has identified

the points he must make in order to have the evidence available for his closing argument

in the case. Because the judge will object to repetition and watching the attorney spend

time on trivial matters, an often-stated rule is the examiner should cross-examine only to

the extent necessary to make his closing argument.

Irving Younger taught that the cross-examiner should never have more than three

points on cross, that two were better than three, and one was best of all. This does not

mean the attorney asks three or fewer questions; it means he asks a number of questions

until he establishes a point with a witness, but he limits the number of points he makes to

no more than three. Beyond three points, the court may lose interest, and the expert

witness may find a way to beat the examiner. If he can succeed on three points, the

attorney may be well positioned to argue the expert is not credible in general.

Yet, even when the cross-examiner has edited the number of points down to only

those he needs, he still needs to organize his points the most persuasive way. To

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demonstrate this point, here is an simplified illustration from an actual case.

Bill v. Woodframe Construction Company

On July 17, YR-3, the plaintiff, Jason Bill, was injured when the lift-assistance

spring attached to his garage door pulled out from the wood frame of the door and the

spring bracket struck him in the face as he stood on a ladder while attempting to install a

garage door opener bracket above the spring bracket. Bill had loosened the spring bracket

approximately 1/4" in order to slide that bracket down slightly, so the door opener

bracket could be installed just above the spring bracket over the door. Bill brings suit

against Woodframe Construction Company, which installed the garage door and spring

assembly in Bill‘s new home, and alleges the screws holding the spring bracket were

only 1 1/4" long and had been installed through 3/8" wallboard into standard

construction grade pine planks. The screw penetration into the wood was therefore not

more than 3/4", since the bracket itself was 1/8" thick. Installation instructions packaged

with the door, manufactured by Geronimo Garage Doors, Incorporated, specify the use of

a 2" wood screw of a particular thread and thickness. In its answer, Woodframe raises the

affirmative defense of contributory negligence and assumption of risk, alleging if Bill had

not ignored the warnings on the door, specifically advising homeowners to have

adjustments made only by qualified garage door installation companies because the lift-

assist springs were under high tension, the 1 1/4" screws would have continued to hold

the bracket, and his face would not have been near the bracket if and when it ever pulled

out.

During discovery, Woodframe provided the written report of Dr. Nels Interwood,

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an expert both in wood, screw, and nail fasteners and in instances of the failure of the

connection between wood and nails or screws. In pertinent part, his report states as

follows:

Report of Nels Interwood, Ph.D.

After examining the garage, which was the site of the accident, I collected the samples of

the wallboard material, the wood planking materials behind the wallboard, and the paint

on the surface of the wallboard from areas adjacent to—but at least two feet removed

from—the site at which the spring bracket had been installed. At that time, the spring

bracket and spring assembly were hanging loose, affixed to the garage doorjamb only by

the end brackets, and the screws which had held the spring bracket were not present. (It

was reported to me those screws had been thrown out of the bracket at the time of the

accident as the spring unwound and rapidly turned the bracket with it.) The statement of

job materials provided by the crew of Woodframe Construction Company indicates those

screws were No. 10, 1 1/4" screws with a 1/4" shoulder, which is the unthreaded portion

immediately below the head.

Diagram of wood screw

Measurements of all components were taken, and measurements were made indicating

the location from which wallboard and wood samples were removed. The entire frame-

header assembly was subsequently removed by agents of the garage door manufacturing

company and the plaintiff, Mr. Bill, together with the untensioned spring assembly—with

bracket—for testing in a laboratory. I have observed videotapes of those tests, and I have

received and reviewed the data generated by those tests. All of the information mentioned
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in this paragraph forms a part of the bases for my expert opinions provided in this report.

Based upon my experience, training, and education in wood science, strength of

materials, and wood-fastener applications, and upon the measurements, tests, and analyses I

have conducted or have observed using the materials described in the preceding

paragraph, I have come to the following conclusions, which I hold with a degree of

certainty appropriate to the field of engineering and materials science:

The wood employed in the frame and header was adequate for the application,

being composed of adequately dried and proper lengths of 2 x 12" and 2 x 6" yellow

pine, the most typical construction material for this type of application.

The wood screws used to install the spring bracket were shorter than specified by the

door/spring manufacturer, but it is my experience manufacturers of such items often

overdesign such components because of the very low cost of specifying longer or heavier

screws or other reinforced components.

The bracket screws appeared to be properly inserted into the wood frame, without

stripping of the wood in the screw hole, as observed on cross-sectional microscopic

examination, which was photographed and preserved for trial use. There was no

evidence any oversized pilot hole was drilled to facilitate insertion of the screws, as is

sometimes done by less experienced installation crews in this industry. (In fact, there

was no way to determine whether a pilot hole had been drilled at all, which definitely

shows it could not have been oversized.) Because the 1/4" shoulder of the screw is

unthreaded, it does not contribute to the holding force of the screw connection,

regardless of whether it is embedded in wood or in wallboard. Routinely, wallboard is

removed to permit installation directly against the wooden header beam, although that

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was not the case here.

The failure of the spring bracket system was due to the partial withdrawal of the bracket

retention screws by the homeowner during the attempted installation of the overhead

door motor assembly, which was completely separate from—and unattached to—the lift-

assist spring assembly. These screws had, according to the homeowner, been withdrawn

approximately 1/4", which was a sufficient distance to loosen them in their screw holes.

The system was stable before the homeowner undertook adjustment himself, which is

further indication that his adjustment caused the failure.

Because the screws themselves can be viewed as elongated cones and, therefore, creating

elongated conical holes, even the slightest withdrawal will result in disengagement of the

threads along the entire length of the screw regardless of how long the screw is. Thus,

even if the screws had been an inch longer, the 1/4" withdrawal by the homeowner would

still have severely compromised the integrity of the screw-wood connection.

At his deposition in December, YR-1, Dr. Interwood repeated the conclusions from

his report, and made the following additional statements:

Question:

Can you describe this screw and your diagram more exactly?

Answer:

Yes, certainly. This is a standard, 1 1/4" number 10 wood screw, Phillips head, made of

stainless steel, which appears to have been used, inserted once, and withdrawn once.

Question:

What do you mean by standard?

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Answer:

Standard means it has the normal components of a wood screw of this particular size and

a normal head shape, which is flat, as opposed to pan head or round, or some other

configuration.

Question:

What do you mean by 1 1/4"?

Answer:

Well, that‘s the length of the screw from tip to head, total length.

Question:

Not just the threaded portion or the threaded portion and shoulder together?

Answer:

No, total length. The threaded portion is approximately, well, exactly 7/8"; the

shoulder is 2/8"; the head is 1/8", so the entire length is 10/8", or 1 1/4".

Question:

What does the number 10 mean?

Answer:

That is a code relating to the number of threads per inch, turns per inch of length.

Numbers 8 and 10 are standard for construction work of this type.

Question:

Why do you think it was inserted only once?

Answer:

Because I can look at the markings from the screwdriver on the portion of the head that

takes the force on insertion, and they are not severe. It hasn‘t been put in and taken out a

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number of times. Same thing for withdrawal, not much scratching or rounding of the

internal shoulders of the screwdriver slots.

Question:

Is that significant to you?

Answer:

Yes, because if the screw had been inserted, withdrawn, and inserted again a number of

times, the threads that were impressed into the wood were likely to have become worn

down, and they would not have held the screw as well.

Question:

Couldn‘t you look at those impressed threads directly, since you had access to the wood?

Answer:

No. Well, I could look at the wood, but remember, these screws had been explosively

expelled from the wood under the force of the tensioned spring. Since the garage door

weighed several hundred pounds, that spring was capable of exerting that kind of force,

and the screws were pulled very rapidly out of their holes by the bracket and spring

assembly. So the wood in the holes where the threads of the screws meshed with the

wood, that was pretty much torn up.

Question:

In your report, on page 13, you describe the screws as ―elongated cones.‖

Answer:

Yes, I see that.

Question:

Does your diagram depict that?

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Answer:

Well, not really. After I had written the report, I asked my assistant to make an accurate

drawing of the screw, according to its three axis views, and when I looked at the diagram

after I had submitted the report, I saw it was accurate and perhaps my description was

less accurate. The tip of the screw is certainly conical, and that is essentially what I meant

to describe in my report.

Question:

The tip is conical, but the remainder of the screw is, what, cylindrical?

Answer:

Yes, cylindrical, that‘s correct. So, on even the slightest withdrawal, the tip loses contact

with the wood and provides no holding power.

Question:

How long is the tip?

Answer:

Let‘s see. The diagram puts the tip at 2/8".

Question:

Then the remaining threaded portion, up to the unthreaded shoulder, is 5/8"?

Answer:

Yes, that‘s right.

Question:

That‘s 5/8" then of threaded screw, which does not lose its contact with the wood if it is

withdrawn?

Answer:

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If I understand where you are going, if the screw is fully embedded in wood, including

the shoulder, then a withdrawal of 1/4" would expose the shoulder but would not expose

any of the threaded portion of the screw.

Question:

Doctor Interwood, let‘s take our morning break at this point for fifteen minutes, okay?

After the deposition was resumed, a number of additional matters were developed,

including information that showed two months after he was retained in this matter but

before he had written his report, Dr. Interwood was retained by the same attorneys as a

testifying expert in the defense of an entire series of product failure cases in which

alleged damages exceed $42 million.

Finally, on direct examination at trial Dr. Interwood testifies in a way that is

generally consistent with his report. At one point, he makes the following statement:

If you draw, that is withdraw, a screw from the wood in which it is embedded, you

destroy the contact that screw had with the wood, with the threads impressed into the

wood of the screw hole. That greatly weakens the holding power of the screw-wood

connection, and it is therefore hardly surprising these bracket screws would fail. The

homeowner should never have touched them, much less have removed them as far as he

did. That was just irresponsible and showed a complete lack of understanding of the

connection system. In my opinion as an expert, the homeowner‘s actions caused the

spring bracket to come loose; he brought this on himself.

With all of this as background, let us consider the organizational choices facing

the cross-examiner. He needs to decide (1) between constructive and destructive

examination; (2) between primacy and recency; (3) between storytelling and fact-

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gathering; and (4) between substance and impeachment. Other less major choices must

also be made ―on the fly‖ (such as the decision whether to discipline a witness

immediately for adding some non-responsive information at the end of an otherwise

permissible answer), but these are normally matters of style and the moment, and they

cannot be planned in advance very well. An analysis of each of the major choices

follows.

Constructive Versus Destructive Cross-Examination

Constructive cross-examination enlists the support of the opposing expert, seeking

her agreement that certain fundamental facts, principles, or limitations are correct. The

appropriateness of a particular methodology that is generally accepted in the field, the

unavailability of Bureau of Labor Statistics data for certain time periods, the inability to

determine a nuclear particle‘s mass and velocity at the same time, or her own decision not

to conduct certain additional tests, these are the kinds of areas in which a reasonable

expert (or an unreasonable one who nevertheless recognizes the danger of denying the

truth of matters which can be proved) is likely to agree, thereby saving energy for more

important battles. Constructive examination depends upon the credibility of the opposing

expert; the trial lawyer wants the court to believe her when she says he is right on

something, or his expert is right on something. Such agreement makes the ―something‖

equivalent to a universal truth, no one disagrees, so the court can accept it.

Destructive cross-examination attempts to diminish the credibility of the expert.

Therefore, as a matter of logic the attorney must conduct constructive cross-examination

before destructive cross-examination; otherwise, he is first saying to the court, ―Don‘t

believe this expert,‖ and then trying to say to them, ―Believe her just on those helpful

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points.‖ It is easier to argue: ―She is right on these few helpful points but look at the

inconsistencies and irregularities of the remainder of her analysis.‖ Counsel should start

friendly, get what he can, then go into his more aggressive cross-examination mode. With

Dr. Nels Interwood, there are some constructive points to be made based on his report

and deposition:

Question:

Dr. Interwood, I think we can agree on a few things at the outset here. First, you agree the

wood used as framing for the garage door assembly was suitable for that use?

Answer:

Yes, it was suitable. ―Adequate‖ is the word I think I used.

Question:

It had been properly seasoned, or dried?

Answer:

Yes.

Question:

The workmen who framed the house, they had chosen the proper lengths of lumber to

frame the garage door opening?

Answer:

Yes. It was all long enough, without joints, so there was no sag, which would have, well,

could have affected the strength of the screw connection through the bracket.

Question:

Doctor, you are not an expert in garage springs, are you?

Answer:

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No, no. I know wood and screws and nails. Not springs.

Question:

And yet you know the spring on that door was capable of exerting a force of several

hundred pounds on the bracket and the screws holding the bracket?

Answer:

Well, yes, because the spring is designed to assist in lifting the door. Since the door

weighs several hundred pounds, and we want the person or opener-mechanism to have to

exert only twenty-five or twenty pounds of force, the spring must make up the difference,

so to speak. So, that spring can exert close to 300 pounds of force.

Question:

And Dr. Interwood, one more thing on which we can agree: The wood where the bracket

screws were inserted, that wood was pretty much torn up after the bracket came off the

wall?

Answer:

Yes, yes, and that‘s important because we could not look at the thread marks inside the

holes in the wood to see whether the screws were well embedded.

There is nothing in this examination that demeans the witness‘s credentials or

challenges his willingness to tell the truth. There is plenty in this examination that is

helpful if the theory for this portion of the examination is the wood is not the source of

the problem. The attorney does not have to be an expert to understand there was

substantial force contained within that spring (actually potential energy, but who wants to

try to teach the court the distinction?), which installers should have known needed

adequate screw connections. It is also nice to have the expert, for her own purposes, to

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speak enthusiastically about the force of the released spring when the attorney wants the

jury to have that picture of the explosive release that caught the plaintiff in the face, with

the bracket spinning wildly.

Take another example from a cross examination of Mr. Pincus, a fire investigation

expert who has been hired to opine that at fire was not arson. A constructive to

destructive approach of that expert might go like this:

Q: You would agree with me that in coming to your conclusions in this case that it is

important to have as much of the evidence before you as is possible?

A: Yes.

Q: That everyone is hampered, to some extent by the circumstances of this case?

A: Yes. The fire was a very large and fast moving fire, and very hot, and destroyed a

lot of what otherwise could have been evidence?

Q: Exactly. And a lot of water was used to put out the fire?

A: Yes.

Q: And the building was completely destroyed by fire?

A: Yes.

Q: And the building, by all accounts was completely engulfed in flames within a half

hour of when the fire was reported?

A: True.

Or, take an example from a cross examination of the damages expert in the employment

case we used as an earlier example. A constructive to destructive approach of that expert

might go like this:

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Q: You would agree with me that you are projecting damages seven years into the

future?

A: And, of course, this involves making a prediction?

Q: And with all predicting you have to make assumptions?

A: Yes.

Q: You made an assumption about a discount rate?

A: Yes.

Q: And you agree with me, that the higher the discount rate, the lower total dollars

will be paid in the future?

A: Yes.

Q: And selecting the right discount rate involves making a choice?

A: Yes.

Q: Some select discount rates that a drawn from published figures of the interest a

person can make from investing in a reasonable safe security. You choose to use that

rate, but then subtracted out an amount for inflation?

A: Yes.

Q: Some experts might select an interest rate appropriate for a particular type of

business?

A: Yes.

Q: For example, if we were looking at trying to find a discount rate for wages being

paid by a computer start up company, we might have to discount wages in such a

company by 50%, because of the competition in the market, and risk that that company

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would not be in existence in another 2 years, not to say 7 years?

A: That‘s right, but I chose not to do that because Firm Inc. had such an established

track record.

Q: Yes, but that is an assumption on your part?

A: Yes.

Q: You are aware that banks, for example, have data on discount rates they use when

lending money?

A: Yes.

Q: They use these discount rates for various industries to determine how much

money to lend, for how long, and what interest to charge?

A: Yes?

Q: Banks find it helpful to look at industry averages, to help them judge the risk of

getting paid back sometime in the future

A: I guess.

Q: You chose not to consult these rates for the purposes of doing your analysis?

A: No I did not.

Primacy Versus Recency

Recalling this dichotomy earlier, it conveys that a listener remembers best what

she hears first, and remembers second best what she hears last. In cross-examination, the

attorney wants to lead with an important point and end with a point that is also important.

He must take care to select points for these positions that are certain winners because

there is nothing worse than losing at the very beginning, except for losing at the very end.

Here is a candidate for the first position in the cross-examination of Dr. Nels Interwood, a

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point that is not overtly destructive but is important enough to be a theme for the

plaintiff‘s entire case:

Question:

Dr. Interwood, good afternoon.

Answer:

Good afternoon.

Question:

Let‘s see if we can agree on a few things right off the bat. You agree with me that the

holding power of a number 10 screw in wood is directly proportional to the length of the

threaded portion in contact with the wood?

Answer:

Yes, well, yes.

Question:

So, twice as much thread in the wood, twice as much holding power. It‘s that simple,

isn‘t it?

Answer:

Yes, other things being equal, that‘s correct.

Question:

You know, as an expert, that the installation instructions for this spring and bracket

assembly call for 2 ½" number 10 wood screws?

Answer:

Yes, I have seen those instructions.

Question:

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The head on a 2 ½" number 10 wood screw is 1/8", right? (Writing on the board to create

and fill in a chart.)

Answer:

Yes, that is standard.

Question:

And those 2 ½" screws have shoulders that are 2/8"?

Answer:

Yes, the shoulder dimension is the same until you get to much smaller screws.

Question:

The tip, the pointed-end portion, is 1/8", just like the head?

Answer:

Yes, 1/8".

Question:

The remainder is threaded?

Answer:

Yes, all the rest is the threaded portion, which actually holds in the wood.

Question:

A 2 ½" screw has a head, shoulder, and tip of 1/8", 2/8", and 1/8" that don‘t hold in the

wood?

Answer:

That‘s right.

Question:

That‘s ½" that doesn‘t hold in the wood?

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Answer:

Right.

Question:

So, with a 2 ½" screw, like that called for in the installation instructions, 2" would be

holding in the wood if it was correctly inserted all the way?

Answer:

Well, yes, that‘s right. Two inches of threaded portion.

Question:

The 1 1/4" screws that were used, they had these same head, shoulder, and tip portions?

Answer:

The same dimensions, yes. The same length for each.

Question:

So on the 1 1/4" screws that were actually used, ½" was the portion that didn‘t hold in the

wood?

Answer:

That‘s correct.

Question:

That leaves 3/4" to hold in the wood, if it is properly inserted all the way?

Answer:

Well, yes, that‘s right.

Question:

The proper screw would have 2" of threaded screw in the wood; the ones used could only

have 3/4". Have I got that right?

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Answer:

Well, yes, but there are other factors to consider.

Question:

Yes, and we‘ll come to those, Dr. Interwood. But we have to take one step at a time. First

tell me, is that right, that the screws called for in the instructions would have 2" of

threaded screw in contact with the wood, and the ones actually used couldn‘t have more

than 3/4"?

Answer:

Yes, that‘s right.

Question:

Now, there was wallboard installed over the wood header, wasn‘t there, Dr. Interwood?

Answer:

Yes, but that really wasn‘t important in determining the holding power of the screws.

Question:

It wasn‘t important because the wallboard does not hold onto the screws, does it? It just

crumbles?

Answer:

Yes, that is the kind of material it is. Like plaster, it turns to dust.

Question:

It doesn‘t hold onto the screw, but the screw has to go through it, doesn‘t it?

Answer:

Well, certainly. I don‘t know what you mean.

Question:

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Was this 3/8" wallboard, or ½" wallboard, Dr. Interwood?

Answer:

Just 3/8".

Question:

So, no matter what screw you used, the one from the instructions or the one the crew

actually used, 3/8" of that screw was in the wallboard, not in the wood?

Answer:

Yes, that would be correct, for either one.

Question:

For the screw, the instructions said to use the 2 ½" screw, we figured earlier (indicating

the chart) that 2" would be in contact with the wood, threaded into the wood?

Answer:

Yes, we made that note there.

Question:

And considering the wallboard, that longer screw would now have only 1 5/8" of thread

in contact with the wood?

Answer:

Yes, 2" minus 3/8". Yes.

Question:

The screws actually used, those had 3/4" of threaded portion available to contact the

wood? (Indicating the chart.)

Answer:

Yes, that‘s right.

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Question:

And now, considering the wallboard, we can agree the screws actually used by the

Woodframe Construction crew had only 3/8" of threaded portion in actual contact with

the wood? That‘s 3/4" minus 3/8", right?

Answer:

Yes, that‘s right.

Question:

One and five-eighths inches compared to 3/8". The proper screws, called for in the

instructions, would have had more than four times as much threaded screw in contact

with the wood, isn‘t that correct, Dr. Interwood?

Answer:

Yes, that‘s correct, but there are other factors we haven‘t talked about yet.

Question:

And we have already agreed that four times the length of thread in the wood means four

times the holding power, haven‘t we?

Answer:

Well, yes, I recall that is where we started today.

This point is so fundamental to the theory of the plaintiff‘s case that it is a logical

candidate for the primary position, that lead-off position which uses the principle of

primacy to make the greatest impression on the jurors. The hope of the examiner is, that

having heard it first, the jurors will be impressed most strongly by this point and will

remember it regardless of what comes later in the cross-examination or the redirect. By

the same principle of primacy, the examiner should consider placing this point at the

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beginning of the closing argument as an important element in his statement of the theme

of the case, which might be something like ―They didn‘t take the time to do the job right,

even though everybody knew this spring was a potential killer that had to be controlled.‖

Now the cross-examiner should look for the solid point to place at the end of the

cross-examination, to take advantage of the principle of recency, and also to guarantee he

can sit down on a winning point. (In choosing the final point on cross of an expert,

avoiding a defeat is more important than ending with the best point available. If that best

point has some risk of failure attached, put it in the middle somewhere, and go for the

clear winner that may be slightly less valuable substantively.) In the hypothetical case

presented here, without going through all of the mechanics of the questions and answers,

a nice safe finishing point would be the fact if the 3/8" wallboard had been removed by

the installers, according to instructions, the screw would have been inserted into the wood

an additional 3/8", and the 1/4" removal by the homeowner would not have caused the

failure. The attorney winds up with a very succinct summary of his case, extracted from

the opposing expert witness.

Question:

In other words, if Woodframe Construction had just cut through the wallboard, there

would have been no injury?

Question:

And if Woodframe Construction had used screws that were just 1/4" longer, there would

have been no injury?

This is a pretty good place to sit down.

Storytelling Versus Fact-Gathering

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 In the above examples of cross-examination, care was taken to explain all of the

logical connections between the facts and the expert‘s observations and opinions, so the

trier of fact could appreciate the significance of the information being presented, a story

was told through the mouth of the lawyer with the assent of the opposing expert.

Presentations in a story format are remembered more clearly and have a more vivid

impact than lists of facts or events. The story apparently provides a framework within

which the court can organize the new information and remember the relationships among

facts. If, however, the attorney is faced with a less cooperative or less honest witness,

who presents greater danger, or if time is short because the the judge is impatient, he may

have to use the fact-gathering format for his cross-examination rather than the

storytelling format.

Gathering facts through cross-examination does not require as much language

facility as telling a story, but it does require more restraint on the part of the cross-

examiner. As trial lawyers, or oral advocates, the attorney has a desire to persuade

people, to make them understand he is scoring points, important points, points they

should notice. But with aggressive opposing experts or weary judges and juries, the

attorney sometimes has to postpone the persuasive oral advocacy until his closing

argument and satisfy himself instead with merely extracting the facts he needs for

closing, storing up the bricks from which he will build a wall on closing. Consider this

portion of the ―primacy‖ cross-examination presented in storytelling from above, but now

cut back to brick-gathering form:

Question:

Dr. Interwood, the head of a number 10 screw is 1/8" thick?

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Answer:

Yes.

Question:

The shoulder, the unthreaded portion, 2/8" long?

Answer:

Yes, that‘s correct.

Question:

These numbers are correct for all number 10 screws, whatever the total length of the

screw?

Answer:

Yes, those are standard, except for very small screws not relevant here.

Question:

If a screw has twice as much contact with the wood, it holds twice as forcefully?

Answer:

Well, in general that‘s correct if you are talking about contact of the threaded portion, the

shank, of the screw.

Question:

The instructions here, Plaintiff‘s Exhibit 17, tell Woodframe Construction to remove the

wallboard or other covering over the header. Do you see that?

Answer:

Yes, that‘s part of what it says.

Question:

And the instructions tell Woodframe Construction to use 2 ½" number 10 screws, don‘t

386
they?

Answer:

Yes, but they also point out that the homeowner should be advised not to attempt

adjustment of the spring-bracket assembly himself, that he should call qualified

installation experts.

That is another good place to stop. The expert understands the significance of the

answers he is being forced to give, and he is beginning to fight back a bit too strenuously

to safely engage in further questioning in this area. Using the fact-gathering mode, the

attorney should get in, get his facts, get out, and be satisfied to explain the significance of

those facts, to assemble his jigsaw puzzle, to decorate his Christmas tree, to grind his

sheaves into flour and bake his bread, to add the mortar and construct his wall on closing

argument when there is no one to interrupt him with disagreement, at least no one with

advanced degrees in impressive fields of knowledge.

Substance Versus Impeachment

Another dichotomy with which the cross-examiner must deal in facing an expert

is when to engage in cross-examination to make substantive points and when to engage in

cross-examination for purposes of impeachment. On first consideration, it might seem it

would always be ideal to cross-examine with material that is both substantive and

impeaching at the same time, in other words, to have as the goal questions such as:

Dr. Interwood, despite your testimony to your lawyer this morning that the wallboard

played no role in this spring-bracket failure, didn‘t you tell me, under oath at your

deposition three months ago, you disapproved of the practice by many companies, including

defendant Woodframe Construction, of installing the bracket on top of the wallboard?

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Even if the question is broken into four or five bite-sized questions, to maintain control of

the witness and to keep the court with the examination, this question or line of questions

nevertheless presents the court with the difficulty of trying to remember (or to figure out

as an initial matter) which version is supposed to be the truth; if the expert is a liar (or

non-objective, an exaggerator, or unqualified), why should her statement from three

months ago be believed? Is she a liar all of the time? Was she associated with the same

lawyer and party three months ago? Does she have the same motivation for slanting her

opinions?

These are fair questions. While the attorney may have persuasive answers (e.g., as

more problems with the client‘s position became clear after the deposition, the expert

adjusted her opinions to try to avoid them), the logical process of absorbing those

answers and evaluating the testimony (direct and cross) in light of those answers may

consume the judge‘s attention, so the substantive significance of the concessions

contained in the impeaching material may be overlooked.

Where the substantive material is important to the attorney, and it can be

presented either in an impeachment or in some constructive way, the constructive way is

preferable. There is no question as to what the judge is supposed to believe, the judge is

supposed to believe the important substantive material on which the attorney and the

expert have just ―agreed that you can agree.‖ As an obvious corollary, this type of ―dual

purpose‖ material should be included in the early constructive portion of the expert

cross-examination, even though it could have been used destructively to diminish the

expert‘s credibility because she allowed her bias (or interest, lack of competence, or lack

of knowledge of the facts) to improperly influence her opinions. The dual purpose

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material, including examination using, for example, a ―learned treatise‖ (under FRE

803(18)), should probably be planned to follow whatever purely constructive material the

attorney has in case the dual purpose material devolves into a destructive cross-

examination involving impeachment.

Finally, the attorney should conduct his more impeaching cross-examination, the

destructive questioning that is intended to suggest what the witness brought to the case (the

―major premise‖: her intelligence, education, background, experience, integrity,

objectivity, reputation) is somehow inadequate for the tests or what the case gave to the

witness (the ―minor premise‖: the facts, the issues, the witnesses, the budget, the time

constraints, the necessary assumptions, the assistants, and assistance) is somehow

inadequate or inaccurate. From the spring-bracket case, the attorney can find examples of

purely impeaching cross-examination:

Question:

Dr. Interwood, you did not conduct tests of the header and spring-bracket assembly, did

you?

Answer:

No. I am familiar with the tests that were conducted, however.

Question:

There were tests, but you weren‘t present for them?

Answer:

That‘s correct. I studied videotapes of those tests.

Question:

You were invited to attend?

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Answer:

Yes, but I saw no need to be there.

Question:

Those tests were conducted by the garage door manufacturing company?

Answer:

Yes, I believe that is correct.

Question:

You did not select what tests were done?

Answer:

No, that was decided by those other researchers.

Question:

You did not decide how many tests to run?

Answer:

No, as I said, that was decided by others.

Question:

You don‘t know whether any pilot holes were drilled for the bracket screws, do you?

Answer:

Well, I certainly know there were no oversized holes drilled, which would have been very

poor practice because it reduces the purchase, which the screw has in the wood.

Question:

You don‘t know whether any pilot holes were drilled for the bracket screws, do you?

Answer:

No, I don‘t—except if any were drilled, they were not oversized.

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Question:

They could have been smaller than the recommended size?

Answer:

Yes, that‘s right.

Question:

You don‘t know?

Answer:

I don‘t know.

While the adequacy of the tests and the size of the pilot holes may be important

substantive questions, the attorney is not trying to obtain substantive statements on those

subjects; he is instead demonstrating that the witness should be considered less credible

because she is willing to rely upon tests done by others, over whom she had no control or

to proceed to a conclusion and opinion in the absence of apparently important

information. Therefore, these are bald impeachments that challenge her competence and

methodology. (Notice with respect to the tests on which Dr. Interwood relies, the attorney

must be careful not to denigrate them, since, on these facts, they were done under his

supervision, shared with the garage door manufacturing company and they probably

underpin his own expert‘s testimony. The attorney is not impeaching Interwood for

relying on those; he is impeaching him for not being there, for not participating, for not

doing his own work, and then coming to an opinion as an expert, in other words, for

being inadequately committed to finding out the truth.)

Applying Control Techniques to Cross-Examination of Experts.

Experts are expert. She therefore will have some advantages over the cross-

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examining lawyer, and he has to be careful. The ability to manipulate jargon is a major

advantage. The expert typically has spent years honing her ability to speak ―in code,‖ to

make distinctions and connections that are not apparent to laypersons, and to correct

innocent misuses of the language of her profession, much like a parent instinctively

corrects a child‘s misuse of grammar.

Remember, however, that jurors also do not understand the distinctions or

connections. The lawyer finds himself on common ground with the court in this regard.

And many judges do not like the expert telling them how to think, and they enjoy seeing

a self-possessed, somewhat arrogant intellectual being brought down a peg or two by the

common sense and practical wisdom available to the everyday person. The lawyer should

be able to take advantage of this anti-intellectual streak that runs deep in many of us.

If the lawyer can simply explain, narrow, and demystify the issues during the cross, he

can score big points with the jury, especially where the cross-examining lawyer will not

call his own expert. On the other hand, where the cross-examiner will call his own

witness and has tested this part of his cross on the expert during the deposition, the cross-

examiner might start with a technique that combines enlistment with a narrowing of the

issues.

Enlistment and Narrowing of Issues

Perhaps the best way to explain how enlistment can lead to narrowing the issues

by getting the opposing expert to agree with the attorney‘s own expert is to give an

example. Imagine cross-examining the opposing doctor at trial in the motorcycle accident

case used before where the doctor, a neurologist, has opined that the client‘s epilepsy,

which appeared shortly after the accident, is not causally related to the accident but is

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idiopathic, that is, of unknown origin. The attorney starts his cross as follows:

Question:

Dr. Rosenberg, you are a neurologist, right?

Answer:

Yes.

Question:

And you see patients?

Answer:

Yes.

Question:

You are, in fact, affiliated with a hospital?

Answer:

Yes.

Question:

And by ―affiliated‖ that means the hospital has reviewed your credentials and your record

and has authorized you to treat patients at its facility?

Answer:

Yes.

Question:

One hospital where you work is Nita General Hospital?

Answer:

Yes.

Question:

393
Dr. Barron, the treating physician, also has privileges at Nita General Hospital?

Answer:

Yes.

Question:

And you know Dr. Barron, at least by reputation?

Answer:

Yes.

Question:

You work together at the same hospital?

Answer:

You could say that.

Question:

And you know Dr. Barron has a very good reputation as a treating physician?

Answer:

Well . . . I guess that‘s right.

Professionals (especially those affiliated in some way), who belong to the same

professional organizations or work in the same community, are often loath to speak badly

of other professionals. By enlisting the opposing expert in credentialing the attorney‘s

own expert, his goal is at least to put his expert on a par with the opposition. In addition,

the attorney might go on to legitimize the area of his witness‘s particular expertise. For

example:

Question:

Now, Dr. Rosenberg, not every physician is a specialist, correct?

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Answer:

Yes.

Question:

And general practitioners, they see a lot of different kinds of patients, don‘t they?

Answer:

That‘s right.

Question:

They see people with everything from cancer to the common cold?

Answer:

That‘s right.

Question:

And one type of illness of particular relevance that general practitioners treat is epilepsy?

Answer:

That‘s right.

Question:

You have no quarrel with Dr. Barron‘s qualifications to treat epilepsy?

Answer:

No.

Question:

And you agree with his diagnosis of epilepsy in Jackie, don‘t you?

Answer:

Yes.

Question:

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And, in fact, you agree with his treatment of Jackie for his epilepsy, don‘t you?

Answer:

Yes.

By showing areas of agreement between the expert and the opposing expert, the

attorney enlists the opposing expert in accrediting his own expert‘s work. And it is also

appreciated by the jury because the attorney is narrowing the issues and simplifying the

dispute for them. Now they do not have to worry that the doctors might disagree on

diagnosis or treatment. Counsel can use this technique in a variety of settings:

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• Accountants (cross-examining a ―forensic economist‖ where the expert is an experienced

auditor): ―You agree that auditors examine companies to help determine if and what value the

company has? And you agree with (my expert‘s) math, and with his arithmetic? Your single

disagreement with him is over the assumptions he made?‖

• A chemist in a criminal case: ―You agree that what I have here in my hand is cocaine?

And you agree that the chemist for the state used the correct method, the right test, to determine

that the white powdery substance is cocaine? You merely wonder whether it came from the

defendant?‖ Counsel can see that enlistment is closely related to a second friendly point of

beginning, narrowing the issues.

• Or a forensic fire fighter: ―Chief Olsen, you agree that Mr. Pincus was a Deputy fire

marshal in your office for 20 years? He has conducted and been responsible for conducting fire

investigations of many fires over the years? And he is using the correct standard? That an

investigator must rule out all accidental causes before determining arson?

The Macro v. Micro Cross-Examination

Before the factfinder during trial, effective cross-examiners simplify, regardless if they

are cross-examining psychologists, psychiatrists, accountants, defense medical malpractice

experts, plaintiff causation experts, construction experts, fire marshals, or ―human factors‖

experts. The place to challenge an entire field is before a pretrial judge. Cross-examination in trial

is more often directed toward weight, not admissibility, but because the court is still asked to

make credibility decisions (plus causation and damages decisions), it will appreciate any help the

attorney can provide on these matters.

If the cross-examiner goes after the whole discipline and field, it is impossible for the

expert not to feel the personal attack. ―Your line of work is a fraud, worthless, not useful in daily

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life.‖ The expert will fight him and fight him hard by discussing all the people and institutions

who rely on the opinions experts give (whether an auditor who audits a business, a psychiatrist

who evaluates the mentally ill to determine whether they should be let out on the streets, or Dr.

Done who had worked for the Food and Drug Administration).

Often, by crossing on the facts the attorney can challenge the expert and her specific

opinions without conducting a broad frontal assault on her field. This is of great importance when

he is also relying on an expert from the same field. Counsel should resist challenging the entire

discipline; instead, he should conduct his cross based on what he needs for discrediting the

particular expert‘s work and focus on the facts.

For example, Dr. Rosenberg and the motorcycle case, where simply calling the key facts to the

attention of Dr. Rosenberg from the record he reviewed can be particularly devastating to his

opinion.

Question:

You reviewed the emergency room record?

Answer:

Yes.

Question:

You saw that it said he had been in a motorcycle accident?

Answer:

Yes.

Question:

That it said that he had been unconscious for thirty minutes?

Answer:

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Yes.

Question:

That the police report said that he had come to rest seventy-five feet from where the Cadillac had

pulled out?

Answer:

Yes.

Question:

That a witness has testified that he thought Jackie was dead?

Answer:

No, I didn‘t know that.

Question:

That in Dr. Barron‘s report, he believed from talking to the parents that Jackie may have suffered

a petite mal seizure that same night after the accident?

Answer:

I saw that.

Question:

That he was dizzy and disoriented that night?

Answer:

Yes.

Question:

That he had a severe headache?

Answer:

But he didn‘t come back to the hospital.

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Question:

You saw that Dr. Barron did report Jackie had a severe headache that night?

Answer:

Yes.

Question:

And in any event, it was just two weeks after this thirty minutes of being unconscious, after

having been thrown seventy-five feet from the motorcycle, just two weeks after this that Jackie

suffered his first grand mal seizure?

Answer:

Yes.

The art here is juxtaposition. Juxtapose the facts and stack them for the jury to consider.

Counsel should make the dispute about what happened, an area which he controls through his proof

and his witnesses. He should conduct his cross on the micro-level on the minor premises, not on the

macro-level of the major premises.

Demystify the Dispute—Analogies

One of the most effective ways of showing the expert the attorney is in control and of

persuading the jurors that they can understand the dispute is to use analogies during the cross. For

example, consider the following portion of the cross of Dr. Rosenberg:

Question:

Dr. Rosenberg?

Answer:

Yes.

Question:

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Sometime in your life you have ordered pizza and had it delivered?

Answer:

Yes.

Question:

When the pizza came, did you ever open the box and find that the pizza had slid all over the

inside?

Answer:

Yes.

Question:

So, the pizza wasn‘t quite round anymore, it had hit the box sides and lost its shape?

Answer:

Yes, that‘s happened to me.

Question:

Now the human brain is encased in the skull, right?

Answer:

Yes.

Question:

And the brain is soft, and the skull is hard?

Answer:

Yes.

Question:

And if something hits the human head really hard on one side, the brain inside can bounce or

move around?

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Answer:

Okay, that is one way to describe it.

Question:

And sometimes the brain can actually hit the opposite side of the skull? I believe you call this a

―contra coup‖ effect?

Answer:

Yes.

Question:

Now, Jackie hit the front right side of his head in the motorcycle accident, at least he had bumps

and bruises on the front right side?

Answer:

Yes.

Question:

And his EEG showed irregularities in the back left part of his brain?

Answer:

Yes.

Question:

Exactly opposite where his head was hit?

Answer:

That‘s correct.

The pizza analogy helps make the point and personalizes the cross-examiner to the jury. (They are

glad to learn that sometimes counsel has pizza and has problems too. So the attorney should work

with his expert to come up with an analogy that teaches and he can control. Then even if the

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opposing expert refuses to cooperate, the attorney can always have his expert use the analogy to

teach the court what is going on. Not surprisingly, the more complex the subject, the more likely

it is the expert has had to use analogies to explain to lay people what is going on. Remember,

choose the expert based partly on her teaching abilities; then use her to teach with analogies and

examples on direct, and enlist her help in developing analogies for use in the cross.

Corralling the Expert

Good cross-examiners will close the corral gate on the expert, particularly if they are

going to take the expert on in her area of expertise. The examiner closes the gate by taking away

places where the expert can escape. For example:

Question:

Now, Dr. Rosenberg, today you‘ve told us that you did a number of things before coming to your

conclusion about Jackie‘s epilepsy?

Answer:

Right.

Question:

Let‘s just review those things you did. You consulted the following before arriving at your

opinion. (Cross-examiner makes a chart, asks questions, and then writes only after confirmation

from the witness.)

Question:

You read the emergency record of Jackie Fulbright for his treatment after the motorcycle

accident, August 14, YR-2?

Answer:

Yes.

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Question:

You examined the hospital discharge summary?

Answer:

Yes.

Question:

The EEG report relating to his first seizure and first hospitalization in September?

Answer:

Yes.

Question:

The report of Dr. Barron, dated October 2, YR-2?

Answer:

Yes.

Question:

And you also looked at the police report?

Answer:

Yes.

Question:

And read Jackie‘s deposition?

Answer:

Yes.

Question:

And that‘s it, right?

Answer:

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What do you mean?

Question:

Well, before you met with the attorney and gave him your opinion, those [pointing at the list] are

the only things you consulted in reaching your opinion?

Answer:

That‘s right.

Now the expert has more difficulty in pointing to other sources if the cross-examiner backs

her into a corner. As a cross-examiner, the attorney wants to cut off any places where the expert

can run and hide. Obviously, this cross-examination must be carefully set up at deposition or

through analysis of other controlling materials, like the expert‘s report. At deposition, it is

important to screen the objective from the expert by asking the following: What did you do? What

else did you do? Is there anything else that you did? instead of asking: You didn‘t do this, you

didn‘t do that? By having the witness exhaustively list everything she did, the examiner turns the

impeachment into an impeachment by omission, which has been discussed earlier. Although this

impeachment is somewhat harder to set up at trial, the alternative presents the risk of tipping off

the witness and her counsel at deposition as to the line of cross-examination the attorney intends

(―things you did not do‖), and allowing them to prepare for it. By focusing on what she did and

exhausting the list of what she did, the cross-examiner may hide that objective and preserve his

cross. For Rosenberg, the attorney does not want him to add at trial that he talked to the nurses,

the ambulance drivers, or consulted a particular text or treatise. The attorney should be pretty safe

here, especially under the civil procedural rules, which put the expert under an affirmative

obligation to identify in her report the bases of her opinion. In addition, she has an obligation to

supplement her report if she goes beyond it; if she does not supplement, she may lose her ability

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to refer to it or to state those additional opinions or bases at trial.

One technique to keep the examination on reasonably friendly terms is to give the expert

an out by allowing her to blame the lawyers for her incomplete examination of all the pertinent

facts. For example:

Question:

Now, Dr. Rosenberg, you didn‘t talk to the ambulance drivers who drove Jackie to the emergency

room?

Answer:

No.

Question:

You didn‘t talk with the nurses?

Answer:

No.

Question:

Never talked with Dr. Barron, the treating physician?

Answer:

No, there was no need.

Question:

You never talked to the parents to determine what they recalled about Jackie‘s behavior?

Answer:

No, I didn‘t need to because I had Dr. Barron‘s report of what he found relevant from his

conversations with those people.

Question:

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Dr. Rosenberg, that was not my question. Are you saying that you did talk to Jackie‘s parents?

(Reverse repeat.)

Answer:

No.

Question:

In any event, you wanted to do what the lawyers for Americraft Industries were asking you to do,

and they didn‘t tell you that it was necessary for you to talk to the nurses?

Answer:

No.

Question:

Or to talk to the parents?

Answer:

No.

Question:

Or to examine Jackie yourself—they didn‘t give you that opportunity?

Answer:

No.

Sometimes counsel gets more cooperation from the witness by allowing them to blame

the lawyers for restricting her access. Again, this is why when the attorney hires his own expert

he wants to make certain she tells him what she needs as a professional to give an opinion. Then

if she sets the protocol, she is more likely to defend what she did, why she did it, and how it is

customary in her field. Of course, the advantage to the cross-examining lawyer is he does not

care whether it is the lawyers‘ fault, as long as the court gets the point that Dr. Rosenberg had

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much less to go on than the treating physician.

Eighth Grade Science Norms

Think back to eighth grade science. First, everybody learned about the scientific method.

There were a couple of scientific principles everyone, including jurors, learned that are

particularly useful to cross-examination of experts. The first is in order to identify cause and

effect, the scientist states a hypothesis and then tests his hypothesis with an experiment. The

experiment was only valid if the scientist controlled all the important variables. For example,

think of what the attorney might say to Dr. Rosenberg, the expert who claims there is no

knowable cause for Jackie Fulbright‘s epilepsy.

Question:

Dr. Rosenberg, you do agree that Jackie has epilepsy, right?

Answer:

Yes.

Question:

And you agree that he suffers grand mal seizures from time to time?

Answer:

He may.

Question:

You agree that Jackie did not have epilepsy before the motorcycle accident?

Answer:

That is right.

Question:

But that he has it now?

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Answer:

Yes.

Question:

You believe that his epilepsy is idiopathic?

Answer:

Yes.

Question:

That means your opinion is that you don‘t know the cause?

Answer:

Yes.

Question:

Then, really, your opinion is you have no opinion about what is the cause of Jackie‘s epilepsy?

Answer:

I guess that‘s another way to say it.

Question:

Now, you do agree that sometimes the cause of epilepsy is known?

Answer:

Yes.

Question:

That trauma can cause epilepsy?

Answer:

Yes.

Question:

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But, as a matter of science, your hypothesis is that the cause was unknown—but was not

traumatic?

Answer:

Yes.

Question:

So, let‘s look at what you did to test your hypothesis. You never talked to Jackie, did you?

Answer:

No.

Question:

You never talked to the ambulance attendant who treated Jackie immediately after the motorcycle

accident?

Answer:

No.

Question:

You didn‘t see Jackie in the emergency room?

Answer:

No.

Question:

You never talked to the emergency room doctors who treated Jackie?

Answer:

No.

Question:

You never talked to his parents?

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Answer:

No. I read the records.

Question:

That‘s right, you read the records and read the depositions, right?

Answer:

Yes.

Question:

And that‘s what you did to test your hypothesis that Jackie‘s epilepsy was not traumatic.

Answer:

Yes.

A second violation of the scientific method occurs when the scientist fails to keep an open

mind when bias or prejudice are introduced. All jurors understand the scientific method requires

objective analysis of the data, so the conclusions are not tainted. Researchers use placebos and

blind studies in testing drugs because they do not want to affect the patients‘ symptoms by what

either the doctors or patients expect. This principle of scientific independence also works against

an expert, especially when the expert commits herself to her opinion too early in the case.

(Consider the section supra, on examination for financial or other bias. Or consider what biasing

effects are operating on Chief Olsen, or on Mr. Pincus.)

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 Chapter VIII

Opening Statements

Opening Statements: For Education and Advocacy.

If it is true that the new oral adversarial system will change what the judge knows about

the case before the case starts because nothing is yet in evidence until it comes in during an oral

adversarial hearing, then the judge as a fact finder will be a ―blank slate‖ as the case begins. The

advocate must realize the judge has not read witness‘s statements, and cannot consider police

reports because to do so would violate the confrontation warranties given to defendants in the

Constitution.

In an oral adversarial system, the opening statement becomes an important stage in the

trial for both the Prosecutor and the Defendant. The opening statement helps the court understand

the facts that will be presented in light of charges the prosecution has made. The court will need

to understand what issues might exist, both as to burdens of proof of law and evidence issues that

they might otherwise surprise them or even miss if not told about them ahead of time. Advocates

in an oral adversarial system need to realize how difficult it is for any fact finder to pick up facts

and issues that the factfinder learns from witnesses whose testimony is not likely arranged in the

most learner friendly fashion, or chronologically, or by issue. Busy judges are especially

appreciative of an opening statement. After all, from here on out, the courtroom presentation will

be often interrupted by objections, cross examinations, and evidentiary motions, that will make

the case hard to follow.

The advocate must realize that to insure a good understanding of his or her case the

opening statement must be organized carefully to help the judge learn about the case from the

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perspective of the client or state. Good opening statements give the court a preview of what is

coming. The best ones are arranged like one might tell a good story. While having a beginning

middle and end, it is also true that a good story teller, like a movie maker, will use flashbacks or

flash forwards to create different dramatic affects and more importantly, a help create a story with

a distinctive point of view that creates empathy for particular characters. The court will know that

what the lawyer says in not itself evidence, but is based on the evidence which will be presented

to the court room. Still, the court should appreciate the purpose of the opening statement

recognizing it as a helpful guide to what the advocate believes the evidence and issues will be.

Judges in bench trials, and really any learner who is eager to Aget it right,@ appreciates a

preview, an outline, or a map of the information they are about to learn so they can anticipate

what is to come and to better learn what the contentious issues will be. Theatre goers appreciate a

program guide, businesses like executive summaries of reports, and good students study a text‘s

table of contents. Moreover, in an appellate setting, courts often require an introductory

paragraph, or statement of the case, and most require a table of authorities, a summary of the

arguments, and a statement of facts.

While learning theory is an important reason the courts to ask for opening statements, the

trial lawyer knows how vital openings are because of the opportunity it presents to directly

persuade the court. While practicing trial lawyers care about understanding, retention and

memory, they care even more about persuasion and verdict. Despite legal cautions to the any

factfinder to the contrary-- to keep an open mind throughout the proceeding so that he or she not

prejudge the case-- there is good evidence that listeners, to assuage their cognitive dissonance

about having to make an important decision, may make up their minds very early in a case,

perhaps during or immediately after the opening statements. There is also social science research

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that indicates that once this preliminary decision is reached the decision-maker often only listens

―selectively‖ to the evidence, only to confirm what they have decided on preliminarily.

Furthermore, good openings are all about story telling. The power of persuasion through

storytelling, or narrative, is an important advocacy tool. Not only are we entertained by good

stories, but stories persuade because they resonate with other stories we have heard, or best, with

our own stories. Because many of us are analogous thinkers (we reason by analogy) when we

hear a story we are drawn in by a story to fill in the motives and intent of the parties from our own

experiences with like stories and experiences in our lives. If a trial lawyer‘s opening can tap into

judge‘s experiences and the judge‘s own stories, the trial lawyer‘s opening can go a long way to

persuade the court that his or her side has the better of it. So, a well-told factual narrative can put

the judge in the shoes of her client, thinking the way the client thought, feeling the way the client

felt, and seeing the case from her client=s perspective.

One word of caution is necessary here. Trial lawyers lose credibility with the court if they

misstate the law or facts. In addition the jurisdiction may have rules that restrict the kind of

advocacy that can occur during opening statements. For example, asking the court to ―put itself

in the shoes of his or her client‖ may violate the legal standard by which the court is su pposed to

decide the case. (In the U.S. the advocate is prohibited from explicitly asking the jury to put itself

in the shoes of the client. That is because the jury is not to judge the case based on what they

would have done, but based on the proof of what a reasonable person would have done. From tort

law, the law of advocacy has derived a prohibition against explicitly asking the jury to walk in the

lawyer‘s client‘s shoes, because if misstates the law. Even civil law countries that are reforming

to a oral adversarial system may develop a similar rule in civil cases involving personal injury. If

they do, then the international lawyer and US lawyer alike, should not explicitly invoke such a ―in

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the shoes‖ view from the court.)

The rule, however, does not mean that the trial lawyer is prohibited from using narratives

that have the same effect. How might the lawyer construct his or her opening to get the jurors to

see the case from their client‘s perspective without the advocate overstating the case or making

too much of an argumentative or emotional appeal?

If I can see it I’ll believe it.

The lawyer wants the court to Asee@ the case through the lawyer‘s client=s eyes because

this view is key to a decision maker‘s remembering one version of a case versus another. In a day

in which we all get so much of our information for life through the television or through our eyes,

we are used to seeing stories unfold, and then making decisions based on those pictures in our

heads. Because traditional trial advocacy required that decision makers pick up the parties‘

stories through their ears, the trial lawyer had to be particularly adept at creating word pictures.

A trial lawyer needed to select words that would best create the word pictures that would form in

the listener‘s memories, so that the he or she would more likely remember one story over the

competing story. So the plaintiff trial lawyer would not just say, AMr. Jones, the defendant, then

Ahit@ Ms. Smith‘s car,@ but would instead struggle to pick just the right verb, choosing between

Astruck, Acollided with@, Acareened into,@ or Asmashed into@ Ms. Smith=s car. [Noted

psychologist and trial consultant Elizabeth Loftus reports that subjects in clinical studies on

memory, who have just seen a movie of an automobile accident, and are asked to estimate the

speed of the cars in the movie, will raise the speed of the cars by an average of 5 miles an hour

depending on the verb used in the question which asked about speed... How fast was the car going

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before in hit, struck, collided with, careened into, or smashed into, the other car.] 12

Or a prosecutor might start with a vivid description of what a chief investigator did.

―Chief Fire Marshal Olsen arrives on the scene of the fire at the Flinders aluminum plant

while the fire is still burning. He takes over supervising putting out of the fire. Then, while the

embers are still warm, and smoke still rises, he starts the second reason for him being there. He

starts to investigate the fire to determine its cause. He picks his way through what is left of this

four story building to investigate its cause. He looks for signs that will lead him to the hotspot.

The chief sees from the scarring on the floor and the ―V‖ pattern of the burn evidence that leads

him to the fire‘s hot spot. The hot spot turns out to be on the first floor in the machine shop. But

stop. What‘s this? There on the floor of the machine shop is a body of a man. He checks the

body for any signs of life. There are none. Then he calls over forensics and asks them to see if

they can get any finger prints. Who is this man and why what was he doing at the very spot

where the fire started?‖

Today‘s trial lawyer has better tools to create even more memorable pictures. You can

literally use pictures, videos, charts, graphs, and bullet lists. You should use these tools in

opening to produce a moving picture show, or docudrama that will become emblazoned in the

court‘s memory.

Starting Strong.

One of the most important moments is right at the start. How can you get started in a way

that gets to the heart of the matter at a time when the court‘s most open-minded and most

impressionable? One way is to start with a grabber, or a theme. A second way is to enter into

12
Elizabeth Loftus and Katherine Ketcham, Witness for the Defense: the Accused, the
Eyewitness, and the Expert Who Puts Memory On Trial (New York; St. Martin‘s Press, 1991)

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story telling right from the start. If you start with a theme statement, here are a few tips to make it

most effective. Do not rush the delivery of it. Do not be afraid to repeat it. Then immediately

match the theme or grabber with facts that support the theme, so the court can figure out

immediately what side of the case you are on and what the result should be.

Mike Jones, of Kirkland & Ellis is a posture figure for the theme beginning. As a result of

his winning experiences he routinely starts his opening with a clear concise statement of his

theme, ―This case is not about a defective seatbelt, it is not about a seatbelt at all. It is a case

about a steal pole with a steal base. A steal pole with a steal base.‖ Mike‘s reasoning is that

statements at the beginning of an opening grab the jurors‘ attention and hook them to be

interested in the case from his perspective. With permission from the court, he uses pictures,

slides or exhibits that capture the theme. Or, you might start strong by starting your opening with

a key quote from a crucial witness in the case. You might show white font on a black

background. The quote might come from a surprise source or witness who has apparent

impeccable credibility. The effect can be powerful in that is gives a credible view point for

learning the case that work well for your side.

And so the trial lawyer looks at crafting an opening more and more like a movie producer

looks at producing a movie; creating a kind of trailer out of the beginning of their opening, with

maximum audience appeal and persuasiveness.

Some trial lawyers, however, would argue against the use of a persuasive theme up front.

And you might feel that the theme opening is too close to argument, and comes before the court

has had a chance to hear the facts and reach the conclusion for him or herself. Judges today are

particularly skeptical of what lawyers have to say, and if the lawyer comes across like a used car

salesman the case may be lost right from the start. So, some trial lawyers prefer entering directly

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into the facts by way of storytelling.

Part of the discussion here involves your understanding of the difference between facts

and argument. For example, if you lead, with an opening in false claims case: ―Hughes Aircraft

has simply gotten too big, and has come believe that it simply doesn‘t need to follow the law,‖

won‘t the court think that you are making an argument? It would be a poor start to get an

objection from the court immediately after your first words to the court. For example, if you were

a judge in US v. Hughes case you might be offended if the prosecutor starts out too strongly,

―Richard Hughes is a cheat and a thief. He is a cheat and a thief because he took the easy way

out. Instead of working and doing what he promised he would do, he instead stole his fee by

taking short cuts that cause the deaths of innocent people.‖

Some lawyers will risk arguing in opening based on a combination of factors; 1) it is

unusual and looks rude the court to interrupt you right from the start, 2) interruptions, if they

come from your opponent, make your opponent look defensive and afraid and so the interruption

is doubly dangerous for your opponent, and 3) the opponent will more likely strategize that he or

she can always later point out argument and unsupported statements made on opening as

indications of lawyer overreaching. These lawyers adhere to the ―30 second rule;‖ that as long as

what you say is in the first 30 seconds, you can likely get away with it, and it fits loosely under

the rubric of a preview of the case, that should not be objected to.

Still, it is important to sort out, for a moment what argument is. Remember, the problem

with persuasion before trial evidence is presented, is that if the theme is more compelling than the

proof, the theme might confuse the jury by misleading them about what Aactually@ happened. In

the U.S., its law of evidence prevents counsel from Aarguing@ the case in opening. The question
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for the trial lawyer then is what is Aargument@ as opposed to what is a fact based preview. This

is not an easy question to answer.

Some beginning trial lawyers have been helped by looking at the English experience. The

English barrister had a fairly easy answer to what is argument and what is fact. For them, the

barrister is prohibited from ever making factual assertions directly to a court. They are not to

―vouch for the evidence‖ but are merely conduits of the evidence to the court. The barrister must

precede every statement he or she addressed directly to the court in opening with the words, AThe

evidence will show...@ For example, in State v. Cortez, involving a felony murder case, a English

prosecutor might say AThe evidence will show that the defendant Juan Cortez was intimately

involved in the victim=s death, and the evidence will show that ―Mr. C‖ as he was known, staked

out the Schmidt‘s restaurant. The evidence will show that Mr. C drove the get-away motorcycle,

and it will show that he armed Arthur Grimes with a gun, and that when the gun went off inside

the store, the evidence will show that he aimed his own gun at the victim, and killed him, and

then, like coward, sped away, leaving Grimes, his accomplice to pay for what he had orchestrated

for him to do.@ Some lawyers mimic the English in this regard. They, too, insert the phrase, ―the

evidence will show,‖ to protect them from objection, and disguise argument into the opening.

The better view is that the phrase Athe evidence will show@ unnecessarily weakens the

story- telling-persuasion of what followed and does not affect whether what the barrister said was

argument or a statement of fact. For example, the statement in the barristers opening, that Mr. C

was intimately involved, is argument, unless those are the words Grimes will use to describe

Cortez‘s involvement. If the lawyer does not tell the listener the difference between his

characterization of what happened, and the facts, then how is the court to know what a

permissible preview is and what is an impermissible argument? If argument is prohibited on

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opening, an objection would be valid to the prosecutor use of the phrase intimately involved. Just

saying, ―the evidence will show,‖ does not fix the argument problem.

The current texts in trial advocacy use the following rule: AIf you can place what you say

in the mouth of a witness at trial or in an admissible exhibit, you can say it directly.@ 13 Using the

above example, if Arthur Grimes (the witness caught red handed in the restaurant) will say for the

prosecution on the stand, that Juan Cortez told him he staked out the restaurant, made

arrangements for him to pick Grimes up at an appointed time and on the street, (statements of a

coconspirator), then did pick him up at that place, handed him a gun, told him what to do, and

shot and killed the victim, and sped away leaving Grimes in the store, then the prosecutor, in

opening may say all of those facts without objection. Each is a fact and fits fairly into a preview

by way of a narrative of what the testimony will be. The prosecutor may say the above despite the

fact that Arthur Grimes first denied any involvement of Cortez, and only later was willing to the

testify to the Afacts@ described after making a deal, where the prosecution dropped the murder

charge and the armed robbery charge, in its case against Grimes. While these facts make the

prosecutors story less credible, it is not an argument to say them because they depend on the

credibility of a witness who will testify to the same.

The court will get a clear and persuasive picture of Cortez planning the whole thing,

including a story of Cortez‘s cold blooded shooting of the victim, and Cortex the coward, then

having fled the scene. They will get this picture of Cortez before they know about the deal

Girmes made. Hearing and seeing it in their minds makes it harder for the defendant to rebut.

The prosecution, by going first, juxtaposes those facts before telling the Abad facts@ that put their

13
Lubet, Mauet, Wolfson,

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version in doubt. The court will only learn about the deal (if at all, later in the prosecutions

opening or in the defendant‘s opening, 14) after they hear the prosecutions corroborating evidence

through other witnesses that it was Cortez‘s gun, and Cortez‘s motorcycle that was seen at the

scene. In other words, the power of the facts strongly stated, needs little help from argument.

That is why a ―roll over‖ witness is such an advantage for a prosecution in a criminal case.

Starting Strong--An Integrated Approach.

The U.S. experience is compelling for how Mexican lawyers should construct opening to a

court. Learning theorists in the U.S. tell us that jurors, along with any learners, will remember

best that which they hear first, (and second best, that which they hear last-- called primacy and

recency theory). Primacy and recency theory additionally supports the importance of the

beginning of the opening because it gives the lawyer the chance, while learning retention is best,

to capture the heart and mind of the judge. Like we said earlier, but is worth repeating, social

science research indicates that despite instructions by the judge to the contrary, (that jurors not

make up their mind till the close of the case and all the evidence has been presented, or in

criminal trials, that the defendant is presumed innocent, and that presumption stays with the

defendant until all the evidence has been presented and discussed, and only then should the

presumption cease to operate) that jurors actually make up their minds well over 50% of the time

very early in a case. Once they tentatively decide, they selectively listen to the evidence to

confirm their initial impressions. Such research has led criminal defense lawyers, in particular, to

stop the practice of reserving opening statements till the close of the state=s case, because it

suggests that to do so, will give the prosecution too much of an advantage in capturing the juror=s

14
The Sponsorship Theory

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Aview@ of the case. Instead defense counsel give an opening immediately following the

prosecution=s opening, despite the fact that they may be tipping their hand about whether the

defendant will testify at all. To waive opening all together, will put them in too much of a hole.

Just as the politician feels that he needs to immediately rebut, or spin, a political attack, the speed

with which jurors may have been taught by the electronic media to make up their minds on a

subject necessitates a quick and vigorous counter story, to keep the trial at least a draw.

The speed that we get our news, learn about a subject, and make decisions, also has

necessitated trial lawyers to learn from advertisers about how to get an audiences‘ attention, and

how best to persuade. No more, AMay it please the court, my name is Alvin Smith. I represent

the plaintiff in this case. I would like to thank you up front for serving as judge in this case. We

appreciate your time and careful consideration of all the evidence that will be presented. Now let

me repeat, what I have to say is not evidence, it is instead like the program to the play, or the

menu for a meal, it is only a description of what the evidence will be. And please keep an open

mind throughout the trial, because it is only after considering all the evidence that it would be fair

for you to decide this case. Now evidence will come in first from Mr. Grimes. The evidence will

be that Mr. Grimes is a convicted felon.@

In an age of television, the preceding is just not exciting enough and is too defensive.

Think to episodes of TV crime and law and order shows: ALA Law,@ or AThe Practice,@ or

ALaw and Order.@ Within seconds you learn what a case is about. Often you see the most

exciting and compelling events happen in what appears to be the present time, and then fast

forward to the lawyer in court. It captures your interest and keeps you tuned in. It keeps you

from flipping the channel.

So, too, trials lawyers look to lead with their Apitch@ or theme in the case, or most
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dramatic moment in the client‘s story. And the danger that the opposition will create a slogan or

catchy phrase that will so capture the factfinder‘s view of the case requires each side to lead with

their best facts couched in language which will keep the factfinder from Aflipping the channel@ to

that of the opposition. So on opening, a lawyer might lead with, ―This is not a case about a

defective seatbelt. It is not a case about a seatbelt at all. Instead it is a case about a steal pole

with a steal base. A steal pole with a steal base.‖ Or, ―This is a case about Medical Judgment,

Medical Science, and Two Generations of Mothers.‖ Or, (dropping the lead in phrase, this is a

case about, and just saying it,) ARush to Judgment, Rush to Judgment. The police in this case

were in a rush to judgment, so that they bungled the case, arresting the wrong man, disregarding

and discarding important evidence and leads, in order to unfairly convict a famous, yet innocent

man.@ Or, in a civil case, for the defense, A Choices, Choices, Choices and Responsibility, The

plaintiff, Ms Smith, has failed to take responsibility for the choices that she made that led up to

her injury. You see, in this case Ms. Smith knew about the dangers of putting a child in the front

passenger seat of her Toyota Van, and she knew that it would have been better to put her four year

old in the back seat, but she chose not to do so, and if she chosen otherwise, we would not be here

today.@

Match the Theme with Key Facts

Next, follow your theme statement with matching facts. Match your two or three of your

strongest facts juxtaposed immediately after the theme, so that the theme is immediately

established as a credible theme. ARush to judgment, Rush to judgment,@ AThe police in this case

preferred the lime light that comes with immediately chasing and arresting a celebrity, to

following up on a suspicious set of someone else=s footprints, or carefully marking and

preserving blood samples that were found at the scene.@ Or, in the steal pole with a steal base
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theme, Mike Jones immediately told how that steal pole with a steal base is the ultimate

immovable object, a engineer‘s nightmare, and said that expert testimony will show that hitting

this pole was like dropping a car from a third story building, nose down, onto the cement ground.

These two or three facts keep the theme from being disregarded as too argumentative, or too

dramatic, and additionally give you the chance to highlight those strongest facts in your case to

come.

Consider Using a Character Chart

As plaintiff, it is important for the court to understand and connect names with characters

and sides of the case. One way that technology has helped to make this a quick and easy task is

through the use of a character chart. A simple color coded chart or exhibit that tells the court the

names of the parties and principal actors by color and picture can get these facts before the court

in a visual and understandable way.

Similarly you should set the scene. Again, a picture or diagram can help you do this for

the court. Once the judge knows the characters and the scene, he or she is ready for some story

telling.

Use Point of View Story Telling

Have you ever been asked to tell the story of Little Red Riding Hood, from the perspective

of the wolf? These exercises teach an important lesson: how point of view affects the listeners‘

sympathies. Again, the media, and movies in particular, teach important lessons. If we see the

world through a particular character=s eyes we better understand how alike us they are. We

import in our desires, wants, fears, and concerns. We empathize in deeper way. And so in a

wrongful death case, for a juror to learn of the accident from a loved one=s point of view, is a

particularly powerful way for a juror to first learn about the case. AMr. Jones was at work at 4:00

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on a fall Friday, last year. He was just wrapping up his work week, and hoping to leave work

early to catch his son=s cross country meet, when he got a call. It seems there was an accident,

that his son was at the hospital, could he come down right away@ and so, we empathize with a

parents‘ worst nightmare, something happens to a child, and there is nothing that they could do

about it.

There are usually three different stories to tell during an opening statement, and each from

a slightly different point of view. One is story background story of your client, usually told in the

present tense, with impact words, and from a sympathetic point of view. One way to do this is to

tell the story of who the client is and how they came to be involved in the dispute in the first

place. Even where the lawyer represents an institution, there is usually a story to tell about that

institution or individuals who acted for it, and again, finding the point of view is crucial.

For example, consider the opening statement for a restaurant in a slip and fall case. AIn

the spring, four years ago, the Yankee Doodle Restaurant decided to open a new restaurant in the

downtown. It saw an opportunity to do business in a newly revitalized business district

downtown, and renovated an old building, in order to most conveniently serve the people who

worked in the adjoining business. It renovated the building by opening up the brick exterior with

sky lights and glass, and constructing a two tiered seating area to more easily accommodate the

expected traffic. It selected a safe no skid tile for the floors and steps, and built the stairway with

the latest in renovation construction techniques, with handrails, lighting and steps, stairs, and runs

that complied with City building codes. They hired a cleaning crew that steamed cleaned the

stairs and floors every night. They hired sufficient employees so that during the busiest times,

two employees had no other job responsibilities but to circulate through the restaurant, clean

tables, empty trash and keep the place clean and comfortable. Over the four years of its operation,

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it is undisputed that it received no complaints about the slipperiness or cleanliness of its floors.

And this was the establishment that the plaintiff chose, because, as she will admit, she knew it to

serve good food, in a clean and comfortable environment, and, most importantly, it served it

quickly, so that she could get out to do errands, or go to the library to read.@

The lawyer presenting her opening hopes that the juror=s are transformed by the story into

empathizing with an institution, personified; one that cares about customers‘ convenience, makes

decisions motivated by service and provides good food and comfortable surroundings.

Returning to the subject of the order of storytelling in a plaintiff‘s opening, the second

story the plaintiff might tell is the story of the injury. Think of the advantage that the plaintiff can

get in telling the story of the plaintiff‘s injury. In a style that picks up on the famous opening

story teller‘s line, AIt was a dark and stormy night,@ the plaintiff‘s lawyer can lead the jury to

empathize with the plaintiff. For example, @It was a warm summer day in July. Jackie had just

gotten off from working at a summer camp where he was a counselor for handicapped kids. He

was on his way to his girlfriend‘s house. He got on his motorcycle. His route took him through

town. He was traveling in the middle lane of a one way street when suddenly, the defendant, Mr

Barber, in his Cadillac, with windows up, air conditioning on, and radio blaring, pulled out

immediately in front of him. Mr. Barber turned directly into Jackie‘s path and his car caught the

front of the Motorcycle. Jackie was thrown from his bike, flying 50 feet, and landed on his head,

and his life will never be the same.@

Similarly, a defendant has the choice of talking about the victimization that comes from a

false accusation. The defendant, then also has an injury story to tell, about how it feels to be

falsely accused and lose friends and reputation through the base less accusations of either a

―money hungry plaintiff‖ or a ―power hungry‖ prosecutor.

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 Another word of caution is in order here. In opening, it is better not to dwell on or attempt

to describe for the jury the parties‘ pain and humiliation or the families‘ sense of loss. Let the

facts speak and let the jury reach its own finding regarding pain. For example, rather than say

that the plaintiff was in excruciating pain for two weeks after the motorcycle accident, say

instead, the plaintiff was kept in the hospital for two weeks, was on pain medication around the

clock, had a skull fracture, skin grafts, and surgery to relieve the pressure on the spine. Instead of

saying how humiliated the defendant felt, describe his sleeplessness, loneliness, and inability to

find work or friendship.

A third story that needs telling is the story of what the defendant did wrong, or if you are

the defendant, of what the plaintiff did wrong. This is usually told in the third person, to heighten

the sense in the court that he or she is seeing it and judging it, rather that feeling it. The third

person point of view gives the opponent‘s story an unsympathetic telling. It allows the story teller

to insert bits of knowledge, and pull in other facts from other sources, to create the perspective of

control and power that if exercised more carefully, could have prevented the harm.

Regarding this third story, one variation on the point of view telling that can be very

powerful is to take the point of view of an inanimate object. This is especially powerful when

your theory is that it was no one‘s fault, but was the fault of the object and its characteristics. So,

for example, a steal pole with a steal base can be blamed for the injury, rather than the defendant.

Or, the destruction of a chemical fire in an old building makes it impossible for anyone to prove

what happened.

Reordering and Recreating Within Each Story.

You should craft each story you tell for its most persuasive effect. For example, most of

us love success, but we also love to root for the underdog. And so trial lawyers need to learn

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from how movie screen writers and movie producers tell the story of the underdog. How do

majority audiences learn to identify with characters that may be very different from themselves,

with Native Americans, with minorities, with immigrants? The audience learns where the

character comes from, learn what the character has endured, and starts to share and identify with

the subject‘s goals and aspirations, because they share them. The audience learns that the

character has been unfairly treated, that the character, too, wants a better life for themselves and

their loved ones. The character wants to be free, to have a sense of control over their lives. They,

like we, are not perfect, but they show moments of extraordinary courage and kindness. We root

for even the most unsavory of characters, when we understand what has happen to them, how

they have been treated, and shown instances where they show love and care to those around them.

What these stories tell us is that if we start to identify with a character, we are much more

likely to forgive him his later mistakes. And so trial lawyers make risk discloser of Abad facts@

in openings, but juxtaposition and timing is key. Like the script writer, the trial lawyer should

consider first telling the story with the good facts up front. Let the court empathize, and identify

with the client first before we found out he may have taken his hands off the handle bars to wave

to a passerby. Let the court first learn that our client was an aspiring young quarterback, and now

has epilepsy, before the it learns that he did not have on a helmet, or even that the motorcycle was

a 650 cc bike, capable of going 0-60 in a flash. Learn first that a vice president for purchasing in

a company was a honors high school graduate, went to MIT in computer science, before learning

that he dropped out of business school.

You hope that the court will already be sympathizing with the client, and then will hear

the Abad facts@ only as evidence that the witness is human, as we all are. The lawyer can also

score points with the court by Aadmitting@ and Anot hiding@ these human traits. What the client

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may lose in admitting to making a mistake may even be offset by the lawyer‘s gain in establishing

the lawyer‘s credibility, and Afair@ comprehensive advocacy. The opponent may also lose some

of the advantage from these facts, because the client has not hid them, had already juxtaposed

them in the court‘s mind, and looks mean and insensitive and judgmental, by retelling the bad

facts. It‘s like piling on in football. The player is already down when the opponent makes a

second and unnecessary late hit. So, the trial lawyer organizes, reorders and edits the story he or

she will tell to persuade and teach the court to identify with his or her client.

Liability before Damages—Proof Before Punishment?

Once again, Civil law countries can learn from trial lawyer experience in jurisdictions that

have been doing oral adversarial trials for many years. In the U.S. Plaintiff‘s lawyers have

traditionally asked for a jury trial, believing that it was to the plaintiff=s advantage to have a jury

trial. So too, have criminal defendants. One of the hallmarks of the American jury was that juries

were best able to protect and defend American beliefs in the ultimate and incalculable worth of

the individual, the right of each individual to be left alone and to be free from the intrusions of

government and big and powerful institutions. Judges would often be too jaded to hear the cries

of an injured plaintiff. They would inevitably succumb to the powers that controlled their

appointment and retention, and so the jury was the last bastion of individual liberty. If the

plaintiff had a Aweak@ liability case, if the damages were large, the belief was that jury would yet

do justice, as they were more likely to be more forgiving of the individuals failing, and less

forgiving of the institutions intrusions.

These plaintiff‘s lawyers would therefore structure their openings in a way that played to

their beliefs about jury sympathy. Standard advice from experience trial lawyers was for the trial

lawyer, to lead with damages, where the damages were severe. And so, in a wrongful death case,

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using a understated style, which would best allow for the jury to import in their own emotions and

feelings, many a trial lawyer would start the opening with a re-enactment of surviving spouse, or

parents getting a call, that something had gone wrong, and that they should come immediately to

the hospital. The story teller then describes coming to the hospital, to the intensive care unit,

looking through the windows and seeing their loved one hooked up to the machines, the waiting,

and then the word from the physician that they had tried everything, that the loved one had died.

The story then ends here with some recognition of the irreplaceable worth of the deceased, either

that there was never an opportunity to say good bye, or some flashback to where they first met, or

to memories of when the child was born. Then, and only then, would the lawyer turn to the

defendant=s conduct, juxtaposing the decedents own role in the injury with the defendants long

history of a money making behavior that made them insensitive to how their activities would

cause injury to others.

So too, the criminal defendant would discuss feelings before proof. Defense would stress

the tragedy that had fallen on defendant after the charges were brought before talking about the

police‘s incompetence.

One of the most debated aspects of trial advocacy today, is whether such tried and true

organization needs to be varied. Whether it is from insurance industry advertising that educates

the public that they bear the costs of large verdicts, or from juror and audience fears that they will

be duped or tricked into doing the wrong thing, or from a belief that jurors are skeptics about the

competence and good faith of the police, or from a paradigm shift in values in America, to

requiring individual accountability before blame will be placed on others, some trial lawyers now

argue, that in most cases, plaintiff lawyers should start with liability facts, before talking about

damages, and proof before punishment. [Trial Lawyer Magazine.]

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 ALiability first@ seems to mean that the plaintiff=s innocence be accounted for and the

defendant blamed, before going into damages in civil cases and the defendant‘s innocence

accounted for or the police blamed for its incompetence, before presentations of the tragedy of

false accusations. So in motorcycle accident case discussed above, the plaintiff Jackie

Fulbright=s lawyer should first describe Jackie=s route, his speed, his position at time of crash,

the jump out, defendant=s drinking, and his lack of care with air conditioning, radio and Ahis hot

date@ and that she was parked ahead of him, all before mentioning plaintiff=s epilepsy.

Otherwise, the jury, in a strange twist, sees the appeal to the injury as an indication of weakness in

liability. Discussion of injury comes during the jurors‘ initial skeptical phase, when they are more

likely thinking and feeling afraid that they are going to tricked.

How does a trial lawyer ever know what is the best? Here, focus groups may help the

lawyer make the decision. This is particularly important if the trial lawyer has little or no

experience with the trial judge. What is best may turn on the advocate‘s style and personality. Is

the lawyer able to quickly and conversationally establish credibility with a court? Can he or she

look the court in the eye and tell it what happened, directly, simply, and with feeling. Or is the

telling of the damages over done, or too dramatically done, too maudlin, or repetitive to the point

where the judge simply does not buy it.

If the lawyer has a more analytical style and approach, and the damages really need to

come from the witnesses who had the feelings and felt the loss, then better to go with the modern

approach. Yet even where the plaintiff may be painted as a whiner, someone who is stretching

their damages, openings that set for the court the irretrievability of the loss and lost opportunities

that have arisen from the defendant=s behavior, leading with it and thereby making it more

memorable, may yet be the best strategy. The issue for the advocate is whether the advantage of
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primacy, in a well told visualization of damages, outweighs the advantage of primacy in a well

told story on liability.

Editing the Extraneous.

One of the toughest skills to develop in the delivery of any opening statement is the line

between your giving enough detail to persuade, and too much detail that you will either bore the

court during the presentation of the case, or will take away from the court in sense that it is

discovering things for him or herself. Too much detail may take away the dramatic tension from

the case. What you are aiming for is a Aspare story@ told persuasively. A busy court has a

limited attention-span that will require you to limit what you say. Shoot for ten minutes in a

single issue liability case. Aim for twenty when you also have to prove damages. Anything

longer and the court will start to get antsy. It is as if it will need a commercial break. Once the

court gets the essence of what is going on the judge will want to get to the evidence for him or

herself.

As a result you must pick the facts or stories you tell with care, making sure you spend

your time on the most important facts. However, in telling these facts, don=t rush the delivery.

Give context, (where, when, who present, how you know) and use the senses. To the extent you

can, use the present tense in telling about the key event, especially if the event involves your

client‘s actions and motivations. Evoke as many senses as you can to increase the impact on the

factfinder‘s memory. (AIt was a warm evening,@ AThe smoke filled room was stuffy@, AIt was

and evening perfect for football, with a bit of woodsmoke and crisp coolness in the air.@)

Having A Factual Theory v. Multiple Factual Theories.

As we said earlier in the chapter on case analysis, be careful to edit out multiple theories

and lesser alternative theories that will confuse the court. This is by no means easy. Especially
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when your trial is a high publicity trial and you may be subjected to the Monday-morning quarter-

backing of other lawyers, or, inevitably by your client, if you lose. Still the power of telling a

single cohesive story, the one you have the best chance of proving, will greatly increase your

credibility with the court, and maximize your chances of winning. APut your money where your

mouth is@ and make a decision. Use focus groups to help you in the process. But once you have

made the decision, edit your openings and examinations till they speak only to your single

cohesive case theory. If you have done this you will be better able to create that Aspare, well-

told story@ that is your aim.

Two or Many Within One.

Some criminal defense lawyers argue for a caveat to the above rule: of having only one

factual theory. They argue that where their theme is Areasonable doubt,@ multiple theories can

work for them: if, that is, the multiple theories are not internally inconsistent. For instance, think

about the defense argument, ―Hughes didn‘t make a materially false claim, but if they did, the

Mexican government knew about it, and in any event there is no proof that the helicopter was

defective.‖ As the first two theories, notice that they would require the defendant to say both that

magnaflux testing was immaterial, and that the Mexican government knew that there were risks in

not doing the magnaflux testing, but that they understood those risks and agreed to take them.

It is a version of, AD wasn=t there, but if he was, he wasn=t the shooter, but if he was the

shooter, it was self defense.@ These would require the defense to say both that D wasn=t there

and he was. At the least it has the potential of being confusing. On the other hand, the argument,

AD didn=t do it, Joe did it, or Mary, or Sam, but D didn=t do it, and he doesn=t have to prove

who did@ is not internally inconsistent. As long as the lawyer can pull off the multiple theories

and keep them straight, and unite them under the reasonable doubt theory, the lawyer can be
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effective. It just takes some careful explaining, and prioritizing, to not lose the jury with the usual

affect on the lawyer‘s credibility.

Anticipate your Opponent.

After you have laid out in story form your opponent=s story of fault, and your story of

lack of fault and damage, don=t forget to Afront@ any bad facts against you. Don=t lead with bad

facts, because it sounds defense and gives them too much credit. Two thirds of the way into your

opening, make mention of the bad facts in your best light. ANow, Mr. Parker had a glass of wine

with lunch. But he had it over the course of a 2 hour lunch, the car hop noticed no ill effect, nor

did the police officer who interviewed him after the accident. The police officer, in fact, gave him

permission to leave, by his car to go to another appointment. The evidence will show that the

alcohol had no effect on his ability to drive. [This is the place, if any, to use a little disguised

argument. By juxtaposing the argument following the words, Athe evidence will show,@ will

make the court understand this is a conclusion it will reach after hearing all the facts and then

drawing inferences. Or use a rhetorical, A Now the question your honor is whether allegations of

drinking mean anything to this case? The facts are as follows: there was no one who said he was

drunk, no one said he should not drive, and no one that said it made one iota of difference in his

driving.@

If you don=t air the fact, and your opponent has not yet made his or her opening

statement, you are subject to an opponent‘s attack for withholding the Afull story@ and all the

facts from the court. A good opponent can make you pay for your sins of omission, both in their

opening, and again during closing argument.

Defense Openings.

Defense openings can Aget to it@ much more quickly than can the plaintiff. They do not
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need to do an exhaustive introduction of the characters or spend as much time on context. They

can respond to issues directly raised by the plaintiff and/or prosecution. For example, if the

defense factual theory is that the defendant was someplace else, counsel needs to deny the charges

up front and tell the story of where he was. (This of course is affected by whether the defendant

will testify.) Or the defendant‘s lawyer will tell the story of police incompetence, or their Arush

to judgment.@

In the civil case, the defendant should tell the story of the plaintiff‘s contributory

negligence, or own fault and causal role. Afterward getting the plaintiff‘s own responsibility

clearly established the lawyer should tell the defendant=s story of what he did and the care he

took. Again, as defense lawyer, you should Afront@ or spin your bad facts by juxtaposition with

what the true facts are and what the complete evidence will be.

One of the toughest questions for the civil defendant is whether to even mention damages.

If the plaintiff is reaching on damages, the defendant might be tempted to mention the

overreaching. If the defendant does, the defendant lawyer must be careful not to concede liability,

but to describe the plaintiffs overreaching as evidence of plaintiffs lack of credibility, affecting

the jury view of what motivates the law suit and motivates plaintiffs retelling of what happened.

Ending with 3 Issues

One way to finish your opening on a high note is to frame for the court issues that you feel

will be key to its resolution of the case. These are usually factual legal element issues concerning

facts that you control. You promise to deliver proof on three key facts which you assert will add

up to a verdict on behalf of your client. When you then prove these facts, on closing you enhance

your credibility by referring to the promises you made in opening.

Or, for example, for the prosecution in a felony murder criminal case you might say,
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ANow your honor, there are three issues that should guide your decision. The first is whether the

gun used in the robbery belonged to the defendant Juan Cortez. Second, you must decide

whether it was Mr. Cortez‘s motorcycle that was seen driving away from the murder scene and

whether witnesses saw its make and model, and saw two characters on the license, a K and an 8.

Finally, you must decide whether any witness in this case can corroborate Cortez‘s alibi during

the crucial time it took to commit the armed robbery. If we show you these three facts, and that

the corroborate what Arthur Grimes will tell about Cortez‘s involvement in this case, then we will

come back at the close of the case and ask you to return a verdict of guilty for the felony murder

of Joseph Schmidt.‖

Delivering on your promises enhances your credibility and helps you make the

connections between the evidence and court‘s verdict. It is a very effective way to finish because

it focuses the court on what you will be able to deliver. Of course these facts may not be

Asufficient@ as a matter of law, and your opponent should be quick to point that out. Still you

respect the intelligence of the court to understand what it is your burden to show, and ask the

judge to use his or her common sense to do the rest. The court discovers what is the right thing to

do for itself, and fills in the gaps in your favor because you have delivered on what you said you

would do.

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Plaintiff/Prosecution Template for Openings

Start Strong (Theme Repeated with Feeling

and Context)/Immediate Story Telling

Strongest Facts the Support Theme

Character Chart

Tell Story of Opponents Fault (3 rd Person)

Tell Client=s Story (1st Person)

Chronology

Flash backs and Forwards

Anticipate Bad Facts

Matter-of-factly stated and juxtaposed

with contra facts and context for meaning

and de-emphasis

Experts and Plaintiff=s Damages

Three Fact Issues

1.

2.

3.

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Defense Template for Openings

Start Strong

1. (Theme Repeated with Feeling and

Context)

2. Turn emotion by telling Jury about the

AReal Story@ and AFacts not Emotion@

Strongest Facts the Support Theme

Tell Story of Opponents Fault (3 rd Person)

Especially if facts left out in P=s Opening

Tell Client=s Story (1st Person)

Chronology

Flash backs and Forwards

Anticipate Bad Facts

Matter-of-factly stated and juxtaposed

with contra facts and context for meaning

and de-emphasis

Experts and Holes in Damages

Three Fact Issues

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 -Chapter IX-

Closing Arguments
Trial lawyers can place too much emphasis on their ability to snatch victory from the

jaws of defeat during their closing argument. After all, if the decision theorists are right, the

decisionmakers likely make up their minds shortly after opening statements and then selectively

listen to confirm their initial decision, so closings would then make little difference. On the

other hand, when the case is close, and the facts or the meaning of key facts are in doubt, the

closing argument is very important for helping the court to see the case in your light. The parties

must think the case is close or it would not be tried. There are always two sides to at least some

part of the story the parties are telling. So maybe more cases are close cases.

In any event, the closing argument needs careful attention because it focuses the

lawyer on where he or she is headed. Again, the famous trial lawyer, judge and teacher, Irving

Younger is the early authority for thinking of closing argument as a planning and aiming device.

He advised the trial lawyer to cross examine only to the extent necessary to make her closing

argument. His belief is that knowing before you start the trial what your summation will be will

give the trial lawyer both the focus any good persuasive presentation needs, but will also give her

the ability to be more in control and less reactive when surprises occur during the case. Again,

his advice is that if you have prepared your closing before the case, when something comes that

is unexpected, up you will know what to do from whether it helps or hurts what you will say at

closing.

In the close case it is the trial lawyer‘s job to arm the court with those arguments it

needs to persuade itself to that lawyer‘s side of the case. It is as if the court will be having a

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debate with itself during its deliberations, asking, what did the state prove, what did the defense

say about that proof, and how should I resolve these factual disputes. It is as if the trial lawyer is

saying to the court already on his or her side, ―if any of the opposition tries to get a you to go

against us, you make the following argument.‖ Logical, effective and forceful argument is at the

heart of any persuasive presentation. Preparing the overall argument anticipating what the

questions might be makes the rest of the trial as persuasive as it can be. So planning and

designing your closing is crucial to everything you do during the trial.

How is Closing different from Opening?

A. Structure is Different

Over the years in watching thousands of young lawyers make their speeches before

jurors has produce evidence of the following phenomenon. Young lawyers first openings are not

bad closings and their first closings are pretty good openings. This may be so because openings

and closings are often taught in chronological order. Teaching opening first gives young lawyers

their first experience with storytelling. They learn that they can tell a story without notes, and

do so most easily by putting themselves in their client=s Apoint of view@ and then letting the

story unwind chronologically. Their success at story telling gives them their first Abuzz@ of

public speaking.@ It leads them to try to organize their closing so that they can tell a series of

stories. But now is not the time for storytelling. The court has already heard this on opening and

it will sound repetitive a second time. Now is the time for arguing. The structure needs to be

changed to allow the lawyer to present issues, marry it to rules of law, and then argue the facts,

to help the court with its cognitive dissonance about making an important decision.

B. Closings Are Like Jazz.

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 The court may come to expect more drama on closing. Afterall, judges watch TV and

have seen famous trial movies and programs, AThe Practice@ ATo Kill a Mockingbird,@ AThe

Practice,@ ALaw and Order.@ They expect from those viewings that all the elements of

persuasion will be in play during the closing argument; that arguments will be interesting and

entertaining, that they will have themes speaking to justice, that they will have detail, that they

will build, that there will be pictures, exhibits and poetry and that there will be passion. These

expectations affect the structure of the closing and the way it is presented.

One analogy for helping you structure your closing is to think about Jazz. What

makes good Jazz? It has the right tone, a catchy theme, it is repeated in transition, it has

structure, that structure varies, it has performance aspects (the players get to show off a bit), it

anticipates, and it has a big finish. Let=s take each in turn.

Tone.

For the Plaintiff and the Prosecution there are parallels. The emotion has to build. If

the start is too big and too powerful the jurors may feel like they=ll be shouted at for the entire

closing. Let it build. Start soft and pick your words carefully. This does no=t mean that you

don=t state your theme up front, but don=t yell it, or be shrill. AThe Defendant took away the

life of Joseph Schmidt. He took away everything that he ever was and everything that he ever

would be. Let=s look together at the evidence and see how we know that Juan Cortez was the

murderer.@ Charles Becton, a great North Carolina trial lawyer and long time NITA teacher uses

the argument made by Antony (Marcus Antonius) in the movie, Julius Caesar, as a prime

example of setting the right tone and then letting the argument build. Remember Shakespeare

wrote how Antony intending to inspire the crowd against Brutus starts in a neutral place:

AFriends, Romans, Country men, lend me your ears. I come not to praise Ceasar, but to bury
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Ceasar.@ He then takes his time before holding aloft the bloody torn garment in which Caesar

was killed, and calling the mob to vengeance.

The technique he uses is masterful. He starts in a neutral place and then leads the

audience to reach their own conclusion, step by step, so that when they do arrive at the

conclusion it is like they have discovered it for themselves, and the emotion they bring is raw

and personal.

Sometimes, for the defendant, setting the right tone can be tough. After all, the

plaintiff=s attorney or prosecutor has leveled strong accusations your way. The emotion is

against the defendant, if the prosecution or injured plaintiff has done their job. Some defense

lawyers are very effective at simply ignoring the barbs and accusations. They stand, and matter-

of-factly put away their opponent=s stuff, put up their own, and then simply state their theme.

Others turn the tables by agreeing with one thing their opponent said. A There is one thing we

agree with, it was a tragedy that members of the Mexican military lost their lives in their battle

with Mexican drug cartels. But it would be particularly unfair to blame those deaths on Hughes

where there is only speculation that ties those deaths to anything Hughes did.@ Others

emphasize that what has gone before is simply a powerful emotion-laid story. They urge the

court to instead put aside passion and sympathy, and base their verdict on the evidence. They

switch the tone by starting from a neutral place and then building to their argument.

A third way to turn the tone if you are the defendant is with a short story. For

example, one told by Tony Axam, a wonderful trial lawyer from Atlanta, goes like this: In

listening to the plaintiff‘s lawyer there, I was reminded of when I was a child growing up in the

south. There was a fair that used to come to town once a year. My grandfather used to call us

over before we went to the fair. He=d say, A Be careful. Don=t be looking too much at those
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balloons and banners. If n you do someone will sneak up behind you and pick your pocket. In

honor, Please be careful. Don=t focus too much on all those fancy words, and the emotion... or

someone will come up behind you and pick your pocket. Now let us look at the fa cts and what

common sense tells us about those facts.@ Some might say this is right for a jury and wrong for

a court. Perhaps! But Judges are people too, and some would appreciate a good concise story.

Themes.

Charles Becton used to say, Ait is your job on closing to find the unfairness and

injustice toward your client, and tell the court about it in a way that makes it hum your tune, or

sing your song.@ As an example he gives the Texas case of the plaintiff standing to argument for

a poor old woman wine-o killed by a negligent driver. In arguing for the value of her life, the

plaintiff‘s lawyer argued what she meant to her old wine-o husband, who used to accompany her

on her rounds. AThe defense says, Awhat is her life worth?@ To her husband it meant

everything. After all, when he is sick with too much wine, who is going to help him with shoes?

When he is too tired to try, who will tuck him into bed, and cover him with the blanket? When

he is sick who will whisper a kind word of encouragement, and help him along?@ The trial

lawyer does his job by identifying the key loss and describing it in a simple and powerful way.

Jim Jeans, another master advocate and trial lawyer says, Ayou must study why the

human nature and ask why might the judge be afraid to decide your way, and remove those

fears.@ And so you study great literature, oratory, poetry, and sacred texts. You use alliteration,

ARodney King was in Control, A and repetition, AIts about Choices and Taking Responsibility,

about Choices and Responsibility,@ or, APower and Abuse of Power, Power and Abuse of

Power, that is what this case is about,@ and the power of Athrees@ AIf you don=t Look you

can=t See, If you don=t Listen, you can=t Hear, and if Andrew Parker had done either of these,
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he would have seen Jackie Fullbright, right there where he had a right to be, right there in the

middle lane on Main Street, right there driving his motorcycle plain as day. And Andrew Parker

would have known not to pull out, he would have known not to put his foot on the gas, he would

have known not push the pedal to the metal, and change Jackie Fullbright=s life forever.@

Or it can simply be a powerful quote, or a key exhibit.

Seldom will you wait to tell your theme in closing. Remember, if you have done your

job right, the focus groups and case analysis have told you before trial what you theme will be.

Once you have found your theme and refined and honed then don=t forget to use it. Lead with

it, use it in transitions, use it as a refrain, and end with it.

Structure.

Preview what you will do. Just as with any speaker and audience, the audience is

comforted if they know that the speaker has prepared his remarks, and will not be speaking off

the cuff or as the spirit moves. Otherwise the audience is trapped and has no ability to tell how

long the speaker will be, where he is going, or how he will get there. Tell the court, Afirst, let=s

look at the crime scene and the physical evidence. Then let=s look the corroboration from the

witness. Finally, let us look at this question of motive and whether Joseph Malack was high on

drugs that night.

The preview will tell the jury where you all are going. It will also provide new

beginnings to help with listening, attention and retention. It also keeps the lawyer on task. And

gives the lawyer permission to pause between points, look at his notes, and gather his points.

Professor Alex Tanford urges a hierarchy of proof to organize your persuasion. Start with the

physical evidence. It is the most objective a powerful. Physics and math don=t lie. Neither do

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documents. Take care of the Ahard@ physical evidence before moving to eye witnesses, and then

circumstantial evidence, and then evidence of motive.

Another very persuasive way to structure the argument is to refer back to the three

questions you provided the court at the end of your opening statement that the court was to focus

its attention on during the case. For example, Alet=s turn to whether the state has shown that

Malack was identified by the victim when first shown his picture the morning after the robbery?

And then whether the arresting officer himself felt the victims id was shaky, and suggested that a

look some other known rapist may have in fact been the person who assaulted Ms. Lee? And

finally let=s see if the state has shown that the victim, when she said she recognized the

defendant was not recognizing a picture of him and the goatee, rather than recognizing the

person she saw that night?

Arguments. This is the key difference between closings and openings, that you are

allowed to argue not only by juxtaposition of the facts but by clearly stating the inferences that

can be drawn from the facts, and stacking the key facts next to the key legal elements of the case

in order to show what conclusion must be reached.

Remember the key components of logical argument! You are aiming for a syllogism,

or as close to one as you can get. You are saying to the jury, Athe law is that where these are the

facts, your verdict must be for us. These are the facts. Therefore we win.@ Often then your

closing argument will be organized around the legal issues that the court must decide. The legal

issues are related by the lawyer to the legal elements of the claim. So in the US v. Hughes false

claims case, the US must prove that Hughes made a materially false statement in its certification,

knowing it was false, that caused damage to the US.

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 And so in the Hewitt casefile, Gonzales must prove the acts or statements made by

Hewitt which were improper, done with malice, and interfered with a prospective economic

advantage Gonzales would have had with SBG. Each of these elements have facts that Gonzales

can show to prove these elements. For example, regarding the making of the statements, the

following stacking is effective

$ That at time the bank officer called and talked to Hewitt on August 15 the two were

contemplating going into business with each other to develop a golf course.

 That the bank officer admitted that she had such faith in Gonzales she was willing to

extend the loan solely on the basis of the partnerships balance sheet

$ That Hewitt e-mailed alluding to Gonzales and Salazar as having Mexican cartel

connections.

$ That Hewitt had no bases for making such a connection at the time he made these

statements

 That Hewitt‘s e-mail called Gonzales and Salazar ―taco heads‖ – implying a racist

motive

$ That after the bank officer got the memo she responded by assuring Hewitt she would

take care of things.

$ That thereafter Hewitt sent Bauer a check for $500,000.

 That Bauer now is Hewitt‘s partner in a new golf course venture.

A powerful supplement to this kind of stacking of facts can be the use of a flip chart

where each fact is listed. Better, you might prepare a power point slide with these bullets on

them, or a design downward pointing arrows that show how one point leads to the next till you
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reach the conclusion. But what are the inferences that can be argued during closing about these

facts. The inferences come in explaining to the jurors how these facts prove what happened and

what was said. Mr. Hewitt was motivated by a quick buck and new golf venture and decided to

use the Mexican drug violence as an excuse to hurt his partner. Mr. Hewitt was more likely

angry and acting with malice if he used the word taco head. The e-mails captured circumstantial

evidence of what was really going on, and the $500,000 was the pay back.

Again, the trial lawyer will use something similar during opening statement. Now it

the time to tell the jurors how we know each one of these facts is true. In addition now is the

time to describe why motive leads to malice. ―Greed causes men to forget about friendship.‖

There also needs to be structure within each point, question, or topic of evidence you

discuss. Consider varying the structure along the following lines.

CRAC.

The above mnemonic stands for Conclusion, Rule, Analysis, and Conclusion. It

structures your argument by leading off with the conclusion you want the jury to reach. AThe

Defendant is a murderer, or, the Plaintiff is at fault for her own accident.@ Next the lawyer

describes the law or rule that applies. Often, with permission from the court you can quote a key

jury instruction that describes what the law is. ATo sustain the charge of First Murder, the State

must prove the following propositions;

(A) That defendant performed the acts which cause the death of Joseph Schmidt, a

human being; and

(B) That defendant acted after deliberation and with the intent to cause the death of

Joseph Schmidt or other person.@

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Where you are given permission to do so, you should do this. Make it clear to the court that you

are in concert with what the law requires of you.

Next is AA@, the lawyer analyzes the rule in light of the facts, stacking those facts

under the element that is applicable. AHow do we know that it was Juan Cortez in that door way

behind the bandana with the gun that killed Joseph Schmidt? Well we know he knew Arthur

Grimes in prison. We know they met in the week before the murder in his home. We know it

was Cortez‘s gun, held in his wife‘s name, that Grimes used the night he went into the restaurant,

that the gun was not reported stolen till after the murder. We know that his motorcycle was seen

leaving the scene.

We also know from the mouth of the victim, who told his father, it was the same guy

who had tried to extort money from them earlier that year. How do we know that he recognized

Cortez. Because the man in the door had no motive to shoot Schmidt otherwise. He wasn‘t

trying to save Grimes, he thought Grimes was too scared to ever finger him. He used the gun to

shoot the witness who recognized him. In other words, you analyze the facts and show them

how it must have been Cortez.

You then repeat your conclusion and transition into your next point.

AIt was Juan on that night at the door of the restaurant, with a gun in his hand, who

aimed it shot Joseph Schmidt in cold blood. He pointed the gun at the center of his chest and

shot him in the heart. And he shot him dead.

―Now, let=s turn to this question of whether Cortez has any kind of an alibi. Let=s see if there is

proof that he wasn‘t there.‖

The foregoing might be thought of as the standard Prosecutor=s structure. The

problem with it is that after a while it wears on the listener. It sounds to them like they are being
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shouted at. It also will make many listeners start to wonder whether everything is that clear and

simple. There is something about good persuasion that seems to allow for the audience to

discover the right thing to do for themselves. If they are always told what to do, it starts to sound

condescending, as if you don=t trust them, or maybe you don=t think they are very smart. To

combat these reactions the lawyer should vary the structure of his or her arguments as follows.

IFFFARQ.

IFFFARQ stands for Issue, Fact, Fact, Fact, Analogy, Rule, and Question. It is

structured by starting with the issue that the court must consider. AWas Juan Cortez the

shooter?@

Note that the opposition=s position does not need to be stated to launch the IFFARQ.

You do not need to first lay out what the Defendant will say. Some lawyers seem to do this to

buy time for them to think about what they will respond, as a counter punching boxer. They use

sarcasm as they describe the opposition‘s case. The result is that too much Aair time@ is given to

the opposition=s side of the case. Why say the following?: ANow the defendant will argue that

he was not even there, that he was in his house watching a football match the night of the

shooting.@ It may be the first time that the jury hears the simple version of the defendant=s

position. That is not your job. Instead launch your argument from the statement of the issue,

and then move into the facts that support your side.

One variation on this structure comes from a terrific trial lawyer in East Tennessee,

Bob Pryor. He says that he has learned over the years to not be afraid to look the finder directly

in the eyes and talk about the proof on the hardest element of the case. He might say in a

closing in the Malack case, A Now, I want to talk directly to you jurors that might be saying to

yourself, but how do we know that it was Malack and not someone else who threatened Ms. Lee?
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Well let=s look together at the physical evidence and the facts. First, there are the shoes, black

and white checked shoes, a fashion statement, and a memorable one. And let‘s remember what

was on the right shoe. The DNA swab contained partial DNA with the characteristics of Ms.

Lee, which are shared by only one out of every 960 people. Next is the fact that after kicking

her, Lee remember him leaning down in front of her, as if to make sure she got a good look at his

face. She says they were inches apart. Next is the chilling thing that Ms. Lee remembered

Malack saying to her, (Have you ever had meth sex, you‘re going to love it.) Why is this

significant. Well, it tells us that the perpetrator was on, meth. It explains his sudden and

irrational violence in hitting Lee and kicking her. And his apparent invincibility in leaning down

and showing himself to her and expressing his intent to commit a sexual assault. And finally,

what do we have? Well we have the meth pipe found in Malack‘s apartment, the same apartment

with the black and white checked shoes. The question for the court then, is whether we have

physical evidence, and witness identification, and explanations for motive for the violent nature

of the attach sufficient to find the defendant liable for the assault and battery of Megan Lee?

The idea is to start with the toughest issue and then step by step show the factfinder

the way to your side of the case.

Next, use an analogy, AA@ stands for analogy in this mnemonic. The analogy does

not need to be long and drawn out. It can be more of a metaphor or simile. We=ll say more

about longer kinds of analogies later. Yet if you can precede your discussion of the law with a

common sense analogy, the bridge between the facts and law can be all the more secured. AWe

know that when kids get caught they blame others. And when criminals get caught red handed,

with the gun and the motive and opportunity, they do something even more desperate and

despicable, they look to blame anyone else around, even if it means blaming who is innocent.@
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 Next is AR@ for the rule of law. You might say, ANow, the rule of law is you must be

convinced by the evidence that it was Juan Cortez out there that night, beyond a reasonable

doubt. And to determine whether your doubt is reasonable, you must consider all the evidence,

both direct and circumstantial. In fact, you will be told by the judge that there are two kinds of

evidence in all cases. There is direct evidence and circumstantial evidence. The law makes no

distinction between direct and circumstantial evidence as to the degree or amount of proof

required, and each should be considered according to whatever weight or value it may have. All

of the evidence should be considered. Now let=s look at what that means in this case.

AMaybe a short analogy can show how there is no reasonable doubt in this case. You

see, if you put a cat and a mouse in a box and put on the cover, and when you take it off, and the

mouse is gone, you know the cat ate the mouse. Now the defendant says that if there was a hole

in the box just big enough for the mouse to squeeze out of, then you have reasonable doubt. But

members of the jury, in spite of the hole, if you can see the mouse=s tail in the cat=s mouth, you

know the cat ate the mouse. The question is whether the tail in the cat=s mouth is Cortez‘s gun,

held by Grimes, and used during the robbery of Schmidt‘s restaurant?@

Note this last part. The lawyer ends with a Question, not a Conclusion. This is done

to allow the factfinder to reach the conclusion for him or herself. The rhetorical power of ending

your argument with a question is that learning theorists tell us that one will hold on much more

dearly to that conclusion because he or she reached it for him or herself. So convinced by the

judge‘s own discovery, the judge will more likely become more unshakeable in his factual

determination.

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 Analogies At Trial.

One of the most interesting concerns in trial practice today is the use of analogies in

making arguments to juries. The question is to what extent they are also important for argument

to the court. Let‘s look at their use in front of juries, and then seen what are answer might be for

the use before the court.

Many jury trial lawyers question the persuasiveness of such analogies and fear risks

in telling stories to juries. Further many lawyers are uncertain both how to select good analogies

and how best to tell the analogies they select.

A recent advanced trial program sponsored by the National Institute for Trial

Advocacy provided me with an opportunity to get some reactions from experienced trial lawyers

to some of these questions about analogies and explore the arguments on both sides. A

wonderful trial advocate and trial teacher, Jim Jeans, stood up to demonstrate a closing argument

in a simulated case that NITA had prepared for teaching trial skills. Jeans spoke in defense of

Dr. John Madden, a heart surgeon, accused of committing malpractice during a heart transplant

operation. The plaintiff had made out a very sympathetic case concerning the children's loss of

their best friend, their father. The case against the doctor was largely circumstantial and

depended, in large part, on the doctor's mental and physical condition going into the operation.

The doctor had worked long days and received little sleep. In addition, the day before the

operation the doctor's wife of many years had thrown him out of the house and told him she was

filing for divorce.

Evidence from the autopsy showed that the suture had come apart at the point of

connection of the new heart to the old artery. The actual suture, however, had been lost.

Plaintiff claimed that the defendant surgeon either had nicked, cut, or burned the suture or had

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not tied the knot properly. (The plaintiff also had sued the suture manufacturer claiming the

suture was defective.) Plaintiff's lawyer, Dave Malone, had finished his closing argument by

emphasizing the loss to the widow and children. (Dave had reserved time for rebuttal, but

because of the press of time for the demonstration his rebuttal was cut short.)

Jim Jeans, Dr. Madden's lawyer then faced a hushed room, introduced himself, and

told the following story. Speaking in a deep and controlled voice, and he carried the audience

back to "when I was a boy growing up in the midwest in the 1930's." What follows is my

paraphrase of what he said. As a boy I rooted for the St. Louis Cardinals and was immersed in

their baseball history. I was told many times of the year, it was 1926, that the Cardinals won the

pennant. The Cardinals then went on to challenge the legendary New York Yankees for the

world championship. The Yankees were supposed to sweep the series for they had an imposing

lineup of hitters, excellent fielders, and solid pitching. The Cardinals hung in there, however,

and managed to trail in the series, three games to two. For the sixth game the Cardinals went to

their ace Grover Cleveland Alexander, a tall pitcher, with a round house delivery. Alexander

was magnificent, and won the game. With the series all even, the seventh and final game was set

for the next day.

(Jeans then paused, moved and changed the pace and pitch of his voice just slightly.)

That night Alexander really celebrated. He stayed up most of the night and in the process

consumed a large quantity of alcohol. After all he expected that the next day all he would have

to do was watch. Rumor has it that the next day Alexander was, if not drunk, at the very least

still very badly hung over.

Little did Alexander know that in the late innings he would be called on to preserve a

narrow lead and save the series for the Cardinals. With two out in the seventh inning and with

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the bases loaded the manager called on him and Alexander took off his warmup and stumbled

out to the mound. Can't you just see it? He gathered himself together and turned and faced the

batter, Tony Lazuri, one of the Yankees best ball players. He reared back, threw a strike, and the

crowd went wild. Grover Cleveland Alexander then proceeded to throw two more strikes to

strike out Lazuri and end the inning. In the 8th and 9th innings, Grover Cleveland Alexander

continued to pitch flawlessly, throwing strike after strike until he had struck out the side in each

inning. He was magnificent, and was universally credited as saving the series for the Cardinals.

Jim Jeans, after pausing to let the story sink in, argued that the issue before the jury

was Dr. Madden's performance, not his condition before the operation. That, like those fans who

watched Alexander pitch, the nurses and doctors who saw Dr. Madden perform the surgery, all

saw a masterful performance. Jeans argued that no one who saw Dr. Madden perform criticized

his performance in the operation. Jeans then proceeded to detail for the jury the evidence in

support of his client.

After Jeans' demonstration which had been given to room full of lawyers, (the

program was for lawyers with more than ten years of experience and a significant number of jury

trials) the audience was buzzing discussing the analogy Jeans had used. There was no doubt that

it would dominate what the jury would discuss in the jury room, but there was real disagreement

about the analogy's benefit.

There were many reasons to find Jeans' analogy persuasive. Those who liked the

analogy were attracted by its imagery; the All American image of a tall, (Jim Jeans is also tall, I

would guess at least 6'5") and triumphant baseball hero who helped the home team win the

World Series. They were persuaded by the point of the analogy, that professionals, are trained to

perform, and that at the time of their performance they are able to concentrate at a tremendous

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level, whether because of practice, adrenalin, their competitiveness, or their caring nature. It was

consistent with the listeners' experience that there are people, that when the team needs them,

repeatedly step up, withstand the pressure and do their best. They also liked the happy ending.

Many of the lawyers preferred the analogy to other arguments because they were

drawn in to identify with the hero, and then the doctor. No one "directed, or "commanded,"

them, nor did Jeans constantly remind them he was a lawyer by "submitting" things to them or

inviting them to consider such and such an argument. In other words arguments made by the

force of the lawyer‘s personality seldom go down very well, if at all. Many agreed that Jeans had

correctly framed the issue, that performance, not condition, was key to a verdict for the

defendant. Also, perhaps most importantly, the listeners now seem to have identified

emotionally with the defendant. Until closing argument many had identified with the defendant

only as an intellectual exercise. They knew that a defense for the doctor could be made on the

basis that he was an expert heart surgeon, highly skilled, and technically proficient, but they had

not thought much of the doctor as a human being and how to relate the doctor's fears and feelings

to the jury.

Yet use of analogies presents some very real risks. For instance, analogies present

dangerous possibilities for rebuttal. The opportunity presented to the plaintiff attorney in this

case to twist the analogy around caused some listeners to Jeans to withdraw at the thought of

using analogies. What might Dave Malone, the attorney for the plaintiff, have done with the

analogy had he been given full rebuttal? He might have argued that Dr. Madden had not won the

game, nor struck out the side, and no fans were cheering when Dr. Madden was through

performing. Instead Malone might have argued that the Doctor had thrown a bean ball and killed

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the plaintiff. Couldn't most analogies be turned around and used against the defendants?

Perhaps then analogies shouldn't be used when the opponent is yet to speak.

Even after taking this precaution, the trial lawyer is taking risks when using

analogies. Regardless of what Malone might have done, others worried that the analogy invited

the jury to put themselves in the shoes of the plaintiff's counsel; to make the arguments about

how the doctor was not like the hero. The jurors could have easily become advocates against the

doctor as they considered the analogies weaknesses. The analogy might be fatally flawed in that

it overstated the ability of anyone to judge the performance of the doctor. To illustrate, the

witnesses in the case at bar had viewed the operation off and on and were only able to say that

they hadn't seen the doctor make a mistake. One attorney listener asked whether, if a vendor in

the stadium turned from a pretzel sale and saw a batter laying at home plate, and knew that the

pitcher was hung over before he began to pitch, wouldn't the vendor be reasonable in concluding

that "one must have gotten away from the pitcher?" If jurors start to make these types of

arguments isn't it all over for the doctor?

Yet on balance there are other reasons that tip the scale in favor of analogies. Many

listeners in the group thought that jurors were naturally sympathetic to the plaintiff anyway, and

analogies gave the defendant a real chance at turning the sympathies around. The analogy

allowed the defendant to get emotional without getting emotional. The characters in the story

and intensity of the story provided the emotion. Real identification with the defendant's

argument was possible. Some stated that though they were in "real life" plaintiff's counsel, the

story made them really hear, for the first time, the traditional defendant‘s argument; that society

needs its performers to be risk takers in order for communities to excel and become all that they

were capable of becoming. The defendant doctor had finally been personified. And despite the

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fact that the defendant was evoking powerful emotions in the jury, the defendant attorney did not

need to become strident or defensive, but could remain reasonable, professional, and calm and

examine the evidence in the light of his story.

Despite some disagreement, for most of the lawyers in the audience, the discussion

that followed Jean's argument seemed to produce the following consensus. Analogies are

powerful. They tend to dominate the discussions after the closing arguments. To the extent that

juries remember the story, it is also more likely that they will remember the point, and be

persuaded by it. Analogies need to be used with care, especially where a responding attorney

might turn the analogy around. An analogy needed to be edited for where it overstated the story

teller's case, or over emotionalize it. (A minority opinion was expressed that analogies should

only be used when the arguer is the last to speak.) Analogies standing alone, (contrary to the

impression left by the movie, the Verdict) seldom are persuasive. Had Jeans stop speaking the

after telling the story, the jury would have felt that the story was an attempt to cover the arguer's

lack of evidence. Analogies must be supported by enough detailed factual arguments to be truly

persuasive.

An important side issue is also worth discussing. Analogies have to be examined with

the particular sensitivities of the jurors in mind. If, for example a Baptist preacher was on the

jury, who was sensitive to the use of strong drink as a way of celebrating, then Jeans‘s analogy

would be troublesome. One woman in the audience was offended by the baseball analogy in that

baseball was beyond her experience, was a typical male oriented story, and therefore she found it

offensive. While other women found that they could identify with the story either because they

were baseball fans, or because they had other team experiences that allowed them to appreciate

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the story, if a woman juror agrees that the example was sexist the analogy loses its effectiveness

to that juror.

What about concerns over whether an individual lawyer has the skill to both select

and tell a good story? A number of listeners, after the discussion seemed to shake their heads

and write off analogies on the grounds that telling stories was not "their style;" that to tell the

story would violate the advice given by many experienced trial lawyers that the key to successful

argument was for the lawyer to "be yourself." Yet whether to use analogies is not a question of

personality style. These lawyers are confusing questions of style with fears about how to select a

story that they can both tell sincerely and that gets at the heart of their client's case.

Lawyers, who hear the advice, "be yourself", often interpret it in one of three

negative ways. Many inexperienced, and insecure lawyers say to themselves, "If I am myself I'm

sure to lose." Others take the "be yourself" advice as a way for the advisor to get out of telling

the audience the secret of the speaker's success. Advisees have grumbled that the advisor

seemed to be saying that either you had the talent to be a trial lawyer, or you didn't, and they

guessed they did not.

Yet I now think the "be yourself" advice, when offered in good faith and received in

good faith, means something quite different and is crucial to understanding that using analogies

is not a matter of personality type. The, be yourself, advice for instance certainly doesn't mean a

trial lawyer can forgo finding and arguing the case law most applicable to their case. "Be

yourself" means that the speaker needs to first discover the areas of concern shared by the court

and the client and find cases that allow this concern to come through. They then need to

organize their presentation so that the case authority is heard, understood, and believed.

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 Similarly, the advocate needs to first select an appropriate analogy. The attorney

needs to put him or herself in the shoes of the client and consider both the rational syllogistic

legal arguments that can be made and also consider the emotions shared by the client and the

jury which are at the heart of the case. Once the case theory has been established the world of

stories becomes the lawyer's "case law of life." Whether the stories are taken from the

traditional classics, folk literature, trial lawyer literature, or from personal experience, if the story

speaks to the human condition in a deep and moving way, the story will help personify the client

to the jury.

Once the appropriate story is selected the teller needs to adopt the delivery which

communicates their authentic caring position. At the heart of this process is the individual's

ability to shed the images they have of what they are supposed to look like and sound like, in

order that their natural caring and concern can come through. When a lawyer‘s does this

centering, the lawyer will use a voice tuned to be heard rather than to fill the space. The

individual will care whether people listen and understand, and will critique their practice

performances so that they will speak at a pace which people can listen to, and vary the pitch,

pace, tone and volume, so that people can continue to listen to them. This is not a matter of

personality type, it is a matter of communication fundamentals.

All trial lawyers can peel these layers of insincerity if they prepare well and think

clearly about the strengths of the client‘s case. They can further help the process of "being

themselves" if they can identify, in their own emotional makeup, with both the client‘s and the

factfinder‘s emotional makeup.

In the process of selecting an analogy, then, the lawyer gets an excellent opportunity

to think carefully about their theory of the case and also about the emotions in the case, both

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their clients and their own. The analogy then becomes a way for the lawyer to be themselves for

their clients. The experienced lawyer's advice does not forbid using analogies, it encourages

authentic telling and individualized selection of analogies. The advocate gets a chance to show

himself or herself in selecting and telling the story. Telling the story allows the lawyer to show

herself a person with a history, with heroes, and thereby identify herself more closely with the

factfinding function of the court.

For example, the analogy Jeans used seemed to work both because it fit his theory of

the case well and also because it fit him. It was authentic to the story teller and was told

authentically. For example, his apparent age seemed to make him old enough to have been

around in the 1920's, in order to have seen the Yankees and Cardinals play in the World Series.

The fact that he is a mid-westerner and lives on a farm and the fact that he is a third generation

Cardinal baseball fan all help to make this story authentic to him. He could speak as an admiring

baseball fan. He was able to identify, sincerely, with the human tendency to want to celebrate

exuberantly after a victory. He also shared with the jury from personal experience that there are

those people, when called, who repeated live up to peoples highest expectations, even when they

are given short notice. They perform particularly ably when the needs are the greatest.

The story was also told sincerely; it wasn't hyped or overdone. It was spoken simply,

and clearly, with the story teller=s pause for the introduction of a new subject or heightening of

the natural drama of the story. While Jeans' story might not be for everyone, in every case, the

way he told the story is for every trial lawyer.

While, admittedly, there is some "art" in telling a story, the art of telling a story can

be learned; that with some practice and self critique, most any trial lawyer can tell a story

competently. Remember how effectively most parents are in reading a story to their children?

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And think of the images this question invokes. For me it invokes the memory of a caring parent,

in a warm, safe, and comfortable setting. I even forget which parent read me which story for I

forget that the parent was between me and the story, as I lost the identity of the narrator in the

evolving story. The selection of the story, and fit between the story and the case are much more

important to the telling of the story than the particular personality of the teller.

In watching different people read to children, I've also been impressed that the reader

seemed to know with very little effort that if the reader is overly dramatic, too affected, is bored,

or speaks too fast, the child will lose interest in the story. I am amazed that once a person is

given a story to read to a child, how warm and modulating their voice becomes. Their voices

warm naturally when they are describing things that they care about to people they care about.

Fears about style often relate to self centered concerns that have been elevated over the speakers

concern for the listener and the story. They typically pass as the teller gets into the story and is

lost in the telling.

Not only do these childhood memories persuade me that benefits of analogies out

weigh the risks, they also persuade me that most trial lawyers should be able to tell stories well.

This does not mean that any old analogy is good. There are certain pitfalls that need to be

avoided. If the analogy teller uses a fact in the story that the jury knows is not true or that

distracts the listener, for instance that the lawyer "was there," when he couldn't have been, or

that the lawyer was the hero, the analogy doesn't work. If the listener feels misled, or feels that

you are trying to distract him from the problem he has to solve, rather than helping him solve the

problem, then the story does not work. If the story teller is obviously trying to be someone else

the analogy doesn't work. Also, if there is nothing good that can be said on behalf of a client

then there is nothing to say in a story that will overcome this fact.

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 Finally, then how much of these lessons in favor of using analogies transfer to

arguments before the court. Well, of course, they can‘t be as long or as involved. The court will

not likely admit to liking a good story for a good story‘s sake. Still, at the heart of factfinding is

the need for the factfinder to relate the facts to their experiences, or to common sense. Analogies

help make these connections. Thus analogies will be a powerful tool for helping the judge ―find‖

the facts.

Assuming, however, that the case is at trial because there is real disagreement about

what ought to be the fair resolution of the case, the client needs to be personified for the court in

order for the factfinder to really hear the client‘s side of the case. Analogies drawn from what

the story teller really cares about, told authentically, and offered as a way of explaining a more

difficult and subtle point because the teller wants to help the court understand the client‘s

perspective, persuade more than dissuade. In the end, even if you decide not to use the analogy,

you will be better in touch with the emotional elements of your case, and better able to describe

to the court why common sense and life experience show why your sides case has more merit

than the other side‘s case.

The Big Finish.

Just as with any good Jazz, the finish needs a flourish. It needs to be practice so that

the crescendo is just right. It needs to tie together the emotion of what has gone before so that

the audience leaves satisfied. It does not always need to be loud. You can end in a whisper, or

in a note that simply dies away. But it needs to be orchestrated and practiced to perfection.

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 As George Burns used to say, AOnce you can learn to fake sincerity@ everything else

is easy.@ The ending of a closing must be confident and sincere, and it should not be taken for

granted. You might repeat your theme with confidence. In a civil case, you should ask the court

for a specific sum of money, or ask it to do what is right, and to do justice.

Again there are lessons that can be learned from a jury trial lawyer, but that need to

interpreted and modified to arguments to a judge. One of my favorite jury trial techniques, is

again, from Bob Pryor. As an example, I imagine he might say something like the following, as

he has used this style and structure before,

ANow members of the jury, Mrs. Jones and I will be waiting for your verdict. We will

start here in the court room, but if you take more time, we will probably move to the hall outside.

We will be waiting. We know that you will look over the evidence thoroughly and will take your

job seriously. And we will wait and be patient.

We know that this case has changed your life in some important ways. We know that

whenever you hear about a car accident from now on, you will think about Mrs. Jones. We know

you will wonder if the person hurt was injured by a seatbelt that did not fit them, and was not

designed to fit them. We know you will wonder how badly they were injured and whether they,

too, were left paralyzed, as was Mrs. Jones. You will wonder whether they too had a family, and

the effect of the accident on the husband and children. We also know that you have learned

about the care and expense needed to care for someone who has been paralyzed. And whenever

you think about paralysis you will think back to this case and what you learned in this courtroom.

―Members of the jury, what we want from you, is simply to do what is right--to be fair.

We want you to be proud of your verdict in this case, to be proud of what you have done. After

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your deliberations come up to Mrs. Jones and shake her hand. We will be waiting. Come up and

shake her hand and tell her you did the right thing. Tell her, Awe are proud of our verdict, and we

did right by you, Mrs. Jones. ―Look her in the eye and tell her that. Thank you.‖

Of course, much of this rhetoric is too much, or over the top to a court. Still, there is

this lesson to learn. Look the court in the eye and make your appeal in a direct and straight

forward manner—from one person to another-- that the court do justice. Call the court to its

highest and best self. Tell the court you respect it, that you trust it to do the right thing, which

will be to be fair. Be specific in what you want. Be clear, that you believe justice demands a

verdict in favor of your side of the case. Don‘t forget your client will be watching. If you believe

in your case your client will expect that you will make a forceful final appeal, the one the client

would make if the client were speaking, a personal appeal on the client‘s behalf, under the Law.

The court will also expect no less from you in your final words of advocacy on behalf of your

client.

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 Chapter XV
Jury Selection
In a book about trial advocacy the topic of jury selection could be placed very early in the

book, to highlight its importance and to place it chronologically—that it obviously occurs before

any evidence is presented. Yet, to prepare for jury selection, the trial lawyer needs to first think

about the evidence and closing arguments in order to best anticipate what perspectives they are

looking for or guarding against in individual jurors.

In an advocacy book written for a broad audience that includes international lawyers,

some of whom work in jurisdictions that have no juries, or if they do, have them only in the most

egregious criminal cases, (or some only in defamation cases,) we have left the topic of jury

selection to the end. Still it belongs in the book because as a matter of advocacy skills, there will

be times when even these lawyers will need to like jury trial lawyers: like they would if they were

picking a jury: they need to analyze the lay members of their audience and think carefully how

their lay perspective may impact on how they will argue their case.

[Supplement intro with added information: The importance of the topic to the US lawyer.

Where the jury comes from. Particular importance to US History. 7 th Amendment

18th c Scottish support: Russia and Former Soviet Republics.

Africa—Liberia, Kenya

Latin America—Chile, Columbia, Mexico.]

The topic of jury selection covers a lot of ground. We will use the US system as our

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model. Part I will lay out the law and logistics of conducting jury selection. Part II will discuss

different questioning techniques for ―deselecting‖ jurors when the lawyer is allowed to

participate. Part III will draw on social science and discuss various theories that guide lawyers in

making their decisions about who to keep and who to excuse.

I. The Law and Logistics of Jury Selection.

Rule 47(a) of the Federal Rules of Civil Procedure and Rule 24 (a) of the Federal Rules of

Criminal Procedure guide the voir dire examination in the federal court. The two rules are nearly

identical:

F.R.C.P. Rule 47. JURORS.

(a) Examination of Jurors. The court may permit the parties or their attorneys to conduct
the examination of prospective jurors or may itself conduct the examination. In the latter
event, the court shall permit the parties or their attorneys to supplement the examination
by such further inquiry as it deems proper or shall itself submit to the prospective jurors
such additional questions of the parties or their attorneys as it deems proper.

F.R. Crim. P. Rule 24. TRIAL JURORS.

(a) Examination. The court may permit the defendant or his attorney and the attorney for
the government to conduct the examination of prospective jurors or may itself conduct the
examination. In the latter event, the court shall permit the defendant or his attorney or the
attorney for the government to supplement the examination by such further inquiry as it
deems proper or shall itself submit to the prospective jurors such additional questions by
the parties or their attorneys as it deems proper.

In a 1977 survey of federal judges (dated but still representative of what is going on in the

federal courts), 1% of federal civil judges and 2% of federal criminal judges conducted the entire

voir dire, the questioning of a venire (jury panel) leading to selection. 49% of civil judges and

52% of criminal judges conducted the entire voir dire, but accepted (and then edited and/or

rejected) questions from counsel, which the judges asked. 19% of civil and 21% of criminal

judges conducted the voir dire but usually accepted questions from counsel and read them as

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phrased. 11% of civil and 12% of the criminal judges conducted an initial examination and then

generally gave counsel a free hand, though the judges intervened if questioning became irrelevant

or took too long. 5% of civil and 5% of criminal judges permitted counsel to examine the jury

panel after some preliminary remarks. 5% of the civil and 1% of the criminal judges were not

present during voir dire. 5% of the civil and 2% of the criminal judges did none of these. 4%

civil and 1% of the criminal judges did not respond to the survey.

In other words, 69% of the judges did not let lawyers participate orally in voir dire. There

was, however, considerable variability even among jurisdictions. For example, 40% of federal

civil judges in Arizona permitted lawyer conducted voir dire, 55% in DC, 40% in the Middle

District of Florida, 67% in the Southern District of Florida. Pennsylvania has over 60% lawyer

conduct voir dire, Northern Texas, 67%, (though Southern and Western Texas have 0%, as do

South Carolina, Virginia, Louisiana, Maryland, Massachusetts, and Southern California. In

Northern California only 10% of judges let lawyers conduct voir dire. While there is generally a

strong correlation between federal and state courts regarding jury voir dire practices, there are a

few notable exceptions. For example, Texas and New York state courts have traditionally

allowed for lengthy and extensive lawyer questioning.

The Length of Voir Dire and Number of Jurors.

Again, the length of voir dire can vary greatly. For example, in criminal cases, jury

selection can run anywhere from 30 minutes (33%), between 30 minutes and 1 hour (49%), to 3-5

hours (7%). In federal court, 76% of the civil cases have 6 jurors, 10% have between 6 and 12

jurors, and 12% have 12 jurors.

Prepare to Participate to the Fullest Extent Allowed.

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 Because the jury selection process varies from one jurisdiction to another, the lawyer

needs to be prepared to participate in jury voir dire in any way that she can. If a lawyer is only

allowed to submit questions, then she should know the types of questions that will likely not be

rephrased and produce the best information. If a lawyer is allowed to participate in a follow up of

earlier judge‘s questioning, she should take every opportunity with that opening. And if she is

allowed to conduct a voir dire under judge supervision, she should know the limits of her

questioning.

In addition, it is very important to realize that what a judge does in his court is often only a

default if the parties do not suggest otherwise. A lawyer might move the court for a specific voir

dire, depending on the circumstances. Consider in this regard how a particular judge fashioned a

voir dire in the Wounded Knee case. The case can serve as an example of how the voir dire

might be conducted in an important case.

One Way Jury Selection Can Be Organized. Judge Speech in Wounded Knee Case.

The Court: Because this case involves two defendants who are members of a minority

race, and there is involved an incident receiving wide-spread publicity, there is a need to vary

from my usual procedure. I will grant to counsel a limited right to conduct voir dire

examination of prospective jurors. I say limited because, although an argument has been

made, and properly can be made, that time ought be of no consequence, I think the fact that we

have well over one hundred cases now pending out of this incident necessarily means that time

is a factor. On a broader scale I think that time is a factor even if those hundred cases did not

exist, for the ponderous movement of cases through the courts is and has long been a concern,

not merely to the people involved in the trial, not merely the courts , but to the citizenry at large.

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 There will be three alternate jurors selected. The United States will have 6 peremptory

challenges; the defendants will jointly have 10. We will call 35 jurors, seating them in a

manner which I have outlined . . . there will be 15 in the jury box. There will be 5 in chairs

directly in front of the jury box, parallel to the jury box. There will be 8 along and in front of

the railing . . . 7 along the right hand . . . that will comprise 35. Those will be the 35 from

whom peremptory challenges will be made, if there are no challenges for cause sustained.

There will be 15 additional prospective jurors seated in the first row of the spectators’ seats.

That makes a total of 50; and those entire 50 will be selected by lot at the outset.

Then the judge will conduct the voir dire at the beginning covering such subjects as

these: occupation, residence, spouse, spouse’s occupation, children, education, past service of

the prospective juror as a juror; acquaintance, if any, with lawyers and the defendants,

witnesses, involvement in any past criminal charge, political officer and other relationships

touching the general relationship with the United States; some but not detailed questions about

relationship with the incident, (The Wounded Knee affair) but the subjects of possible racial

prejudice and pretrial publicity will either not be touched or will be touched lightly, but

essentially left to counsel.

Then counsel will be permitted to conduct voir dire under these limitations:

D: The court reserves the prerogative of intercepting any question or line of

questions which the Court concludes are calculated, whether deliberately or

otherwise, to build a special rapport or relationship, thus creating the possibility

of the juror being favorably inclined to a party or unfavorably inclined to a

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 party.

E: The voir dire of any one prospective juror may be conducted individually,

depending on counsel and request of prospective juror.

F: I will allow questioning of the 35 by the United States for a total of 2 hours. I

shall allow the defendants collectively 4 hours. You may examine any

prospective juror called to replace one of the 35 for a maximum of 7 minutes. I

will allow two more peremptory challenges each side for these additional

prospective jurors. Of course any excused for cause will be replaced from the 15

who sit behind the rail.

Review: Check List of Preliminary Matters.

Before conducting the voir dire, a lawyer needs to obtain information on a number of topics:

A: Size of Panel?

B: What information is on the information sheet?

C: Number of challenges for cause?

D: Number of peremptory challenges?

E: How are selections made?

F: Who does the voir dire?

G: How long do you get for voir dire?

H: Is the judge present?

I: Are juror questionnaires allowed?

J: How will challenges be exercised? Will they be exercised as they arise? Will both sides

wait and then exercise peremptories once both sides have examined the entire venire? Or

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 will they exercise peremptories interviewing 6 at a time?

[For the Workshop, we will use these instructions as our assumption for how the judge has

decided how to conduct the jury selection, though you will be picking 6 jurors, out of a

prospective panel of the entire class, (20). Assume the judge will instruct similarly to what the

Wounded Knee Judge instructed on those issues, though each side will have 3 peremptories and 7

minutes each to address the panel for any one juror.]

Part II. Questioning Techniques for Deselecting Jurors.

The questioning techniques that a lawyer will employ in jury selection relate to the

purposes for her time with the jury panel. What is a lawyer seeking to accomplish with voir dire?

One recent survey of lawyers included the following goals for jury selection:

To move the jury as a group.

To discover prejudice.

To eliminate extreme positions.

To discover ―friendly‖ jurors.

To exercise ―educated‖ peremptories.

To cause jurors to face their own prejudices.

To teach jurors important facts.

To expose jurors to damaging facts.

To teach jurors the law of the case.

To develop personal relationships between lawyer and juror.

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 Remember that trial lawyers are governed by obligations to try to do the best for their

client. The court‘s obligation is to try to pick a fair jury. If they feel you are pre-trying your case

and trying to influence the jury to like your case or favor your side, the court is likely to rein you

in. Courts consider the following to be lawyers abusing the system and questioning techniques

that seek abusive purposes should be objected to by your opponent and the court.

Lawyer‘s abuses.

Questioning merely to establish rapport

Lengthy, detailed questioning with no specific intent.

Pre-instructing the jury on the facts of the case or the law applicable thereto.

Pre-committing a juror to a particular opinion. v

The lawyer‘s goal then is to gather information about the jurors to help her select jurors

who will be favorably disposed toward her case and deselect those who will be unfairly biased

against her case. There are also a number of skills and issues that a lawyer needs to prepare for.

They include, in basically chronological order:

A. Reading forms

B. Keeping track of juror answers (get help)

C. Watching jury body language (get a second pair of eyes)

D. Taking notes

E. Opening statement

F. Open ended questions

G. Interviewing the group

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H. Probing (damages, insurance companies, attitude toward police)

I. Raising sensitive subjects (rape, race, guns, suicide)

J. Informing the panel v. polluting the panel (not as much a worry as some think)

K. Leading for challenge

L. Leading for sanitizing

M. Leading for teaching

N. Leading for fairness

Let‘s look at each of these skills and techniques in turn.

Getting Started.

[Assuming the judge has not done any of the following in his preliminary statement.]

―Members of venire, My name is ______________, and I represent Mark Hewitt. Mark

Hewitt is Georgia boy, born and bread. Over the years he has build up an investment business,

investing in businesses in Georgia, and the east coast.

‖As you have heard, Mr. Gonzales alleges that Mr. Hewitt owes him millions of dollars

because Mr. Hewitt did not extend substantial personal guarantees to GHA, a business operated in

Mexico by Mr. Gonzales. Do any of you know Mr. Hewitt? Do you know his parents? Do any

of you work for or know anyone who works for Hewitt Financial?‖

―Our purpose during this part of the proceedings is to select a jury. It is called the voir

dire. It means to speak truth. Each side asks you questions and asks you to tell us the truth about

yourself to enable us to pick the best jury for this particular case. What does that mean? It means

that some of us may have had experiences that might not make it fair for us to serve as jurors in a

particular case. For example, if you have recently gone through a contested divorce, it is probably

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not best to sit on a jury judging alimony payments someone else should pay. If you have biases

and prejudices against a particular race or type of person, it is probably not best to sit in judgment

on those people. If you would have difficulty in following a particular law, it is not best for you

to be a juror in a case involving that law. This does not mean that you are an unfair person, it

only means that in this case, where the court is trying to determine who would be a fair jury, and

it is better that you not serve.‖

―I have a number of questions for you. Please tell me what you think. If you would prefer

not to respond in front of the whole group, let me know, and you can answer privately. And let

me thank you in advance for your candor and honesty.‖

Funnel Approach and Panel Involvement: Open Ended Questions.

A lawyer should plan her discussion points by using a funnel approach to gathering

information. Ask the panel a broad question about a topic that may be worrisome. Ask the

question in a form that gets the jurors to identify generally how they feel about the topic. Then

ask them to describe their experience and feelings. Then follow up to establish a challenge for

cause, an educated understanding for a peremptory, or a teaching point for the jury as a whole.

For example:

A. ―How many of you, or anyone close to you [to provide cover for those who are

embarrassed by the answers they will give] have ever been falsely accused of

committing a crime?‖ ―Please raise your hands and then if you would like to speak

in private about it, let me know.‖ ―Tell me about that situation and what it was

like.‖

B. ―How many of you have been in a lawsuit? How many of you sued for damages?‖

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 (If defendant) ―How many have been sued for damages?‖ (If plaintiff) Then

identify each one and ask, ―How did you feel about it?‖ If the lawyer wants to

challenge for cause, ―That sounds like that would be a difficult experience to set

aside. It looks like you continue to feel strongly about that. It would be hard to set

aside those feelings in this case?‖ If the juror agrees, then the lawyer is ready to

challenge for cause. If the lawyer wants to rehabilitate the juror, she might say,

―That was some time ago? And of course you know that it would not be fair to

judge this case based on your feelings in your own situation? I‘m sure you could

set aside that experience and judge this case fairly on the evidence you have been

presented in court. Am I right?‖

C. ―Have any of you ever felt discriminated against for something you could not help

or for matters of personal choice? Maybe you had long hair or a beard? Maybe it

was your accent, or the way you talked? Maybe where you were from? Maybe

because of your clothes?‖ Everyone raises his hand. ―Juror no. 1, Mr. Jones, tell

me about your experience? How did it make you feel? Did you think it was fair

to be treated that way? Anyone else?‖ Pick a few more. Ask them to tell about

their experiences. ―My client is originally from Mexico. You will hear his accent

when he testifies. Would anyone here hold it against him that he is from Mexico,

and though he is now a citizen of the US, he didn‘t grow up in Georgia?‖ Or,

―One of the most important witnesses in this case is Mr. Salazar. He is also a

business man from Mexico. Will any of you be unable to fairly consider his

testimony because he is not from here, and works some place else? Will you be

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 able to judge his credibility and honesty fairly, based on the testimony he gives in

this courtroom?‖ Of course, if anyone raises his hand, the lawyer should consider

a challenge for cause. Please Note. Wait until all the questioning of the 6 has

been completed before you go to the court and exercise your challenges. That

way you will not look harsh and judgmental.

D. ―How many of you would have difficulty following the law regarding the

awarding of money damages for losses caused by someone else‘s negligence?‖ If

anyone raises his hand, ask the jurors individually what they think and how

strongly they hold their beliefs. Rehabilitate the jurors that express mild

reservations. And move those jurors that express very strong beliefs to a challenge

of cause.

The technique that is demonstrated above is the funnel technique. It starts with a broad

open ended question asking people how they think or feel about an issue and then moves a

specific juror to a challenge for cause or rehabilitates the juror if he expresses empathy for an

issue that helps the lawyer, or the lawyer‘s questions teach the jury about what is fair.

First Questions Where You Have Time to Establish Rapport.

In a wide open voir dire, a lawyer may take some time to first establish rapport. The

theory is that people will tell a lawyer more about their core values and attitudes if they trust the

lawyer. Also, some trial lawyers feel that they may not be able to do much about core values, but

the lawyers can counteract those attitudes if the jurors think the lawyer likes them, respects them,

listens to them, and values their opinions.

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 Under this theory, in wide open voir dire, after the lawyer has introduced herself and

described the purpose of voir dire, she next needs to establish an environment which will cause

prospective jurors to feel free to talk to her. Rapport and body language can help here. Use eye

contact and lean slightly forward when talking to any one juror. If the court allows, a lawyer

should take a comfortable position in front of the jury with nothing between her and the jury.

(The lawyer is saying by her own body language that she has nothing to hide, and that she does

not fear the jury, but trusts the jurors.) Comfortable conversational speaking distance is from 5-8

feet from the audience. Smile in greeting, but do not force it or smile too long or too much.

Smiling will then convey nervousness and phoniness. Use gestures, which are open palm gestures

(no finger pointing or clenched fist, palms open and facing up). Lawyers should use active

listening, by nodding their heads, saying ―okay,‖ ―I see,‖ and ―Uh-Huh.‖ Use restatement,

repeating what someone has said in the lawyer‘s own words, or reflection, telling the juror the

feeling seen or heard, conveyed by what was said.

The best place to start to get people to talk to you is with non-threatening general

background questions. ―Tell me about yourself.‖ Or, ―I see you live in Decatur, what do you do

there? Tell me about your job.‖ This is the way most people meet each other, discussing their

jobs. The topic is familiar and it is easy to talk about it. It is a good conversation starter.

Moving to Sensitive Issues.

After establishing rapport with a couple of folks, you, the lawyer, should try to ask a

question to the group as a whole. Intersperse the background ―getting to know you‖ questions

with the issues you are most concerned about. By moving to the group as a whole, you avoid

boredom setting in. You want to keep everyone with you, so that the energy will be there when

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you ask the individual jurors the key questions or when you make your key points.

One model that seems to work well with a wide open lawyer conducted voir dire is first

try to get people to admit the experiences that might make them prejudiced against your client.

You must ask questions which will ―lower the barriers‖ for them to tell you their true feelings.

Once you have identified people who have such a bias, you can move to challenge them for cause.

Once this is done, you can teach the rest of the jurors the fair thing for them to do regarding that

issue.

For example, where race is a likely issue you might introduce the topic as follows:

―Where do you live? Where do most parents send their kids to school in your

neighborhood? Where did you send your kids to school? How do you feel about bussing?‖ You

plan for these kinds of questions by asking yourself how racism evidences itself in the most

socially ―acceptable‖ ways. Some lawyers ask concerning jurors feelings about bussing. Or they

might ask what neighborhoods the jurors live in, where they went to school, private or public,

who their ―group‖ was at school, and how they liked their school experience. Another effective

method is to admit someone in your family who has a bias against someone. ―My father-in-law is

an immigrant from the old school, and he has problems with black people. He hates bussing, and

hates the integration of the public schools. He thinks it is okay to dislike blacks because he thinks

his house lost value when blacks moved in. I guess I‘m asking you how you feel about bussing

and race. Would you say you are closer to my father-in-law in your feelings towards blacks?‖

If people express strong feeling about bussing, they may be willing to express their

feelings about race and also the effect of integration on housing values, because your father-in-

law thinks its okay. If the jurors do express these feelings, use a leading question that will move

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towards a challenge for cause. ―It sounds like you have had experiences and have strong feelings

about blacks. These are not feelings that you have come to without a lot of thought. It does not

sound like anything I would say would change your mind. Nor even anything the opposing

attorney would say? Nor even the judge? Would it likely be difficult for you to set aside those

feelings if race was a factor in this case?‖ With a yes to any of the last three questions, the court

should excuse the juror. The lawyer takes the jurors step by step from their thoughtfulness to

their unwillingness to be persuaded, even by the judge. The lawyer closes the door on any

attempt to rehabilitate the jurors.

Once the lawyer has excused jurors for cause, she should now go to the teaching phase of

jury selection. Now the lawyer is teaching as opposed to seeking information. For example, in a

case where race may be an issue, the lawyer may want to neutralize any racist tendencies by using

an empathy example to show the unfairness of using race. ―Members of the jury, have any of you

ever felt that someone judged you for something unfairly? Maybe it was the length of your hair?

Or it was because you were from a different area of the country, and it was the way you talked,

your accent, compared to others? Have any of you had that happen to you?‖

Look for hands, and ask jurors to tell of their experiences. Ask the jurors how the

experiences made them feel. Reaffirm those feelings and ask them whether they felt they had

been judged. Then say, ―My client is black. I know this is obvious, but would any of you have

difficulty treating him fairly in this case because of your feelings about his race? You, of course,

recognize that this would be unfair? You all promise then to give my client the same treatment

you would give anyone of your same race?‖ Of course, it is unlikely that anyone will admit to

racism. That is not the point. The object is to neutralize racism and stop anyone from expressing

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or ―using‖ race to make a decision.

Note how this same technique can be used if a client or a key witness is from out of state.

The lawyer asks the jurors to check their own experiences for having been treated unfairly when

they traveled someplace else. Then the lawyer ―names‖ the bias explicitly for the jury panel, that

the client is from the south, or the north, or New York, or California, that he may have an accent,

and then asks whether jurors agree it would be unfair of them to use that fact to judge the

credibility of the client or witness.

Even if the juror is rehabilitated, the lawyer may have done a significant amount of

neutralizing of bias and prejudice. The lawyer is worried most about people making decisions

without being conscious of their own feelings or biases. Once the lawyer has moved jurors‘

feelings from the unconscious to the conscious, the jurors will have to choose to act on them,

rather than simply reason to a conclusion without reflection. The chances that they will act

consciously or unconsciously out of prejudice should be greatly reduced.

There are some very touchy and difficult questions imbedded in the whole jury selection

process. In the O.J. Simpson case, for example, it was common wisdom in the black community

in L.A. that L.A. police would plant evidence to get a conviction against a black defendant. From

the prosecution‘s perspective, if the belief was widely shared among blacks in L.A., then the more

blacks on the jury, the greater the chance that the jury would acquit. If the prosecution does not

believe that the police planted evidence in this case, will the jury be prejudiced against the

prosecution by deciding the case based on experiences irrelevant to this case? Or is it racist for

the prosecution to try to exclude black jurors? If it is, how can the prosecution protect its case

from being unfairly judged based on an out-of-court experience or a belief likely held by a

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number of jurors? The prosecution is prohibited from excluding jurors simply on the basis of

their race. If the prosecution excludes on the basis or race, then the prosecution is subject to a

Batson challenge (named for U. S. v. Batson, the Supreme Court‘s prohibition on eliminating

jurors on the basis of race.) But can the prosecution ―protect‖ itself from racist strikes by instead

looking for people who believe that police often lie, or plant evidence? Should the prosecution be

limited to asking whether any juror has been falsely arrested and/or convicted? Most courts

would say that these are legitimate grounds for excluding jurors, even when these beliefs are

widely shared by one ethnic group, because the belief is the basis for exclusion, not race.

Even then, stereotyping exists based on the holding of a particular belief which is based on

an experience, in that jurors are being excluded without knowing how they feel about their

experience with police, or whether they could put their experiences aside in this case. The line

between stereotyping based on race, or on experiences widely shared by people of one race or

community, is a thin line indeed. Still, as a trial lawyer, your obligation is to advocate for your

client and you want to decrease the chances that people with those experiences will unfairly filter

the evidence. So you want to know what experiences jurors have had that may make them

predisposed against your case. It is the job of the trial lawyer not to pre-try her case or make

racist exclusions and all the while select a jury that will be fair to her client‘s side of the case.

Questions about Damages.

Next is the tricky topic of asking jurors about their willingness to award damages. The

same model of finding and then teaching is useful. David Ball, in his book, David Ball on

Damages, presents an excellent description of how to get at juror bias against awarding damages.

He describes the following motivations or feelings which can get in the way of a juror awarding

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damages. Jurors may feel that they should not award money because they want:

To stop high verdicts

To avoid criticism

To compromise

To blame the plaintiff

To withhold money because the plaintiff will not use it as intended

To withhold because money is not necessary

To withhold due to unclear purpose

To withhold because the juror does not value the plaintiff

To withhold because the plaintiff is getting along just fine without it

To withhold from a hopeless situation

To avoid making the plaintiff rich

To avoid making the plaintiff‘s attorney rich

To keep insurance rates down

To protect an industry

To withhold money because they have seen worse

To withhold money because people should pay for their own problems

To get revenge against the plaintiff

To not interfere with divine punishment

To not punish the defendant

To acknowledge the defendant‘s remorse

To withhold money because the wrongdoing was inadvertent

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 To counteract these feelings the attorney must get rid of those jurors who hold these

feelings so strongly that they will not follow the law on them and to teach the jury through the

voir dire that it is fair to give money. The jury can be motivated to give money if they understand

the money is:

To fix

To help

To balance (to make up for)

To express anger

To get revenge for jurors

To make a social statement

To make an example of the defendant

To make the defendant face responsibility

To take care of someone the jurors like

To reward and support persistence

To stop wrongdoing.

An essential part of case analysis involves taking the time to figure out what might

motivate a person to be unwilling to give money damages to help make up for losses. It is the

lawyer‘s job to figure out what fears (another way of naming biases and prejudices) a juror might

have that would make it hard for him to do what the law requires, compensating the injured party

with money damages. Again, the lawyer needs to think of socially acceptable places where such a

bias may manifest itself. She also needs to establish a rapport that will make it okay for the juror

to tell the lawyer his true feelings. In a personal injury case for the plaintiff where the plaintiff is

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alleging he suffered seizures as a result of the defendant‘s conduct, a lawyer might ask the

following:

―Have any of you ever had a seizure? Have any of you been injured seriously in an automobile

accident? Did you or the person you know well who was seriously injured in the accident ever

have to miss work, change plans, or live differently, because of the injury? How did that person

feel about how their life had been affected? Do any of you know anyone well who has epilepsy?‖

Again, the lawyer might use the close family member as a reference, ―My mother thinks it is not

right to award money to someone because God will take care of him and give him what he needs.

And she thinks it is okay not to give money for pain and suffering because it does not really fix

things anyway. Do any of you feel the same way my mom feels?‖ When jurors express these

feelings, the lawyer needs to move the jurors to express these feelings as strongly held. If they

do, the lawyer has a better chance of challenging them for cause rather than moving that they be

excused as one of her peremptory challenges.

Once past the challenge stage, in a wide open lawyer conducted voir dire, the lawyer also

needs to teach the jury about what she will be asking for and what the law provides. As David

Ball advises, sequence these questions by moving from damages for tangibles, to damages for

intangibles. If there are broken bones, medical expenses, or past lost wages, ask about these first.

Then ask about future medical expenses, and future wages. Finally ask about pain and suffering,

loss of consortium, and punitive damages.

Explain to the jurors why you are bringing up the damages so early. Tell them it is

because you have to do it to help them do their job, that they will be required to determine the

amount of damages, if any, in the case. Tell them that you will show them evidence of each of

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the elements of damages. Ask the jurors what problems they would have awarding damages for

each element if they find that the defendant is responsible for the injuries. Ask the question in an

open-ended way to continue to seek information about problem jurors. If a juror follows up,

make sure to ask him to tell you more about how he feels, or why he feels that way, to give you

the maximum amount of information to tell you what to do.

Finally, if you have time, especially if you are in a jurisdiction where you will be

prohibited from putting a figure on pain and suffering, you might teach the jurors that intangible

damages are harder to award because there will not be any figures that can be offered. Ask the

jurors how they feel about that, and then follow up by telling them that the law does require them

to give damages to make up for the pain the plaintiff has and will suffer. The goal is to help the

jury understand each element of damages that is important, and to teach and condition them, or

get them used to the idea, that you will be asking for these damages with proof at trial.

Where does the lawyer get the topics for her questions? The next section will explore the

current thinking on how to identify what to ask the jurors to best help the lawyer select or deselect

individual jurors.

Part III. Social Science and Jury Selection Theories and Practices.

The importance of jury selection is obvious. Remember that if the case were easy, or if

there were no disputes over who or what to believe, the case would likely have settled before trial.

Jurors will be asked to perform their task in a very constricted setting. They will learn about the

case through the testimony of the witnesses, the exhibits, and the arguments of counsel. The

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process is not very scientific. So, the outcome of any case that will go to trial will depend, in

large part, on the experiences and core values of the jurors, as those experiences and values shape

how they see the facts and evidence. Depending on what experiences these jurors may have had,

or how they see the world, they may be predisposed either for or against your case.

In the past, trial lawyers relied on stereotypes based on race and religion to help them

predict how a juror might react. For example, Presbyterians were thought to be pro-business and

pro-civil defendant and Catholics were more sympathetic to plaintiffs, as were immigrants from

Eastern Europe. When women and blacks were allowed to serve on juries, these jurors were

believed to be more emotional and less rational in their judgments against businesses. Of course,

these stereotypes often proved terrible predictors of juror behavior, not to mention that gender,

race, and religion came to be seen as impermissible bases for exercising challenges.

Modern theories eschewed stereotypes based on race, religion, and ethnicity in favor of an

examination of the core values involved in a case. If you know your case, by analyzing it

carefully, you know the core values that are imbedded in it. Your case analysis will help you

decide who you want on the jury. On the other hand, if you know what values the jurors hold

dear, you can also make special appeals to those values to persuade them to decide your case your

way. You need to lead the jury to your values and feed the case to the jury to fit their values. In

this way, trying a case is not that different from running a political campaign; you are trying to

appeal to both the minds and hearts of your audience and find out what is on their minds and

hearts. Just as in politics, jury selection presents a ―cart horse‖ problem. You need to know the

jurors values to help you predict your case outcome, but you also need to settle on a case theory

long before you pick the jury.

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 As we have seen in the introduction, in most court rooms today, jury selection has been

greatly restricted. The judge may handle the voir dire and then allow the lawyers to supplement

the judge‘s questions with questions of their own. The lawyer‘s questions might be asked by the

judge or the judge might allow the lawyer to ask them directly and then follow up with other

questions. In either case, the lawyer‘s chance of asking questions or establishing any rapport with

the jurors is greatly limited. Unless a lawyer shows the court ahead of time the importance of

finding out something about the jury—shows that certain beliefs or experiences are outcome

determinative—the judge will restrict and/or greatly control voir dire. The trial lawyers will

exercise their peremptory challenges and challenges for cause on the basis of limited juror

questionnaires, watching the juror‘s responses to the judge‘s questions, and/or on the basis of very

limited discussions with the jurors. The lawyers‘ decisions are based on hunches or snap

judgments about the experiences and values that they guess the jurors might have.

Of course, some courts today allow the trial lawyers much more leeway in voir dire. They

may do so in criminal cases, or where they know that attitudes about the death penalty, race, or

police conduct may be very important to a verdict. Judges may set up processes where the

lawyers pick the jury, but not on the time of the court. In these ―wide open‖ jury selection

systems, the lawyers may be alone in a room with a venire, or jury panel, and work through the

panel until all their peremptories have been exercised and all their challenges for cause ruled on.

Even in these situations, the lawyers have to make decisions based on limited information,

intuitions, hunches, guesses, and stereotypes. How can one become skilled in jury selection when

the opportunity to get to know individual jurors is so limited?

Recent developments in social science can point lawyers in the right direction. In ―Blink,

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the Power of Thinking without Thinking,‖ Malcolm Gladwell summarizes social science on

intuitive thinkingvi and helps shape a framework for lawyers to examine how to use focus groups

to help them pick a jury and what skills they ought to employ in picking a jury. Gladwell‘s thesis

is that we are often forced to make decisions in a blink of an eye. These decisions often carry

great risks and consequences for the future. Some become experts in it. There are experts who

can make snap decisions about whether art is forgery, or whether a tennis player will double fault,

or whether an actor will be right for a part, with surprising accuracy. And all of us have to make

snap decisions, about who we will date, who we will marry, who we will employ, whether to sue

our doctor, or who is a good teacher. We make these decisions based on intuitions and

unconscious feelings about whether this person will work well with us, is trustworthy, kind,

compassionate, fair, and loyal. These last decisions are exactly the types of decisions lawyers

make in jury selection.

Putting aside the implications that this research might have for teaching us how to make

hiring decisions, choose spouses, or teach doctors how to interact with their clients, and putting

aside implications for coaching doctor witnesses as to how to ―act‖ on the stand, what these

experiments suggest is that trained eyes can make very good judgments if they know what to look

for. Experts can take ―slices‖ of data that they have tested and determined to be important and

make very good predictions by looking for that data. If lawyers knew what factors to look for,

including core values, attitudes, tone of voice, and content of speech, they could make judgments

about who is the right jury for their case in a blink of an eye

For instance, an experimental study of juror judgments in torts cases by Shari Diamond

and others found that the strongest predictor of liability decisions was a juror‘s general belief

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about ―whether plaintiffs generally receive too much or too little in a lawsuit.‖ Jurors who

believed plaintiffs generally receive too much were likely to find for the defendant and those who

believed plaintiffs generally receive too little were likely to find for the plaintiff. vii As a result in

might be wise to ask, ―How do you feel about jury awarded damages in the courts today?‖ Based

on how a juror answers, you might be able to predict how that juror will view your case. Or, if

everyone felt that there was too much liability for too much money, the plaintiff‘s lawyer may

have to take this attitude on directly by saying, ―If you find that I have not proven that the

defendant was liable or that the plaintiff suffered serious injuries as a result, then you must throw

my case out of court. But if I prove my case, how many of you will be willing to give damages to

make up for the harm the defendant caused the plaintiff?‖ In other words, jury selection may be a

place where the jury can be taught to be fair in spite of attitudes they might hold. But to

effectively teach fairness, the lawyer is required to know what attitudes the jurors may hold.

In the ―good ole days,‖ when a trial lawyer lived in a courtroom, the lawyer knew the

members of the community and might even have known the prospective jurors by name. By

watching these jurors decide cases, the lawyers understood what the jurors believed and how it

affected their decision. Therefore, individual trial lawyers could start to recognize, or make snap

judgments, as to who should be on their jury. But trials are harder and harder to come by these

days. Trial lawyers need to develop other sources of data for helping them make predictions.

One place that a trial lawyer can determine which core values, experiences, and attitudes to look

for is by surveying the attitudes of a large number of people who fit the juror profile in the

jurisdiction. Another way is to draft a questionnaire for a jury panel. A third way is to use focus

groups to help determine what attitudes and values to look for. Once these attitudes and values

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are determined, that information can help the lawyers develop the slice of information that they

need to make the best judgment about who should sit on the jury. While juror questionnaires are

beyond our focus for this book, we will take a quick look at an inexpensive and effective

substitute, the focus group.

Focus Groups serve four important purposes for the litigation team. They provide help for

determining which legal theories, factual theories and persuasive theories (including witnesses,

and visual aids) should be used for the case. Focus groups provide information about juror

experiences which could shape a juror‘s decision both for and against a particular side in the case.

The groups also provide lawyers with practice in presenting their cases and get them ―acclimated‖

to the concerns and thinking of jurors in the jurisdiction where the case will be tried. They also

provide the client with more information to use to help them evaluate the strengths and

weaknesses of their case at trial.

Where to get Focus Group Members.

A Focus Group can be gathered in a number of ways. Should your trial budget be large

enough, you might get a business which specializes in assembling focus groups that fit the

jurisdiction‘s demographics. [Doar Communications, Inc, and Jury Verdict Research Service are

two such organizations.] For a fee a business will advertise in local newspapers for focus group

members and when inquiries are made, they will ask them some preliminary screening questions.

They will select focus group members to show up at designated places and times in the right

demographic mix. You can do focus groups easily in a day (with jurors showing up at 8:30 am,

answering a questionnaire and signing confidentiality agreements until 9:15 am, ―clopening‖ (a

presentation that combines elements of an opening and arguments more often found in closings)

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for the plaintiff until 10:15, 15 minute break, Aopening‖ for the defendant until 11:30 am,

questionnaire until 12:00, lunch break until 12:45 pm., deliberation until about 2:00 pm., debrief

until 3:00 pm., final questionnaire and reaction to witness videos and graphics, until 4:00 pm.)

Usually the fee for focus group work is $50 per person, plus lunch. You can shorten the day by

having the group deliberate while they eat lunch. If you are doing multiple focus groups, then

you likely will want a social scientist to help you design questions and help read the data.

If you want to save some on the cost, you might get a paralegal to research on the internet

for the demographics of the jurisdiction where the case will be tried. Then advertise in the local

newspapers and interview responders until you have identified about 15-20 people to come for a

day. You will usually get 12-15 to show, but it is most productive if you get 8-12 to participate.

You also will likely lose a couple because they know the parties or some key witness in the case.

You can have your paralegal screen for this ahead of time.

Confidentiality Problems.

When the focus group members first arrive, tell them that they will be serving as a focus

group to help two private parties in a legal case settle their dispute. Do not tell them which side

of the case you are on. Tell them that what they think and what they advise will be very helpful

for the fair resolution of this dispute. Tell them that the matter needs to be kept confidential.

They cannot talk about it with friends, spouses or significant others. Tell them they may hear

about it in the local newspaper or later in the news. They cannot discuss with others anything that

they learned during the focus group session. Ask them if anyone will have any questions and/or

difficulty in keeping the information confidential. Get them to sign a confidentiality agreement.

Before telling them about the facts, ask them if they know any of the parties, witnesses, and or

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local lawyers who may be involved in the case. Excuse any who do because they will likely

pollute the jurors with their other experiences with these people.

Opening Questionnaire.

The opening questionnaire for focus group members should deal with who they are, their

age, where they live, their occupations, families, and education. If you run multiple focus groups,

these might pick up a demographic factor that works for you or against you.

[Insert Sample Opening Questionnaire.]

Neutral Statement or Opening Statements.

You have two choices as to how to present your facts to the focus group. You might read

them a neutral statement of the case. These statements are tricky to prepare while maintaining

your neutrality. Remember, what you want are unbiased reactions and thinking from the focus

group. You do not want to get an outcome that will not reflect what a jury would likely think

about the facts. One good way to organize these neutral statements of the case is by thinking

about an objective memo format. State the facts chronologically and include both good and bad

facts in the order in which they occurred. If there is a dispute on key facts, tell the members of

the focus group what the plaintiff has to say and then what the defendant has to say about the

facts. Write the facts out ahead of time. This will allow you to carefully edit out adjectives and

adverbs that give away your bias. Then read it with interest and curiosity in your voice, but try

not to use voice inflection which will communicate your true feelings about the case. You may

even want a neutral reader.

Another method for presenting the facts is to give the focus group both (or multiple) sides

of the case. You might construct competing ―clopenings‖ or openings that contain arguments

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along the way to tell the focus group members what each side thinks the facts mean and the

conclusions they should reach. Again, this is tougher than it looks. You might get someone in

your firm who is not in the trial team to present the opposing side. You need someone who will

not risk client relations and who will vigorously make the toughest arguments for the opposition.

Especially if the client is present during the presentations, the client might think you do not

believe in the strength of his case. The client needs to be told what a focus group needs to do. If

the client is present, he needs to be in a remote location looking in on the presentations so that he

does not bias the focus group by his presence. Some lawyers get attorneys outside of the firm to

present the case. Some get law professors who specialize in trial advocacy to take the file and

construct the argument for the opposition. In any event, the focus group needs to get a vigorous

presentation of both sides of the case.

Questionnaire After Presentation.

After the presentations, ask the focus group a short questionnaire. Here is a place where

the members should be asked about specific issues that you might want to test. Are they inclined

toward any one side? What do they think about people who drink? What do they understand

about insurance? [Sample Questionnaire.]

Deliberations.

Next, send in a facilitator and turn on the videotape. You want the members to select a

foreperson and then have each person talk about the case. Ask them to say who should win and

why. Ask them to be open to be persuaded during the deliberations. Ask them to try to reach a

consensus.

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DeBrief.

Once everyone has spoken, the facilitator should become more active. The facilitator

wants each focus group member to describe what experiences he might have had that helps him to

―know‖ who is telling the truth, or what is the right thing to have happen in the case. Ask open

ended questions like, ―Why do you say that? Tell me more about that? Explain more about why

you think that, or better, why you feel that way.‖ You are looking for life experiences that people

are drawing on, any bias or prejudice they might have, any sympathies, and any stories or

analogies that help them figure out what they think is the right outcome.

Then ask if anyone is persuaded by what others have had to say? And if so why?

Questionnaire.

[Final Questionnaire]

I. Reaction to Witnesses, Exhibits and Visual Aids.

If you have videotaped depositions you can get a pretty good read on how credible a

particular witness might be. You show the focus group the tape and then ask the members

whether they find the witness is telling the truth, what they think about what the witness is saying,

why and how they feel about the witness. If you have key exhibits or graphics, you should ask

them how helpful they find them to be. Ask the group to rate the exhibits and graphics for clarity

and understandability. And most importantly, in this regard, ask the group members what proof

they would need to see (or who they would need to hear from) to convince them that some fact

was different than they found it to be.

Your discussions with the group can help you develop a slice of data that may be helpful in

making snap judgments in your jury selection. For example, you might find that jurors who have

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purchased a product by mail which was lost in shipment would find it very difficult to believe that

they or anyone should pay for it. Or an owner of a small business who has struggled to compete

against major manufacturers will find it very difficult to side with a major manufacturer against a

small start-up company.

Focus Groups, Life Experience and Jury Selection.

An important example of the way that life experience can color the way a case comes out

is found in the Dr. Kevorkian assisted suicide cases. Dr. Kevorkian was tried for murder a

number of times in Michigan for allegedly assisting people to end their own lives or to commit

suicide. His assistance came in the way of providing the drugs and, at times, administering those

drugs to terminally ill patients who were suffering and who asked him to help them die.

Dr. Kevorkian‘s legal team ran a focus group in preparation for his first trial. One older

woman in the focus group, when asked what life experiences she was drawing on to help her

decide the case, related the following experience, ―While I was listening you tell the facts, I kept

thinking about an old dog we used to have. It was suffering and we had to put it to sleep. It

seems to me if we allow for this with our animals who are suffering . . . that we should allow for it

with people. And here, as opposed to with animals, we know better what the person wants

because we can talk to them.‖

The defense team reportedly took this story with them into the jury selection process.

They asked jurors if they owned pets, and of those who did, whether they ever had to put their

pets to sleep. Now this is anecdotal evidence, at best, but in every case where Dr. Kevorkian was

tried and defended by lawyers who used this selection technique, Dr. Kevorkian was acquitted.

When he served as his own lawyer, he was convicted.

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 What does this tell us? Does it tell us that dog owners will side with criminal defendants?

Of course not! Does it tell us that non dog owners could never empathize with euthanasia? Of

course not! What it does say is that if you have had an experience in which you had to make a

difficult choice, similar to the one made by the defendant, you are likely to ―allow for‖ or ―value‖

the doctor‘s role in making a similar decision, even where it may be against the ―letter‖ of the

Michigan law because you do not want to think you may have made a bad decision.

To help you find out what experiences jurors might share that would be formative for your

case, you might try the following brainstorming device.

Imagine the Ideal Juror.

This means you need to know the ins and outs of your case to anticipate what those

experiences might be. One way you might clarify your case theme and theory is to imagine an

ideal juror in your case. What is the ideal juror‘s

age,

sex,

marital status,

home ownership,

neighborhood,

whether they have children,

are they educated B high school, college, graduate school,

what sort of job B white collar, blue collar,

what experience with the legal system

hobbies

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 reading habits

religion,

politics

In trying to answer the question, ―Who is my ideal juror for this case?‖, you will start to

think more carefully about your case. For example, you think not only about how a person might

relate to your client, but also to your key witness or to your expert. You will think more carefully

about what you need to teach the jury in order for the jurors to understand your factual theory or

your theme. You will have to ask an essential question, ―Is the plain meaning of the law with us

or against us?‖ If the plain meaning of the law is with you, but seems harsh and technical, are

there some jurors who will be able to understand why the law is the way it is more readily than

others? For example, people who run their own businesses may understand the role of liability

insurance in protecting a business better than those who work for a big company. They may also

understand more readily the need for a qualified privilege for otherwise defamatory statements,

regarding employment references. People who are journalists, or rely on the news for

information, may value free speech and more readily protect someone from a charge of

defamation.

This ―ideal juror‖ analysis also forces you to take a fresh look at the facts. Are the facts

strong in terms of their intuitive fairness? For example, do I want a jury who thinks a hand shake

is a hand shake, and a person‘s word is his bond, when the opposition is using a technical

provision in a contract to avoid paying what they would otherwise owe on the contract. In

thinking about the potential model juror, you start focusing on the most important and best facts

in your favor and then the bad and worst facts against you.

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 The ideal juror analysis also helps to determine the essential accountability issues at work

in your case. According to some recent polling, the most important value Americans say they

have is accountability, that a person takes responsibility for their own actions. This value,

however, has conflicting elements that can make it difficult to determine how a person‘s

accountability valuation will play out in a case. Does it mean those who hold this value will hold

the plaintiff in a personal injury case more responsible in light of the fact that the plaintiff likely

could have taken some steps himself to prevent the injury? Or does it mean they will be more

likely to hold a business that profits from selling goods liable, to hold the business accountable

for the injuries that their ―activity‖ or product causes? In either case, your analysis of the

prospective jurors on these issues will help you better focus on where they might have had

experiences that may affect their verdict. Being so forewarned will arm you both for what jury

life experiences to be leery of and how you might have to educate the jury to ward off the unfair

effects of such experiences.

Personality Types.

Some jury consultants will recommend that you divide the world along a different

fulcrum: Whether people are type A‘s, who believe that you can keep bad things from happening

to you if you control your environment or your self; or type B‘s who believe that what happens to

you is more a matter of fate. For B‘s, bad things happen to good people, and there is simply

nothing you can do about it. Yet it is still hard to determine, even given that there are two types

of people, what those personality ―typings‖ will say about their likelihood of reaching a verdict

for plaintiffs or defendants in a personal injury case. Does a Type A believe that because you can

control your environment, you are likely at fault if an injury happens to you, or does it mean that

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if an injury happens to another, you could likely have controlled it if you had been more careful?

Or if you are a type B, does it mean that there is nothing one could do to prevent injury, and

therefore B‘s don‘t blame the plaintiff, or that B‘s are also unwilling to blame the defendant as

easily as the plaintiff, given the choice. Maybe their most likely verdict is that what happened

was an accident and therefore decide that the Defendant wins by default. Some feel that typing

jurors by personality or spending time on jury questionnaires typing jurors by personality may not

add significantly to your ability to predict outcomes.

Focus on Teaching and Excluding Jurors with Experiences Against You.

In this author‘s view then, rather than trying to determine jury fundamental values or their

personality types, it is better to look for individual experiences that jurors might have had that

would make them unfavorably predisposed against your case. Note that we are looking for the

unfavorably disposed more than the exclusion of favorably disposed jurors. Dr. Kevorkian serves

as a prime counter example because: 1) of the limited time that you are likely to be given to do

voir dire; 2) the inability to determine whether one favorable experience will override another

unfavorable experience; 3) in finding the formative favorable experience, you are likely to make

your opponent excuse the juror; and 4) most clients are ―risk adverse‖ figuring that it is better to

protect against the downside, than hit the home run. (You might check this out with your client to

determine whether this is the case.)

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 Question marks are used in writing these “statement-questions” to remind the reader the attorney is questioning the
witness and needs to obtain an answer. However, the normal inflection for questions in social conversation, where the
voice rises in pitch at the end of the sentence, is not used for cross-examination questions; instead, the voice drops at
the end, just as it would on a declarative statement such as, “I went to the store.” As a mnemonic device to aid in
recalling the sound of such a question, think of the motif of Beethoven‟s Fifth Symphony, “dumdumdumdum” and
say, “You bought some milk. You stole the drugs. You are a crook. You killed the dog.” Then extend the length of the
sentence (trying to keep it under seven words), but maintain the delivery. “You never went home that day. You told him
you needed to work late. You said, „I love you,‟ and hung up the phone.” All of these statement-questions should end
with a slight drop in the pitch of the voice to emphasize there is really no question about the truth of the facts stated.
F
or example, the trier-of-fact is unlikely to know, without education from counsel, of the significance of the relative risk
numbers. In analyzing risks, statistical epidemiologists and their followers use relative risk figures to indicate the
importance of a particular variable as a cause of the effect being studied. In the Bendectin cases, for example, the
control group of non-Bendectin patients would show a relative risk of birth defect as 1.0 by definition since it is the
control group); assume the Bendectin patient group showed a relative risk of 1.7, that is, an increase of 0.7. The courts
have accepted the argument that causation has not been shown by a preponderance of the evidence because the
possibility that the defect was caused by non-Bendectin factors (1.0) is at least as great as the possibility that it was
caused by Bendectin (0.7). By this logic, the relative risk associated with the suspect variable must always exceed 2.0
for a plaintiff‟s case to be successful. Therefore, the expert‟s earlier statement, shown in the chart, that the relative risk
was less than 2.0 is fatal to the plaintiff‟s case.
S
ee, e.g. United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978), cert. denied, 439 U.S. 985 (1978).

Frank Rothschild, an innovative and exciting NITA teacher from Hawaii, is the first person we heard using this phrase
to teach about cross-examining an expert.

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