Trial Tactics

Getting the Best Results from Opening Statements: Dennis Ellis Paul Hastings LLP Los Angeles, CA Hon. J. Michelle Childs District Judge, District of South Carolina Greenville, SC Ricardo Woods Burr & Forman LLP Mobile, AL Hon. Thomas Durkin District Judge, Northern District of Illinois Chicago, IL

GETTING THE BEST RESULTS FROM OPENING STATEMENTS By David T. Lopez – December 13, 2011 –“Verdict” (Trial Practice Committee Journal) Summer 2011, 25:3 Sometimes, when browsing television channels, one might come across an athletic event—football, baseball, basketball, boxing—between two totally unfamiliar contenders. If one decides to keep watching the contest, human nature is to follow it in the more interesting fashion, which involves choosing one of the contenders. As the contest proceeds, to some extent one is pleased by the preferred contender doing well and, conversely, disappointed when the opponent is prevailing. While

this is only a generalization, it is inherent in every person to choose one side or the other. In a jury trial, an opening statement is perhaps the best opportunity for a lawyer to persuade a juror to choose his or her side. Opening statements are one of the most important, yet often the most underrated and neglected, parts of a trial. While voir dire might provide an opportunity to make some introductory points about the case, an opening statement is the first time the attention of the jurors is truly focused on one's case. This gives the lawyer a chance to present a well-structured and persuasive statement of the case. Opening statements, as the name clearly specifies, are not arguments, although sometimes they are erroneously referred to as such. They are intended to familiarize the jurors with the nature of the case and assist them in following the presentation of witnesses and other evidence. A good opening statement presents a clear picture of what a party contends, how the party intends to prove it, and how the party believes the conflict should be resolved. A discussion of the applicable law is not necessary and could be objectionable. A description of the technical aspects of trial procedure is a waste of valuable time. The opening statement provides an excellent opportunity to arouse the jurors' interest, begin to build rapport, and present the case in a favorable manner that might attract the sympathy and support of the jurors. At the same time, it presents an opportunity to candidly address less favorable facts and weaknesses of the case in a manner that will minimize their effect when raised by the opposition. Preparation is essential and must never be overlooked. A lawyer who knows his or her case in detail will project confidence on which the jurors can base their evaluations of the case. By the time a lawyer rises to address the jury in opening, the presentation should be firmly established and well practiced. The presentation should follow a clear and cogent theme, and it should flow easily without the need to rely on notes so that eye contact can be maintained with the jurors. Ideally, the statement should be entertaining and delivered in a manner that reflects true conviction and belief in the case. The beginning and the end of the statement are key and merit particular attention. The beginning should immediately draw the jurors' attention, and the closing should be memorable and focus on the plaintiff's circumstances and how the plaintiff is seeking to remedy his or her situation. Throughout the presentation, one must keep in mind that the statement is usually being addressed to lay individuals who have never stepped foot inside a courtroom. A lawyer should try to use language that is easily understood while avoiding technical terms and legal jargon. One of the most common errors, and one that must be avoided, is any exaggeration of the evidence to be presented. Overstating the facts, or making promises about the evidence that cannot be fulfilled, can destroy the jury's confidence in the case and could result in their rejecting not only the exaggerated evidence but also the other evidence that is critical to the case. By contrast, describing the evidence objectively can build credibility and confidence. When the jury is ready to deliberate, one can be certain that some, if not all, of the jurors will remember what was said in the opening statements. They will reach a conclusion as to whether a lawyer was truthful and believable or whether a lawyer overstated and mischaracterized the facts and should not be believed. Although it is critical in a jury trial to consider the jury's understanding of the opening statement, it is equally important not to forget the judge. To the fullest extent possible, a lawyer should be well aware of any preferences or proclivities of the judge with respect to opening statements, as it is almost certain that there are some even unspoken rules that might provoke an embarrassing intervention by the court. For example, consider whether the judge prefers for a lawyer to stand behind the lectern, if there is one, or whether a lawyer is free to stand beside or move away from the lectern, which is less formal and usually preferable in addressing the jury. There is much controversy about the common assertion that jurors make up their minds on the case after hearing opening statements and that during the course of trial they not only do not change their minds but also tend to credit evidence that supports their view and to reject contrary evidence.

Research has attempted to prove and disprove this theory over the years. Compare Becton and Stein, Opening Statement, 20 Trial Law. Q. 10 (1990), with Burke, Poulson and Brondino, Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195 (1992). Because no definitive research has been published in the past 20 years on this assertion, one might consider it with skepticism, although common sense would provide it at least some support. While it is prudent not to make assumptions as to the jury's early determination of a case, the plaintiff has a decided advantage in making the first opening statement. That order is generally due to the court's procedure, because the plaintiff ordinarily bears the burden of proof. This advantage should be used to address any anticipated immaterial issues or defenses and preclude, or at least neutralize, their use in the defense opening. From the outset, a clear and concise theme must be presented, and the opening statement must be cogently built around that theme. The basic theme might be developed by responding to a common question in the jury's mind, What is this case about? The theme might be a simple answer: This case is about . . . . That is not to say that this should be the first sentence of the statement, but in some form, it should be addressed early, concisely, and in direct and simple language. Developing the theme requires careful consideration of the issues to be addressed and the sequence in which they are presented. Particular care should be taken to avoid raising matters that do not necessarily fit into or support the theme even though they are part of the case. An effective way to develop the opening statement is in the form of a story, which should be told in the present tense. This type of storytelling can build interest and a sense of immediacy. However, this does not mean that the order of events described has to be chronological. If the most important and essential fact is in the middle of the story, then present that fact at the start of the story. Throughout the presentation, the jurors should be able to see the story from a party's perspective—in essence walking in the party's shoes and seeing events through the party's eyes. If the facts permit, the story can be presented with some emotion and sense of outrage, but always remember to let the facts speak for themselves. At appropriate times, one might mention the witnesses who will address the facts that are being described, but only if their relationship to the case can be succinctly described. An anticipated view of the facts from the opposing perspective can also be addressed. Charts and other visual aids can help the jury understand the case. In particular, where the timing of events is significant, time lines can be especially helpful. If the use of such aids is considered, preparations should be made well in advance to ensure that the materials do not refer to any inadmissible or otherwise objectionable evidence. A pretrial conference will allow the materials to be shown to opposing counsel and the court so that any objections can be addressed and resolved before the trial. In addition, careful consideration should be given to make sure the use of such materials is not excessive or proves to be distracting rather than illuminating. In the opening, a lawyer must be mindful that regardless of how much individual jurors would have preferred not to have been chosen, once they are seated, they consider their role significant and important. They want to discharge their duty well and ably. Nothing should ever suggest the lawyer is attempting to supplant the jury's role. The opening statement should inform the jury of the facts from the party's viewpoint but also recognize that the jury ultimately has the power to determine the truth of such facts. The lawyer should express confidence that the jurors will give the facts careful consideration and make a determination that is just and fair. While it is necessary to inform the jury of the relief sought, specific damages should rarely be discussed during an opening statement. A description of damages that are liquidated or subject to mathematical calculations might be permitted, but offering a description could be a waste of valuable time, especially when the judge might not allow such a question to go before the jury. If the court permits such mention in the opening statement, the lawyer must weigh the usefulness of establishing a request for substantial damages against a potential negative reaction by the jury or use of the demand by opposing counsel.

Other matters that are usually improper for opening statement are any references to the defendant's ability to pay damages, emotional appeals such as describing hardship faced by the plaintiff or the plaintiff's family, disparaging remarks about opposing counsel, and references to a lawyer's personal experience or similar cases. While the above examples could be cause for an objection, always remember that objecting to the opening statement of opposing counsel should be limited to clearly impermissible matters. Such objections can unduly interfere with the opposing counsel's presentation, and they can be unfavorably viewed by the jury, particularly if they are not sustained by the court. Some objections that might be appropriate and necessary are references to matters excluded by a motion in limine, evidence that is excludable under the rules, evidence that could be presented only by a witness not disclosed by the opposing party, and evidence that is clearly privileged. An objection to a reference to evidence that is immaterial or unduly prejudicial is difficult for the judge to resolve at the outset of the trial and is likely to be denied. If the effect is considered particularly and unfairly prejudicial, a bench conference might be requested at the conclusion of opening statements and a request made for a clarifying statement or instruction to the jury by the court. A lawyer should be prepared to respond calmly to any objection raised by opposing counsel during the lawyer's opening statement. To prevent the objection from interfering with the presentation's flow, one must be mindful to direct the jury back to the matters being discussed prior to the objection. Some provisions of the rules of professional conduct must be kept in mind while preparing and presenting opening statements. For example, the rules prohibit a lawyer from intentionally making a false statement of material fact, from referring to any matter that the lawyer knows is not material or is not supported by admissible evidence, and from asserting personal knowledge of the facts or a personal opinion of the credibility of witnesses. By respecting these rules and by keeping in mind the observations discussed in this article, a lawyer can make a highly effective opening statement. David T. Lopez is a solo practitioner in Houston, Texas.

Learning to Love Direct Examination By Sara E. Kropf – Trial Practice Committee Newsletter, Fall 2012, Vol. 27, No. 1 Cross-examination at trial gets all the glory. Maybe this is because television dramas focus on it. Maybe this is because of the hope that the lawyer will catch a hostile witness lying on the stand. Or maybe this is because trial lawyers' war stories seldom begin with "I was in the middle of this brutal direct examination when ... " Whatever the reason, direct examination is generally viewed as less interesting and therefore less worthy of lengthy preparation. The fact of the matter is direct examinations can be more difficult to prepare and effectively execute. Trials are nearly always won based on what happens during the direct examination of witnesses. Seldom does the other side's case collapse because of cross-examination, no matter how skillful. A case is won when one side's presentation is more persuasive than the other side's presentation. Direct examination is the party's chance to tell its story, to explain its defense—in short, to win over the jury. The lawyers cannot tell the story as persuasively as the witnesses themselves, and even if the lawyer is a gifted speaker, nothing the lawyer says is evidence anyway. The jury will relate to the witnesses in spite of their faults and nervousness and imperfect memory. Development of effective direct examination skills is therefore crucial to trial lawyers. Cross-examination may always be sexier and more fraught with tension, but if your goal is to win cases, then you must learn to love direct examination. This article returns to the basics. None of the advice is rocket science; most of it, in fact, is common sense. But honing strong direct examination skills will elevate direct examination above its staid and predictable reputation. It will lessen the burden of jury duty by making trials more interesting and engaging. And, most important, perfecting these skills will win cases. A few caveats about this article: First, although this article applies to both plaintiffs’ and defense counsel, there may be some nuances particular to each side to consider. Second, a large part of effective direct examination is witness preparation. This topic is beyond the scope of this article, although the article does refer to it at times. Third, this article focuses on direct examination of fact, rather than expert, witnesses. With all that said, below are the basic rules and practical advice to improve your next direct examination. All Eyes on the Witness The first element of effective direct examination is to understand that the witness—not the lawyer—is the star. During direct examination, all of the jury’s focus should be on the witness and not on the lawyer. To make sure the jury stays focused on the witness, the lawyer needs to be aware of his or her physical presence. There should be some physical distance between the lawyer and the witness so that when the witness is answering, the jury is not distracted by the lawyer. Some lawyers prefer to stand at the end of the jury box during direct examination while others stay behind the lectern. Witnesses tend to look at the lawyer when answering questions, forcing jurors to act as observers of, rather than participants in, the trial. Standing at the end of the jury box—thus forcing the witness to look at the jury—helps to remind witnesses to make eye contact with the jury and tell their story to the jurors directly. On the other hand, standing at the end of the jury box could cause jurors to suffer from “tennis head” as they look back and forth between the witness and the lawyer. Either way, jurors do not want to look at the back of the lawyer’s head or have the lawyer block their view of the witness. So some distance is a must. Understanding Why Each Witness Is on the Stand The trial lawyer should develop a clear picture of how every single witness fits into the facts to be proven and the theme of the case. It is incredibly helpful to create a trial outline that lists each element of the claims (from the plaintiff’s side) or each element of affirmative defenses or attacks on the plaintiff’s claims (from the defense side). The outline should specify which witness or witnesses will establish each element or key fact. Some witnesses may be put on the stand to testify to key facts; others may be put on the stand to help humanize an unsympathetic client, such as a multinational corporation. But each witness needs to fit clearly into the case or defense and help advance the

theme of the case. If the lawyer is not sure how the witness fits into the case theme, then—rest assured—the jury is confused as well. The Legal Requirements One part of the lawyer’s evaluation of which witness to put on the stand is the limitations imposed by the Federal Rules of Evidence. First, the witness must be competent to testify. Fed. R. Evid. 601. This is rarely a problem because the rule declares that “[e]very person is competent to be a witness unless these rules provide otherwise.” For civil cases involving state law claims, state law will govern whether a witness is competent to testify. The question of competency usually arises only in situations where the witness is very young or there are issues regarding the witness’s mental capacity. Second, the witness must testify based on personal knowledge. Fed. R. Evid. 602. In other words, the witness must have firsthand knowledge of the matter and not know about something through a source other than his or her own knowledge or experience. The testimony may properly include the witness’s inferences as long as they are based on firsthand knowledge. Rule 602 is generally straightforward. The pedestrian who witnessed an automobile collision can testify about what each car was doing at the time of impact. In a medical malpractice case, the operating room nurse who assisted the surgeon can testify as to what she saw happen during the surgery. But Rule 602 can raise complicated issues. For example, in a complex accounting fraud case against a corporation, can the chief executive officer (CEO) testify that she knows that the company’s financial statements are accurate? The CEO did not oversee the preparation of the financial statements—the chief financial officer (CFO) did—and the CEO likely did nothing personally to double-check the calculations or assumptions underlying them. However, the CEO may have ensured that the statements were audited by a reputable accounting firm and may know that the company’s internal audit department recently examined the process by which the financial statements were prepared and gave the process a clean bill of health. Most likely, the judge would allow the CEO to testify that she believed the statements to be accurate, once the lawyer has laid the proper foundation for that conclusion during direct examination. Asking Nonleading Questions The federal rules prohibit lawyers from using leading questions on direct examination. Fed. R. Evid. 611. As a practical matter, though, effective trial lawyers do not need a rule to tell them to let the witness do the talking. Leading questions naturally result in the lawyer doing most of the talking and the witness merely saying “yes” or “no.” Nonleading questions, however, let the witnesses take center stage and will strengthen the case. The practical way to ask nonleading questions is to start every question with who, what, where, when, why, or how. In the heat of trial, though, following this simple rule can be difficult, particularly when dealing with a recalcitrant or forgetful witness. One practical tip is simply to write on every page of your notes for a witness the words “who, what, where, when, why or how.” Then, if you get stuck or draw a leading objection, you can use this list to reformulate the question. After several trials, it will become second nature. There are a few situations where leading questions are extremely helpful and not likely to draw a sustainable objection. For example, it is appropriate to use leading questions to lay the foundation for an exhibit (“Is this record one that is kept in the regular course of business?” “Is this photograph a fair and accurate representation of the accident scene?”). It is also appropriate to use them for background issues. And it is helpful to use a leading question as a bridge to a new topic (“Turning to the evening of March 21, were you at the intersection of Main and Locust Streets?”). Finally, if the court has limited key testimony in an evidentiary ruling, using leading questions will allow you to get a precise answer to a question without violating the court’s ruling. The Power of Short, Pointed Questions Strong, effective direct examination questions are short and to the point. They do not use big words.

Less experienced trial lawyers often draft all of the questions they expect to ask at trial. There is nothing wrong with doing so. However, a question that is readable on the page to a trained lawyer familiar with the case differs greatly from a question that is understandable to a lay juror unfamiliar with the case. Keeping questions short and focused on one fact at a time allows the jury to follow the testimony better. In many cases, a chronological retelling of what happened is most effective. (A demonstrative timeline may also assist as well.) Short questions also keep the witness on track. Witnesses will be nervous about appearing in court and may be unfamiliar with the legal system. Asking complicated questions will only exacerbate this nervousness, and the jury may equate nervousness with lack of candor. Asking short questions, particularly at the beginning of the testimony, makes it much easier for the witness to follow along with the lawyer. As the witness gains confidence during testimony, the witness will garner credibility with the jury. If the witness looks confused about a question on the stand, it is entirely appropriate to take a moment to restate the question or to break it down into several questions. If the witness whom you prepared is confused, then the jury is too. Simple words are much more effective than complicated ones. A trial lawyer should take care not to use a longer word when a shorter one will do the trick. For example, “before” is preferable to “previously”; “see” is preferable to “observe”; “car” is preferable to “vehicle.” Trial lawyers sometimes fall into the habit of using phrases that complicate questions, such as “I direct your attention to Exhibit A” or “did a time come when you started working at Acme Corporation?” It is much more understandable to the jury (and witness) to say “take a look at Exhibit A” or “did you ever work for Acme Corporation?” Listening to the Witness This may be the most-violated rule of direct examination. Only by listening to the witness will the lawyer know whether the witness has testified to the facts needed to prove a claim or defense. It could be fatal to a lawyer’s case for evidence to close and only then realize that a witness did not testify to a key fact. Once the evidence closes, there are no second chances. Assuming the lead lawyer has at least one support person at the trial, someone else on the team should be charged with taking notes of each witness’s testimony for later reference before the evidence closes. Nonetheless, every trial lawyer should listen to every answer to every question and keep track of it as well. During direct examination, the lawyer should be looking at the witness and appear interested in what the witness is saying. The lawyer may nod where appropriate and use subtle facial expressions to suggest to the jury how important this testimony is. It is important to keep in mind that this is your witness. If you cannot be bothered to look interested in what he or she is saying, then you are sending the jurors a strong signal that they need not pay attention either. The physical component to listening to a witness has an important, though subtle, side effect. Jurors often watch lawyers during trial to gauge their reaction to an answer or to take a break from watching the witness. If a juror looks at the lawyer and the lawyer is looking at the witness, jurors will naturally follow the lawyer’s gaze and watch the witness as well. This is not as easy as it sounds. Often, the trial lawyer has heard the witness’s story so many times, he or she is no longer very curious about the answer. In addition, the lawyer may be thinking about the next question to ask or how he or she will respond to a possible objection by opposing counsel, or checking his or her notes while the witness answers. All of these naturally distract the lawyer from listening to the witness and should be avoided. If you need to look at your notes, wait until the witness has finished his or her answer, glance at your notes to find the next question, and then ask it. Do not be afraid to allow a few seconds of silence in the courtroom while you process what the witness has just said, verify in your head that the witness has articulated all the salient points you were looking for in the question, and then formulate—or locate in your outline—the next appropriate question. Strategic Follow-Up Questions A corollary to listening to the witness is asking follow-up questions. Asking follow-up questions can keep the lawyer focused on what the witness says and also keep the witness on track during the examination. It also makes the testimony more of a conversation than an interrogation—

think Oprah rather than 60 Minutes. Imagine being on a jury watching a lawyer read a question from notes and the witness giving a practiced answer—over and over and over again. This pattern will, at a minimum, suggest to the jury that the version of events being presented is entirely manipulated, or it may even put the jury to sleep. Spontaneous follow-up questions break this pattern. Follow-up questions can effectively draw the jury’s attention to a key fact in the case or defense. For example, consider a case in which a critical part of the defense is to establish that the CEO learned of the need to restate revenue during a board meeting rather than before it. If the witness describes what happened during the board meeting in narrative form, interrupting her will help emphasize certain facts for the jury, as in the example below: Q: Ms. Duran, what was talked about during the board meeting of June 23, 2011? A: We discussed the recent acquisition of a small competitor in Cincinnati. The CEO Jack Redstone asked a lot of questions about possible antitrust issues and how we resolved them, and then Sandra Cook, a director, asked about how the acquisition would streamline our Midwest operations. There was a long discussion about shipping efficiencies because of the acquisition. The next topic was the upcoming financial statements which were due the next week. The CFO, Mr. Beem, gave an overview of the financials, including revenue and expenses. He then pointed out that $50 million in revenue needed to be restated because of the recent change in the accounting rules. Jack wanted to know … Q: [gently interrupting] Ms. Duran, let me stop you for a second there. Who brought up the change in accounting rules? A: Mr. Beem. Q: And he’s the CFO? A: Yes. Q: What exactly did he say? A: He explained in some detail about what the change was and how it changed the amount of revenue we could report that quarter. Q: Did Jack Redstone say anything in response to Mr. Beem’s explanation? A: Yes. Q: What did he say? A: He said he was very surprised to hear about the need to restate revenue and asked Mr. Beem why he had not told him earlier about it. Q: How did Mr. Redstone appear when he said this? A: He appeared very surprised and very angry. His face was red and his voice was kind of loud when he asked Mr. Beem about the change. I’ve never seen him so angry before. Q: Thank you. Returning to the board meeting, was anything else discussed? These few, simple follow-up questions turn a dull narrative about a board meeting into effective testimony highlighting the memorable fact of when the CEO learned of the need to restate revenue. Had the lawyer allowed the witness to meander through her answer and describe the whole meeting from start to finish in one answer, it would have been very difficult for the jury to pick out the important fact. The follow-up questions fix that problem. Follow-up questions usually cannot be planned ahead of time. Asking such questions requires that the lawyer listen carefully to the witness and continually evaluate what would help the jury understand the testimony. Personally preparing your witness—and not relying on others in your firm to do so—will improve your follow-up questions because you will get a better sense of how the witness will behave on the stand. In addition to highlighting key facts, follow-up questions are helpful in a few specific circumstances. First, they are helpful when the witness refers to a name or place that is unfamiliar or that has not been identified recently. For example, if the witness mentioned that Ms. Smith was her supervisor at the factory early in her testimony, and then refers to Ms. Smith an hour later, it may be helpful to ask a quick follow-up question, even in a leading form, to help the jury remember who Ms. Smith is (“And Ms. Smith was your supervisor at the factory, right?”). Second, if the witness describes surprising or unusual actions, gently asking “Why did you do that?” will help the jury understand what happened. Third, if the witness uses technical terms or other terms of art, it is helpful to ask for a

definition of the word. Expert witnesses will be skilled at explaining technical terms, but many fact witnesses will not and will lapse naturally into workplace jargon and acronyms. It is the trial lawyer’s job to make sure the jury understands what is being said. The Structure of an Effective Direct Examination Effective direct examinations manage to be conversational, yet have a tight structure. Balancing those two characteristics is not easy. A tightly structured direct examination does not mean a boring one. Rather, it means that the lawyer has thought carefully about what questions to ask and in which order to ask them. The examination will not waste anyone’s time and will advance the party’s theme. The following suggestions about structure are far from absolute and do not take into account each lawyer’s style. Yet, for many witnesses, the following structure will be helpful for the jury: Background Most direct examinations should begin with a brief discussion of the witness’s background. Background questions calm a nervous witness and give the jury a way to identify with the witness. All of this increases the witness’s credibility with the jury. Such questions may include questions about where the person is from, what he or she does for a living, and his or her family, education, job history, and so forth. Bridge The direct examination should then transition, or bridge, to why the witness is there and how his or her testimony will help the jurors. The bridge may be as simple as “Ms. Jones, you witnessed the accident between Mr. Jackson and Ms. Jefferson, right?” or “Mr. Grant, were you involved in Acme Corp.’s hostile takeover of ABC Co.?” Telling the Story This is the longest part of the testimony and the most important for both the plaintiff and the defense. In many cases, a chronological structure makes the most sense. This structure also makes for an easy conversational style because many of the questions will be something along the lines of “what happened next?” During this section, the lawyer will elicit the key facts and introduce exhibits necessary to support the party’s claim or defense. When a chronological approach will not work and the testimony must cover many different topics, frame each new topic for the witness and jury (“Mr. Harding, I’m now going to ask you a few questions about your company’s marketing practices.”). Addressing Weaknesses in Direct Examination The trial lawyer will need to decide how to handle known weaknesses in testimony or troubling information about the witness’s background. One option is to cover those topics during direct examination and “take the sting out” of them before opposing counsel jumps on them in cross-examination. The second option is to prepare the witness to handle these topics on cross-examination and leave any clean-up questions for redirect. As a general rule, if you know the other side will raise the issue and it is directly relevant to the matters at hand, it is safer to bring up the issue during direct examination. The questions will be gentler and the answers discussed in advance, which may ease the witness’s mind about the testimony. If, however, trial counsel is not sure whether opposing counsel knows about the weakness, then there is no reason to raise it during direct examination. Raising it may only alert the other side to a weakness of which it was not previously aware. When making this decision, the lawyer should evaluate how well prepared the other side will be and how difficult it is to uncover the weakness or negative information. If the harmful testimony is elicited during cross-examination, then the lawyer should be prepared on redirect to minimize its effect. Either way, part of witness preparation should include some practice answering questions on direct or redirect, and cross-examination, about the topic. The witness should have clear, matter-of-fact answers to avoid sounding defensive about the topic. If asked on direct examination, the questions should be short and to the point: Elicit the problematic testimony, give as plausible an explanation as

possible, and then move on to another topic. The topic should be buried in the middle of the examination so as to limit the attention given to it. How to Handle Specific Problems During Direct Examination Even though direct examination is the time when the trial lawyer has the best idea of what will happen, trial would not be trial if there were not a few surprises or unexpected difficulties. Here are tips for how to deal with the most common ones: Adverse or Hostile Witness In limited circumstances, a trial lawyer may need to put an unfriendly witness on the stand. A plaintiff, for example, may put the defendant on the stand during the plaintiff’s case-in-chief because only the defendant can establish an element of the claim. A corporate defendant may need to call a terminated employee to testify to certain events that occurred while he or she was at the company. Trial counsel should try to use any witness other than one who is hostile or adverse. However, if it cannot be avoided, the federal rules allow direct examination by leading questions. Fed. R. Evid. 611. The first step is to establish that the witness is, in fact, hostile or adverse. Counsel should then ask the court to allow leading questions. Adversity is sometimes obvious, such as when the plaintiff calls the defendant as a witness. But when it is not obvious, the trial lawyer will need to ask some simple, non-leading questions to establish the hostility. In the example of the terminated employee, the line of questioning could be as follows: Q: Ms. Stanford, where did you work from 1995 to 2006? A: Acme Corporation. Q: When did you leave Acme Corporation? A: Around 2006. Q: Why did you leave? A: I was fired. Q: Why? A: My supervisor hated me so she got me fired for no reason. The risk with this line of questioning in open court, of course, is that it opens the door for the witness to tell the jury all sorts of terrible things about your client. For this reason, you may make such a request at the bench and explain why the witness is hostile. If opposing counsel agrees that the witness is hostile, the court will likely allow leading questions without the need to lay the foundation in front of the jury. If the witness dislikes your client for reasons that may severely prejudice your case, then you could ask to conduct the preliminary questions outside the jury’s presence. If the judge requires the questions in front of the jury, you should keep these questions short and ask the judge as soon as possible for permission to use leading questions. Once the trial lawyer has permission to treat the witness as hostile or adverse, this does not mean there is free rein to attack the witness. The jury will likely be somewhat confused as to why the lawyer is asking pointed questions of his or her own witness, so the safest approach is to ask only the most necessary questions and finish the examination quickly. Trial counsel should foresee the need to use this witness early in the case and use discovery, particularly depositions, to pin down the witness to helpful answers. Surprising Testimony In rare circumstances, the witness will surprise the lawyer with an answer on direct examination. It may be a good surprise—the answer is better than expected. In that case, accept the gift and move along. More often, though, it is a bad surprise—the witness does not remember a key fact or, for some reason, is not truthful in answering. If this happens, the trial lawyer’s first approach should be to try to fix the problem with a simple follow-up question, such as “Are you sure the other car was blue?” or “Did you mean Mr. Smith made that statement or Mr. Jones?” Every nervous witness will get a name or date wrong, and the jury will understand. However, if it is a critical fact that the witness cannot recall, the lawyer may need to resort to the other two options: refresh the witness’s recollection or impeach the witness.

Another, but least favored, option is to impeach your own witness. This should rarely be done for the obvious reason that the jury will be left wondering why you are doing so. However, if you are dealing with an adverse or hostile witness who will not cooperate with mere refreshing of his or her recollection and if it is a key fact, then impeachment may be your only option. The best approach to handling potentially surprising testimony is to refresh the witness’s recollection under Rule 612. Before showing anything to the witness, the trial lawyer must establish that the witness does not remember a fact, that the witness knew the fact at some point, and that there is something that would refresh the witness’s memory about it. This foundation can be established through leading questions. Once this foundation has been laid, the trial lawyer can show the witness a document (such as a deposition transcript) for review. After the witness has reviewed the document and the lawyer retrieves it, the witness can answer the question. It is always good to prepare a witness for what will happen if he or she forgets a key fact and walk the witness through this process at least once so that the questions are familiar. Witnesses You Could Not Prepare Before Trial In most circumstances, the trial lawyer will have met with and thoroughly prepared all witnesses for direct examination. Sometimes, though, such a meeting may not be feasible. For example, in a dispute between two business partners, the lawyer for the partnership may need to testify but does not want to favor either side by meeting with either partner’s lawyers. If this is the case, the trial lawyer should seriously evaluate whether to call the witness. It is a massive risk to call someone you have not met because that person could give testimony that is harmful to your case, even if he or she does not mean to do so. Nonetheless, if the witness is crucial, the lawyer should first establish the background and relationship to the case in the same way as any other witness. The trial lawyer may wish to establish that the witness is testifying because of a subpoena, not voluntarily, and that the trial lawyer has not met with the witness before trial. Relying heavily on previous testimony or exhibits to develop questions, the lawyer can limit the witness’s wiggle room for giving unexpected or harmful answers. As in questioning a hostile witnesses, a short examination is best. The trial lawyer cannot use leading questions but should, where possible, limit the nonleading questions limited to questions with straightforward answers (“What time was it when the accident happened?” “Where were you standing when you saw the accident?”), rather than open-ended questions (“Why didn’t you report your colleague to his supervisor?”). Redirect Redirect can be wonderfully effective to clear up the jury’s confusion over a key issue. It can also bog down trial, frustrate jurors and the judge, and reopen areas of questioning better left closed. There is not much time for careful reflection to decide whether to redirect a witness; the judge will turn to counsel after the cross-examination ends and ask for any redirect. The best preparation is to (1) know before trial what key facts must be obtained for each witness, and (2) keep careful notes during cross-examination of the areas on which clarifying questions need to be asked. Redirect is limited to the topics raised on cross-examination and, like direct examination, must be conducted using non-leading questions. After listening to opposing counsel ask leading question after leading question, it is tempting to do the same on redirect. Sharp opposing counsel, though, will object to these leading questions and can quickly throw off the flow of redirect. The effective trial lawyer will keep redirect short—very short. The best redirect will cover a few key topics, perhaps three or four. The easiest way to orient the witness and jury to a question is to begin by asking whether the witness recalls answering a specific question asked by opposing counsel. Consider the example of the witness to a board meeting. During cross-examination, opposing counsel suggested that the witness was absent from the meeting for a long time and therefore did not hear a lengthy discussion between the CEO and CFO about financial statements.

Q: Ms. Jackson, do you recall when Mr. Washington [opposing counsel] asked you some questions about when you left the board meeting on March 19th? A: Yes. Q: How many times did you leave the board meeting? A: Just once. Q: When did you leave the board meeting? A: I left it around 11 am or so. Q: Why did you leave? A: The chairman had asked me to find a specific operations report that was on my desk in my office. Q: How long were you gone? A: Maybe 3 or 4 minutes. Q: How do you know you were only gone for 3 or 4 minutes? A: Because I had emailed my secretary from the board meeting to find the report in my office for me. All I did was walk to my office, which is just down the hall from the board room, get the report from my secretary, and walk back. Beginning each topic with an opening question like the one above ensures that the trial lawyer avoids introducing a new topic on redirect. It also makes it much easier for the witness and the jury to follow the questions. Nothing will destroy an excellent direct examination faster than a badly conducted redirect. So if cross-examination did no damage or if asking more questions will not fix any damage that was done, then there is no need to conduct a redirect at all. How to Prepare for Direct Examination An effective trial lawyer spends considerable time preparing for direct examinations. Obviously, a large part of the lawyer’s preparation is meeting with and preparing witnesses to testify. Every trial lawyer will have a different method to prepare for direct examinations, but the list below includes the main parts of preparation. Reread the witness’s prior testimony. Prior testimony will offer a preview of opposing counsel’s topics for cross-examination. It is also critical for the witness himself or herself to re-read his or her testimony before trial to avoid impeachment. Review key documents related to the witness. This review will include documents to or from the witness, documents that were used during the witness’s deposition, and documents that you intend to use during the direct examination as exhibits. The witness will also need to review these documents carefully to understand how they will be used at trial by both parties. Draft a list of topics or questions. Very experienced trial lawyers may use only a list of topics for each witness. But there is nothing wrong with drafting the questions you want ask a witness, understanding that spontaneous follow-up questions are necessary to avoid sounding too rehearsed. Although it is impressive to watch a lawyer examine a witness without consulting notes, there is nothing impressive about examining a witness without notes and then forgetting to elicit a key fact. Having at hand a list of key topics or questions ensures that the lawyer does not forget something critical in the heat of trial. Prepare for objections. The trial lawyer can anticipate most of the objections to testimony or exhibits before trial. In civil cases, counsel will have exchanged exhibit lists and likely had a meet-and-confer about objections, and possibly a hearing to resolve them. As a result, the trial lawyer can anticipate objections from the other side on grounds of relevance, hearsay, lack of foundation or personal knowledge, and undue prejudice. The lawyer should then craft a response to each possible objection to be ready at a moment’s notice and may even jot down notes about it (such as what exception to the hearsay rule applies). Too much preparation on this front will never be harmful. Select exhibits. A key part of any direct examination is what exhibits must be introduced by a specific witness and what exhibits should be explained by a specific witness but need not be introduced through that witness. For example, a confidential memo to the file written by Ms. Madison in the human resources department could likely be authenticated only by Ms. Madison. Unless the other

side has agreed to the memo’s admissibility before trial, trial counsel must authenticate and introduce that exhibit when Ms. Madison is on the stand. However, an email sent by Ms. Madison to six other employees could be authenticated only by any one of those seven individuals. Yet, trial counsel may need Ms. Madison to describe why the email was written. The email should be included as an exhibit for Ms. Madison’s direct examination, even if she may not be the one to authenticate it. In addition, consider using witnesses to highlight positive documents for your side. Emphasizing helpful documents numerous times will remind the jury of them. Consider demonstratives. Although demonstratives and other physical evidence are routinely used for expert witnesses, they can be a persuasive way to present fact testimony as well. For example, a witness to a car accident can use a map of the intersection to describe what happened, perhaps even stepping down from the witness stand to point to where certain events took place. A defendant-doctor in a medical malpractice claim may use a model of the human body to describe the surgery. Demonstratives and physical evidence can dramatically increase the effectiveness of a direct examination, but they are also expensive to develop and take additional preparation time with the witness to use. For example, if the lawyer intends to have the witness step down from the stand to explain something, this needs to be practiced in advance to make sure the witness is very comfortable with it. These days, juries expect to be entertained, and computerized demonstratives are becoming ever more common. This article may not immediately convince a trial lawyer to start telling war stories about great direct examinations, but with any luck, it will have provided helpful practical advice to improve them. As any courtroom observer would attest, there is much room for improvement to avoid dull recitations of a lawyer’s questions and a witness’s answers. All trial lawyers share one goal: to win cases. Skillful direct examination—bringing the testimony to life and hammering home the case’s theme—is one crucial key to doing just that. Sara E. Kropf is a partner in the Washington, D.C., office of Baker Botts. She would like to thank Jamie Kilberg for his helpful comments and suggestions on this article.

How to Deal With Unexpected Testimony on Direct Examination By Hayes Hunt, Esq. – Trial Practice Committee, May 31, 2011 You call your last witness and things are going great. A verdict in your client's favor will be soon to follow. All you have to do is establish that there was moonlight. Counsel: Was there moonlight at the time you saw the accident? Opposing Counsel: Objection. Leading and lacks foundation. Court: Overruled. Witness: It was the sun. Counsel: Are you sure? Opposing Counsel: Objection. Asked and answered and leading. Court: Sustained. The witness had previously said there was moonlight. Invariably, your next question is "Didn't you testify that . . ." and, before you can finish the question, your adversary stands up and objects. The objection is sustained followed by deafening courtroom silence. Before you say another word, you need to decide whether the witness: (1) forgot that there was moonlight, or (2) believes it is the sun. Rule 612 If you decide your witness has made a mistake as a result of poor memory, you merely need to follow Rule 612 of the Federal Rules of Evidence and refresh the witness's recollection in the following order: 1. Establish that the witness's memory is exhausted on the specific issue or event. You: Do you remember whether or not there was moonlight? 2. Establish that the witness's memory may be refreshed by a specific document. You: Would your memory be helped by reading the signed statement you gave to the police an hour after the accident? You: Your Honor, if I may, I'd like to mark this as Exhibit X. Show opposing counsel Exhibit X. 3. Give the witness the document. You: I'm giving you your signed statement. Please read the third paragraph to yourself. 4. Allow the witness to review the document. You: Have you had a chance to read the signed statement you gave to the police immediately following the accident? 5. Ask the witness if her memory has been refreshed. You: Is your memory refreshed regarding the accident? 6. Take the document away from the witness. You: May I have Exhibit X, Witness. Thank you. 7. Pause and ask your original question again. You: Now, Witness. Was there moonlight at the time of the accident? Witness: YES! Absolutely. I'm sorry, I got nervous and forgot. Now that the witness has reviewed her statement, she apologizes to the jury for her mistake, smiles in embarrassment, and is completely forgiven by the jury. The moon is bright and your client's case is back on track. Don't wait for redirect/rehabilitation since a strong advocate would not ask a single question on cross. Impeachment Alternatively, if the witness insists that there was sunlight, you need to impeach. At the moment the

witness gives you an unexpected and inconsistent answer, she is hostile to you. Your instinct is to pounce and ask leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question. You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel. Meanwhile, the jury is chewing on the witness's last answer while watching you squirm. It is a common mistake to believe that impeachment is solely reserved for cross examination. You may impeach on direct. Federal Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling the witness." The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611(c). If you want to ask leading questions, you need to establish through non-leading questions that the witness is actually hostile towards you or your client. A typical example is a former employee of your client that has an axe to grind. If you cannot get the witness to openly express antagonism, just impeach with non-leading questions. The following are examples of questions you should ask the witness: Mrs. Witness, did you provide a statement to the police an hour after the accident? Did you want to provide the police officer with accurate details of the accident? Did you provide the police officer with honest answers? Did you review your statement with the police officer? Did you read your statement to make sure you provided an accurate account of the accident? Did you sign the statement after you reviewed it? Your honor, may I approach the witness? Witness, showing you what has been previously marked as Exhibit X. Is that your signature? What is the date next to your signature? Directing your attention to paragraph 3 of Exhibit X. Did you tell the police officer there was moonlight at the time of the accident? You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a). The moon is still full and your case is still bright. Hayes Hunt is a member in Cozen O'Connor's Philadelphia office. Hayes also serves as an adjunct professor at Temple University James E. Beasley School of Law, where he teaches Integrated Trial Advocacy.

Litigation 101: Checklists for New Litigators: Cross Examination By Robert Don Gifford To quote the celebrated nineteenth century trial lawyer and author, J.W. Donovan: "Think first what an icy pavement you tread upon; think how a willing witness may say too much that had been unproved without him; think how the rivet may be clinched and the strength redoubled by facts too often repeated and committed to memory; think how you may develop new theories for your adversary, and act with quiet discretion." Cross-examination is often considered the benchmark of what makes a trial advocate average and one that is extraordinary. Cases can be won and lost on cross-examination, and many attorneys who have mastered the "art" can try their entire case during cross-examination of their opponent's witnesses. While considered the gospel in this area, Professor Irving Younger's "Ten Commandments of Cross-Examination" is a must-read, the following are amendments, codicils, and things that cannot be said enough.

Is it necessary? There will be some witnesses that simply do not require any cross-examination. Consider the antithesis of the Hippocratic oath: If you can do no good, at least do no harm. If a witness does no harm to your case - just stay in your seat.

Use Leading Questions. Rule 611(c) of the Federal Rules of Evidence, and many correlating state evidence rules, provides that "[o]rdinarily leading questions should be permitted on cross-examination." Leading questions are those questions that declare an answer up front and require a "yes" or "no" answer. They give you control and the opportunity to lay out the facts in the words that you choose.

Lay the theme and theory early and often. Your "theory" of the case is why you should win, while the "theme" is the sound bite that you hope will resonate throughout your case and be often quoted during deliberations by a jury. All your questions should be based on supporting your theme and theory.

Listen. This is harder than it sounds. You have prepared to deliver a series of questions that will lead the witness to confirm the facts that fit your theory to a judge or jury; however, you may receive an answer that you had not anticipated. Be prepared to have a contingency plan to take your questions down an alternate path, yet to the same goal in mind.

Introduce new facts into a case. The most effective cross-examination will bring out only one new fact per question, and the best questions are those that are brief. Precision through simplicity leaves no escape route for an otherwise evasive witness. By building your cross-examination one fact at a time, a finder-of-fact (judge or jury) will be more persuaded by those logical facts they learn from a witness than by conclusions as stated by the attorney.

Use a logical progression to lead to a specific result. Structuring your cross-examination will help a judge or jury find the facts that make your "goal" logically true. This common sense progression reduces the witness' ability to evade and actually penalizes the witness in a loss of credibility in attempting to avoid the obvious answer. This structure empowers the finder of fact to discover their own conclusions - albeit a conclusion you led them toward from the beginning.

Weaken or highlight a fact. Remind your opponent's eyewitness that the event happened in a short amount of time, the event was exciting, the distance was great, the lighting was poor, or the like.

Weaken or strengthen the credibility of a witness. Know the rules of impeach-ment and use them. Does the witness have a prior felony conviction? Any conviction relating to honesty? Can you emphasize that the character witness is only aware of the facts as he learned from your opponent, that he was not there at the time, or that he may have a natural bias due to friendship or relationship.

Be the Master of Your Case. Knowing every document, fact, and witness in the case is imperative. If you have the luxury of a prior deposition - you should already know every response of the witness and prepared to impeach him

with it if necessary. Be wary of asking a question of which you do not know the answer - cross-examination is not the time or place to go on a "fishing expedition." There are few, if any, "Perry Mason" moments in which a witness completely collapses under a grueling cross-examination and admits to being the true villain.

Be an Expert on the Expert. Cross check your opponent's expert witness' CV or resume. Find transcripts of prior testimony, read the expert's publications, and voraciously read as much on the topic as well to "talk the talk" with the expert. Consult your own experts in preparing your own cross-examination.

Do Not Quarrel with the Witness. Remain the "voice of reason" to the judge or jury. Remain the professional that you are and not lose credibility by lowering yourself by arguing or overly employing sarcasm. You will have the last word on this witness during your closing argument. If the answer from the witness is irrational, contradictory, or obviously false - stop or move on to another topic. You have scored your point. Resist giving the witness the opportunity to explain away the absurdity of the answer and rehabilitates the witness.

Know when to stop. Probably the hardest to master is the "art" of cross-examination. When you have achieved your desired goal in eliciting the evidence you need or impeaching the witness, either complete your examination or move on to another topic/goal. Do not ask that one question too many that allows the witness to explain why his answer should be validated.

Never End a Cross-Examination with a Risky Question. Remember the goals of primacy and recency in starting strong and ending stronger. You do not want to take the wind out of your sails by allowing the witness to talk himself out of the corner you placed him. Let your opponent worry about rehabilitating the witness - if possible.

Cross-examination has been called an "art" and a "science," but regardless of your views - all would agree that it takes preparation, thought, and practice to become skilled in it. As Justice Powell stated in Chambers v. Mississippi, 410 U.S. 284, 295 (1973): "The right of cross-examination is more than a desirable right of trial procedure. It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.'" Mr. Gifford is an Assistant U.S. Attorney in Reno, Nevada. He is a member of ABA's White Collar Crime Committee, the Rules of Criminal Procedure & Evidence Committee, the Military Lawyers Conference of the Government and Public Sector Lawyers Division, and the Young Lawyers Division's Criminal & Juvenile Justice, Ethics & Professionalism, & Litigation

Persuasion Starts with Strategy By Chris Dominic and Bruce Boyd – Trial Practice Committee The trial lasted three weeks. Every member of the team executed his or her part well. The jury was out for two-and-a-half days. The attorneys knew that the case could go either way but they didn’t anticipate the significant adverse verdict the panel ultimately handed down. Water-cooler conversation concluded that the evidence came in as expected, the witnesses testified well, and the closing argument was strong. Talk of a stealth juror or imponderable biases among the attorneys came and went. In the following weeks, interviews with the actual jurors made clear what the problem was: The trial team had done a good job of executing the wrong strategy. One of the benefits of being an experienced trial attorney is that many of the skills and tactics employed throughout litigation become second nature. However, it is precisely this level of comfort that can, at times, direct your attention to the long and complex list of items that must be addressed in any litigation process without first establishing a unified strategic vision for the case. Oddly, it is experience—not inexperience—that appears to drive this behavior. It is the sense that one can handle each issue as it comes that leads to an early focus on details and tactics. And it is precisely this focus that can ultimately contribute to an adverse outcome in a trial. There are many questions to ask in the beginning phases of litigation preparation, but the following three will help you develop a strategy that works. What outcome are you trying to obtain? The answer to this question may seem obvious at first, but consider a plaintiff in a patent case where damages were higher than expected but no injunction was awarded when the injunction was the goal. Another example is when the jury comes to a compromise verdict in a product liability case you are defending. They find that the product is “unreasonably dangerous” but they report low damages when the goal going into trial was to get a defense verdict to halt future cases against the product. If we do a close examination of the preparation in the patent case cited above, we may find a well-executed infringement case to the jury but not enough energy put into the case according to the judge, who ultimately had to make the decision about the injunction. In the example of the employment case, the defense attorneys spent so much time arguing damages that an unintended message was sent to the jury that there must be some merit to the claim. By having the end goal firmly in mind in this scenario, the decision to increase the risk of a higher damage award and a defense verdict by deemphasizing damages is an easier decision to make for the attorney and client. Who is your audience? The answer to this question is essential to your strategy (i.e., the evidence you choose to emphasize and deemphasize as well as how you try the case), which should change depending on the attitudes and life experiences of your fact finder(s). These attitudes and life experiences filter the way the jury sees the case. This article presumes a jury is the audience, although addressing this question for an arbitrator, a mediator, or a judge is also a good idea. One mistake that many attorneys make is assuming that “testing” the case on their family, friends, partners, and paralegals will produce a reasonably accurate reflection of a how the jury will view the case. A person’s peer group is rarely as diverse in attitudes and opinions as a venire. Even experience in legal business makes a person different from the typical juror. For example, imagine you are defending a product liability case on the theory that the product was misused. You try the case out on friends who see your side quite easily. You feel good about your case. If you asked them to raise their hand if they believed the idea that sometimes accidents just happen, you would probably see many raised hands. You should only find true comfort in this approach when your social group is as diverse in opinions as the venire that will be in the courthouse on the day of your trial. If the venire that day showed many raised hands to the question “if someone is killed by a product, it is probably unreasonably dangerous,” you should obviously evaluate your case differently. Where do you want the audience to focus? Once you have a desired result in mind and have considered your likely audience, you should

consider what you want your jury to talk about in deliberations first. The direction of deliberations is usually a product of who and what the jury focuses on in the first few minutes of the deliberation. This is the result of an effective case story that fits into their worldview and rings true with how they believe the events in the case unfolded. This makes choosing the appropriate central character and the beginning and end points of a story a crucial part of the process of developing a strategy. The central character is the person, place, or thing that you build your story and strategy around. Let’s just say you are representing the plaintiff in the product liability case cited above. Your key character is most likely going to be the unreasonably dangerous product, the plaintiff (and the injuries to the plaintiff), or the defendant (and the conduct of the defendant). Since people tend to compare behavior to what they think should have happened in hindsight, the conduct of the defendant is often the best choice when there is significant evidence to support your arguments. Consider the jury starting their deliberations by talking about the conduct of the defendant in deliberations as opposed to beginning their discussion with the plaintiff. The risk of talking about the plaintiff is that the jury begins to apply hindsight to some of the arguably questionable choices that the plaintiff made, which contributed to their injuries. After assessing the central character of your narrative, determine what time period you will cover. All stories need a beginning and an end. Should you talk about the origins of the defendant corporation, the development of the product in question, or the plaintiff’s career that was ended so quickly? One way to answer this question is to draft a timeline and see how it looks. Is the story more persuasive when told using a short timeframe or a long one? You may realize your strategy is covering too much ground or not enough, and you should adjust it accordingly. By asking these questions early in the preparation phase of litigation, you ensure that an effective plan is in place, and you decrease the chance of doing a good job of executing the wrong strategy. Chris Dominic and Bruce Boyd are senior consultants with Tsongas Litigation Consulting, Inc.

More Effective Closing Arguments: Making Your Point Without Screaming By Bill Wagner – Trial Practice Committee, August 16, 2010 There are much more effective ways to communicate your most important point in closing argument than by screaming at jurors. The basic rules of delivering a closing argument are fairly straightforward: tell a story; avoid witness-by-witness rehashing of the testimony; argue the facts and inferences drawn from those facts; argue credibility, i.e., who to believe or disbelieve and why; use the jury instructions to explain why your client wins and the other side loses; use exhibits; address damages; and tell the jury what to write on the verdict form. You can find a lot of advice on closing arguments. This article addresses a particular issue in closing: that is, lawyers screaming at jurors to make their most important point. You see this on TV all the time: shows depicting real lawyers trying real cases to real juries in which the lawyers, both men and women, scream at the jury during their closing arguments in an attempt to prove their main point. If they are not literally screaming, they are talking loudly. These same lawyers often couple their increased volume with an angry tone and threatening gestures, such as pounding the table to make their point. Maybe I’m unique, but I tend to tune people out who try to convince me of the strength of their argument by screaming at me. If someone has to scream to make their point, maybe their point isn’t worth listening to in the first place. Some jurors probably feel the same way. But, what’s the fix? The answer depends on whether the reason for the screaming is that the lawyer cannot control his or her excitement or that he or she simply does not know what else to do. Here are some thoughts on both of these circumstances. If you simply tend to get loud when you get excited, your problem may be an adrenaline rush. Limit your caffeine intake the day of the closing. Go outside and walk around the courthouse or climb up and down the stairs just before your argument. This will burn some of your nervous energy. If you feel the excitement coming on during the closing, pause and take a breath before you go on. Isometric exercises, like imagining that you are trying to push your toe through the floor, can also be helpful in refocusing your emotions. These are simple tricks that will burn excess energy and allow you concentrate on delivering your closing argument calmly. If adrenaline is not your problem but you need some new techniques, try the following:

Speak softly. This is the opposite of screaming. If you really want people to listen to you, try lowering the volume of your voice. Speak softly and make jurors lean in to hear your most important point. If you lean toward the jurors to speak softly, the jurors will often reciprocate and lean in toward you to listen. This is an especially effective technique when you have a hyperkinetic lawyer as your opponent screaming at the jurors or when you are out-numbered by many more lawyers sitting at the opposing party’s table. Calm, cool heads with persuasive arguments often prevail. Just don’t say your words so quietly that jurors have trouble hearing you.

Use gestures. Use gestures to communicate your point non-verbally. Think of gestures other than simply pounding a table to make your point. Instead of screaming that the other side has no case, say it softly while shaking your head, crossing your hands and arms to indicate “no,” or using your facial expressions to convey disbelief. Remember though, if your non-verbal communication doesn’t match your verbal message, the jurors will latch onto the non-verbal message and ignore what you’re saying.

Use pauses effectively. Use a full five-second pause as your exclamation point. After you’ve said your point softly, count to yourself one-thousand-one, one-thousand-two, and so on, all the way to one-thousand-five. Use a full five seconds of stone silence when everyone is waiting for your next words to allow your main point to sink in.

Make eye contact. Nothing displays truthfulness more than an honest look into someone’s eyes. After you’ve make your point, while you are taking your full five-second pause, make eye contact with a few of the jurors. Avoid scanning the entire jury box like an oscillating fan or staring at a point somewhere behind the jurors. Instead, make eye contact with those you believe are your best jurors for a few seconds.

Repeat your point. Repetition is the key to learning. Say your same main point while speaking softly, but say it two or three times followed by a pause to let the point sink in with the jurors. You can expand on this technique by pausing in between your statements and looking at a particular

Slow down. Many lawyers speak way too fast. Don’t make the court reporter yell at you to slow down as he or she scrambles to keep pace. Catch yourself, catch your breath, slow down, and let the jury catch up. If you’re a screamer or you know someone who screams at jurors, think about the lessons here. Speak softly, use gestures that compliment and communicate your main point, pause after your main point, make eye contact with the jurors, and repeat your main point two or three times to make it memorable. If you follow these techniques, jurors will focus on your argument rather than your delivery and success will follow. Bill Wagner is a partner at Taft Stettinius & Hollister LLP in Indianapolis.

Trial Tactics

Trial Tactics

Presented by the Young Advocates Committee Honorable Michelle Childs District Judge, District of South Carolina Greenville, SC Honorable Thomas M. Durkin District Judge, Northern District of Illinois Chicago, IL Dennis Ellis Paul Hastings LLP Los Angeles, CA Ricardo Woods Burr & Forman LLP Mobile, AL Moderator: Mor Wetzler, Paul Hastings LLP, New York, NY

Getting the Best Results from Opening Statements By David T. Lopez – December 13, 2011 –“Verdict” (Trial Practice Committee Journal) Summer 2011, 25:3 Sometimes, when browsing television channels, one might come across an athletic event—football, baseball, basketball, boxing—between two totally unfamiliar contenders. If one decides to keep watching the contest, human nature is to follow it in the more interesting fashion, which involves choosing one of the contenders. As the contest proceeds, to some extent one is pleased by the preferred contender doing well and, conversely, disappointed when the opponent is prevailing. While this is only a generalization, it is inherent in every person to choose one side or the other. In a jury trial, an opening statement is perhaps the best opportunity for a lawyer to persuade a juror to choose his or her side. Opening statements are one of the most important, yet often the most underrated and neglected, parts of a trial. While voir dire might provide an opportunity to make some introductory points about the case, an opening statement is the first time the attention of the jurors is truly focused on one's case. This gives the lawyer a chance to present a well-structured and persuasive statement of the case. Opening statements, as the name clearly specifies, are not arguments, although sometimes they are erroneously referred to as such. They are intended to familiarize the jurors with the nature of the case and assist them in following the presentation of witnesses and other evidence. A good opening statement presents a clear picture of what a party contends, how the party intends to prove it, and how the party believes the conflict should be resolved. A discussion of the applicable law is not necessary and could be objectionable. A description of the technical aspects of trial procedure is a waste of valuable time. The opening statement provides an excellent opportunity to arouse the jurors' interest, begin to build rapport, and present the case in a favorable manner that might attract the sympathy and support of the jurors. At the same time, it presents an opportunity to candidly address less favorable facts and weaknesses of the case in a manner that will minimize their effect when raised by the opposition. Preparation is essential and must never be overlooked. A lawyer who knows his or her case in detail will project confidence on which the jurors can base their evaluations of the case. By the time a lawyer rises to address the jury in opening, the presentation should be firmly established and well practiced. The presentation should follow a clear and cogent theme, and it should flow easily without the need to rely on notes so that eye contact can be maintained with the jurors. Ideally, the statement should be entertaining and delivered in a manner that reflects true conviction and belief in the case. The beginning and the end of the statement are key and merit particular attention. The beginning should immediately draw the jurors' attention, and the closing should be memorable and focus on the plaintiff's circumstances and how the plaintiff is seeking to remedy his or her situation. Throughout the presentation, one must keep in mind that the statement is usually being addressed to lay individuals who have never stepped foot inside a courtroom. A lawyer should try to use language that is easily understood while avoiding technical terms and legal jargon. One of the most common errors, and one that must be avoided, is any exaggeration of the evidence to be presented. Overstating the facts, or making promises about the evidence that cannot be fulfilled, can destroy the jury's confidence in the case and could result in their rejecting not only the exaggerated evidence but also the other evidence that is critical to the case. By contrast, describing the evidence objectively can build credibility and confidence. When the jury is ready to deliberate, one can be certain that some, if not all, of the jurors will remember what was said in the opening statements. They will reach a conclusion as to whether a lawyer was truthful and believable or whether a lawyer overstated and mischaracterized the facts and should not be believed. Although it is critical in a jury trial to consider the jury's understanding of the opening statement, it is equally important not to forget the judge. To the fullest extent possible, a lawyer should be well aware of any preferences or proclivities of the judge with respect to opening statements, as it is almost certain that there are some even unspoken rules that might provoke an embarrassing intervention by the court. For example, consider

whether the judge prefers for a lawyer to stand behind the lectern, if there is one, or whether a lawyer is free to stand beside or move away from the lectern, which is less formal and usually preferable in addressing the jury. There is much controversy about the common assertion that jurors make up their minds on the case after hearing opening statements and that during the course of trial they not only do not change their minds but also tend to credit evidence that supports their view and to reject contrary evidence. Research has attempted to prove and disprove this theory over the years. Compare Becton and Stein, Opening Statement, 20 Trial Law. Q. 10 (1990), with Burke, Poulson and Brondino, Fact or Fiction: The Effect of the Opening Statement, 18 J. Contemp. L. 195 (1992). Because no definitive research has been published in the past 20 years on this assertion, one might consider it with skepticism, although common sense would provide it at least some support. While it is prudent not to make assumptions as to the jury's early determination of a case, the plaintiff has a decided advantage in making the first opening statement. That order is generally due to the court's procedure, because the plaintiff ordinarily bears the burden of proof. This advantage should be used to address any anticipated immaterial issues or defenses and preclude, or at least neutralize, their use in the defense opening. From the outset, a clear and concise theme must be presented, and the opening statement must be cogently built around that theme. The basic theme might be developed by responding to a common question in the jury's mind, What is this case about? The theme might be a simple answer: This case is about . . . . That is not to say that this should be the first sentence of the statement, but in some form, it should be addressed early, concisely, and in direct and simple language. Developing the theme requires careful consideration of the issues to be addressed and the sequence in which they are presented. Particular care should be taken to avoid raising matters that do not necessarily fit into or support the theme even though they are part of the case. An effective way to develop the opening statement is in the form of a story, which should be told in the present tense. This type of storytelling can build interest and a sense of immediacy. However, this does not mean that the order of events described has to be chronological. If the most important and essential fact is in the middle of the story, then present that fact at the start of the story. Throughout the presentation, the jurors should be able to see the story from a party's perspective—in essence walking in the party's shoes and seeing events through the party's eyes. If the facts permit, the story can be presented with some emotion and sense of outrage, but always remember to let the facts speak for themselves. At appropriate times, one might mention the witnesses who will address the facts that are being described, but only if their relationship to the case can be succinctly described. An anticipated view of the facts from the opposing perspective can also be addressed. Charts and other visual aids can help the jury understand the case. In particular, where the timing of events is significant, time lines can be especially helpful. If the use of such aids is considered, preparations should be made well in advance to ensure that the materials do not refer to any inadmissible or otherwise objectionable evidence. A pretrial conference will allow the materials to be shown to opposing counsel and the court so that any objections can be addressed and resolved before the trial. In addition, careful consideration should be given to make sure the use of such materials is not excessive or proves to be distracting rather than illuminating. In the opening, a lawyer must be mindful that regardless of how much individual jurors would have preferred not to have been chosen, once they are seated, they consider their role significant and important. They want to discharge their duty well and ably. Nothing should ever suggest the lawyer is attempting to supplant the jury's role. The opening statement should inform the jury of the facts from the party's viewpoint but also recognize that the jury ultimately has the power to determine the truth of such facts. The lawyer should express confidence that the jurors will give the facts careful consideration and make a determination that is just and fair. While it is necessary to inform the jury of the relief sought, specific damages should rarely be discussed during an opening statement. A description of damages that are liquidated or subject to mathematical calculations might be permitted, but offering a description could be a waste of valuable time, especially when the judge might

not allow such a question to go before the jury. If the court permits such mention in the opening statement, the lawyer must weigh the usefulness of establishing a request for substantial damages against a potential negative reaction by the jury or use of the demand by opposing counsel. Other matters that are usually improper for opening statement are any references to the defendant's ability to pay damages, emotional appeals such as describing hardship faced by the plaintiff or the plaintiff's family, disparaging remarks about opposing counsel, and references to a lawyer's personal experience or similar cases. While the above examples could be cause for an objection, always remember that objecting to the opening statement of opposing counsel should be limited to clearly impermissible matters. Such objections can unduly interfere with the opposing counsel's presentation, and they can be unfavorably viewed by the jury, particularly if they are not sustained by the court. Some objections that might be appropriate and necessary are references to matters excluded by a motion in limine, evidence that is excludable under the rules, evidence that could be presented only by a witness not disclosed by the opposing party, and evidence that is clearly privileged. An objection to a reference to evidence that is immaterial or unduly prejudicial is difficult for the judge to resolve at the outset of the trial and is likely to be denied. If the effect is considered particularly and unfairly prejudicial, a bench conference might be requested at the conclusion of opening statements and a request made for a clarifying statement or instruction to the jury by the court. A lawyer should be prepared to respond calmly to any objection raised by opposing counsel during the lawyer's opening statement. To prevent the objection from interfering with the presentation's flow, one must be mindful to direct the jury back to the matters being discussed prior to the objection. Some provisions of the rules of professional conduct must be kept in mind while preparing and presenting opening statements. For example, the rules prohibit a lawyer from intentionally making a false statement of material fact, from referring to any matter that the lawyer knows is not material or is not supported by admissible evidence, and from asserting personal knowledge of the facts or a personal opinion of the credibility of witnesses. By respecting these rules and by keeping in mind the observations discussed in this article, a lawyer can make a highly effective opening statement. David T. Lopez is a solo practitioner in Houston, Texas.

Learning to Love Direct Examination By Sara E. Kropf – Trial Practice Committee Newsletter, Fall 2012, Vol. 27, No. 1 Cross-examination at trial gets all the glory. Maybe this is because television dramas focus on it. Maybe this is because of the hope that the lawyer will catch a hostile witness lying on the stand. Or maybe this is because trial lawyers' war stories seldom begin with "I was in the middle of this brutal direct examination when ... " Whatever the reason, direct examination is generally viewed as less interesting and therefore less worthy of lengthy preparation. The fact of the matter is direct examinations can be more difficult to prepare and effectively execute. Trials are nearly always won based on what happens during the direct examination of witnesses. Seldom does the other side's case collapse because of cross-examination, no matter how skillful. A case is won when one side's presentation is more persuasive than the other side's presentation. Direct examination is the party's chance to tell its story, to explain its defense—in short, to win over the jury. The lawyers cannot tell the story as persuasively as the witnesses themselves, and even if the lawyer is a gifted speaker, nothing the lawyer says is evidence anyway. The jury will relate to the witnesses in spite of their faults and nervousness and imperfect memory. Development of effective direct examination skills is therefore crucial to trial lawyers. Cross-examination may always be sexier and more fraught with tension, but if your goal is to win cases, then you must learn to love direct examination. This article returns to the basics. None of the advice is rocket science; most of it, in fact, is common sense. But honing strong direct examination skills will elevate direct examination above its staid and predictable reputation. It will lessen the burden of jury duty by making trials more interesting and engaging. And, most important, perfecting these skills will win cases. A few caveats about this article: First, although this article applies to both plaintiffs’ and defense counsel, there may be some nuances particular to each side to consider. Second, a large part of effective direct examination is witness preparation. This topic is beyond the scope of this article, although the article does refer to it at times. Third, this article focuses on direct examination of fact, rather than expert, witnesses. With all that said, below are the basic rules and practical advice to improve your next direct examination. All Eyes on the Witness The first element of effective direct examination is to understand that the witness—not the lawyer—is the star. During direct examination, all of the jury’s focus should be on the witness and not on the lawyer. To make sure the jury stays focused on the witness, the lawyer needs to be aware of his or her physical presence. There should be some physical distance between the lawyer and the witness so that when the witness is answering, the jury is not distracted by the lawyer. Some lawyers prefer to stand at the end of the jury box during direct examination while others stay behind the lectern. Witnesses tend to look at the lawyer when answering questions, forcing jurors to act as observers of, rather than participants in, the trial. Standing at the end of the jury box—thus forcing the witness to look at the jury—helps to remind witnesses to make eye contact with the jury and tell their story to the jurors directly. On the other hand, standing at the end of the jury box could cause jurors to suffer from “tennis head” as they look back and forth between the witness and the lawyer. Either way, jurors do not want to look at the back of the lawyer’s head or have the lawyer block their view of the witness. So some distance is a must. Understanding Why Each Witness Is on the Stand The trial lawyer should develop a clear picture of how every single witness fits into the facts to be proven and the theme of the case. It is incredibly helpful to create a trial outline that lists each element of the claims (from the plaintiff’s side) or each element of affirmative defenses or attacks on the plaintiff’s claims (from the defense side). The outline should specify which witness or witnesses will establish each element or key fact. Some witnesses may be put on the stand to testify to key facts; others may be put on the stand to help humanize an unsympathetic client, such as a multinational corporation. But each witness needs to fit clearly into the case or defense and help advance the theme of the case. If the lawyer is not sure how the witness fits into the case theme, then—rest assured—the jury is confused as well.

The Legal Requirements One part of the lawyer’s evaluation of which witness to put on the stand is the limitations imposed by the Federal Rules of Evidence. First, the witness must be competent to testify. Fed. R. Evid. 601. This is rarely a problem because the rule declares that “[e]very person is competent to be a witness unless these rules provide otherwise.” For civil cases involving state law claims, state law will govern whether a witness is competent to testify. The question of competency usually arises only in situations where the witness is very young or there are issues regarding the witness’s mental capacity. Second, the witness must testify based on personal knowledge. Fed. R. Evid. 602. In other words, the witness must have firsthand knowledge of the matter and not know about something through a source other than his or her own knowledge or experience. The testimony may properly include the witness’s inferences as long as they are based on firsthand knowledge. Rule 602 is generally straightforward. The pedestrian who witnessed an automobile collision can testify about what each car was doing at the time of impact. In a medical malpractice case, the operating room nurse who assisted the surgeon can testify as to what she saw happen during the surgery. But Rule 602 can raise complicated issues. For example, in a complex accounting fraud case against a corporation, can the chief executive officer (CEO) testify that she knows that the company’s financial statements are accurate? The CEO did not oversee the preparation of the financial statements—the chief financial officer (CFO) did—and the CEO likely did nothing personally to double-check the calculations or assumptions underlying them. However, the CEO may have ensured that the statements were audited by a reputable accounting firm and may know that the company’s internal audit department recently examined the process by which the financial statements were prepared and gave the process a clean bill of health. Most likely, the judge would allow the CEO to testify that she believed the statements to be accurate, once the lawyer has laid the proper foundation for that conclusion during direct examination. Asking Nonleading Questions The federal rules prohibit lawyers from using leading questions on direct examination. Fed. R. Evid. 611. As a practical matter, though, effective trial lawyers do not need a rule to tell them to let the witness do the talking. Leading questions naturally result in the lawyer doing most of the talking and the witness merely saying “yes” or “no.” Nonleading questions, however, let the witnesses take center stage and will strengthen the case. The practical way to ask nonleading questions is to start every question with who, what, where, when, why, or how. In the heat of trial, though, following this simple rule can be difficult, particularly when dealing with a recalcitrant or forgetful witness. One practical tip is simply to write on every page of your notes for a witness the words “who, what, where, when, why or how.” Then, if you get stuck or draw a leading objection, you can use this list to reformulate the question. After several trials, it will become second nature. There are a few situations where leading questions are extremely helpful and not likely to draw a sustainable objection. For example, it is appropriate to use leading questions to lay the foundation for an exhibit (“Is this record one that is kept in the regular course of business?” “Is this photograph a fair and accurate representation of the accident scene?”). It is also appropriate to use them for background issues. And it is helpful to use a leading question as a bridge to a new topic (“Turning to the evening of March 21, were you at the intersection of Main and Locust Streets?”). Finally, if the court has limited key testimony in an evidentiary ruling, using leading questions will allow you to get a precise answer to a question without violating the court’s ruling. The Power of Short, Pointed Questions Strong, effective direct examination questions are short and to the point. They do not use big words. Less experienced trial lawyers often draft all of the questions they expect to ask at trial. There is nothing wrong with doing so. However, a question that is readable on the page to a trained lawyer familiar with the case differs greatly from a question that is understandable to a lay juror unfamiliar with the case. Keeping questions short and focused on one fact at a time allows the jury to follow the testimony better. In many cases, a chronological retelling of what happened is most effective. (A demonstrative timeline may also assist as well.)

Short questions also keep the witness on track. Witnesses will be nervous about appearing in court and may be unfamiliar with the legal system. Asking complicated questions will only exacerbate this nervousness, and the jury may equate nervousness with lack of candor. Asking short questions, particularly at the beginning of the testimony, makes it much easier for the witness to follow along with the lawyer. As the witness gains confidence during testimony, the witness will garner credibility with the jury. If the witness looks confused about a question on the stand, it is entirely appropriate to take a moment to restate the question or to break it down into several questions. If the witness whom you prepared is confused, then the jury is too. Simple words are much more effective than complicated ones. A trial lawyer should take care not to use a longer word when a shorter one will do the trick. For example, “before” is preferable to “previously”; “see” is preferable to “observe”; “car” is preferable to “vehicle.” Trial lawyers sometimes fall into the habit of using phrases that complicate questions, such as “I direct your attention to Exhibit A” or “did a time come when you started working at Acme Corporation?” It is much more understandable to the jury (and witness) to say “take a look at Exhibit A” or “did you ever work for Acme Corporation?” Listening to the Witness This may be the most-violated rule of direct examination. Only by listening to the witness will the lawyer know whether the witness has testified to the facts needed to prove a claim or defense. It could be fatal to a lawyer’s case for evidence to close and only then realize that a witness did not testify to a key fact. Once the evidence closes, there are no second chances. Assuming the lead lawyer has at least one support person at the trial, someone else on the team should be charged with taking notes of each witness’s testimony for later reference before the evidence closes. Nonetheless, every trial lawyer should listen to every answer to every question and keep track of it as well. During direct examination, the lawyer should be looking at the witness and appear interested in what the witness is saying. The lawyer may nod where appropriate and use subtle facial expressions to suggest to the jury how important this testimony is. It is important to keep in mind that this is your witness. If you cannot be bothered to look interested in what he or she is saying, then you are sending the jurors a strong signal that they need not pay attention either. The physical component to listening to a witness has an important, though subtle, side effect. Jurors often watch lawyers during trial to gauge their reaction to an answer or to take a break from watching the witness. If a juror looks at the lawyer and the lawyer is looking at the witness, jurors will naturally follow the lawyer’s gaze and watch the witness as well. This is not as easy as it sounds. Often, the trial lawyer has heard the witness’s story so many times, he or she is no longer very curious about the answer. In addition, the lawyer may be thinking about the next question to ask or how he or she will respond to a possible objection by opposing counsel, or checking his or her notes while the witness answers. All of these naturally distract the lawyer from listening to the witness and should be avoided. If you need to look at your notes, wait until the witness has finished his or her answer, glance at your notes to find the next question, and then ask it. Do not be afraid to allow a few seconds of silence in the courtroom while you process what the witness has just said, verify in your head that the witness has articulated all the salient points you were looking for in the question, and then formulate—or locate in your outline—the next appropriate question. Strategic Follow-Up Questions A corollary to listening to the witness is asking follow-up questions. Asking follow-up questions can keep the lawyer focused on what the witness says and also keep the witness on track during the examination. It also makes the testimony more of a conversation than an interrogation—think Oprah rather than 60 Minutes. Imagine being on a jury watching a lawyer read a question from notes and the witness giving a practiced answer—over and over and over again. This pattern will, at a minimum, suggest to the jury that the version of events being presented is entirely manipulated, or it may even put the jury to sleep. Spontaneous follow-up questions break this pattern. Follow-up questions can effectively draw the jury’s attention to a key fact in the case or defense. For example, consider a case in which a critical part of the defense is to establish that the CEO learned of the need to restate revenue during a board meeting rather than before it. If the witness describes what happened during the board meeting in narrative form, interrupting her will help emphasize certain facts for the jury, as in the example below:

Q: Ms. Duran, what was talked about during the board meeting of June 23, 2011? A: We discussed the recent acquisition of a small competitor in Cincinnati. The CEO Jack Redstone asked a lot of questions about possible antitrust issues and how we resolved them, and then Sandra Cook, a director, asked about how the acquisition would streamline our Midwest operations. There was a long discussion about shipping efficiencies because of the acquisition. The next topic was the upcoming financial statements which were due the next week. The CFO, Mr. Beem, gave an overview of the financials, including revenue and expenses. He then pointed out that $50 million in revenue needed to be restated because of the recent change in the accounting rules. Jack wanted to know … Q: [gently interrupting] Ms. Duran, let me stop you for a second there. Who brought up the change in accounting rules? A: Mr. Beem. Q: And he’s the CFO? A: Yes. Q: What exactly did he say? A: He explained in some detail about what the change was and how it changed the amount of revenue we could report that quarter. Q: Did Jack Redstone say anything in response to Mr. Beem’s explanation? A: Yes. Q: What did he say? A: He said he was very surprised to hear about the need to restate revenue and asked Mr. Beem why he had not told him earlier about it. Q: How did Mr. Redstone appear when he said this? A: He appeared very surprised and very angry. His face was red and his voice was kind of loud when he asked Mr. Beem about the change. I’ve never seen him so angry before. Q: Thank you. Returning to the board meeting, was anything else discussed?

These few, simple follow-up questions turn a dull narrative about a board meeting into effective testimony highlighting the memorable fact of when the CEO learned of the need to restate revenue. Had the lawyer allowed the witness to meander through her answer and describe the whole meeting from start to finish in one answer, it would have been very difficult for the jury to pick out the important fact. The follow-up questions fix that problem. Follow-up questions usually cannot be planned ahead of time. Asking such questions requires that the lawyer listen carefully to the witness and continually evaluate what would help the jury understand the testimony. Personally preparing your witness—and not relying on others in your firm to do so—will improve your follow-up questions because you will get a better sense of how the witness will behave on the stand. In addition to highlighting key facts, follow-up questions are helpful in a few specific circumstances. First, they are helpful when the witness refers to a name or place that is unfamiliar or that has not been identified recently. For example, if the witness mentioned that Ms. Smith was her supervisor at the factory early in her testimony, and then refers to Ms. Smith an hour later, it may be helpful to ask a quick follow-up question, even in a leading form, to help the jury remember who Ms. Smith is (“And Ms. Smith was your supervisor at the factory, right?”). Second, if the witness describes surprising or unusual actions, gently asking “Why did you do that?” will help the jury understand what happened. Third, if the witness uses technical terms or other terms of art, it is helpful to ask for a definition of the word. Expert witnesses will be skilled at explaining technical terms, but many fact witnesses will not and will lapse naturally into workplace jargon and acronyms. It is the trial lawyer’s job to make sure the jury understands what is being said. The Structure of an Effective Direct Examination Effective direct examinations manage to be conversational, yet have a tight structure. Balancing those two characteristics is not easy. A tightly structured direct examination does not mean a boring one. Rather, it means that the lawyer has thought carefully about what questions to ask and in which order to ask them. The examination will not waste anyone’s time and will advance the party’s theme. The following suggestions about structure are far from absolute and do not take into account each lawyer’s style. Yet, for many witnesses, the following structure will be helpful for the jury:

Background Most direct examinations should begin with a brief discussion of the witness’s background. Background questions calm a nervous witness and give the jury a way to identify with the witness. All of this increases the witness’s credibility with the jury. Such questions may include questions about where the person is from, what he or she does for a living, and his or her family, education, job history, and so forth. Bridge The direct examination should then transition, or bridge, to why the witness is there and how his or her testimony will help the jurors. The bridge may be as simple as “Ms. Jones, you witnessed the accident between Mr. Jackson and Ms. Jefferson, right?” or “Mr. Grant, were you involved in Acme Corp.’s hostile takeover of ABC Co.?” Telling the Story This is the longest part of the testimony and the most important for both the plaintiff and the defense. In many cases, a chronological structure makes the most sense. This structure also makes for an easy conversational style because many of the questions will be something along the lines of “what happened next?” During this section, the lawyer will elicit the key facts and introduce exhibits necessary to support the party’s claim or defense. When a chronological approach will not work and the testimony must cover many different topics, frame each new topic for the witness and jury (“Mr. Harding, I’m now going to ask you a few questions about your company’s marketing practices.”). Addressing Weaknesses in Direct Examination The trial lawyer will need to decide how to handle known weaknesses in testimony or troubling information about the witness’s background. One option is to cover those topics during direct examination and “take the sting out” of them before opposing counsel jumps on them in cross-examination. The second option is to prepare the witness to handle these topics on cross-examination and leave any clean-up questions for redirect. As a general rule, if you know the other side will raise the issue and it is directly relevant to the matters at hand, it is safer to bring up the issue during direct examination. The questions will be gentler and the answers discussed in advance, which may ease the witness’s mind about the testimony. If, however, trial counsel is not sure whether opposing counsel knows about the weakness, then there is no reason to raise it during direct examination. Raising it may only alert the other side to a weakness of which it was not previously aware. When making this decision, the lawyer should evaluate how well prepared the other side will be and how difficult it is to uncover the weakness or negative information. If the harmful testimony is elicited during cross-examination, then the lawyer should be prepared on redirect to minimize its effect. Either way, part of witness preparation should include some practice answering questions on direct or redirect, and cross-examination, about the topic. The witness should have clear, matter-of-fact answers to avoid sounding defensive about the topic. If asked on direct examination, the questions should be short and to the point: Elicit the problematic testimony, give as plausible an explanation as possible, and then move on to another topic. The topic should be buried in the middle of the examination so as to limit the attention given to it. How to Handle Specific Problems During Direct Examination Even though direct examination is the time when the trial lawyer has the best idea of what will happen, trial would not be trial if there were not a few surprises or unexpected difficulties. Here are tips for how to deal with the most common ones: Adverse or Hostile Witness In limited circumstances, a trial lawyer may need to put an unfriendly witness on the stand. A plaintiff, for example, may put the defendant on the stand during the plaintiff’s case-in-chief because only the defendant can establish an element of the claim. A corporate defendant may need to call a terminated employee to testify to certain events that occurred while he or she was at the company. Trial counsel should try to use any witness other than one who is hostile or adverse. However, if it cannot be avoided, the federal rules allow direct examination by leading questions. Fed. R. Evid. 611.

The first step is to establish that the witness is, in fact, hostile or adverse. Counsel should then ask the court to allow leading questions. Adversity is sometimes obvious, such as when the plaintiff calls the defendant as a witness. But when it is not obvious, the trial lawyer will need to ask some simple, non-leading questions to establish the hostility. In the example of the terminated employee, the line of questioning could be as follows:

Q: Ms. Stanford, where did you work from 1995 to 2006? A: Acme Corporation. Q: When did you leave Acme Corporation? A: Around 2006. Q: Why did you leave? A: I was fired. Q: Why? A: My supervisor hated me so she got me fired for no reason.

The risk with this line of questioning in open court, of course, is that it opens the door for the witness to tell the jury all sorts of terrible things about your client. For this reason, you may make such a request at the bench and explain why the witness is hostile. If opposing counsel agrees that the witness is hostile, the court will likely allow leading questions without the need to lay the foundation in front of the jury. If the witness dislikes your client for reasons that may severely prejudice your case, then you could ask to conduct the preliminary questions outside the jury’s presence. If the judge requires the questions in front of the jury, you should keep these questions short and ask the judge as soon as possible for permission to use leading questions. Once the trial lawyer has permission to treat the witness as hostile or adverse, this does not mean there is free rein to attack the witness. The jury will likely be somewhat confused as to why the lawyer is asking pointed questions of his or her own witness, so the safest approach is to ask only the most necessary questions and finish the examination quickly. Trial counsel should foresee the need to use this witness early in the case and use discovery, particularly depositions, to pin down the witness to helpful answers. Surprising Testimony In rare circumstances, the witness will surprise the lawyer with an answer on direct examination. It may be a good surprise—the answer is better than expected. In that case, accept the gift and move along. More often, though, it is a bad surprise—the witness does not remember a key fact or, for some reason, is not truthful in answering. If this happens, the trial lawyer’s first approach should be to try to fix the problem with a simple follow-up question, such as “Are you sure the other car was blue?” or “Did you mean Mr. Smith made that statement or Mr. Jones?” Every nervous witness will get a name or date wrong, and the jury will understand. However, if it is a critical fact that the witness cannot recall, the lawyer may need to resort to the other two options: refresh the witness’s recollection or impeach the witness. Another, but least favored, option is to impeach your own witness. This should rarely be done for the obvious reason that the jury will be left wondering why you are doing so. However, if you are dealing with an adverse or hostile witness who will not cooperate with mere refreshing of his or her recollection and if it is a key fact, then impeachment may be your only option. The best approach to handling potentially surprising testimony is to refresh the witness’s recollection under Rule 612. Before showing anything to the witness, the trial lawyer must establish that the witness does not remember a fact, that the witness knew the fact at some point, and that there is something that would refresh the witness’s memory about it. This foundation can be established through leading questions. Once this foundation has been laid, the trial lawyer can show the witness a document (such as a deposition transcript) for review. After the witness has reviewed the document and the lawyer retrieves it, the witness can answer the question. It is always good to prepare a witness for what will happen if he or she forgets a key fact and walk the witness through this process at least once so that the questions are familiar. Witnesses You Could Not Prepare Before Trial In most circumstances, the trial lawyer will have met with and thoroughly prepared all witnesses for direct examination. Sometimes, though, such a meeting may not be feasible. For example, in a dispute between two

business partners, the lawyer for the partnership may need to testify but does not want to favor either side by meeting with either partner’s lawyers. If this is the case, the trial lawyer should seriously evaluate whether to call the witness. It is a massive risk to call someone you have not met because that person could give testimony that is harmful to your case, even if he or she does not mean to do so. Nonetheless, if the witness is crucial, the lawyer should first establish the background and relationship to the case in the same way as any other witness. The trial lawyer may wish to establish that the witness is testifying because of a subpoena, not voluntarily, and that the trial lawyer has not met with the witness before trial. Relying heavily on previous testimony or exhibits to develop questions, the lawyer can limit the witness’s wiggle room for giving unexpected or harmful answers. As in questioning a hostile witnesses, a short examination is best. The trial lawyer cannot use leading questions but should, where possible, limit the nonleading questions limited to questions with straightforward answers (“What time was it when the accident happened?” “Where were you standing when you saw the accident?”), rather than open-ended questions (“Why didn’t you report your colleague to his supervisor?”). Redirect Redirect can be wonderfully effective to clear up the jury’s confusion over a key issue. It can also bog down trial, frustrate jurors and the judge, and reopen areas of questioning better left closed. There is not much time for careful reflection to decide whether to redirect a witness; the judge will turn to counsel after the cross-examination ends and ask for any redirect. The best preparation is to (1) know before trial what key facts must be obtained for each witness, and (2) keep careful notes during cross-examination of the areas on which clarifying questions need to be asked. Redirect is limited to the topics raised on cross-examination and, like direct examination, must be conducted using non-leading questions. After listening to opposing counsel ask leading question after leading question, it is tempting to do the same on redirect. Sharp opposing counsel, though, will object to these leading questions and can quickly throw off the flow of redirect. The effective trial lawyer will keep redirect short—very short. The best redirect will cover a few key topics, perhaps three or four. The easiest way to orient the witness and jury to a question is to begin by asking whether the witness recalls answering a specific question asked by opposing counsel. Consider the example of the witness to a board meeting. During cross-examination, opposing counsel suggested that the witness was absent from the meeting for a long time and therefore did not hear a lengthy discussion between the CEO and CFO about financial statements.

Q: Ms. Jackson, do you recall when Mr. Washington [opposing counsel] asked you some questions about when you left the board meeting on March 19th? A: Yes. Q: How many times did you leave the board meeting? A: Just once. Q: When did you leave the board meeting? A: I left it around 11 am or so. Q: Why did you leave? A: The chairman had asked me to find a specific operations report that was on my desk in my office. Q: How long were you gone? A: Maybe 3 or 4 minutes. Q: How do you know you were only gone for 3 or 4 minutes? A: Because I had emailed my secretary from the board meeting to find the report in my office for me. All I did was walk to my office, which is just down the hall from the board room, get the report from my secretary, and walk back.

Beginning each topic with an opening question like the one above ensures that the trial lawyer avoids introducing a new topic on redirect. It also makes it much easier for the witness and the jury to follow the questions. Nothing will destroy an excellent direct examination faster than a badly conducted redirect. So if cross-examination did no damage or if asking more questions will not fix any damage that was done, then there is no need to conduct a redirect at all.

How to Prepare for Direct Examination An effective trial lawyer spends considerable time preparing for direct examinations. Obviously, a large part of the lawyer’s preparation is meeting with and preparing witnesses to testify. Every trial lawyer will have a different method to prepare for direct examinations, but the list below includes the main parts of preparation. Reread the witness’s prior testimony. Prior testimony will offer a preview of opposing counsel’s topics for cross-examination. It is also critical for the witness himself or herself to re-read his or her testimony before trial to avoid impeachment. Review key documents related to the witness. This review will include documents to or from the witness, documents that were used during the witness’s deposition, and documents that you intend to use during the direct examination as exhibits. The witness will also need to review these documents carefully to understand how they will be used at trial by both parties. Draft a list of topics or questions. Very experienced trial lawyers may use only a list of topics for each witness. But there is nothing wrong with drafting the questions you want ask a witness, understanding that spontaneous follow-up questions are necessary to avoid sounding too rehearsed. Although it is impressive to watch a lawyer examine a witness without consulting notes, there is nothing impressive about examining a witness without notes and then forgetting to elicit a key fact. Having at hand a list of key topics or questions ensures that the lawyer does not forget something critical in the heat of trial. Prepare for objections. The trial lawyer can anticipate most of the objections to testimony or exhibits before trial. In civil cases, counsel will have exchanged exhibit lists and likely had a meet-and-confer about objections, and possibly a hearing to resolve them. As a result, the trial lawyer can anticipate objections from the other side on grounds of relevance, hearsay, lack of foundation or personal knowledge, and undue prejudice. The lawyer should then craft a response to each possible objection to be ready at a moment’s notice and may even jot down notes about it (such as what exception to the hearsay rule applies). Too much preparation on this front will never be harmful. Select exhibits. A key part of any direct examination is what exhibits must be introduced by a specific witness and what exhibits should be explained by a specific witness but need not be introduced through that witness. For example, a confidential memo to the file written by Ms. Madison in the human resources department could likely be authenticated only by Ms. Madison. Unless the other side has agreed to the memo’s admissibility before trial, trial counsel must authenticate and introduce that exhibit when Ms. Madison is on the stand. However, an email sent by Ms. Madison to six other employees could be authenticated only by any one of those seven individuals. Yet, trial counsel may need Ms. Madison to describe why the email was written. The email should be included as an exhibit for Ms. Madison’s direct examination, even if she may not be the one to authenticate it. In addition, consider using witnesses to highlight positive documents for your side. Emphasizing helpful documents numerous times will remind the jury of them. Consider demonstratives. Although demonstratives and other physical evidence are routinely used for expert witnesses, they can be a persuasive way to present fact testimony as well. For example, a witness to a car accident can use a map of the intersection to describe what happened, perhaps even stepping down from the witness stand to point to where certain events took place. A defendant-doctor in a medical malpractice claim may use a model of the human body to describe the surgery. Demonstratives and physical evidence can dramatically increase the effectiveness of a direct examination, but they are also expensive to develop and take additional preparation time with the witness to use. For example, if the lawyer intends to have the witness step down from the stand to explain something, this needs to be practiced in advance to make sure the witness is very comfortable with it. These days, juries expect to be entertained, and computerized demonstratives are becoming ever more common. This article may not immediately convince a trial lawyer to start telling war stories about great direct examinations, but with any luck, it will have provided helpful practical advice to improve them. As any courtroom observer would attest, there is much room for improvement to avoid dull recitations of a lawyer’s questions and

a witness’s answers. All trial lawyers share one goal: to win cases. Skillful direct examination—bringing the testimony to life and hammering home the case’s theme—is one crucial key to doing just that. Sara E. Kropf is a partner in the Washington, D.C., office of Baker Botts. She would like to thank Jamie Kilberg for his helpful comments and suggestions on this article.

How to Deal With Unexpected Testimony on Direct Examination By Hayes Hunt, Esq. – Trial Practice Committee, May 31, 2011 You call your last witness and things are going great. A verdict in your client's favor will be soon to follow. All you have to do is establish that there was moonlight.

Counsel: Was there moonlight at the time you saw the accident? Opposing Counsel: Objection. Leading and lacks foundation. Court: Overruled. Witness: It was the sun. Counsel: Are you sure? Opposing Counsel: Objection. Asked and answered and leading. Court: Sustained.

The witness had previously said there was moonlight. Invariably, your next question is "Didn't you testify that . . ." and, before you can finish the question, your adversary stands up and objects. The objection is sustained followed by deafening courtroom silence. Before you say another word, you need to decide whether the witness: (1) forgot that there was moonlight, or (2) believes it is the sun. Rule 612 If you decide your witness has made a mistake as a result of poor memory, you merely need to follow Rule 612 of the Federal Rules of Evidence and refresh the witness's recollection in the following order: 1. Establish that the witness's memory is exhausted on the specific issue or event. You: Do you remember whether or not there was moonlight? 2. Establish that the witness's memory may be refreshed by a specific document. You: Would your memory be helped by reading the signed statement you gave to the police an hour after the accident? You: Your Honor, if I may, I'd like to mark this as Exhibit X. Show opposing counsel Exhibit X. 3. Give the witness the document. You: I'm giving you your signed statement. Please read the third paragraph to yourself. 4. Allow the witness to review the document. You: Have you had a chance to read the signed statement you gave to the police immediately following the accident? 5. Ask the witness if her memory has been refreshed. You: Is your memory refreshed regarding the accident? 6. Take the document away from the witness. You: May I have Exhibit X, Witness. Thank you. 7. Pause and ask your original question again. You: Now, Witness. Was there moonlight at the time of the accident? Witness: YES! Absolutely. I'm sorry, I got nervous and forgot. Now that the witness has reviewed her statement, she apologizes to the jury for her mistake, smiles in embarrassment, and is completely forgiven by the jury. The moon is bright and your client's case is back on track. Don't wait for redirect/rehabilitation since a strong advocate would not ask a single question on cross. Impeachment Alternatively, if the witness insists that there was sunlight, you need to impeach. At the moment the witness gives you an unexpected and inconsistent answer, she is hostile to you. Your instinct is to pounce and ask

leading questions. Your adversary is grinning like a Cheshire cat waiting to object to your next question. You call a sidebar and tell the judge that the witness is a dirty-rotten scoundrel. Meanwhile, the jury is chewing on the witness's last answer while watching you squirm. It is a common mistake to believe that impeachment is solely reserved for cross examination. You may impeach on direct. Federal Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling the witness." The manner in which you impeach, at least to start, must be with non-leading questions pursuant to Federal Rule of Evidence 611(c). If you want to ask leading questions, you need to establish through non-leading questions that the witness is actually hostile towards you or your client. A typical example is a former employee of your client that has an axe to grind. If you cannot get the witness to openly express antagonism, just impeach with non-leading questions. The following are examples of questions you should ask the witness:

Mrs. Witness, did you provide a statement to the police an hour after the accident? Did you want to provide the police officer with accurate details of the accident? Did you provide the police officer with honest answers? Did you review your statement with the police officer? Did you read your statement to make sure you provided an accurate account of the accident? Did you sign the statement after you reviewed it? Your honor, may I approach the witness? Witness, showing you what has been previously marked as Exhibit X. Is that your signature? What is the date next to your signature? Directing your attention to paragraph 3 of Exhibit X. Did you tell the police officer there was moonlight at the time of the accident?

You have impeached the credibility of your witness on direct with the use of a prior inconsistent statement pursuant to Federal Rule of Evidence 613 (a). The moon is still full and your case is still bright. Hayes Hunt is a member in Cozen O'Connor's Philadelphia office. Hayes also serves as an adjunct professor at Temple University James E. Beasley School of Law, where he teaches Integrated Trial Advocacy.

Litigation 101: Checklists for New Litigators: Cross Examination By Robert Don Gifford To quote the celebrated nineteenth century trial lawyer and author, J.W. Donovan: "Think first what an icy pavement you tread upon; think how a willing witness may say too much that had been unproved without him; think how the rivet may be clinched and the strength redoubled by facts too often repeated and committed to memory; think how you may develop new theories for your adversary, and act with quiet discretion." Cross-examination is often considered the benchmark of what makes a trial advocate average and one that is extraordinary. Cases can be won and lost on cross-examination, and many attorneys who have mastered the "art" can try their entire case during cross-examination of their opponent's witnesses. While considered the gospel in this area, Professor Irving Younger's "Ten Commandments of Cross-Examination" is a must-read, the following are amendments, codicils, and things that cannot be said enough.

Is it necessary? There will be some witnesses that simply do not require any cross-examination. Consider the antithesis of the Hippocratic oath: If you can do no good, at least do no harm. If a witness does no harm to your case - just stay in your seat.

Use Leading Questions. Rule 611(c) of the Federal Rules of Evidence, and many correlating state evidence rules, provides that "[o]rdinarily leading questions should be permitted on cross-examination." Leading questions are those questions that declare an answer up front and require a "yes" or "no" answer. They give you control and the opportunity to lay out the facts in the words that you choose.

Lay the theme and theory early and often. Your "theory" of the case is why you should win, while the "theme" is the sound bite that you hope will resonate throughout your case and be often quoted during deliberations by a jury. All your questions should be based on supporting your theme and theory.

Listen. This is harder than it sounds. You have prepared to deliver a series of questions that will lead the witness to confirm the facts that fit your theory to a judge or jury; however, you may receive an answer that you had not anticipated. Be prepared to have a contingency plan to take your questions down an alternate path, yet to the same goal in mind.

Introduce new facts into a case. The most effective cross-examination will bring out only one new fact per question, and the best questions are those that are brief. Precision through simplicity leaves no escape route for an otherwise evasive witness. By building your cross-examination one fact at a time, a finder-of-fact (judge or jury) will be more persuaded by those logical facts they learn from a witness than by conclusions as stated by the attorney.

Use a logical progression to lead to a specific result. Structuring your cross-examination will help a judge or jury find the facts that make your "goal" logically true. This common sense progression reduces the witness' ability to evade and actually penalizes the witness in a loss of credibility in attempting to avoid the obvious answer. This structure empowers the finder of fact to discover their own conclusions - albeit a conclusion you led them toward from the beginning.

Weaken or highlight a fact. Remind your opponent's eyewitness that the event happened in a short amount of time, the event was exciting, the distance was great, the lighting was poor, or the like.

Weaken or strengthen the credibility of a witness. Know the rules of impeach-ment and use them. Does the witness have a prior felony conviction? Any conviction relating to honesty? Can you emphasize that the character witness is only aware of the facts as he learned from your opponent, that he was not there at the time, or that he may have a natural bias due to friendship or relationship.

Be the Master of Your Case. Knowing every document, fact, and witness in the case is imperative. If you have the luxury of a prior deposition - you should already know every response of the witness and prepared to impeach him with it if necessary. Be wary of asking a question of which you do not know the answer - cross-examination is

not the time or place to go on a "fishing expedition." There are few, if any, "Perry Mason" moments in which a witness completely collapses under a grueling cross-examination and admits to being the true villain.

Be an Expert on the Expert. Cross check your opponent's expert witness' CV or resume. Find transcripts of prior testimony, read the expert's publications, and voraciously read as much on the topic as well to "talk the talk" with the expert. Consult your own experts in preparing your own cross-examination.

Do Not Quarrel with the Witness. Remain the "voice of reason" to the judge or jury. Remain the professional that you are and not lose credibility by lowering yourself by arguing or overly employing sarcasm. You will have the last word on this witness during your closing argument. If the answer from the witness is irrational, contradictory, or obviously false - stop or move on to another topic. You have scored your point. Resist giving the witness the opportunity to explain away the absurdity of the answer and rehabilitates the witness.

Know when to stop. Probably the hardest to master is the "art" of cross-examination. When you have achieved your desired goal in eliciting the evidence you need or impeaching the witness, either complete your examination or move on to another topic/goal. Do not ask that one question too many that allows the witness to explain why his answer should be validated.

Never End a Cross-Examination with a Risky Question. Remember the goals of primacy and recency in starting strong and ending stronger. You do not want to take the wind out of your sails by allowing the witness to talk himself out of the corner you placed him. Let your opponent worry about rehabilitating the witness - if possible.

Cross-examination has been called an "art" and a "science," but regardless of your views - all would agree that it takes preparation, thought, and practice to become skilled in it. As Justice Powell stated in Chambers v. Mississippi, 410 U.S. 284, 295 (1973): "The right of cross-examination is more than a desirable right of trial procedure. It is, indeed, 'an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.'" Mr. Gifford is an Assistant U.S. Attorney in Reno, Nevada. He is a member of ABA's White Collar Crime Committee, the Rules of Criminal Procedure & Evidence Committee, the Military Lawyers Conference of the Government and Public Sector Lawyers Division, and the Young Lawyers Division's Criminal & Juvenile Justice, Ethics & Professionalism, & Litigation

Persuasion Starts with Strategy By Chris Dominic and Bruce Boyd – Trial Practice Committee The trial lasted three weeks. Every member of the team executed his or her part well. The jury was out for two-and-a-half days. The attorneys knew that the case could go either way but they didn’t anticipate the significant adverse verdict the panel ultimately handed down. Water-cooler conversation concluded that the evidence came in as expected, the witnesses testified well, and the closing argument was strong. Talk of a stealth juror or imponderable biases among the attorneys came and went. In the following weeks, interviews with the actual jurors made clear what the problem was: The trial team had done a good job of executing the wrong strategy. One of the benefits of being an experienced trial attorney is that many of the skills and tactics employed throughout litigation become second nature. However, it is precisely this level of comfort that can, at times, direct your attention to the long and complex list of items that must be addressed in any litigation process without first establishing a unified strategic vision for the case. Oddly, it is experience—not inexperience—that appears to drive this behavior. It is the sense that one can handle each issue as it comes that leads to an early focus on details and tactics. And it is precisely this focus that can ultimately contribute to an adverse outcome in a trial. There are many questions to ask in the beginning phases of litigation preparation, but the following three will help you develop a strategy that works. What outcome are you trying to obtain? The answer to this question may seem obvious at first, but consider a plaintiff in a patent case where damages were higher than expected but no injunction was awarded when the injunction was the goal. Another example is when the jury comes to a compromise verdict in a product liability case you are defending. They find that the product is “unreasonably dangerous” but they report low damages when the goal going into trial was to get a defense verdict to halt future cases against the product. If we do a close examination of the preparation in the patent case cited above, we may find a well-executed infringement case to the jury but not enough energy put into the case according to the judge, who ultimately had to make the decision about the injunction. In the example of the employment case, the defense attorneys spent so much time arguing damages that an unintended message was sent to the jury that there must be some merit to the claim. By having the end goal firmly in mind in this scenario, the decision to increase the risk of a higher damage award and a defense verdict by deemphasizing damages is an easier decision to make for the attorney and client. Who is your audience? The answer to this question is essential to your strategy (i.e., the evidence you choose to emphasize and deemphasize as well as how you try the case), which should change depending on the attitudes and life experiences of your fact finder(s). These attitudes and life experiences filter the way the jury sees the case. This article presumes a jury is the audience, although addressing this question for an arbitrator, a mediator, or a judge is also a good idea. One mistake that many attorneys make is assuming that “testing” the case on their family, friends, partners, and paralegals will produce a reasonably accurate reflection of a how the jury will view the case. A person’s peer group is rarely as diverse in attitudes and opinions as a venire. Even experience in legal business makes a person different from the typical juror. For example, imagine you are defending a product liability case on the theory that the product was misused. You try the case out on friends who see your side quite easily. You feel good about your case. If you asked them to raise their hand if they believed the idea that sometimes accidents just happen, you would probably see many raised hands. You should only find true comfort in this approach when your social group is as diverse in opinions as the venire that will be in the courthouse on the day of your trial. If the venire that day showed many raised hands to the question “if someone is killed by a product, it is probably unreasonably dangerous,” you should obviously evaluate your case differently. Where do you want the audience to focus? Once you have a desired result in mind and have considered your likely audience, you should consider what you want your jury to talk about in deliberations first. The direction of deliberations is usually a product of who and what the jury focuses on in the first few minutes of the deliberation. This is the result of an effective case story

that fits into their worldview and rings true with how they believe the events in the case unfolded. This makes choosing the appropriate central character and the beginning and end points of a story a crucial part of the process of developing a strategy. The central character is the person, place, or thing that you build your story and strategy around. Let’s just say you are representing the plaintiff in the product liability case cited above. Your key character is most likely going to be the unreasonably dangerous product, the plaintiff (and the injuries to the plaintiff), or the defendant (and the conduct of the defendant). Since people tend to compare behavior to what they think should have happened in hindsight, the conduct of the defendant is often the best choice when there is significant evidence to support your arguments. Consider the jury starting their deliberations by talking about the conduct of the defendant in deliberations as opposed to beginning their discussion with the plaintiff. The risk of talking about the plaintiff is that the jury begins to apply hindsight to some of the arguably questionable choices that the plaintiff made, which contributed to their injuries. After assessing the central character of your narrative, determine what time period you will cover. All stories need a beginning and an end. Should you talk about the origins of the defendant corporation, the development of the product in question, or the plaintiff’s career that was ended so quickly? One way to answer this question is to draft a timeline and see how it looks. Is the story more persuasive when told using a short timeframe or a long one? You may realize your strategy is covering too much ground or not enough, and you should adjust it accordingly. By asking these questions early in the preparation phase of litigation, you ensure that an effective plan is in place, and you decrease the chance of doing a good job of executing the wrong strategy. Chris Dominic and Bruce Boyd are senior consultants with Tsongas Litigation Consulting, Inc.

More Effective Closing Arguments: Making Your Point Without Screaming By Bill Wagner – Trial Practice Committee, August 16, 2010 There are much more effective ways to communicate your most important point in closing argument than by screaming at jurors. The basic rules of delivering a closing argument are fairly straightforward: tell a story; avoid witness-by-witness rehashing of the testimony; argue the facts and inferences drawn from those facts; argue credibility, i.e., who to believe or disbelieve and why; use the jury instructions to explain why your client wins and the other side loses; use exhibits; address damages; and tell the jury what to write on the verdict form. You can find a lot of advice on closing arguments. This article addresses a particular issue in closing: that is, lawyers screaming at jurors to make their most important point. You see this on TV all the time: shows depicting real lawyers trying real cases to real juries in which the lawyers, both men and women, scream at the jury during their closing arguments in an attempt to prove their main point. If they are not literally screaming, they are talking loudly. These same lawyers often couple their increased volume with an angry tone and threatening gestures, such as pounding the table to make their point. Maybe I’m unique, but I tend to tune people out who try to convince me of the strength of their argument by screaming at me. If someone has to scream to make their point, maybe their point isn’t worth listening to in the first place. Some jurors probably feel the same way. But, what’s the fix? The answer depends on whether the reason for the screaming is that the lawyer cannot control his or her excitement or that he or she simply does not know what else to do. Here are some thoughts on both of these circumstances. If you simply tend to get loud when you get excited, your problem may be an adrenaline rush. Limit your caffeine intake the day of the closing. Go outside and walk around the courthouse or climb up and down the stairs just before your argument. This will burn some of your nervous energy. If you feel the excitement coming on during the closing, pause and take a breath before you go on. Isometric exercises, like imagining that you are trying to push your toe through the floor, can also be helpful in refocusing your emotions. These are simple tricks that will burn excess energy and allow you concentrate on delivering your closing argument calmly. If adrenaline is not your problem but you need some new techniques, try the following:

Speak softly. This is the opposite of screaming. If you really want people to listen to you, try lowering the volume of your voice. Speak softly and make jurors lean in to hear your most important point. If you lean toward the jurors to speak softly, the jurors will often reciprocate and lean in toward you to listen. This is an especially effective technique when you have a hyperkinetic lawyer as your opponent screaming at the jurors or when you are out-numbered by many more lawyers sitting at the opposing party’s table. Calm, cool heads with persuasive arguments often prevail. Just don’t say your words so quietly that jurors have trouble hearing you.

Use gestures. Use gestures to communicate your point non-verbally. Think of gestures other than simply pounding a table to make your point. Instead of screaming that the other side has no case, say it softly while shaking your head, crossing your hands and arms to indicate “no,” or using your facial expressions to convey disbelief. Remember though, if your non-verbal communication doesn’t match your verbal message, the jurors will latch onto the non-verbal message and ignore what you’re saying.

Use pauses effectively. Use a full five-second pause as your exclamation point. After you’ve said your point softly, count to yourself one-thousand-one, one-thousand-two, and so on, all the way to one-thousand-five. Use a full five seconds of stone silence when everyone is waiting for your next words to allow your main point to sink in.

Make eye contact. Nothing displays truthfulness more than an honest look into someone’s eyes. After you’ve make your point, while you are taking your full five-second pause, make eye contact with a few of the jurors. Avoid scanning the entire jury box like an oscillating fan or staring at a point somewhere behind the jurors. Instead, make eye contact with those you believe are your best jurors for a few seconds.

Repeat your point. Repetition is the key to learning. Say your same main point while speaking softly, but say it two or three times followed by a pause to let the point sink in with the jurors. You can expand on this technique by pausing in between your statements and looking at a particular

Slow down. Many lawyers speak way too fast. Don’t make the court reporter yell at you to slow down as he or she scrambles to keep pace. Catch yourself, catch your breath, slow down, and let the jury catch up.

If you’re a screamer or you know someone who screams at jurors, think about the lessons here. Speak softly, use gestures that compliment and communicate your main point, pause after your main point, make eye contact with the jurors, and repeat your main point two or three times to make it memorable. If you follow these techniques, jurors will focus on your argument rather than your delivery and success will follow. Bill Wagner is a partner at Taft Stettinius & Hollister LLP in Indianapolis.