Presenting Direct Testimony in WritingAuthor(s): Michael S. HorneSource: Litigation, Vol. 3, No. 2, PREPARING AND EXAMINING WITNESSES (Winter 1977), pp.30-33Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758309 .

Accessed: 15/06/2014 12:24

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to Litigation.

http://www.jstor.org

This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 12:24:50 PMAll use subject to JSTOR Terms and Conditions

Presenting Direct Testimony

in\tynting

by Michael S.Horne

When one contemplates presenting a direct case, at least in a trial, the spoken word normally comes to mind?

questions and answers, a dialogue through which a

lawyer and his witnesses develop a coherent, effective statement of facts that seeks to persuade a judge or jury. But for many years various administrative agencies, such as the Federal Communications Commission, the Federal Power Commission, and the Civil Aeronautics Board, have encouraged presiding officers to require direct testimony to be submitted in writing. Some courts have also required lawyers to present written direct

testimony in certain non-jury cases. Greater use of written direct testimony is receiving

encouragement from various groups, and the practice may become even more widespread. Thus, litigators may wish to be familiar with its mechanics, the factors that have to be weighed in deciding whether to use written direct, and some of the practical considerations to keep in mind when using the procedure. While the goal of

presenting a coherent, persuasive statement of the facts does not change when written direct testimony is used, the means by which one seeks to achieve it are somewhat different.

Early Deadline

Typically, the decision to use written direct testimony is made at a prehearing or pretrial conference. A dead? line usually well in advance of the trial or hearing is established for the parties to exchange the written direct

testimony of their witnesses and to provide copies to the

judge or presiding officer. The testimony may be in the form of a narrative statement, the transcript of a depo? sition taken in the proceeding, or perhaps some other

writing of the witness such as a specially prepared question-and-answer presentation.

After the exchange but well before the hearing date, the parties usuallly must advise each other of the names

of the witnesses desired for cross-examination. If an

opposing party does not want to cross-examine your witness, his written direct testimony may go directly into evidence (subject to any legal objections raised) without his personally appearing in the hearing. Of course, if you were advised that your witness was to be made available for cross-examination and he failed to appear, his tes?

timony would be excluded.

Waste of Time In some cases the sponsoring witness or someone in his

absence may be permitted or required to read the written statement into the record verbatim, like depositions and other written matter in a jury case. However, particularly in administrative proceedings, this is usually regarded as a waste of time. Some presiding officers will not permit even a brief oral question-and-answer summary of the written statement. When the testimony is not going to be read into the transcript, it is usually marked for iden? tification as an exhibit of the party presenting the

witness, and direct oral examination often consists of little more than asking the witness whether the statement

was prepared by him or under his direction, whether he has any corrections, and whether as corrected the state? ment is true and correct. After a quite brief oral exam? ination along these lines, the written testimony is offered into evidence and opposing counsel takes over. For

developing objections to the admissibility of all or por? tions of the written testimony, opposing counsel fre?

quently may be permitted to conduct a voir dire exam? ination of the witness. In responding to objections to

your witness's testimony, you may be given an oppor? tunity to examine him orally to show that the objection should be overruled. If objections are sustained to por? tions of the written testimony, the transcript will identify (or at least every effort should be made to see that it

identifies) the excluded portions by suitable references to

page and line numbers. Once objections to admissibility have been resolved, and assuming objections to the tes?

timony in its entirety are overruled, cross-examination The author is a partner in the Washington firm of Covington &

Burling.

30

This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 12:24:50 PMAll use subject to JSTOR Terms and Conditions

takes place followed by an opportunity for oral redirect. With respect to the use of written direct in the future,

the Administrative Conference of the United States has recommended that agencies, in conjunction with

adopting other preheating discovery procedures, require not only that the names of witnesses be exchanged but also that narrative summaries of their expected testi?

mony be provided in advance of the hearing. 1 C.F.R.

? 305.70-4 (1976). It is only a small further step for an

agency to require that the full direct testimony of wit? nesses, at least on certain aspects of the case, be sub? mitted in advance of the hearing. As part of a number of

steps designed to streamline and expedite its

adjudicatory hearings, the FCC took such a step last

year. In rules that went into effect July 1, 1976, presiding officers are given discretionary authority to require that all or part of a party's direct case be presented in writing in certain types of FCC proceedings; in some other types the FCC's rules expressly "encourage" the parties to

agree on the use of written direct. 47 C.F.R. _? 1.248(d). This and related reform measures adopted by the FCC last year grew out of an extensive study in which com?

mittees of both the Federal Communications Bar Asso? ciation and the ABA participated.

Ultimate Tool Proponents of the greater use of written direct hope

that it will eliminate surprise, facilitate settlement and narrow the areas of actual dispute. In one sense written direct could be viewed as the ultimate discovery tool, because it pins down a party's direct case and, at least where oral supplementation is restricted, virtually eliminates opportunities for unfair surprise.

From the litigator's point of view, the use of written direct has both advantages and disadvantages that must be weighed carefully in the context of a particular case. There are at least five potential advantages to be con? sidered:

1. "The question and answer method is a strained device for obtaining information in an orderly fashion."

McElhaney, An Introduction To Direct Examination, Litigation, Vol. 2, No. 2, p. 37 (1976). When the information is technical, and especially if it is also voluminous, the question and answer method can be strained to the breaking point. In an FCC proceeding, for example, it is silly to have a radio engineer recite from

memory his calculations of the estimated populations and areas likely to gain or lose broadcast service with a

proposed change in broadcast facilities. Similarly, asking a series of questions of an economist who

responds with a series of snippets of an intricate study he has made of the probable economic consequences of a

proposed change in broadcast facilities is a highly artificial method of presenting his study. Written direct avoids these problems. Further, when the witness has a

large volume of data to provide, he will almost certainly need notes before him while testifying, and these in turn will have to be made available to counsel conducting cross-examination. It simply makes more sense to have the witness submit his entire testimony in writing rather than through the charade of recalling it orally.

2. Written direct helps avoid the problem of a witness's

forgetting a critical point while on the stand or, even worse, saying the opposite of what you expected him to

say. If you have experienced the unpleasant surprise of

hearing a witness say "black" after having repeatedly told you "white" in prehearing interviews, you will

readily appreciate this advantage. 3. Generally, written direct allows the introduction

into evidence of more background information and

supporting data than you can put in through an oral

presentation. The reason for this is basically a matter of human nature. Few presiding officers will see a com?

pelling need to strike extensive but marginally relevant

backup information if it is skillfully woven into a written document. But an attempt to present the same material

orally is likely to offend even the most tolerant presiding officer, who will balk at the prospect of consuming hours of hearing time.

4. If handled properly, written direct can save sub? stantial amounts of actual hearing time. In some cases it may also reduce the time needed to prepare a witness, since he will not have to recall facts from memory. Another consideration (given the fees charged by reporters) is that written direct that is not read into the record can reduce the size and cost of the transcript.

5. Finally, there are clear advantages in having your opponent's direct case presented in writing since your preparation for objections to admissibility and for cross examination can be focused very precisely. Some lines of cross-examination, which you might prudently prepare on a contingent basis when an adversary's direct case is

going to be presented orally, will not be needed at all with the foreknowledge of written direct. Your experts can review the written testimony of your adversary's experts in great detail and relative leisure, so that they can be of considerably more use to you in preparing for cross-examination. These advantages are especially significant when discovery has not provided a picture of what your adversary's witnesses will say.

Developed for Experts Taken together, these factors suggest that written

direct is most likely to be advantageous when expert testimony and voluminous statistical material are

involved, and probably the practice of using written direct in agency hearings was developed specifically with

expert testimony in mind. Indeed, the Federal Power Commission rules outlining the procedures for employ

Written direct is most useful for expert testimony and voluminous statistical material. ing written direct could be read as restricting its use to the testimony of experts. 18 C.F.R. ??1.22(a), 1.26(c)(2)(iii) (1976). However, the use of written direct in FPC and other agency cases has not been confined to

expert testimony, and there does not seem to be any com

31

This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 12:24:50 PMAll use subject to JSTOR Terms and Conditions

pelling reason for restricting its use in that fashion. The most obvious and serious disadvantage of written

direct is the reduced impact the direct case is likely to have on the presiding officer. Even the most conscien? tious presiding officer may find it impossible carefully to read written direct testimony before the hearing. Having the witness read his testimony aloud, even where per?

mitted, does not eliminate this problem, since a lengthy monologue of "canned" testimony is far less likely to

hold the presiding officer's attention than the give and

take of a live question-and-answer presentation. More?

over, reading aloud often is not permitted, so that often the presiding officer actually sees the witness largely in

the context of cross-examination. Thus, except in the

happy event that the cross-examination is completely ineffective, the live impression your witness makes is one

of making concessions that detract from your case or

struggling with mixed effectiveness to avoid making them.

Certifies the Record In some administrative agency cases the presiding

officer merely certifies the record to another body for

decision without preparing an initial or recommended decision. While in such cases the problem of reduced

impact is obviously not as serious, it is not completely eliminated, because the decision-maker reading the cold

record may well discount "canned" testimony, thinking

A disadvantage is that written direct locks witnesses into fixed

positions early. that the attorney played a major role in its preparation. Conversely, he may give undue weight to the live cross

examination, in which the witness is clearly standing on

his own to a much greater extent. Thus, even when the

presiding officer plays little or no hand in preparing a

decision, the problem of reduced impact cannot be

ignored. Another disadvantage of written direct is that it neces?

sarily locks you and your witness into precise positions long before the hearing occurs. When written direct has

to be exchanged a month or more before a hearing, this is not a small problem, because the amount of time you and your witnesses have to prepare the direct presenta? tion is sharply reduced. To some extent this problem can

be ameliorated by presenting oral additions or correc?

tions when the witness identifies his written statement.

But this tactic has limited value: there is at least a pos?

sibility that opposing counsel will not seek cross-exam?

ination, in which case it is cumbersome to make addi?

tions or corrections. Also, some presiding officers take a

very dim view of substantial additions and corrections,

especially those that would introduce an element of

surprise into the proceeding. And even where they are

permitted, additions and corrections unless made with some very strong justification tend to detract from the

overall credibility of the direct presentation by suggest?

ing vacillation and carelessness. Since all parties are typically required to use written

direct for certain issues when used at all, some of the

advantages you might obtain when presenting your direct case through written testimony will also be obtained by

opposing parties. Their witnesses will not forget or

stumble over a critical point. They will get additional

marginally relevant material into the record, and per?

haps rely upon it later for purposes other than those used

to defend its admission. And, of course, your opponents will have more time to prepare cross-examination of your witness and objections to his testimony and will be able

to review at leisure all of his prior statements and

writings for apparent inconsistencies that might go undetected if your witness had not provided his direct

testimony in writing. Once the decision has been made to utilize written

direct, the question becomes how best to develop the

testimony. One solution is to submit the transcript of an

existing deposition; when you cannot expect complete

cooperation from the witness, this may indeed be the

only way of submitting your direct case in writing, and

you may find yourself taking depositions primarily to use

them as your witness's direct testimony.

Tailormade Statement But if the full cooperation of the witness can be

expected, you will probably decide that a tailor-made narrative statement is the best approach. If there have been depositions of such a witness, they are likely to have

been taken at the initiative of opposing counsel and will not constitute the most effective organization of the

testimony from your point of view. Also, the deposition may not contain points that you now wish to develop

through that witness but chose to ignore in the depo? sition. (In some cases, agency practice may require you to submit "canned" questions and answers, but this

captures none of the spontaneity of a live presentation and simply results in a much longer document than a

simple narrative statement.)

Any conscientious litigator must expect to be deeply involved in the drafting of written direct testimony.

Many highly qualified experts hold their laurels and

credentials in spite of the way they use the English

language. Innumerable persons who are articulate

speakers and competent to handle the subject matter of

their testimony turn out to be no more adept at handling pen and paper than most lawyers would be at handling the controls of a spaceship. Ambiguities, redundancies,

vague phrases, over generalizations, and incomplete sentences that go unnoticed in an oral presentation and

produce no more than a slight blush when read in a

transcript, very seriously impair the effectiveness of

written testimony and simply must be avoided. There is

something of a vicious circle at work here: because the

typical presiding officer will presume that an attorney

played a significant role in drafting prepared testimony, the unedited work product of a layman generally will not

suffice and the lawyer therefore must put his oar in. But

32

This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 12:24:50 PMAll use subject to JSTOR Terms and Conditions

clearly you are far less damned if you do (and do well) than if you don't.

This is not to say that narrative testimony calls for anything like the writing skills the lawyer typically employs in preparing a pleading. For one thing, what is justifiably disparaged as 4'lawyer-like" language can

seriously impair the credibility of written direct testimony. Argumentative characterizations, excessive adjectives and the like must be eschewed. Even if opposing counsel is unsuccessful in having such language excluded from the direct testimony and (often he will be successful), he is likely to persuade the presiding officer that the testimony contains too much of the lawyer and too little of the witness. For another thing, it is the witness, not the lawyer, who is ultimately responsible as the "author" of the testimony, no matter how extensive the ghost-writer's contribution. If the witness is not comfortable with the testimony the chances of his doing a decent job on cross-examination are slim at best. When a

sponsoring witness on cross-examination, for example, states that he cannot explain, does not understand, or (worst of all) disagrees with a particular passage in "his" direct testimony, the testimony will not necessarily be excluded, but its effectiveness may be so seriously im? paired that the benefits of having the statement in the record are nominal.

Should Be Factual Written narrative testimony should resemble in

content if not in form the information the witness would provide in a question-and-answer oral presentation. It should, in short, be factual and devoid of objectionable features such as repetition and unqualified opinion. Yet, since it is written, one would like to include opening and closing summaries, clear transitions, and other "guideposts" which on oral examination are provided by the attorney's questions. To minimize objections, it is desirable to limit guideposts, but omitting them entirely is not essential or even sound. Particularly if you have reason to hope that the presiding officer will read the testimony carefully before the hearing, you will want it in a form that will enhance his understanding. Therefore, when faced with a choice of providing an intelligent guidepost to the reader and inviting what would not be a

particularly serious objection even if sustained, most attorneys would favor use of the guidepost. Also, some guideposts can be included in your transmittal letter with the witness's written testimony, although such letters do not become part of the record and long or argumentative letters probably are counterproductive.

All of this means that a first draft of the testimony should be completed far in advance of the exchange date, whether prepared by the witness or by the attorney on the basis of interviews of and information obtained from the witness. If the witness prepares the draft, the attorney will almost invariably wish to make organizational and other changes to maximize persuasiveness and minimize

vulnerability to objections. If the attorney prepares the first draft, or after he substantially revises the witness's draft, the witness must review it in depth with the attorney.

When the written testimony nears final form, an initial preparation of the witness for cross-examination, as

though it were to occur the next day, is very desirable. This step may suggest further changes in the draft testi? mony to facilitate the witness's performance on cross examination. If he is obviously vulnerable on a particular point, it may be better to concede that point in the written testimony rather than allow opposing counsel to score a seemingly dramatic triumph on cross-examina?

tion. You must always keep in mind that your witness probably will be seen by the presiding officer only while

It is essential to

anticipate and minimize an adverse impact of cross-examination.

under cross-examination. This makes it essential to take all possible precautions to anticipate and minimize an adverse impact of cross-examination.

Finally, a word is in order about cross-examination of an opposing witness who has given written direct tes? timony. As noted earlier, advance exchange of written direct should facilitate the development of cross-exam? ination. This is one advantage which has to be seized. A presiding officer who is tolerant of halting cross-exam? ination following lengthy question-and-answer direct examination is far less likely to be tolerant of such ineptness when you have had a substantial advance opportunity to review the direct testimony verbatim. In short, the cross-examination following written direct, like any good cross-examination, should be direct and to the point.

Similarly, you will have had considerable time to consider objections to the direct testimony and some

opportunity to do research and prepare memoranda in support of objections. As with cross-examination, a

presiding officer will not tolerate poorly conceived objec? tions when written direct is used.

Clear Advantages There are clear advantages to the use of written direct,

particularly when the testimony is likely to be lengthy or to involve technical, scientific, or statistical data. But equally clearly there are numerous situations in which written direct is inappropriate. These include instances in which witnesses are likely to contradict each other on

matters of personal observation and other situations in which the witness's demeanor is important in the deci?

sion-making process. Like the more traditional forms of discovery and other hearing and prehearing procedures, written direct testimony is a tool for handling litigation, and if used in appropriate circumstances and efficiently, it can expedite the legitimate ends of all litigation. But like other tools, it can cause considerable mischief if it is

misapplied or misused.

33

This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 12:24:50 PMAll use subject to JSTOR Terms and Conditions