trial skills series: direct examination

Trial Skills Series: Direct Examination

March 24, 2021

4:00 p.m. – 6:00 p.m.

CT Bar Association

Webinar

CT Bar Institute, Inc.

CT: 2.0 CLE Credits (General) NY: 2.0 CLE Credits (Skills)

No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments.

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Table of Contents Lawyers’ Principles of Professionalism ..................................................................................................................3

Faculty Biographies ................................................................................................................................................6

Agenda ..................................................................................................................................................................13

From Drudgery to Drama ......................................................................................................................................14

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Approved by the House of Delegates October 19, 2020

1

LAWYERS’ PRINCIPLES OF PROFESSIONALISM

As a lawyer, I have dedicated myself to making our system of justice work fairly and efficiently

for all. I am an officer of this Court and recognize the obligation I have to advance the rule of

law and preserve and foster the integrity of the legal system. To this end, I commit myself not

only to observe the Connecticut Rules of Professional Conduct, but also conduct myself in

accordance with the following Principles of Professionalism when dealing with my clients,

opposing parties, fellow counsel, self-represented parties, the Courts, and the general public.

Civility:

Civility and courtesy are the hallmarks of professionalism. As such,

I will be courteous, polite, respectful, and civil, both in oral and in written

communications;

I will refrain from using litigation or any other legal procedure to harass an opposing

party;

I will not impute improper motives to my adversary unless clearly justified by the facts

and essential to resolution of the issue;

I will treat the representation of a client as the client’s transaction or dispute and not as a

dispute with my adversary;

I will respond to all communications timely and respectfully and allow my adversary a

reasonable time to respond;

I will avoid making groundless objections in the discovery process and work

cooperatively to resolve those that are asserted with merit;

I will agree to reasonable requests for extensions of time and for waiver of procedural

formalities when the legitimate interests of my client will not be adversely affected;

I will try to consult with my adversary before scheduling depositions, meetings, or

hearings, and I will cooperate with her when schedule changes are requested;

When scheduled meetings, hearings, or depositions have to be canceled, I will notify my

adversary and, if appropriate, the Court (or other tribunal) as early as possible and enlist

their involvement in rescheduling; and

I will not serve motions and pleadings at such time or in such manner as will unfairly

limit the other party’s opportunity to respond.

Honesty:

Honesty and truthfulness are critical to the integrity of the legal profession – they are core values

that must be observed at all times and they go hand in hand with my fiduciary duty. As such,

I will not knowingly make untrue statements of fact or of law to my client, adversary or

the Court;

I will honor my word;

I will not maintain or assist in maintaining any cause of action or advancing any position

that is false or unlawful;

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2

I will withdraw voluntarily claims, defenses, or arguments when it becomes apparent that

they do not have merit or are superfluous;

I will not file frivolous motions or advance frivolous positions;

When engaged in a transaction, I will make sure all involved are aware of changes I make

to documents and not conceal changes.

Competency:

Having the necessary ability, knowledge, and skill to effectively advise and advocate for a

client’s interests is critical to the lawyer’s function in their community. As such,

I will keep myself current in the areas in which I practice, and, will associate with, or

refer my client to, counsel knowledgeable in another field of practice when necessary;

I will maintain proficiency in those technological advances that are necessary for me to

competently represent my clients.

I will seek mentoring and guidance throughout my career in order to ensure that I act with

diligence and competency.

Responsibility:

I recognize that my client’s interests and the administration of justice in general are best served

when I work responsibly, effectively, and cooperatively with those with whom I interact. As

such,

Before dates for hearings or trials are set, or if that is not feasible, immediately after such

dates have been set, I will attempt to verify the availability of key participants and

witnesses so that I can promptly notify the Court (or other tribunal) and my adversary of

any likely problem;

I will make every effort to agree with my adversary, as early as possible, on a voluntary

exchange of information and on a plan for discovery;

I will attempt to resolve, by agreement, my objections to matters contained in my

opponent's pleadings and discovery requests;

I will be punctual in attending Court hearings, conferences, meetings, and depositions;

I will refrain from excessive and abusive discovery, and I will comply with all reasonable

discovery requests;

In civil matters, I will stipulate to facts as to which there is no genuine dispute;

I will refrain from causing unreasonable delays;

Where consistent with my client's interests, I will communicate with my adversary in an

effort to avoid needless controversial litigation and to resolve litigation that has actually

commenced;

While I must consider my client’s decision concerning the objectives of the

representation, I nevertheless will counsel my client that a willingness to initiate or

engage in settlement discussions is consistent with zealous and effective representation.

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3

Mentoring:

I owe a duty to the legal profession to counsel less experienced lawyers on the practice of the law

and these Principles, and to seek mentoring myself. As such:

I will exemplify through my behavior and teach through my words the importance of

collegiality and ethical and civil behavior;

I will emphasize the importance of providing clients with a high standard of

representation through competency and the exercise of sound judgment;

I will stress the role of our profession as a public service, to building and fostering the

rule of law;

I will welcome requests for guidance and advice.

Honor:

I recognize the honor of the legal profession and will always act in a manner consistent with the

respect, courtesy, and weight that it deserves. As such,

I will be guided by what is best for my client and the interests of justice, not what

advances my own financial interests;

I will be a vigorous and zealous advocate on behalf of my client, but I recognize that, as

an officer of the Court, excessive zeal may be detrimental to the interests of a properly

functioning system of justice;

I will remember that, in addition to commitment to my client's cause, my responsibilities

as a lawyer include a devotion to the public good;

I will, as a member of a self-regulating profession, report violations of the Rules of

Professional Conduct as required by those rules;

I will protect the image of the legal profession in my daily activities and in the ways I

communicate with the public;

I will be mindful that the law is a learned profession and that among its desirable goals

are devotion to public service, improvement of administration of justice, and the

contribution of uncompensated time and civic influence on behalf of those persons who

cannot afford adequate legal assistance; and

I will support and advocate for fair and equal treatment under the law for all persons,

regardless of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity,

disability, status as a veteran, age, gender identity, gender expression or marital status,

sexual orientation, or creed and will always conduct myself in such a way as to promote

equality and justice for all.

Nothing in these Principles shall supersede, supplement, or in any way amend the Rules of

Professional Conduct, alter existing standards of conduct against which a lawyer’s conduct might

be judged, or become a basis for the imposition of any civil, criminal, or professional liability.

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Angela Robinson, Quinnipiac University School of Law Waring and Carmen Partridge Faculty Fellow

Judge Angela C. Robinson (Ret.) is a Visiting Professor and a Warren and Carmen Partridge Faculty Fellow. She teaches Evidence, and Critical Race Theory. Prior to joining the Qunnipiac faculty, Judge Robinson was a Connecticut Superior Court Judge for twenty years, and before that a plaintiff’s trial lawyer with the nationally renowned law firm of Koskoff, Koskoff and Bieder in Bridgeport, Connecticut. Upon her retirement from the bench, she joined the Connecticut-based law firm of Wiggin and Dana as a Litigation partner with a civil defense practice and as the firm’s inaugural Chief Diversity Officer. She has also taught as an adjunct faculty member at Gateway Community College, the University of New Haven, Quinnipiac Law School and Yale Law School. Robinson’s work focuses on civil litigation-related subjects, and social justice subjects implicated by racial equity issues, including critical race theory, race and the law and diversity, equity and inclusion within the legal profession.

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James W. Bergenn, Partner – Shipman & Goodwin LLP

Jim Bergenn's practice is comprised of complex criminal and civil litigation, including white collar crime and government investigations, personal injury and wrongful death cases, and other trials involving significant consequences. With more than 30 years of experience as a trial lawyer and instructor, he is called upon regularly to use his trial skills, and experience with investigations and experts, in many different kinds of contested cases.

Jim’s wide range of criminal cases includes representing targets of investigations, criminal defendants, grand jury and other witnesses, and crime victims. Because he handles personal injuries, he often helps victims after criminal cases are completed, obtain the correct compensation for their harm. He works in cases prosecuted by all the various federal, state and local authorities, such as the US Attorney’s Office, The Chief State’s Attorney’s Office, State and Federal Grand Juries, the FBI, the State Police, the SEC, the DEA, the ATF, the DOD, the IRS, the FDA, the FTC, the Office of Inspector General for various Federal Agencies, state regulators such as the Attorney General, the DEP, the DOH, the DMR, the DCF, and the Office of Consumer Protection, and local police.

As an experienced Personal Injury attorney, he represents people involved in car accidents, motorcycle accidents, pedestrians (including DUI cases), products and premises liability matters (including defective lithium ion batteries in laptops, I-Phones, and E-cigarettes that caused burn injuries), construction accidents, drownings, nursing home negligence, boating accidents, wrongful imprisonment environmental hazards and medical malpractice. He handles sexual assault cases for both adult and children victims. The injury cases he has prosecuted include death, Traumatic Brain Injuries (TBI’s), burns, RSD, paralysis, blindness and Legionnaires' disease. sexual abuse, and cases. He was involved in cases arising out of the 9/11 attacks.

He uses technology to help jurors understand in simple terms what might otherwise be complex, including video reconstruction, videotaped depositions, and clear use of illustrations, charts, maps and highlighted documentary evidence. Most of his cases use expert witnesses, including accident reconstruction experts, and economic and medical experts to establish damages. Jim Bergenn and Bill Ronalter often use videos to assist with case resolutions. Click here to learn more.

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Cindy Cieslak is chair of the Young Lawyers Section of the Connecticut Bar Association and partner at Rose Kallor, LLP in Hartford, Connecticut. Ms. Cieslak’s practice focuses on all aspects of labor and employment litigation in state and federal courts, as well as administrative agencies, including the defense of public sector and private employers against claims of discrimination, wage and hour violations, breach of contract, free speech retaliation, whistleblower retaliation, and other civil rights violations. Ms. Cieslak also provides advice to employers regarding compliance with labor and employment laws, prepares employee handbooks and best practices manuals for employers, and conducts independent workplace investigations. Ms. Cieslak has been recognized by Best Lawyers: Ones to Watch, and she has been selected to the Connecticut Rising Stars List by Super Lawyers Magazine since 2015. Additionally, in 2019, Ms. Cieslak was also awarded a Professional Excellence Award as New Leader in the Law by the Connecticut Law Tribune. Ms. Cieslak holds a Bachelor of Arts, summa cum laude, in Political Science from the Pennsylvania State University, with minors in Spanish and Women’s Studies. Ms. Cieslak received her Juris Doctor from the University of Connecticut School of Law, with a certificate in Tax Law. Ms. Cieslak is admitted to practice law in Connecticut and Massachusetts, and resides in Connecticut with her husband, son, and two cats.

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CHRISTOPHER P. KRIESEN BIO

Attorney Christopher P. Kriesen is the founder and principal of the Kalon Law Firm, LLC. He formed the firm in 2017 to fulfill his vision of a better way to practice law, serve clients, and promote social good through entrepreneurship. He leads the firm and serves as the ethics officer.

He has attended The Yale Writers Workshop, is an adherent of the Story Model of advocacy, and is writing a book on the theory, “Legal Storytelling.“ He has been invited several times to be a storyteller at Speak Up events, including a performance to an audience of 500 people at Infinity Hall.

He has taught advocacy to students at the University of Connecticut School of Law. He is an active presenter at legal seminars for other lawyers and a mentor to law students and young lawyers.

Attorney Kriesen has tried cases in State and Federal Court, has argued appeals before Connecticut’s Appellate and Supreme Courts, and has helped prepare amicus briefs on cases raising issues of first impression before the Supreme Court.

He is a trained mediator (Harvard Law School, Advanced Mediation Workshop, Program on Negotiation and the Quinnipiac School of Law Center on Dispute Resolution). He serves as an Attorney Trial Referee, Fact Finder, and Arbitrator in the Hartford Superior Court And a Special Master at the District Court, Connecticut..

Attorney Kriesen completed the Harvard Business School | HBX course “Disruptive Strategy” with Clayton Christensen, using the HBS case method to learn how to apply disruption theory to find and execute business and social opportunities. He expanded upon his studies by completing a one-year, eight class program on innovation at the Stanford Graduate School of Business. Kalon’s model is based upon what he learned in these programs.

He completed a six class program in Strategic Decision Making and Risk Management offered by Stanford University’s Center for Professional Development.

He established the Kalon Fellowship, the Kalon Human Rights Clinic, Salons, Workshops, the Cicero Advocacy Project, and The Kalon ADR Center (which, as of September 1, 2018, donates 10% of its revenue to a fund for graduates of the Hartford Youth Scholars to help with their continuing education) making Kalon unique among

The Kalon Law Firm, LLC │ 140 Huyshope Avenue, Suite 405 │ Hartford, Connecticut 06106 │ 860.249-0979

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http://www.westhartfordnews.com/news/new-law-firm-launched-by-west-hartford-resident/article_b6da7277-b2f6-5347-8c8f-3db8e44be1ba.html

peer firms in promoting social good.

Attorney Kriesen is active in his community. He volunteers at Literacy Volunteers of Greater Hartford (where he has taught basic literacy and English as a second language) and Hartford Youth Scholars (where he has advised on interviewing and career advancement).

He lives in West Hartford with his wife and his daughter attends Brandeis University.

The Kalon Law Firm, LLC │ 140 Huyshope Avenue, Suite 405 │ Hartford, Connecticut 06106 │ 860.249-0979

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Joaquin L. Madry Partner, Silver Golub & Teitell LLP

Joaquin L. Madry joined Silver Golub & Teitell from another prominent Connecticut litigation firm. Since joining the firm in 2018, Mr. Madry has received more than $34 million for firm clients as lead trial counsel or second chair.

Mr. Madry has significant experience litigating catastrophic injury and wrongful death cases in federal and state court as well as the Complex Litigation Docket and has successfully tried numerous cases to verdict. He has worked closely with nationally renowned experts in such fields as accident investigation, accident reconstruction and biomechanical engineering.

Mr. Madry has been recognized by Law & Politics magazine as a Connecticut Super Lawyers* "Rising Star" every year since 2011.

In addition, he is an active seminar speaker. He was a panelist speaker at the 2016 Connecticut Bar Association Legal Conference “Tips from the Pros: Top Trial Lawyers on the Art of Advocacy” and was also a panelist speaker at the 5th Annual Building Career Symposium for Lawyers Collaborative for Diversity.

Silver Golub & Teitell LLP 184 Atlantic St., Stamford, CT 06901 [email protected] (203) 325-4491

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Nicole Tung, Murphy Karpie Connelly & Sickinger LLC Nicole Tung is an active and seasoned trial lawyer who works in her client’s best interest with pragmatism and diligence. She practices in the area of civil litigation with a concentration in defense of general liability matters, including auto and premise liability for municipalities and clients in the hospitality, retail, and transportation industries, to name a few. She also represents insurance carriers in insurance coverage disputes. Nicole guides her clients by providing a well-crafted and practical approach to problem solving that is both efficient and cost-effective. She maintains a collaborative partnership by being attentive and understanding the specific need and goal of each client. Her deep insight and reputation within the legal community has allowed her to deliver the best outcome in matters, whether through mediation, settlement, or trial. Beyond her extensive trial practice, Nicole has also served as an arbitrator for various courts throughout the State. She brings a diverse perspective to many organizations as a Board Member of the New Haven County Bar Association, past President of the National Association for Asian American Professionals’ Connecticut Chapter, and past President of the British International School of Shanghai. Her passion extends beyond the practice of law to her volunteerism with Swim Across the Sound and Dress for Success. Prior to joining MKC&S, Nicole was an active member of ALFA International. She served as a Steering Committee Member for the Transportation Practice Group, and was the Vice Chair for the Women’s Initiative Practice Group. She also served as a member of the Diversity and Inclusion Committee. Nicole is a board member of the Connecticut Chapter of the prestigious American Board of Trial Advocates. She has an “AV Preeminent Rating” from Martindale-Hubbell Peer Review Ratings. The AV Preeminent designation signifies that she is considered by judges and fellow attorneys as having the highest possible rating of legal abilities and ethical standards. This rating is awarded to less than five percent of all attorneys in the country.

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Trial Skills Series: Direct Examination (EDU210324B) March 24, 2021

4:00 p.m. – 6:00 p.m.

Presenters

Angela Robinson, Halloran & Sage

Joaquin Madry, Silver Golub & Teitell

Nicole Tung, Murphy Karpie Connelly & Sickinger

Agenda

I. The Rules of Civil Procedure/Criminal Procedure

II. The Substantive Law

III. The Rules of Evidence

IV. Staging

V. Scripting the Direct Examination

VI. Vouching for the Witness

VII. Set the Scene – Laying Foundation

VIII. Tell the Story

IX. Emphasize the Themes

X. Show and Tell

XI. Looping

XII. Lead and Let Them Follow

XIII. Redirect Carefully and Cautiously

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FROM DRUDGERY TO DRAMACrafting and Creating an Effective Direct Examination

Including the Ten Commandments of Direct

1

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Special Presenters

Angela Robinson, Halloran & Sage

Joaquin Madry, Sliver, Golub & Teitell

Nicole Tung, Murphy, Karpie, Connelly & Sickinger

2

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Acknowledgement of the Indigenous Tribal Nations

• We acknowledge the indigenous people and tribes upon whose land we now reside and work, including those recognized like the Mohegan and Pequot and those unrecognized like the Quinnipiac for whom Quinnipiac University is named

• We recognize that for thousands of years, they stewarded the lands and waterways which we now use for our own benefit

• We honor and respect the relationship that exists between these peoples and nations and this land and we acknowledge our duty to pay tribute to them

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“There are no stars in the courtroom, only drudges in the

library”

TED KOSKOFF

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The Drudgery – Mastering the Basics

• The Rules of Civil Procedure/ Criminal Procedure

• The Substantive Law

• The Rules of Evidence

5

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Connecticut Practice Book

Sec. 5‐3

• “The oath or affirmation shall be administered deliberately and with due solemnity, as the witness takes the stand. The official court reporter or court recording monitor shall note by whom it was administered.”

Sec. 5‐4

• “The counsel who commences the examination of a witness, either in chief or on cross‐examination, must alone conduct it; and no associate counsel will be permitted to interrogate the witness, except by permission of the judicial authority.”

6

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The Substantive Law

• Elements of Cause of Actions

• Elements of Defense

• Request to Charge

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Rules of Evidence

• Federal Rules of Evidence

• Connecticut Rules of Evidence

8

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The Drama

• Staging

• Scripting the Direct

• Vouching for the witness

• Set the Scene

• Relate the Story

• Emphasize the themes

• Show and Tell

• Loop words/ phrases

• Lead and let witness follow

• Redirect carefully and cautiously

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Staging

• Blocking and practice are essential

• Know the layout of the venue

• Know the judge’s preferences

• Familiarize yourself AND your witness with the layout

• Plan your positions carefully

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Scripting the Direct Examination

• You are in control of the direction, but not the action

• Make it easy to follow

• To script questions or to outline – that is a frequent question

• How scripted (prepared) should the witness be

• How do you ensure that the fact‐finder follows the examination?

• Use the same structure for

• Lay witnesses

• Expert witnesses

• Critical witnesses

• Brief witnesses

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Vouching for the Witness

• Witness credibility is essential – find a way to inform fact‐finder why the witness is credible

• Think about what matters to the fact‐finder [voir dire is helpful to identify these issues – like education, work, family, life experiences]

• Be judicious in the use of education, training and experience for both lay and expert witnesses

• Deal with negative points on direct, rather than let them come up on cross

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Set the Scene – Laying Foundation

• Give context to the testimony – explain why the witness’ testimony matters and the perspective the witness brings

• Show why this witness was brought into court

• Identify relationships, bias, motivation

• Establish capacities – abilities to observe, remember, communicate and understand importance of honest testimony

• Any other matters that will enable the witness to simply “tell the story” when testifying about the pertinent events/facts

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Tell the Story

• This is the meat and potatoes of direct examination – it is the facts that are necessary for the fact‐finder to decide the disputed issues in the case

• Easiest to cover events chronologically

• Open‐ended questions work best

• Testimony should flow with minimal attorney interruption

• Address/ compensate for any idiosyncrasies of the witness’ testimony

• This is the time for the witness to shine!

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Emphasize the Themes

• It’s okay to repeat in order to emphasize important themes

• Make sure you cover points that support your theme more than once (but, don’t belabor or bore the fact‐finder: so there are different techniques for judge and for juries)

• Consider what the strongest points supporting the case’s theme are and close the examination with those

15

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Show and Tell

• Use documents, visual aids and props whenever you can

• “She who plays with cars, wins”

• Memory is enhanced when information is presented orally and visually

• Never have a witness merely describe something that can be described and seen at the same time

• Be careful in how you “publish” exhibits: you don’t want to divide the jurors’ attention and courts are usually impatient with have a piece of paper or document passed around the jury one person at a time

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Looping

• Use words and phrases that the witness uses to emphasize your themes

• This makes your witness more comfortable

• This creates a great memory aid for the fact‐finder

• This allows you to steer the examination without leading

• This kind of “looping” also helps you create a glossary of words and phrases that you can use throughout the case to trigger memory, thoughts and emotions

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Lead and Let Them Follow

• Traditional direct requires non‐leading questions

• This let’s the fact‐finder know that the information is coming from the witness and not the attorney

• This avoids potential objections

• Exceptions

• Preparatory, foundational information

• Transitional questions

• When a witness becomes hostile

• When a witness is an adverse party

• When impeaching

• There is an art to the open‐ended question

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Redirect Carefully and Cautiously

• It is obviously better if you have no redirect

• If you need to do a redirect carefully tie it to the cross

• Looks bad if the cross elicits something that you had not thought about

• Get in and get out, quickly

• An effective re‐direct helps your witness and your case

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For future conversations, contact us

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Angela Robinson

• Quinnipiac University School of Law

• Halloran and Sage New Haven office

• [email protected]


Joaquin Madry

• Silver, Golub and Teitell


Nicole Tung, Esq.

• Murphy, Karpie, Connelly & Sickinger


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trial skills series: direct examination

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