trial tactics from the defense perspective

Trial Tactics from the Defense Perspective

Tammy J. Meyer

MillerMeyer LLP

9102 North Meridian Street, Suite 500 Indianapolis, Indiana 46260 (317) 571-8300 [email protected]

Please Note: The author practices law in the State of Indiana, and therefore has cited many trial rules which apply to the practice in that jurisdiction. Readers are encouraged to carefully review the trial rules in their specific state or jurisdiction.

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mailto:[email protected]

Tammy Meyer has tried numerous civil cases and she has experience in insur-ance coverage and environmental insurance coverage. Tammy has published numerous articles in local and national law journals. She speaks frequently for professional associations and serves as an instructor at several trial academies. Tammy is an active member of DRI, and isVice Chair of the Trial Tactics Com-mittee. She also participates in the Indiana Association of Defense Counsel, the Indianapolis and Indiana State Bar Associations, and the Alumni Board of the IU School of Law at Indianapolis. Tammy is a Distinguished Fellow of the Indi-anapolis and Indiana Bar Foundations, and a delegate to the State Bar.

Trial Tactics from the Defense Perspective v Meyer v 111


I. Make Solid Decisions in the Defense Pretrial ...................................................................................... 113

A. Make Sense of the Use of Mediation and Arbitration to Reduce Damages ........................... 113

1. Mediation .................................................................................................................................... 113

2. Arbitration .................................................................................................................................. 115

B. Key Steps When Using Pretrial Motion Practice for Damage Control.................................... 116

1. Dispositive Motions .................................................................................................................. 116

2. Motions to Compel ................................................................................................................... 117

3. Pretrial Memorandum and Conference ................................................................................ 117

4. Motions in limine ...................................................................................................................... 118

C. A Look At Voir dire Strategies For Limiting Damages ................................................................ 118

D. Conduct a Successful Examination of the Plaintiff ’s Medical Experts.................................... 120

E. Essential Guidelines for the Direct and Cross-Examination of Economic Experts .............. 121

F. Examine How to Minimize the Amount Awarded for Compensatory Damages ................. 123

G. The Secrets to Defending Punitive Damages Claims .................................................................. 123

H. Should You Discuss Non-Economic Damages in Your Closing Argument? .......................... 124

II. Handling Critical Post Trial Issues ......................................................................................................... 125

A. Obtain the Know-How to Handle Important Defense Issues .................................................. 125

1. Judgment Notwithstanding the Verdict ................................................................................. 125

2. Motion for New Trial ................................................................................................................ 126

3. Motion to Amend or Alter Judgment .................................................................................... 126

4. Relief from Judgment or Order .............................................................................................. 127

III. Using Direct Examination to Win Your Case ...................................................................................... 127

A. Preparing for Direct Examination ................................................................................................. 127

B. Taking Control and Keeping It ....................................................................................................... 128

C. Setting up for Cross-Examination During Direct ....................................................................... 128

D. Handling and Introducing Exhibits ............................................................................................... 129

1. What exhibits will be used? ...................................................................................................... 129

2. How will the exhibits be used? ................................................................................................ 130

3. Which witnesses will use the exhibits? ................................................................................... 130

4. When will the exhibits be used? .............................................................................................. 130

5. How can the exhibits best be displayed to the jury? ............................................................ 131

6. How to get the exhibits in? ....................................................................................................... 131

7. A few final tips ............................................................................................................................ 132

E. Direct Examination of the Expert Witness ................................................................................... 132

1. Who is an expert? ...................................................................................................................... 132

2. When to use an expert .............................................................................................................. 133

3. Finding an Expert ...................................................................................................................... 133

4. The Expert’s Objective .............................................................................................................. 133

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112 v DRI Annual Meeting v October 2010

5. Preparing the Expert Witness .................................................................................................. 134

6. Presentation During Trial ........................................................................................................ 134

F. Authentication of Documents ........................................................................................................ 135

G. Laying the Foundation for Demonstrative Evidence .................................................................. 136

H. Opening Statement—Setting the Stage for a Successful Verdict .............................................. 136

1. You Never Get a Second Chance to Make a Good First Impression—

Ways to Ensure a Great Start ................................................................................................... 136

2. Compelling Openings That Make the Jury Want You to Win ........................................... 137

3. The Art of Telling the Full Story in Your Opening Statement ........................................... 138

4. Importance of the Delivery of Your Opening Statement ................................................... 138

I. Comprehensive Cross-Examination .............................................................................................. 139

1. Should You Always Cross-Examine? ...................................................................................... 139

2. Developing Causes of Action and the Case Theme ............................................................. 140

3. Rules of Evidence You Need to Know .................................................................................... 140

4. Plotting Your Strategy Beforehand ......................................................................................... 143

5. Selecting an Effective Sequence for Cross-Examination .................................................... 143

6. Taking Control of the Cross-Examination ........................................................................... 144

7. Destroying Safe Havens ............................................................................................................ 145

8. Handling and Introducing Exhibits ....................................................................................... 145

9. Effective Cross-Examination of Experts ................................................................................ 146

J. Objections .......................................................................................................................................... 150

1. Preliminary Issues ..................................................................................................................... 150

2. Hearsay Evidence and Its Exceptions ..................................................................................... 152

3. Rule 403 ....................................................................................................................................... 155

4. Expert Witnesses ........................................................................................................................ 156

5. Impact of Kumho Tire on Daubert ........................................................................................ 157

6. Qualifications ............................................................................................................................. 157

7. Objections During Cross Examination of the Expert Witness ......................................... 157

8. Leading ........................................................................................................................................ 157

9. Speculation/Conjecture ............................................................................................................ 158

10. Form of the Question ............................................................................................................... 158

11. Improper Foundation ............................................................................................................... 159

12. Assuming Facts Not In Evidence/Issue .................................................................................. 159

13. Asked and Answered—Cumulative ....................................................................................... 159

14. Argumentative ............................................................................................................................ 159



I. Make Solid Decisions in the Defense Pretrial

A. Make Sense of the Use of Mediation and Arbitration to Reduce Damages

Proper preparation is the key to reducing a defendant’s exposure through alternative dispute

resolution (“ADR”). The same kind of in-depth analysis is needed as if preparing for trial. Think about

the dispute, who will be resolving the dispute, and how to most effectively achieve the client’s goals in

the ADR process.

1. Mediation

Mediation is not a decision-oriented process; rather, it is a process of assisted negotiations in

which a neutral person helps parties reach agreement. The mediator takes information from the par-

ties and discloses what each side prefers to have disclosed to foster settlement negotiations. The parties

might not reach an agreement, and the mediator has no authority to impose an outcome.

It is critical to select an effective mediator. Begin by weighing the temperament, knowledge,

age, experience, and personality of your client, the opposing attorney, and the other party. It also helps

to have some idea as to which of the parties or attorneys in the case will need the most persuasion for

the case to settle. Depending upon the mix of these factors, there are some cases in which a mediator

with knowledge in the area of law that is the subject of the case may be needed. The most experienced

mediator in a certain type of case may lack experience to understand the issues in another type of case.

For instance, a mediator experienced in wrongful death or serious injury claims most likely has an

understanding of complex medical issues. However, the same mediator may have little to no experience

in complex construction claims and, as a result, may be an ineffective mediator in this type of case. In

addition to background experience with a particular issue, a more experienced mediator, an aggressive

mediator, or a patient mediator may be needed.

Typically before the parties meet for mediation, the mediator has communicated with the law-

yers to deal with issues such as who will attend the mediation and what information the lawyers will

provide beforehand to the mediator. Take advantage of this time to start building a working relation-

ship with the mediator and educate the mediator about your client’s perspective on the dispute.

A timely-submitted mediation statement is critical to defense counsel’s success at mediation.

The statement should be delivered to the mediator at least a week in advance. A good mediation state-

ment should be brief and to the point, yet it must be thorough and present the issues in a way that is both

engaging and analytical. Keep in mind that a good mediation statement will oftentimes be used by the

mediator as a road map to resolution. If the mediator is on your client’s side of the issue, this can have a

significant impact on the ability to sell your client’s arguments to opposing counsel. Although mediators

are neutral parties, they are also human beings, and they eventually get involved in the persuasion process.

Consider attaching photos, medical records, excerpts of deposition testimony, chronologies, or

other supporting documents so that the mediator will be familiar with the facts and pertinent defenses.

Also consider preparing a mediation notebook. The notebook, similar to a trial notebook,

allows defense counsel to readily access records that may be needed during the negotiations. Organiza-

tion is key.


At the opening of the mediation, the mediator will explain the process. This is a good time for

the parties to introduce themselves, evaluate the opposing party and listen. Often each side will have an

opportunity to make a statement. The opening statement can be a great opportunity to get the plaintiff

and his attorney into more of a settlement-oriented mindset. Counsel should explain the strengths of

his arguments, the uncertainties of the jury system and the possibility that plaintiff could receive noth-

ing, should the jury side with the defense. Counsel should refrain from antagonizing his opponent. The

chance of facilitating a reasonable settlement, and reducing plaintiff ’s damage claims, becomes much

more difficult when the other side is angered. Consider raising sensitive or volatile issues with the medi-

ator after the parties are separated. The mediator may be better able to avoid annoying or upsetting

the opponent, possibly leading to a more reasonable settlement. When presenting at the opening, talk

directly to the plaintiff and maintain eye contact. Be sincere and don’t be long-winded.

Consider using demonstrative evidence such as PowerPoint, photographs, diagrams or other

multi-media to illustrate the strengths of the case and as a tool to temper plaintiff ’s expectations.

Whether or not to disclose the existence of surveillance during a mediation is a more sensitive

subject. If the surveillance is good and the plaintiff cannot explain it, then the surveillance should be

disclosed. If the surveillance is disclosed in the mediation statement, it should be sent to counsel ahead

of time for viewing and comment. This practice is especially recommended in cases where defense

counsel has asked an expert medical witness to comment on the surveillance.

Where the surveillance is used strictly for credibility purposes and reveals a situation where a

witness has been caught in a direct lie, the decision may be easy. The surveillance can have a dramatic

effect and may serve to reduce plaintiff ’s demand for damages. Where the surveillance could potentially

be explained away, defense counsel has a more difficult decision to make. In these situations, the surveil-

lance can sometimes backfire on defense counsel. However, if it will backfire at mediation, it will back-

fire at trial, and at least the mediation setting is non-binding.

Many times an apology can do wonders in defusing plaintiff ’s unreasonable demands. The

defendant does not have to admit liability, but rather apologize for the unfortunate injury the plaintiff

has suffered. Mediation is confidential, and an apology does not foreclose defense counsel from assert-

ing the strengths of the defendant’s case.

Oftentimes a plaintiff ’s unreasonable settlement position is the result of anger stemming from

the drawn out nature of litigation and the fact that no one has acknowledged plaintiff ’s loss. Defense

counsel should also explain that they want to hear the plaintiff ’s side of the story, and hopefully,

through the mediation process, come to an agreeable solution.

Furthermore, if something has happened in the conduct of the lawsuit that has caused emo-

tions to run high, the mediator should be notified so that he can assist in defusing the tension and urge

reasonableness amongst the parties. Oftentimes the event itself that gives rise to the litigation, whether

intentional or accidental, is emotionally charged. It is important that counsel or the mediator work to

defuse the tension, which will, in turn, promote reasonable expectations among the parties.

Counsel may also wish to involve a structured settlement broker during the mediation process.

A structured settlement may persuade plaintiff to settle or accept a reduced lump sum for the assurance

that the plaintiff will receive future payments. The proposed settlement should be tailored to the indi-

vidual plaintiff ’s needs and will hopefully create a more reasonable, settlement-oriented, mindset on the

part of the plaintiff.


Many times there will be an offer on the table that may not be as much as one party wants,

but it makes economic sense to accept it. As an advocate, remind the mediator to inform the other side

that the number being offered will result in a greater net recovery for the other side than what could be

recovered after the delays and additional costs and fees associated with a trial.

Every case is different; but in most cases, it is in the best interest of both parties to execute a

written settlement agreement at the conclusion of the mediation. One reason for this is that the com-

munications between the two parties have been conducted by an intermediary. Thus, there is always the

possibility of a misunderstanding about a material term of a settlement. In addition, even though the

parties may have agreed orally to the material terms of the settlement, the release language may create

further furor between the parties. If this is going to happen, it is best to occur while the mediator is still

involved and the terms of the release language can be addressed.

Even if the case does not settle, mediation is a valuable tool which allows defense counsel to

prepare for issues that will be contested at trial. Mediation also allows counsel to review the case with

their client in depth, and focus on areas where the attorney can add value and potentially reduce plain-

tiff ’s damages.

2. Arbitration

As with mediation, preparation is the key to successfully limiting a plaintiff ’s damages in arbi-

tration. An arbitrator acts as the judge and jury. Thus, it is vital that defense counsel devote efforts

towards persuading the arbitrator.

It is a necessity that counsel understand the applicable rules that will govern the arbitration.

The arbitration agreement will typically provide the rules that the parties and arbitrator will use in

resolving the dispute. Defense counsel is wise to examine these rules closely as they often vary substan-

tially from typical trial rules and rules of evidence. Effectively navigating the procedural formalities of

arbitration is key to obtaining a favorable result for the defense.

Selecting the arbitrator is also an important decision. It has been said that the selection of the

arbitrator is the single most important decision since, in many respects, the arbitrator is the process.

Thus, it is critical to conduct a thorough investigation of potential arbitrators. Some key areas to exam-

ine are their professional qualifications, education, training, arbitration expenses, fees, and published

awards and writings. Review reported decisions and consult with other members of the defense bar

to gain an understanding or sense about the track record or hearing methods of individual arbitra-

tors. Think about what kind of arbitrator will best serve the defendant. Arbitrators tend to fall into two

camps: (1) those seeking fair and equitable outcomes; and (2) those who will strictly apply the law and

be rule-oriented. The particular facts of the dispute will dictate whether one type of arbitrator should

be selected to reach the best outcome for the defense.

Once the arbitrator has been selected, defense counsel should effectively conduct discovery

with similar zeal as if counsel was preparing for a civil trial. One key difference for an attorney engaging

in arbitration is that the discovery time period can be truncated and require a certain degree of urgency.

As with mediation, the more information that is available to the defense, the more likely counsel can

accurately predict exposure and understand points of emphasis and areas to avoid when presenting the

defense case to the arbitrator.


The parties will eventually reach the hearing stage. Typically the skills involved in advocacy

forums will translate well to the arbitration hearing. There are some special considerations that are

unique to an arbitration hearing that should be considered.

If allowed under the rules governing the arbitration, prepare a pre-hearing brief to introduce

the arbitrator to the parties and their respective positions. This is an early opportunity to persuade the

arbitrator of the defense’s position.

An opening argument should also be prepared for the hearing. As with the pre-hearing brief,

this is another opportunity to persuade the arbitrator. The opening argument should be short and sim-

ple. As with the pre-hearing brief, the opening argument should briefly tell the story of why the defense

should win, or why plaintiff ’s damages should at least be reduced. As with opening statements to a jury,

defense counsel should avoid over-promising to prevent disappointing/irritating the arbitrator in the

event counsel under-delivers.

It is also critical that defense counsel properly prepare witnesses. Encourage the witness to talk

directly to the arbitrator. Witnesses should also be prepared to receive questions directly from the arbi-

trator. Let the witness tell the story, as leading questions tend to be frowned upon by sophisticated arbi-

trators. Remember that arbitrators are fact-finders and it is typically not effective to lead the witness

through his testimony.

Dramatic jury type speeches tend to be ineffective in arbitration proceedings as well. Arbitra-

tors are typically sophisticated and thought to be unpersuaded by overly dramatic antics. This is not to

say, however, that the arbitrator is without emotion. Arbitrators are people too. However, counsel is well

advised to focus on reason and law as the most effective method of persuading the arbitrator.

Civility is equally important in arbitration as with any adversarial proceeding. Be sure to

address the arbitrator and not your opponent directly. Even when the dispute becomes contentious, the

arguments should be made to the arbitrator and not as a direct exchange with opposing counsel.

Typically the rules of evidence that govern civil litigation will not apply in arbitration. Thus,

otherwise inadmissible evidence can probably be admitted in an arbitration and the arbitrator as fact

finder will be left to weigh the credibility.

Arbitration and mediation can be an effective way of resolving civil disputes without the

expense of trial. Selecting arbitration versus mediation requires thoughtful consideration of how the

process will serve the parties, and the issues involved. The selection of an arbitrator or mediator, and the

presentation of the information to the panel or to the mediator, is critical to the process. These informal

processes demand attention to details that will most effectively serve the client to resolve the dispute.

B. Key Steps When Using Pretrial Motion Practice for Damage Control

An aggressive pretrial motion practice can be very effective in controlling damages. In pre-

trial practice, movants are the ones in control. Movants write first and last, and argue first and last. It is

imperative that defense counsel, when able, be the first to file in an attempt to limit plaintiff ’s damages.

1. Dispositive Motions

One obvious advantage of pretrial motions is that defense counsel may be able to have the

entire case dismissed. Motions to dismiss, judgments on the pleadings, and summary judgment are

powerful tools for defense counsel to use in controlling damages. With notice pleading, however, the

power of motions to dismiss and judgments on the pleadings has waned in recent years. Summary


judgment, however, remains an effective way to control plaintiff ’s damages based on plaintiff ’s risk they

that the entire case could be dismissed.

Summary judgment resolves the question of whether the evidence presented provides a suf-

ficient disagreement that would require the case to be submitted to a fact finder at trial. Not all cases,

however, are appropriate for summary judgment. Submit a strong brief. A weak brief has little chance of

winning and, even worse, can serve to educate your opponent on how to improve their case for trial.

If it appears that summary judgment cannot be won on all issues, move for partial summary

judgment only on certain issues.

Along with the relative strength of counsel’s legal argument, the timing of the motion is

another important factor to consider in controlling damages. For example, conducting mediation while

a motion for summary judgment is pending tends to have the powerful effect of creating an incen-

tive for a plaintiff to settle. The possibility that the case could be dismissed may help defuse a plaintiff ’s

unreasonable demands. Even if mediation cannot be scheduled prior to a ruling on the motion, it may

still be wise to enter into settlement negotiations while the motion is pending for the same reasons that

tend to make mediation successful during pending motions. To ensure that the motion is well based,

and to prevent plaintiff from delaying a hearing by showing the need for more discovery, do not file the

motion until the relevant discovery is completed or nearly complete.

2. Motions to Compel

To ensure that the summary judgment motion is well based, defense counsel must have com-

plete answers to discovery requests. On occasion, plaintiffs will provide little or no answers to discov-

ery requests. Defense counsel should review the responses as soon as they are received. If the responses

are less than adequate, write a letter noting the deficiencies and request a more complete answer. Cal-

endar the letter so that there is timely follow up to ensure that the responses do not lie unchallenged.

The letter will help satisfy the requirements of Trial Rule 37 prior to filing a motion to compel. Without

properly documenting the defense’s efforts to resolve the discovery dispute, counsel will have difficulty

convincing a judge that the plaintiff is causing the problem as opposed to defense counsel being too

quick to file the motion to compel.

If phone calls and letters have failed, follow up with a motion to compel. The motion should

be short and to the point, attaching the discovery requests, plaintiff ’s answers, and the follow up con-

ducted. Focus on making the decision easy for the judge and only present a longer brief when the mate-

rials sought present complex issues.

3. Pretrial Memorandum and Conference

Most jurisdictions require the parties to file with the court, a pretrial memorandum, com-

monly referred to as a pretrial statement or case management plan/order (“CMP”). The CMP may list

the witnesses, exhibits, contentions, deadlines and, sometimes, jury instructions for each party, and

objections by opposing party counsel. If there are objections, the judge will normally hold a pretrial

conference and rule on as many of the objections as possible. Take advantage of this time to state your

case, and make evidentiary objections relating to relevance and hearsay. Also, objections to the wording

of jury instructions can often be addressed.


4. Motions in limine

Take control of the case by filing motions in limine. File a motion in limine to challenge inad-

missible evidence. The motion allows the defense to be the first to talk to the court the day of the trial

and allows defense counsel to tell the judge the defendant’s version of the matter. Such motions are also

useful as they allow the court to consider the defense’s objection before the jury is exposed to the infor-

mation. Not only does this serve to keep damaging information from being introduced, it also decreases

the number of objections that defense counsel will need to make orally during the course of a trial.

Fewer objections may lead jurors to believe that the defense has nothing to hide and improve the cred-

ibility of the defense. All of this can lead to a further reduction of plaintiff ’s claimed damages.

One area that a motion in limine can be used is when a medical doctor may be offering inad-

missible medical opinions on proximate cause. A motion in limine is an excellent resource to address

the issue before testimony is presented at trial. In addition, a motion in limine is often effective in

addressing the qualifications of an expert. Rule 702 governs the qualifications of an expert. An expert

witness’ qualifications, or lack thereof, may be addressed through a motion in limine. An expert witness

testifying about particular medical issues, may not be qualified in the particular area. One example is a

general practitioner may not be able to provide testimony in a specialized area.

Nothing can replace proper preparation of the defense case prior to trial. The discussions and

suggestions below assume that the defense has engaged in the appropriate preparations through dis-

covery and other pre-trial strategies. However, once you reach trial, there are strategies that can be

employed to limit the amount of damages allocated to the defendant.

C. A Look At Voir dire Strategies For Limiting Damages

The purpose of voir dire is to have jurors that will listen with interest and return a verdict in

favor of your client. Several opportunities are available during this process. First, there is the oppor-

tunity to inquire into the jurors’ backgrounds, beliefs, and opinions so that jurors can be effectively

selected. Second, there is the opportunity to introduce the facts and issues of the case within judicial

limitations. Lastly, this is the first opportunity to draw jurors to your side of the issues. The basic rule of

first impressions being lasting impressions applies even more so in the voir dire process.

Voir dire is not so much the process of selecting a jury, but rather a process of de-selecting one.

An effective use of voir dire will identify and eliminate jurors that are most hostile to, or least inclined to

disbelieve or disagree with, your client’s arguments or position. This includes identifying jurors that are

hostile to defendants in general. It also includes identifying those jurors who are most favorable to your

opponent.

An attorney may identify those potential jurors who can identify with the client based on a life

experience, age, employment background, or family history background. Other areas of inquiry which

the attorney should question are education, residence, hobbies and interests, reading and television, and

involvement in organizations. If there is a difficult liability issue involving engineering principles, one

party may prefer highly educated jurors, while the other party many not want highly educated individu-

als, but instead prefer jurors who have preconceived notions about the issue. Employment history often

will indicate how one may perceive facts. For instance, an insurance claims adjuster is one that plaintiffs’

attorneys will quickly remove from the panel. On the other hand, defense counsel may be on the watch

for employees of plaintiffs’ law firms or medical groups that tend to be advocates for plaintiffs. Residen-

tial history may provide an idea of someone’s lifestyle or life practices. Hobbies and interests provide the

attorney a broader idea of the person beyond employment. Television shows, newspapers, and internet


websites help form opinions that govern beliefs. Life experiences, such as prior jury duty and personal

lawsuits can greatly affect how a juror may decide issues. Good questions to reveal the conservative ver-

sus the liberal juror are the following: Are you a member of any organizations? Do you have any bum-

per stickers on your car, if so what are they? Good questions to indicate whether a juror is thrifty or

spend-thrifty are the following: How do you feel about recent movements to cap non-economic dam-

ages? How do you feel about this plaintiff seeking money for physical injury? Can you think of any cases

in the media where a jury award has been too high?

It is important to keep in mind that questioning jurors involves two basic skills: knowing what

topics to discuss with the jurors, and developing a questioning style that is honest and non-judgmental.

By applying these skills, jurors may reveal information about their background that may be necessary to

make an informed decision.

There are several other purposes of voir dire, including education of the potential jurors, as well

as permissible conditioning (i.e., persuasion) to your theories of the case. Educate in simple ways: (1) go

over the verdict form (especially if it is confusing) to help determine if the jurors will commit to “neces-

sary results” (i.e., no proximate cause = no damages); (2) discuss the juror’s job of deciding the credibil-

ity of the witnesses, and the believability of their testimony, taking into full consideration the witnesses’

motive or bias; and (3) diffuse the weaknesses of your case, which plaintiff ’s counsel will, no doubt,

discuss during opening argument; but, also begin inoculating the jury against plaintiff ’s arguments.

Persuade using both verbal and non-verbal communication. Be aware of the entirety of the signals you

send to the jury.

Engage in as much preparation as possible before voir dire begins, including, but not limited to,

reviewing any available juror questionnaires, understanding the locale of your trial, familiarizing your-

self with the court’s procedures for voir dire, and knowing potential jury instructions. This will allow

you to craft your voir dire to be useful. Do not forget that the defense voir dire will follow that con-

ducted by plaintiff ’s counsel, so pay attention to the questions and answers during his/her voir dire and

feed off of it to your client’s benefit. Develop a theory for your case; include questions in voir dire that

will get across your theories and how they apply to the case. Ask the court to allow both parties to give

a “mini” opening statement prior to voir dire (2-5 minutes). This will allow you to condition all poten-

tial jurors to the facts of the case and will likely speed up the process of de-selection, as well as making

it more real for the jury pool, as they will have a small basis of knowledge about the case instead of ran-

dom hypothetical questions.

Practical Pointers:

1) Use voir dire to develop the juror’s confidence and trust in you and your client.

2) Get commitments from jurors, including a commitment that they will be able to award no

damages, even to a sympathetic plaintiff, if the evidence is as you state.

3) Be entertaining, or at least less boring than opposing counsel. If the jury likes you, they are

more likely to believe you.

4) Be aware of and address issues of sympathy for the plaintiff, as well as negative emotions

that certain aspects of your case may elicit. Make sure the jury understands that you are

also sympathetic, but that they cannot award damages based solely on that sympathy.

5) Personalize your client – refer to them by name. This may make it harder for the jurors to

grant a large award of damages.


6) Beware of the meek and silent juror – they may be a “ringer” for the plaintiff ’s side and just

waiting for their opportunity in deliberations to become the domineering and vocal one.

7) De-select those jurors that do not understand or appreciate the value of money (i.e., jurors

on worker’s compensation or unemployment may have an “entitlement” attitude). But,

also be careful of jurors whose job it is to play with other people’s money (i.e., stockbro-

kers, traders).

D. Conduct a Successful Examination of the Plaintiff’s Medical Experts

Hopefully you have conducted an effective deposition of plaintiff ’s medical expert(s) prior to

trial, and engaged in any and all potential Daubert arguments and Motions in limine. Assuming those

tactics have not succeeded in preventing the testimony of Plaintiff ’s expert, you will need to conduct an

effective cross-examination at trial. “Effective” means that you are able to provide the jury with a reason

to disbelieve the plaintiff ’s expert’s view of the case and put more stock in your expert (if you have one),

or at least in your view of the medical issues, including damages.

Your job is to discredit plaintiff ’s medical expert. Even though you may not have been able to

exclude the expert under Daubert previously, the jury does not know that, and this can be done by pos-

ing Daubert-based questions. Review the expert’s qualifications. For example, is the expert truly quali-

fied to provide expert testimony on the particular issues of your case? Question the expert about the

basis of their opinion, and then subtly point out how your case differs from those underlying assump-

tions. If possible, attempt to discredit the expert’s opinions with opinions of others in their field of

expertise, or their own previous opinions (in this or other cases). Ask questions about the reasonable-

ness or necessity of the treatment provided to the plaintiff. (You can prepare the jury for these types

of questions during voir dire.) Since plaintiff ’s counsel will certainly focus the expert’s attention on

the tests or records that support a larger award of damages, you should make sure you spend time dis-

cussing the tests and records that are normal or “negative.” Your goal is to discredit plaintiff ’s medical

expert, either the theories used, his/her educational background or practical experience, or the underly-

ing assumptions used to reach the opinion in your case. If you are able to discredit the plaintiff ’s med-

ical expert, the amount of damages a jury will award should be significantly reduced.

A cross-examination that can demonstrate an expert’s bias is a powerful tool since it taints the

entire testimony. The most common kind of bias is the expert who exclusively or predominately testi-

fies for plaintiffs or defendants. This information can be easily found since Rule 26(a)(2) of the Federal

Rules of Civil Procedure requires the expert to disclose in a written report each time during the past

four years that the expert testified by deposition or at trial. Also, the expert’s previous publications can

be useful if the article has an obvious slant or was published in a publication that represents a particu-

lar point of view. Lastly, if possible, show that the expert has a financial interest in being a witness and is

willing to be hired by almost anyone.

Practical Pointers:

1) Highlight the expert’s lack of familiarity with, or ignoring of, facts and circumstances of

the case. If relevant, address the failure to follow doctor’s orders/failure to mitigate. Also,

distinguish between the injury, and simply getting older.

2) Point out the expert’s biases, including information about how the expert is paid by the

plaintiff, who the expert works for, and publications or previous testimony (especially if it

conflicts with the testimony in your case).


3) Pose questions that put the medical expert in the position of having to admit that his/her

conclusion would be different under different facts (which are strikingly similar to the facts

in your case). If they admit their conclusion would change, you have provided the jury

with a picture of the damages that is more favorable to your client. But, if the expert will

not admit that his/her conclusion would change, they lose credibility with the jury.

4) If a long time has lapsed since the expert’s review and evaluation of the plaintiff ’s injuries,

ask questions about the difference in the current extent and effects of the alleged injuries

(especially if the plaintiff is much better and has few or no long-lasting effects) compared

to the initial opinion.

5) Avoid allowing the plaintiff ’s expert to give long narrative explanations. Any such explana-

tion will be pro-plaintiff. Lead the plaintiff ’s expert, so that you are able to point out to the

jury the problems with his/her opinions.

6) Do not concentrate on insignificant issues. Focus on discrediting the expert on issues that

matter to the theory of your case.

7) Use the plaintiff ’s medical expert to impeach the plaintiff, if possible. For example, the

plaintiff says one thing, but the plaintiff ’s records show another. Develop this inconsistency

while questioning the plaintiff ’s medical expert about the factual assumptions underlying

his/her opinion.

8) Obtain favorable admissions that address the positive regarding the damage aspects as they

apply to your client’s defenses.

9) Discrediting the expert witness can involve questioning his education and training; the

lack of involvement in professional organizations associated with the nature of the claims

made; questions about licensing in those circumstances where a license may have been

suspended, revoked, or investigated; lack of particular accreditation in a specialty; or lack

of publications or research in a particularized injury areas. This will raise questions in

the jurors’ minds about how little the expert really knows about the particular issue being

addressed.

Basic Cross-examination Principles:

1) Use leading questions to avoid broad responses by the expert.

2) Use plain words, so that the jury understands what is being asked.

3) Listen to the answers so that the response can be addressed if necessary.

4) Have the materials to be used for cross-examination close by and marked so that there is

no wasted time looking through paperwork for information.

5) Do not argue or fight with the expert witness.

E. Essential Guidelines for the Direct and Cross-Examination of Economic Experts

Economic experts are often used to project lost future earnings and pecuniary loss. Many of the

issues discussed in section B, above, will also apply to economic experts. However, the use of economic

experts has become much more prevalent in recent years and there are issues to consider when ques-

tioning your own economic expert, as well as plaintiff ’s economic expert. Numbers are a funny game

and many people are leery of statistics which can be maneuvered easily. It is your job to bolster the cred-

ibility of your own expert, if you chose to use one, by reducing the jury’s fear that your expert used


“funny math” to get to the result you want. But you must also discredit the plaintiff ’s expert without

getting into what the jury will simply see as a battle of numbers. Make sure the jury does not lose sight

of your client in the economic debate.

It is unusual for the economist to meet with the plaintiff. Normally, the economist analyzes the

plaintiff ’s employment, employment history, and future employment within the industry. Then the

economist calculates future expected wages and makes assumptions on the present value of money to

determine plaintiff ’s claimed loss. Use this to your advantage. Obtain more detailed information about

the plaintiff ’s work history, habits, and background. Undermine the economist’s testimony based upon

incomplete or inaccurate opinions if you have better information. A great resource is the U.S. Depart-

ment of Labor website at www.bls.gov/oco for information on plaintiff ’s occupation and future growth.

Before having your own economist testify, think about whether or not that testimony is truly

necessary. Perhaps you are able to discredit the plaintiff ’s economist without an opposing expert. One

danger of putting your own economist on the stand is that you may be providing the jury with a “floor”

for damages. Be sure that you want to concede that “floor,” or have determined that you need your expert

to point out plaintiff ’s economist’s reasonable-sounding, but misguided and inflationary theories.

There are many common assumptions in economic theory. Show the jury that your expert did

not fall into the common assumptions trap, but that plaintiff ’s expert is entangled at the bottom of the

pit. These assumptions include: (1) using national statistics of any kind (inflation, unemployment),

when local statistics are available (especially when they are less favorable to the plaintiff ’s position); (2)

failing to examine plaintiff-specific factors that would reduce damages (i.e., scholastic records, criminal

records, driving records, employment/unemployment, past spending/saving, health habits/history); (3)

selecting an unrealistic discount factor (used in lump sum payments to put a present value on a future

sum of money); and, (4) calculating lost future earnings that are greater than plaintiff ’s actual income

before the alleged injury. (In wrongful death cases, economists often fail to account for the decedent’s

consumption expenses when calculating damages.)

Practical Pointers:

1) Remember the pitfalls of the common assumptions used by many economists. Make sure

your own expert avoids the pitfalls, and point out when the plaintiff ’s expert fails to avoid

them. This will help persuade the jury that the damages sought by plaintiff are excessive.

2) If you use a defense economist, make sure he is able to explain his own theory in terms that

the jury can easily understand. Your expert should also be able to simply explain the prob-

lems with the plaintiff ’s economic damages theory.

3) Get the plaintiff ’s expert to admit that their projections are unpredictable and specula-

tive, or that alternative methods reaching alternate conclusions are as sound, economically,

as the one used by the plaintiff. This can demonstrate for the jury the expert’s bias for the

plaintiff.

4) If plaintiff ’s expert has used an alternative method for calculating damages in another case,

use that to show the jury that the plaintiff ’s expert is simply playing with numbers to get a

bigger number.

5) Avoid attempting to score too many points against the economic expert. Limit yourself to

the most relevant, and easily understandable, problems with the expert’s opinion. Other-

wise, you will overwhelm the jury and most likely lose them.

http://www.bls.gov/oco


F. Examine How to Minimize the Amount Awarded for Compensatory Damages

The most effective way to minimize a compensatory damage award is to convince the jury

that the cause of the damages cannot be linked to the defendant (i.e., they were not the cause in fact,

their action did not cause the injury alleged, there was an intervening cause). On the rare occasion you

cannot accomplish this feat, and your client will at least be held accountable to some extent, limit the

amount of damages that will be assessed against the defendant.

There are numerous ways to limit the amount of compensatory damages the jury will award

to the plaintiff. One way, in particular, is to request that the damages portion of any trial be bifur-

cated from the liability portion. This may reduce the potential for the jury to find liability based on the

alleged damages claims, rather than on the facts. If punitive damages are requested, seek bifurcation of

that portion of the trial to avoid any presentation of the defendant’s financial status during the liabil-

ity phase of the trial. Discuss the burden of proof with the jury, and address it during direct and cross-

examinations. If the jury does not find the defendant was liable, there is no award of damages. Point

out that the jury should not award damages based on speculation or guessing, but on the factual issues.

Focus your presentations on those factual issues that contradict the damages claimed.

Practical Pointers:

1) Repeat throughout the case (voir dire, opening, testimony, closing) the issues in the case that

point to comparative fault of the plaintiff, or the plaintiff ’s failure to mitigate the damages.

2) Discuss foreseeability issues that place your client in a better position, and reduce the

amount a jury would want to award the plaintiff.

3) Address damages in each stage of the trial (i.e., voir dire, opening, testimony, and closing).

4) Use jury instructions to educate the jury about the proper elements of damages and the

plaintiff ’s burden of proof.

5) Don’t let the jury lose sight of the individual being sued.

6) Point out the plaintiff ’s failure to follow medical advice or instructions during recovery.

7) Highlight the plaintiff ’s pre-existing conditions or subsequent injuries which may be

inflating the damages requested.

8) If the plaintiff ’s injuries are less visible at trial, point out the difference between the current

situation and any initial thoughts on those injuries (i.e., never walk again, but now running

marathons).

9) Help the jury see themselves in the defendant’s shoes, without asking them to put them-

selves there.

G. The Secrets to Defending Punitive Damages Claims

Punitive damages claims should be taken seriously from day one, even if they are meritless

claims or merely used to inflame the jury. The plaintiff has a high burden with a punitive damages

claim, and there are numerous things that can be done to prevent a punitive award. Many punitive

damages claims can be addressed prior to trial through a motion for summary judgment. Frequently,

punitive damage claims are often pled to enhance a settlement rather than having meritorious support.

To succeed on a punitive damages claim, the plaintiff must prove malice, fraud, gross negligence or

inexcusable oppressiveness. Paint a picture of the defendant that will alleviate the jury’s concerns about

any of those categories.


It is important to remember that the purpose of punitive damages is to punish the defendant

and deter similar conduct in the future. In fact, the plaintiff only gets twenty-five percent of a punitive

award. Use the established purpose of punitive damages, and the facts of your case, to show the jury that

punitive damages are unnecessary. Make sure that there are strong, detailed jury instructions explain-

ing what punitive damages are and how they differ from compensatory damages. Make constitutional

arguments, including due process issues regarding excessive awards that are disproportionate to your cli-

ent’s conduct. Make those arguments under both the federal and state constitutional provisions. Discuss

the disparity between the requested punitive damages and the actual or potential harm. Emphasize the

other civil or criminal penalties that are authorized or imposed in similar cases. Remember that moral

and ethical values are constantly changing over time. Perhaps the defendant’s conduct was not consid-

ered outrageous at the time of the alleged incident, but since that time the community standards have

changed. Help the jury understand that it would serve no purpose to punish the defendant for some-

thing that was socially acceptable at the time it happened, simply because it has now been vilified.

Practical Pointers:

1) First and foremost, have the issue of punitive damages bifurcated from the remainder of

the trial. This will reduce the potential for a non-favorable verdict, as well as potentially

reduce any award of compensatory damages.

2) Discuss the purpose of punitive damages with the jury (i.e., punishment, deterrence), and

address why the defendant’s actions do not fit within those purposes.

3) Fight hard to avoid any compensatory damages (i.e., point out that the plaintiff has no

actual damages attributable to the defendant), because the jury cannot award punitive

damages unless there is an underlying compensatory award.

4) Do not allow juror sympathy for the plaintiff to result in a large punitive award.

5) Show the jury that the plaintiff can be made whole economically without a punitive award,

especially when there are no viable emotional distress claims or outrageous conduct.

6) Paint a picture of the defendant that avoids the appearance of any reprehensible conduct.

7) Point out compliance with any applicable laws, regulations, and standards, both state and

federal.

8) If possible, turn the attention to the plaintiff ’s actions. Find an act, or failure, of the plain-

tiff which could be the basis for culpability. Think about assumption of risk and foreseea-

bility arguments.

9) Make sure the jury knows that you personally care about the case. Tell the defendant’s story

and show the jury that the defendant is a real, live, breathing, living person (or business), and

not the evil one to whom a message should be sent (as the plaintiff will certainly propose).

10) Refer to the defendant by his/its name (not as “the defendant” or “my client”).

H. Should You Discuss Non-Economic Damages in Your Closing Argument?

The answer to this question is, unfortunately, the all-too-often given response . . . it depends.

Closing should always address three things: (1) the theme; (2) the evidence; and (3) the applicable law.

So, if the evidence appears strong in favor of an award of non-economic damages, give it some time

during your closing. If you have done an outstanding job during trial in eliminating or discrediting the

plaintiff ’s claims for non-economic damages, perhaps you can ignore those claims during your closing.


However, that is dangerous and damages should almost always be mentioned and typically an alterna-

tive number given so that if the jury finds for the plaintiff, they have a number other than the plaintiff ’s

number. Continually evaluate the jury’s reactions to and perceptions of the testimony and evidence

related to those claims. Don’t appear cocky or flippant during closing, but do not remind the jury of

issues they may have discarded. Thus, it is a judgment call. However, never give closing argument with-

out having given a significant amount of thought to whether and how to address damages, including

non-economic damages.

Practical Pointers:

1) If you choose to discuss non-economic damages, be sure you appear more sympathetic,

compassionate, reasonable, and credible than plaintiff ’s counsel.

2) Paint a clear picture of the family unit involved that moderates the jury’s sympathy, anger

or verdict potential.

3) Use common sense, and help the jury use theirs. Jurors are people, and certain non-eco-

nomic claims may look ridiculous to the jury. However, the reverse is also true – the jury

may see the claim as something they would also want compensation for if they were in a

similar position.

4) Remember, if you choose not to address non-economic damages, you have left the last

word on them to plaintiff ’s counsel, who most certainly will discuss them. You should

not react to plaintiff ’s counsel’s closing arguments about these damages, but you may run

a serious risk (at your client’s expense) if you do not at least bury a statement or two in

response somewhere in your closing.

5) Any argument against non-economic damages must be explained to the jury in the context

of, and to further support, the theory of the case you have been reiterating at every oppor-

tunity throughout the trial.

6) The “per diem” argument is used by plaintiff ’s attorney to inflate damages for pain and suf-

fering. It suggests what one day of pain and suffering is worth, and then multiplies it by the

remaining years of plaintiff ’s life expectancy. The best defense to the per diem argument is

to object for speculation and unreasonable damages.

7) Motivate the jury. The function of the closing argument is to move the jury toward making a

particular decision. Rebutting the plaintiff ’s damages argument makes a jury less motivated

to favor the plaintiff ’s award, and more motivated to favor the defendant’s liability theory.

II. Handling Critical Post Trial Issues

A. Obtain the Know-How to Handle Important Defense Issues

If defense counsel does not receive the desired result at trial, file a post-trial motion to improve

or reverse the outcome. Defense counsel must know and use the tools that are available post-trial before

an appeal is considered.

1. Judgment Notwithstanding the Verdict

Federal Rule of Civil Procedure 50 allows the trial court to enter a judgment in a party’s favor

notwithstanding the jury’s verdict. The basis is that the evidence at trial did not support the verdict. The


trial court determines whether there was sufficient evidence for a reasonable jury to find in favor of the

non-moving party. The trial court will only reverse the jury’s decision when the evidence is so one-sided

that there could only be one conclusion reached by a reasonable jury. According to Indiana Trial Rule

50(E), at the state court level, the motion for judgment notwithstanding the verdict has been abolished.

2. Motion for New Trial

Under both the Federal Rules and Indiana Trial Rules, defense counsel can move for a new trial

in certain circumstances. Some of the reasons that a court may grant a new trial include: newly discov-

ered evidence, verdict against a clear weight of the evidence, excessive damages, prejudicial legal error,

and to prevent injustice. Although there is no set standard, the trial court has broad discretion in either

denying or granting the motion for a new trial. The standard for granting a new trial is less stringent

than the standard applied to Rule 50 motions for judgment notwithstanding the verdict.

Pursuant to Indiana Trial Rule 59(J)(7), [i]n reviewing the evidence, the court shall grant

a new trial if it determines that the verdict of a non-advisory jury is against the weight of

the evidence; and shall enter judgment, subject to the provisions herein, if the court deter-

mines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not sup-

ported by the evidence, or if the court determines that the findings and judgment upon

issues tried without a jury or with an advisory jury are against the weight of the evidence.

Ind. Trial Rule 59(J)(7).

When a court grants a motion for a new trial based on newly discovered evidence, it typi-

cally has found that: the new evidence was discovered following the trial, the moving party was excus-

ably ignorant of the evidence at the time of trial, the use of due diligence on the part of the moving

party would not have revealed the evidence, the evidence was admissible and material, the evidence, if

admitted at trial, would likely have changed the outcome, and the evidence is not merely cumulative or

impeaching.

When a court grants a new trial on the basis that the verdict went against the weight of the

evidence, it is convinced that the verdict went against the clear or greater weight of the evidence. The

standard for granting the motion is that allowing the verdict to stand would be a miscarriage of justice.

In deciding a motion for a new trial based on an excessive verdict, the trial court must deter-

mine whether the verdict is against the clear weight of the evidence and whether the verdict will result

in a miscarriage of justice. The court may be inclined to order remittitur (reduction of the award).

When ordering remittitur, the court will request the party to choose between the reduction and a new

trial. The prevailing party at trial must agree to the remittitur, otherwise a new trial is granted.

A new trial can also be ordered based upon the prejudicial error of the court or opposing coun-

sel. The error must affect a party’s substantive rights, or present a claim from fairly being presented to

the jury.

A motion for new trial must be filed within ten days of the entry of judgment.

3. Motion to Amend or Alter Judgment

Rule 59 of the Federal and State Rules contemplates a motion allowing the court to reconsider

and correct its own mistakes. The trial court has broad discretion to exercise this remedy, but rarely is

the motion successful. Some reasons that the motions have been successful include: a change in the state

of the law since the judgment, discovery of new evidence after the judgment, to correct a clear error of


law or fact, or to prevent manifest injustice. Such motions cannot raise new arguments that were not

argued at trial.

According to Indiana Trial Rule 59, a motion to correct error addresses the following errors:

newly discovered material evidence, including alleged jury misconduct, capable of production within

thirty days of final judgment, which with reasonable diligence, could not have been discovered and pro-

duced at trial; or a claim that a jury verdict is excessive or inadequate.

4. Relief from Judgment or Order

Rule 60(b) under Federal and State Rules contemplates the court providing relief to the movant

far after the typical ten day window allowed for other motions. Again, the court has broad discretion.

Some of the rationales for allowing this relief have included: mistake, inadvertent surprise, or excus-

able neglect. Other times, courts have granted such motions based on newly discovered evidence, fraud,

misrepresentation, or where there was a void judgment based on a lack of subject matter or personal

jurisdiction, or in circumstances where the movant can prove extraordinary circumstances. The motion

must typically be made within a year of the entry of judgment, or in the case of the catch-all provisions,

within a reasonable time.

Specifically, Indiana Trial Rule 60(A), applies broadly to “clerical mistakes in judgments, orders

or other parts of the record.” Subdivision (B) allows a motion for relief from an entry of default, final

order, or final judgment. Some of the areas for consideration of relief are as follows: (1) mistake, sur-

prise, or excusable neglect; (2) any ground for a motion to correct error, including without limitation

newly discovered evidence, which by due diligence could not have been discovered in time to move for

a motion to correct errors under Rule 59; (3) fraud; (4) entry of default or judgment by default was

entered against such party who was served only by publication and who was without actual knowledge

of the action and judgment, order or proceedings; (5) the judgment is void; (6) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or other-

wise vacated. Ind. T.R. 60(B).

Post-trial motion practice can be employed by defense counsel prior to filing an appeal. The

motions are much less expensive and time intensive than filing an appeal. The granting of such motions

may avoid the need for an appeal altogether.

III. Using Direct Examination to Win Your Case

A. Preparing for Direct Examination

To prepare a witness’ direct examination, one popular method is to list the pieces of the story

that each witness will provide to the jury, and itemize those documents or other pieces of evidence that

each witness will authenticate and describe. The examination is structured so that the witness is intro-

duced to the jury. Thereafter, begin to have the witness tell his or her piece of the story in a manner that

will be easiest for the jury to follow and understand. Remember that portions of a direct examination

will lay a foundation for other parts of the examination. For example, a witness will introduce photo-

graphs to the court, first establish that the witness is familiar with the area or thing depicted in the pho-

tograph, at the time the photograph was taken, or at the relevant time. If a witness will testify about a

document, first establish that the witness either wrote or has some other familiarity with the document.


Most attorneys will start a witness’ testimony with an introduction as to who they are and

how they are relevant to the case. However, when a witness’ identity is readily apparent to the jury (e.g.,

the plaintiff), the witness’ testimony can begin with something that is more powerful or interesting.

Regardless of how a witness’ testimony begins conclude it on a powerful note. Structure questions so

that the witness is telling the story, and not simply agreeing with a story being told. Doing so will avoid

objections of leading the witness. More importantly, it avoids having the jury conclude that the witness

is simply mimicking words and avoids a loss of drama, spontaneity and other characteristics that can

catch and hold a jury’s interest. Witnesses must look and talk to the jury if they can do so and still be

effective. Position yourself at the end of the jury box or behind it to encourage such eye contact. Struc-

ture the direct examination so that the theme of the case is readily apparent. Each witness should make

a contribution to the overall theme of the case. Likewise each witness should be aware of the case’s

theme and able to revert to it if the witness gets lost or confused in his or her testimony.

B. Taking Control and Keeping It

Some witnesses like to think they are smarter than the lawyer. While that may be true in some

instances, it is important to ensure that the witness—no matter how smart—is not in control of the

testimony. Sometimes the jury’s perception of counsel weighs heavily in its impressions of the case.

An out-of-control attorney will not favorably affect the outcome of trial. One’s own witnesses are not

necessarily as invested in the case as the attorney or client. Fact witnesses may be neutral, or may even

think your side should not prevail. The biases and perceptions of each witness must be anticipated and

revealed.

Make sure direct examination is well designed to lead the witness down a path that leads to

evidence helpful to the jury. Be obvious about the path and the destination, instead of trying to be

overly dramatic for the sake of drama. Prepare witnesses so that they also understand the destination of

their testimony and are not surprised by any twists and turns along the way. Jurors will notice if a wit-

ness is surprised by a question. This is not always negative, as it may demonstrate the testimony is not

rehearsed to the point of regurgitating canned testimony; however, it should not comprise the bulk of

direct testimony.

C. Setting up for Cross-Examination During Direct

Understand that the witness is more worried about the cross-examination he faces, than doing

well in his direct examination. If there has been a deposition, the witness may have prior experience

with opposing counsel. No doubt witnesses will have seen enough “TV cases” to remember witnesses

who are eviscerated on cross-examination and worry that might happen to them too. They need to

know their Counsel will assist them in dealing with cross examination issues, and that a sound strat-

egy to either preempt those issues or address them head-on has been planned. As a part of preparation,

review the witnesses’ depositions and identified concessions, admissions, or weak spots in their pretrial

testimony. Plan to address any material concessions or other “oops” events. Anticipate the cross-exami-

nation, and try to defuse any bad facts. Decide where in the direct examination to defuse the anticipated

cross-examination by volunteering any weaknesses. Wait until after creating and bolstering the witness’

credibility. That way the witness will already have legitimacy in the jurors’ minds. In this setting, order

is critical. Since most people form impressions quickly and then resist changing them even when con-

fronted with reasons to change, witness should always make an initial good impression. Have the wit-

ness’ strong affirmative testimony come well before the acknowledgement of any weaknesses. On the


other hand, do not wait until the very end of the testimony, because the jurors will remember it better if

it comes late. Bring out the weaknesses in the middle of the testimony and make them part of the story

without emphasizing, apologizing for it, or drawing undue attention to it. In all likelihood, the jury will

make less of a bad fact if they already have an initial good impression of the witness and the testimony,

and will appreciate candor in the whole story, rather than hiding some of it until it comes out on cross.

D. Handling and Introducing Exhibits

When preparing for direct examination, preparation must always be made for getting exhibits

into evidence. However, just getting the exhibits into evidence is not enough. A considerable amount of

time should be spent deciding what exhibits will be used, how they will be used, which witnesses will

introduce them, and how best they can be displayed to the jury. The jury can become easily distracted

from the testimony if time is spent fumbling with exhibits. The jury can also become quickly frustrated

if exhibits are not organized, or if they are not presented in a manner in which the jurors can easily

examine the exhibits. Likewise, if the proper foundation is not smoothly laid, jurors may become frus-

trated at the numerous objections and arguments of counsel. The following are some tips on getting

exhibits into evidence during direct examination, and properly using them once they are introduced.

1. What exhibits will be used?

Jurors love exhibits! Listening to testimony gets boring. Jurors want to see what people are

talking about, not just hear about it. In the age of television, movies, videos, and computers, jurors

expect more. Use your imagination, and use exhibits as much as possible. Just about anything can be an

exhibit. Be creative. Here are some examples of types of creative exhibits:

Slip and Fall Case Involving Snow and Ice:

Blow up of accident area

Sample of ice melt used/instructions on bag

Certified copy of weather report

Blow up of relevant part of weather report with pertinent information highlighted

Newspaper which plaintiff reads daily warning of hazardous weather

Slip and Fall on Foreign Substance:

Blow up of accident area

Sample of foreign substance if it is helpful to your case

Warning cones (those used for defendant, or those which could have been used for plain-

tiff)

Surveillance video

Medical Issues:

Model of the knee

Medical device used on the plaintiff

Photos of the wound

Motor Vehicle Accident:

Signage used on the semis (not just pictures, bring the actual signs)

Enlarged photos of the vehicles


Computer graphics or video of a recreation

Photographs of vantage points of drivers or videotape of same

Photos of pertinent signs of road

Other Possible Exhibits:

Clothing

Weapons (Be careful!!)

The product that caused the injury

Diagrams

Blueprints

Aerial photos

Maps

Audio Recordings

Drawings

X-Rays

Pertinent Medical Records (blown up on poster board or PowerPoint).

Do not forget to consult with expert witnesses. Many times they have creative exhibits that they

frequently use.

2. How will the exhibits be used?

Exhibits can be used on direct examination to help the jury visualize the witness’ testimony,

support the witness’ testimony, or contradict another witness’ testimony. Again, use exhibits whenever

possible.

3. Which witnesses will use the exhibits?

More than one witness may be competent to lay the foundation for introducing an exhibit.

Select the one with the most knowledge, as this makes a better impression on the jury. Normally, it is

best to get the exhibits in front of the jury as soon as possible, so line up witnesses accordingly. Reuse

exhibits already introduced with subsequent witnesses. This may help emphasize important points and

reemphasize the exhibit. However, be careful so that the witnesses’ testimony about the exhibit does not

contradict each other, or the exhibit may turn out to be useless, or at worse yet, damage to your case.

4. When will the exhibits be used?

Exhibits can be distracting. Careful planning is necessary so that jurors are not distracted from

important testimony during direct examination. The exhibits should complement and not compete with

the testimony. For example, the scene should precede and not interrupt testimony about what happened.

Some exhibits may be introduced during the direct examination. For example, exhibits which

help the witness explain his or her testimony should be introduced during direct examination. How-

ever, in some cases, especially if the exhibit contains a considerable amount of writing, get the testimony

in first so that the jurors are not reading the exhibit instead of listening to the testimony. Moreover,

a tactical advantage can be gained by waiting until the end of direct examination to introduce some

exhibits. This may provide you a chance to highlight and re-emphasize certain testimony.


5. How can the exhibits best be displayed to the jury?

Exhibits should be clear, attractive and easy to use. Many exhibits are unclear, too small, clut-

tered, or not easy to use. Keep the following in mind:

Bigger is better

Color is better

The simpler the better

Let the jurors touch it

When thinking about displaying the exhibit, consider having the witness hold it, or put an

enlargement on a stand and have the witness go from the witness stand to in front of the jury. Or, blow

it up on a poster or a computer. Before trial, sit in the jury box and ask how best jurors can see the

exhibit.

Jurors want to see what is being talked about, in color and up close. It is very frustrating to

jurors when a witness and attorney start talking about a 3 x 5 photo at the witness stand and, maybe, it

is shown to the jury 15 minutes later and passed to them one by one.

Photographs: Show the witness the original small photograph and get it admitted. Then,

immediately show them a blow up of the same and get it admitted. Put the blow up in front of the jury

before the witness begins testifying about it.

Records: Blow records up on a poster-board, or a computer. Or, give the jurors their own indi-

vidual copies. Or, consider doing both.

Diagrams/charts: Use large poster-board that is sturdy and use dark, thick markers of contrast-

ing colors for diagrams and charts. Don’t clutter the chart or make the print too small. Make sure the

diagrams and charts are sturdy—mount them on poster board and set them on a sturdy stand. Con-

sider using overlays. However, it may be necessary to mark each overlay as a separate exhibit if they are

written on by different witnesses. Overlays may be helpful to demonstrate discrepancies in witnesses’

testimony.

Have other tools ready for the witness to use with the exhibits such as markers, highlighters,

a pointer, or better yet, a laser pointer which can be used from a distance so that the witness does not

obstruct the jurors’ view of the exhibit.

6. How to get the exhibits in?

Exhibits can be admitted by stipulation of the other side, or by laying a proper foundation.

Know the procedure and the logistics. Some courts are less formal than others, and some of the follow-

ing can be skipped on occasion. Here are the basic steps:

— Have the exhibit marked. Many courts require that exhibits be pre-marked.

— Show opposing counsel the exhibit.

— Ask the court’s permission to approach the witness.

— Show the witness the exhibit.

— Lay the proper foundation for the exhibit.

— Offer the exhibit into evidence. (if demonstrative, say so)

— Once admitted, have the witness use/explain the exhibit.

— Pass, show, or display the exhibit to the jury.


Increasingly, computers, digital evidence, and computer-generated exhibits are being used in

the courtroom. Sometimes the court provides access to such technology, but often, the parties bring

their own equipment to display data electronically to juries and judges. Additionally, increases in tech-

nology have increased the opportunities for video conferencing and for presenting witnesses from off-

site locations.

Advances in technology present new evidentiary issues. Objections such as authentication and

hearsay are certainly real, but they do not seem to have caused great difficulty in the courts. Often, most

evidence presented on paper existed at some time as computer-stored data, so there is a commonality of

issues between traditional and digital evidence.

One important distinction to make is whether the evidence in an electronic medium is intro-

duced as evidence, or is simply used as a method of displaying the underlying traditional evidence to

the jury. This distinction regarding formal admission is important because it can determine whether the

evidence can be easily used during closing argument and whether it goes to the jury during its delibera-

tions. Make sure all exhibits get back to the court reporter, and keep a list of the exhibits at counsel table

for easy reference.

7. A few final tips

Keep exhibits organized. If documents are used, make a subfolder for each exhibit, label it, and

have enough copies for all of the jurors and Judge (also have enlargements or digital images of the doc-

ument to display it). Note on direct examination outlines which exhibits are to be used and pull those

folders before beginning direct examination. On the inside of each folder list the foundation needed to

get the exhibit into evidence and any pertinent case law. If appropriate, also have in the folder a copy of

appropriate case law to counter anticipated objections to the exhibit. For difficult exhibits, have a brief

prepared on the law which supports admission of the exhibit. If necessary, make use of motions in lim-

ine to get pretrial rulings on questionable exhibits. The key is to prepare ahead how the exhibits will be

used, get them into evidence, and anticipate and prepare for opposing counsel’s objections.

E. Direct Examination of the Expert Witness

Expert witnesses are often a critical part of a case-in-chief. The following should be kept in

mind when selecting, preparing for, and questioning an expert witness.

1. Who is an expert?

According to Black’s Law Dictionary, an expert is, “One who by reason of education or special-

ized experience possesses superior knowledge respecting a subject about which persons having no par-

ticular training are incapable of forming an accurate opinion or deducing correct conclusions.”

Under Indiana law, to qualify as expert, two requirements must be met:

(1) the subject matter must be related to some scientific field beyond knowledge of average lay-

person; and

(2) the witness must be shown to have sufficient skill in that area so that his opinion probably

will aid trier of fact in its search for truth.

Harlan Sprague Dawley, Inc. v. S.E. Lab Group, Inc., 644 N.E.2d 615 (Ind. Ct. App. 1994). See Also, In.

Evidence Rule. 702.


Usually, expert witnesses are professionals, but some experts have little or no formal education.

These experts rely instead on field experience.

There are many examples of expert witnesses. Engineers, economists, accident reconstruction-

ists, and of course, medical experts are some of the most commonly used.

2. When to use an expert

As with almost everything else in the law, there are no definitive rules regarding when an expert

should be employed. Rather, choices should be made based on careful considerations of the pros and

cons in each specific case, and consider consulting with a more experienced trial attorney if you are

having trouble deciding whether an expert is needed.

If the case is one that will require an expert, try to get the expert involved as early as possi-

ble. One thing that makes experts vulnerable is their lack of thorough preparation. Getting the expert

involved early will provide the best chance of having a well prepared and knowledgeable expert.

It is generally not a good idea to employ more than one expert. For every expert witness that is

designated, your adversary is entitled to take their deposition. If only one expert is used at trial, oppos-

ing counsel can still use both depositions. Any inconsistencies in the testimony of the experts will cer-

tainly be used against you. Even if both experts agree, a single, thoroughly prepared expert witness will

provide a better service to the client than several weak ones.

3. Finding an Expert

The best source of expert referrals is word of mouth. Most attorneys will not be hesitant to

recommend an expert who did an excellent job or to discourage the use of an expert who did not per-

form as well as expected. However, sometimes the situation calling for an expert will be unique personal

referrals are not available. In such cases, you will be best served to consult directories, society member-

ship rosters, trade associations, and private consulting firms.

Do not shy away from using a competent expert solely because the expert is often used in litiga-

tion. Even though the expert may testify often, the jurors in each particular case will likely only hear the

expert testify once, and an experienced witness may have the best understanding of how to effectively

communicate to the jury. Also, an experienced witness is less likely to be blind-sided by a skillful cross-

examination. Of course, there are some risks involved in using a battle tested expert. Your adversary will

almost certainly point out the expert’s frequency of testifying and attempt to use that to show bias. Also, it

might be easier for opposing counsel to find instances where the expert has given conflicting testimony.

4. The Expert’s Objective

The expert in a jury trial is akin to a teacher. The expert’s testimony should provide informa-

tion to the jurors that, due to their lack of training or experience, they could not otherwise draw from

the facts. The expert will be a more effective teacher if he/she is qualified by virtue of background, edu-

cation, and experience. The more qualified the expert is, the more persuasive he will be. The more per-

suasive the expert is, the better the client will fare. The expert’s opinion should be relevant to the facts of

the case, and must be based on principles, methods, and techniques that have been proven reliable.


5. Preparing the Expert Witness

It is important to prepare an expert, but do not attempt to steer his or her opinion. Remember

that anything told to the expert could eventually be put into evidence. Always assume that every conver-

sation among counsel, client, attorney, and anyone else concerning the expert’s work will be discovered.

During cross-examination, questions may arise about how the expert’s opinions were formed, and you

don’t want to have to endure the embarrassment that meddling into his or her business may cause.

Prepare your expert in advance instead of waiting until the last minute. Consider doing a simu-

lated cross-examination, and watch out for inconsistencies. Also, caution the witness about exaggerat-

ing the strengths of the case. Tell the expert to be polite, respectful, and communicate in a way that the

jury can understand.

6. Presentation During Trial

Regardless of how effective the expert is, the power of his presentation will be lost on the jury

if the jury has grown restless after a long day of testimony. If possible to control the scheduling of the

expert, it is best to call him/her or her at a time when the jury is most alert. When qualifying the expert

in front of the jury, do not give a long, drawn out account of all of the expert’s qualifications. Instead,

pass copies of the expert’s resume to the jury, and point out enough of the highlights to impress the jury.

Long qualifications bore the jury and give the appearance of self-importance on the part of the expert.

The direct examination is a time for the expert to shine. Do not interrupt the expert with

numerous questions. Instead, your role is to simply facilitate the expert’s analysis of the case. Ques-

tions should be brief, simple, and highlight important areas of testimony. To take advantage of the jury’s

attention, first elicit the witness’s opinion, and then ask the expert to provide the explanation. Demon-

strative evidence is also a useful tool in keeping the jury’s attention. The jury will be more likely to pay

attention if the expert is able to use, charts, diagrams, or models.

The following is an example of a potential sequence for examination of the medical expert.

i. Education

CV put into evidence as an exhibit

Undergraduate degree? In what subject?

Medical School? Residency?

Area of concentration?

Practice at what hospitals?

ii. Clinical Experience

Employment in this field?

What type of patients did you see?

How long were you there?

Any awards or promotions while there?

Next employment.

iii. Teaching and Publication

Given any lectures? What are the general topics of lectures?

Published? In what fields?

iv. Professional Organizations

Are you a member of any professional organizations


v. Licenses

When did you receive your license? Other states?

Are you board certified?

What are the requirements you must meet to be board certified?

vi. Definition of Terms

Doctor, please explain to the jury in general terms, What does reflex sympathetic dys-

trophy mean?

How does this condition occur?

vii. Plaintiff

Have you had occasion to evaluate the plaintiff?

Before evaluating the plaintiff, did you review her medical records?

What does our review of these records indicate to you about the plaintiff?

As part of your evaluation, did you conduct an examination of the plaintiff?

What, if anything, were your conclusions from those observations, based on a reason-

able medical probability?

viii. Opinions

Get the doctor to agree that all opinions are based on a reasonable degree of medical

probability.

Do you have an opinion regarding the probable cause of her injury?

What is it?

What do you base that opinion on?

Do you have an opinion as to the long-term effects of the injury?

Keep in mind that the expert may be the most important witness, and that he will probably be

attacked relentlessly on cross-examination. Try to get everything out on direct to prevent an embarrass-

ing disclosure on cross.

Remember, what an expert has to say is more important that what the lawyer has to say. To be

most effective, the expert must know the issues, and how counsel plans to use his or her expertise. An

expert who is able to communicate effectively is invaluable.

F. Authentication of Documents

Before any written document is admissible, it must be authenticated. Ind. Evidence Rule 901.

Prove that the exhibit is what the witness claims that it is. The following are ways to authenticate docu-

ments:

1. A familiar witness: A witness who is familiar with the author’s handwriting may identify

handwriting or signatures. In Rule Evidence. 901(b)(1). A witness may obviously identify

his or her own signature.

2. A witness present at signing. A witness who was present at the signing of a document may

verify the document, handwriting or signatures. Ruth v. First Fed. Sav. & Loan Assoc., 492

N.E.2d 1105 (Ind. Ct. App. 1986).

3. An expert witness. An expert can compare handwriting to a sample document. Ind. Rule

Ev. 901(b)(3).

4. Public Records. Some public records are self-authenticating and, if certified, are admissible.

Ind. Rule Ev. 902.


5. Business Records: Certified business records are self-authenticating. In. Rule Evidence.

902(9) and (10).

Think of authenticity as just proving that it’s the Areal thing.@ With documents, it is generally

not too difficult. Stipulate when possible.

G. Laying the Foundation for Demonstrative Evidence

Demonstrative evidence is used to illustrate, clarify, or explain a witness’ testimony. Demon-

strative evidence may include maps, charts, diagrams, models, drawings, or reproductions. It is usually

evidence not involved in the incident tried but evidence which makes other evidence better understood

(e.g. a floor cone like the one present at the time of the accident).

The test for admitting demonstrative evidence is whether the exhibit will help the jury under-

stand other relevant evidence. Underly v. Advance Mach. Co., 605 N.E.2d 1186 (Ind. Ct. App. 1993). The

witness must testify that the exhibit is a fair and accurate representation of the thing it is intended to

depict. Jackson v. State, 426 N.E.2d 685 (Ind. 1981).

Any discrepancies between the illustration and the real thing must be explained. Underwood v.

State, 535 N.E.2d 507 (Ind. 1989).

Other examples of demonstrative exhibits:

1. Anatomically correct dolls Cleveland v. State, 490 N.E.2d 1140 (Ind. Ct. App. 1986).

2. Photographs (including aerial) Holt v. State, 463 N.E.2d 466 (Ind. 1984).

3. Experiments Montgomery Ward v. Gregg, 554 N.E.2d 1145 (Ind. Ct. App. 1990).

4. Models

5. Demonstrations O’Connor v. State, 529 N.E.2d 331 (Ind. 1988). Demonstrations do not

have to be formal scientific demonstrations. They can be as simple as asking the witness to

demonstrate how the defendant waved the traffic by. Or, use other exhibits that have been

introduced for the demonstration. For example, ASir, please show us how the pallet jack

was sitting and how the plaintiff walked backwards into it. But, be careful; the glove may

not fit.

6. Diagrams

7. Charts

8. Maps

H. Opening Statement—Setting the Stage for a Successful Verdict

1. You Never Get a Second Chance to Make a Good First Impression—Ways to Ensure a Great Start

The first 30 seconds of opening statement are the most important. Rehearse it over and over

again if necessary, just to make sure it’s done right. The beginning of the opening statement has to be

simple, otherwise there is the risk of the “used car salesman syndrome.” If the theory of the case and

“theme” are not simple, the opening can be annoying and will probably irritate the jurors. None of the

jurors choose to be in the courtroom, they were subpoenaed. The last thing counsel wants them to do is

have to “work” to figure out what counsel is saying. Without a theory of the case being simple, the jury

may get lost in opening statement. Do not get “behind the 8 ball” in opening statement and play “catch-


up” during the trial. It is unnecessary. Talk to people not affiliated with the practice of law. Ask what

they think about the case. Ask what they want to know about the case. Ask why they want to know what

they want to know. Listen to those opinions. Counsel is probably unable to think like these individu-

als. Seize this opportunity—it is like looking in the other team’s playbook before a football game. Unlike

most lawyers, these opinions will be short, sweet and to the point. Once equipped with this informa-

tion, counsel should prepare to deliver it succinctly to the jury, make a great first impression and ensure

a great start.

2. Compelling Openings That Make the Jury Want You to Win

Opening statement should be fact specific. Using general statements and

Anecdotes impersonalize counsel and the client, and will take away from believability. Preemp-

tively strike every piece of damaging evidence. Show the jury you are not afraid of anything, and have

a reasonable explanation for each and every piece of evidence which could damage the case. Leave no

stone unturned.

Remember the key things learned about each juror in voir dire. Keep that in mind and, if pos-

sible, use an analogy related to a fact or a personal experience of a juror to show how simple the case

theory is. Be careful not to oversimplify the case. Since this is opening statement, don’t argue. However,

explain the client’s position with enthusiasm.

Rebut the opponent’s case with specific facts that will be introduced into evidence, as well as

explaining adverse witnesses’ motivations to lie. In criminal cases, show the jury the alleged victim’s

motivation to lie or the law enforcement officers’ incomplete and/or sloppy investigation. If opposing

counsel overlooks evidence in his/her opening statement, pounce on it and explain what the evidence

will show with respect to each issue. Always put the “meat on the bones,” but make sure the “meat” is as

simple as the “bone.” If the opening statement is fact specific and convincing, it will make the jury want

you to win.

Explain that the client is a family person, if appropriate. Get that evidence in, preferably

through the witnesses with the most damaging evidence to the case. It is critical to demonstrate a cli-

ent’s human side, but all points gained are lost if the jury believes counsel is looking for sympathy. If

possible, get a “warm” story about the client before the jury. Remember, pictures tell a thousand words

and, if used correctly, they can personalize the client to the point of taking him/her completely out of

the courtroom setting, and into the jurors’ living rooms. And, of course, never, ever refer to the client in

a criminal case as the Defendant—he/she is not guilty, and that word says otherwise. Likewise, in civil

cases, avoid the negative connotation that comes with the word Defendant, but use the word Plaintiff

to your advantage. Never, ever, refer to your client as “my client.” Make the jury forget you are paid—

counsel is doing this because the client is in the right. Always use exhibits where/when possible. Poster

boards work fine, as do power point presentations. Visual aids/pictures really do say more than words.

Never use a prop, unless certain it will not cheapen the opening statement. Use the exhibits which will

be introduced at trial, if possible. Embrace all the exhibits that potentially hurt the case in opening

statement. Touch/handle the other side’s “evidence.” Say the “magic words” (which are always case spe-

cific) while touching the evidence. Always keep the theory of the case in mind, and tie it into what is

being said (without overstating it of course).

If there are no trial exhibits that help, create exhibits. Hire an investigator to take pictures of the

scene or draft something—anything—visual which helps the case. In cases where the primary evidence

against the client, or for the client, involves documents, use the documents and explain to the jury that


this is the evidence, then attach a reasonable explanation to it. In closing argument, always come back to

the exhibits referenced in opening statement. By coming “full circle” with a compelling opening state-

ment, the jury will want you to win.

3. The Art of Telling the Full Story in Your Opening Statement

Always tell the jury in opening statement that they will be given the complete and entire pic-

ture, regardless of the burden of proof. Explain that without the full story, there is no way the jury can

make an informed decision and render a just verdict. Never tell the jury the opening statement is a

“roadmap.” Many lawyers do that, but it is overused. The roadmap must be in counsel’s mind so that

the opening statement is perfectly organized and the full story is told. Counsel has done all of the work,

and preparation necessary to give a cogent and persuasive opening statement—now it must be exe-

cuted. Grab the jury’s attention instead of telling them the opening statement is a road map of the evi-

dence. Jurors are not stupid. If the opening statement is complete, they will figure out it is a roadmap of

the evidence. Just tell the jurors what they will hear. Always include the good, bad and ugly. This is the

chance to rebut the negatives before they are presented to the jury.

It is a lot easier in state court cases, rather than federal, to add counsel’s touch of persuasiveness

to the facts. Once this is done, as the jury hears the evidence, the “stain” of anything negative has already

been removed. It is likely the jury will trust counsel (and counsel’s opening statement) either on a con-

scious or unconscious level. As counsel tells the full story, it is helpful to preface some facts with “the

evidence will show,” but do not do this too much. As counsel discusses the facts, pepper the opening

statement with adding in “... and that is reasonable doubt” in a criminal case or “... and that is why Mr.

Smith should prevail” in a civil case. This way, counsel links specific facts and/or evidence to the burden

of proof that the jury will hopefully decide in the client’s favor at the end of the case.

Do not have an objection sustained by the Court during your opening statement. Counsel does

not need a “point scored” against him during the few times counsel has full control of the courtroom.

Believe “that the evidence will show” what is being said—if counsel does not believe it, counsel will

never have a shot at convincing the jury to believe it. Make sure the client knows to believe it as well,

because if he/she does not look like he/she believes it, the jury never will. If counsel does this success-

fully, even if the jury disagrees with the position, counsel may win. How? In a criminal case, the pros-

ecutor did not meet his/her burden of proof beyond a reasonable doubt, and/or in civil case the burden

of proof was not satisfied.

Opening statements should not just be a roadmap of the evidence; it should be the “full story”

of the entire path to a verdict in the client’s favor. The art of telling the full story in your opening state-

ment will include the facts, the burden of proof applicable, and jury instructions (where appropriate).

Paraphrase the key jury instructions in opening statement. This will show the jury that counsel demon-

strated early on that the just and appropriate verdict is the one counsel is asking for in closing argument.

4. Importance of the Delivery of Your Opening Statement

A compelling factor to consider incorporating into the delivery of an opening statement is

clarity. Have a comfortable format. When the format is used, counsel will always be clear. A format for

delivery can be simple: grab the juror’s attention, convincingly state the client’s case, and why that posi-

tion is the correct one (insert the reasons here), present the facts from the client’s perspective, tell the

jury who lied or who “got it wrong,” then give a great “close” to the opening statement. Always address

and clear up anything that is even slightly complex. Take time and explain the process of how the sys-


tem works (this is fact/case specific). If counsel has a format, the delivery will always be clear because

the presentation makes sense to counsel.

Never overstate the case. Counsel will automatically lose if this mistake is made. If you truly

believe less is more, this mistake won’t be made. Never repeat yourself if you “get stuck.” Once that is

done, the jury will undoubtedly think the tactic is “if I say it enough times maybe they will believe it.”

The point always is the client should prevail because (insert the reason(s) here). Meet the challenge of

saying and showing that in different ways without repeating. “Do not sell what’s already been sold.”

Give the jury the theory of the case succinctly and keep them interested in what is being said. Just give

the jury the facts, believable explanations, highlight the weaknesses in opposing counsel’s case, explain

the burden of proof, give a great close to the opening—then sit down. Find the appropriate balance -

never rush opening statement, but do not overdo it. Less is definitely more. In criminal cases, always

remember counsel is not proving innocence and counsel never wants the jury to think that you are.

Actual innocence does exist, and if it does in your case, the jury will figure it out. Many lawyers fall into

the trap of overstating their case when it comes to the burden of proof. In criminal cases, the burden of

proof is always on the State/Government. Show the jury why/how the client did not commit the crime

and that counsel is answering all of the allegations. Counsel is not proving anything. If counsel shows

the jury that he is “proving” his case, then counsel has overstated everything and the constitutional

advantage is lost.

Counsel must personalize his client. Have several conversations with the client. When engag-

ing in conversation with the client, counsel will pick up on those intangibles he otherwise would not.

Once that is done, counsel is armed with ammunition to convey this to the jury - ethically. Many times,

opposing counsel’s witnesses know the client on a personal level. This is a chance to reveal the positive

traits for the client, and rebut the negative ones (which usually come before the jury -whether or not

they really should). Also the jury will see how counsel interacts with his client. Never underestimate the

jurors’ “perceptiveness.” In a criminal case, if the client is charged with a violent crime, show the jury

through actions why they should not be afraid of him/her. In a civil theft case, do likewise, and show the

jury why he/she should be trusted. If the client has a nickname, somehow/some way, get it before the

jury (ethically of course). The above are helpful pointers for a convincing delivery of an opening state-

ment, but of course by no means, an exhaustive list. As in every aspect of the trial, believability to the

jury is the most important part of the delivery of opening statement.

I. Comprehensive Cross-Examination

1. Should You Always Cross-Examine?

One of the most effective ways of impeaching a witness at trial is through the use of deposi-

tions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly

impeach using depositions and inconsistent statements. This results in embarrassing situations for

those attorneys.

When a witness makes a statement in trial that is inconsistent with his or her deposition tes-

timony, first highlight the question that was answered differently at trial. Make sure that the trial testi-

mony being impeached is a direct inconsistent statement with the deposition given before trial. Then,

ask the following questions:

• You gave a deposition on (state the date)?

• A court reporter was present at your deposition?


• You were sworn in to tell the truth? Just like today?

• You told the truth on that date?

• (If applicable) Your attorney was present at your deposition?

After you have set the foundation for the impeachment, then ask the witness the following

question: “You were asked the following question and gave the following answer?” At this point, read the

question previously asked and the answer given by the witness in the deposition.

A similar method may be used to impeach a person using an inconsistent statement in a docu-

ment such as an affidavit, sworn statement or letter. The trial attorney should first highlight the incon-

sistent trial testimony that will be impeached. Next, identify and authenticate the document that will

show the inconsistent statement given by that same witness. To establish the foundation necessary to

impeach an individual with the use of an inconsistent statement, the witness should be asked the fol-

lowing questions:

• You gave a statement to (person) regarding how the accident occurred?

• You gave that statement freely?

• XXX was present when you gave your statement?

• The statement was given on XXX?

• The witness can then be shown the exhibit and asked the following question: I show you what

has been marked as Plaintiff ’s Exhibit “A” for identification. This is a copy of your sworn state-

ment?

Finally, read the relevant portion of the statement that directly contradicts the trial testimony

of the witness. Impeachment through the use of depositions or documented inconsistent statements

should be accomplished in an organized fashion and should be performed smoothly and directly using

leading questions. The relevant pages and sections of the deposition should be marked and highlighted

beforehand so as not to fumble through pages or lose control of the witness. There is nothing more

impressive than to see an attorney properly impeach a witness through the use of inconsistent state-

ments in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will

prove to be an effective means of cross-examining even the most “dangerous” witness at trial.

2. Developing Causes of Action and the Case Theme

• Determine what the client is suing for and who is being sued.

• What theory is the client promoting?

• Has counsel complied with the existing law and covered all applicable areas of law?

• Is the claim going to pass muster with a jury?

• Will the client survive the dreaded directed verdict?

After answering these questions, develop a theme that will be used in voir dire, opening, direct,

cross, and closing. The “theme” can be tested in depositions and before non-lawyers. The theme is to be

believable and emphasized at all stages.

3. Rules of Evidence You Need to Know

There is no substitute for a well-prepared lawyer, and to prepare for a deposition, trial, or other

proceeding which follows the strict rules of evidence, counsel must evaluate the case in terms of the evi-


dentiary problems. Then, prepare for these problems with legal research and a strategy. Problems may

be encountered that are unanticipated or problems that were anticipated, but developed in other than

the manner in which they were encountered. The best weapon is thorough preparation. One of the big-

gest evidentiary issues to prepare for is hearsay.

a. Hearsay

Hearsay is an out of court statement, which asserts facts, and is offered in court to prove the

truth of the facts asserted. Buffking v. State, 700 N.E.2d 1147 (Ind. 1998). The statement can be oral,

written or nonverbal/conduct. General principles of hearsay are found in Ind. Trial Rules 801, 802, 803,

805, 806.

A statement is not hearsay if it is offered for a purpose other than to prove the truth of the mat-

ter asserted. If the statement is not one of fact, it is not hearsay. Questions, commands and requests are

not hearsay. Often times, opposing counsel will try to have hearsay admitted by using the response, “not

offered for the truth, just that the statement was made.” However, it is rarely contested that the statement

was made, and this is rarely a justification for admitting hearsay. If a statement is not being used for the

truth of the matter asserted, then it must be used for some other legitimate purpose. Legitimate purposes

other than to prove truth are: impeachment, rehabilitation, state of mind, identification, and notice.

A number of exceptions to the hearsay rule are found in Rules of Evidence 803 and 804. Know

these exceptions well, and keep a copy of the Rules nearby during trial.

Most hearsay exceptions are based upon the concept that the statement is otherwise reliable

and should be admitted. For example, the present sense impression exception is permitted because a

person is not apt to fabricate a statement made while an event is happening because there is no time for

reflection. The same is true with excited utterances. Similarly, statements of physical condition made

to a doctor for the purposes of treatment are deemed reliable because one would not ordinarily lie to a

doctor when seeking treatment. Likewise, for dying declaration, one is considered to make reliable state-

ments when he is at the “doorway of meeting his maker.”

Under Ind. Evidence Rule 801(d), certain statements which might appear to be hearsay are

allowed to be used as substantive evidence. Prior statements of a witness are allowed to be used as sub-

stantive evidence if:

(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning

the statement, and

(2) the statement is:

(A) inconsistent with the declarant’s testimony and was given under oath subject to the

penalty of perjury at a trial, hearing or other proceeding, or in a deposition; or

(B) consistent with the declarant’s testimony, offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive,

and made before the motive to fabricate arose; or

(C) one of identification of a person made shortly after perceiving the person; or Ind.

R. Evid. 801(d)(1).

Also, prior statements by a party opponent may be introduced as substantive evidence if:

The statement is offered against a party and is:

(1) the party’s own statement, in either an individual or representative capacity; or

(2) a statement of which the party has manifested an adoption or belief in its truth; or


(3) a statement by a person authorized by the party to make a statement concerning the sub-

ject; or

(4) a statement by the party’s agent or servant concerning a matter within the scope of the

agency or employment, made during the existence of the relationship; or

(5) a statement by a co-conspirator of a party during the course and in furtherance of the con-

spiracy.

Ind. Evidence Rule. 801(d)(2).

It is not enough for counsel to be conversant with these rules. If the case requires expert testi-

mony, insure that the expert knows the parameters and limitations of the rules as well. As the attorney,

it is counsel’s job to insure that all of the expert’s testimony, which is essential to the case, makes its way

to the jury. A failure in this regard is generally due to a lack of proper preparation. The converse is also

true. Knowing the full extent of the limitations placed by the hearsay rules may enable the prepared

lawyer to keep damaging evidence from the jury.

b. Other rules

Several of the Indiana Rules of Evidence frequently come into play during cross examination.

The following is a list of some Rules that commonly arise.

— Rule 611(c) sets forth the rule permitting leading questions on cross-examination.

— Rule 611(a) gives the judge discretion to control the cross-examination and prevent harass-

ment of witnesses.

— Rule 402 gives the judge discretion to exclude prejudicial, confusing, or cumulative evidence.

— Rule 401 defines relevant evidence. Often objections are made by opposing counsel during

cross-examination that the question seeks inadmissible evidence.

— Rule 401 provides that “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence” is relevant evidence.

— Rule 403 provides that if the prejudicial impact of the evidence solicited on cross is not out-

weighed by the probative value, the evidence may be excluded.

— Rules 404, 405, and 608 address when the character of a witness is admissible. This is often

important as often times a witness’ character will be attacked during cross.

— Rule 407 provides that evidence of subsequent remedial measures is inadmissible. This often

comes up during the course of cross-examination.

— Rules 609 and 613 deal with impeachment. Impeachment is at the heart of all cross-exami-

nation.

— Rule 609 provides that a witness may be impeached by evidence of conviction of a crime.

— Rule 613 allows impeachment by use of a prior statement.

— Rules 701-705 govern expert testimony.

It is critical that counsel has a thorough understanding of the Rules of Evidence. Study the rules

of evidence, and keep a reliable practice aid handy at all times during trial.


4. Plotting Your Strategy Beforehand

Narrate your drive. While driving to work, use leading questions to narrate the trip. Look out

the window - what do you see? Describe it with leading questions:

• “I’m driving.”

• “On Elm Street.”

• “Heading southbound.”

• “To my left is a car dealership.”

• “A Ford dealership.”

• “Their parking lot is filled with vehicles for sale.”

• “New vehicles are parked to the left.”

• “Used vehicles are parked to the right.”

• Etc...

Cross-examine your cat. As I mentioned earlier, it’s not normal to ask leading questions.

Practice. One of the best ways to do that is to cross-examine your cat or something else that

won’t understand what you’re doing. If counsel attempts to practice by asking her husband or friend

leading questions, do NOT hold the author responsible for the inevitable breakup that follows! Prac-

tice on your cat, an inanimate object, or anything else that won’t get upset by this style of questioning,

because the witness would only respond “yes” or “no” to the questions anyway.

5. Selecting an Effective Sequence for Cross-Examination

Some of the most common ways attorneys alienate the jury during cross examination:

(A) Demanding “yes” or “no” answers. During cross-examination, counsel wants to lock the

witness into “yes” or “no” answers. The answer, however, usually sounds like this: “Well, yes,

but...” Then the attorney cuts the witness off, saying, “You must say ‘yes’ or ‘no;’ you can’t

explain your answer.”

When that happens, jurors get offended. In a normal conversation, one is not limited to “yes”

or “no,” he’d be given a chance to explain the answer. When lawyers curtail the answers, jurors

sense that the lawyer isn’t playing fair. Of course, there are times when a “yes” or “no” answer is

needed, and there are several techniques that can be used to limit a witness’s answers to “yes”

or “no” without alienating the jury. But evaluate each witness carefully. Ask if the witness is

honestly trying to answer the question, or if he’s trying to be evasive. If he’s honestly trying to

answer the question, counsel will appear unfair if the witness is cut off. Instead, ask shorter

questions and phrase them more carefully. Counsel will get more single-word responses, and

won’t alienate the jurors.

(B) Quibbling over minor details.

When arguing over minor points, counsel risks losing credibility with the jury. Analyze the

cross-examination and ask, “What are the most important points I need answered?” If the

answer doesn’t fall into one of those major points, counsel probably doesn’t need to quibble

with the witness. If the witness said “3:32 PM” at his deposition and says “3:34 PM” from the

witness stand, is that worth an intensive cross-examination? Depending on the trial, it might


be, but best to show the jury that it’s a major detail before starting down that path. Pick your

battles. When fighting over minor details, counsel usually loses more than he gains.

(C) Doing a “cross” cross-examination.

Novice cross-examiners get angry with witnesses. They treat the witness as a mortal enemy,

someone to be left bloodied, beaten, and defeated on the witness stand. Expert cross-examin-

ers know better. They realize that there’s almost never a need to become angry with a witness.

When counsel finds himself getting upset with the witness, pause for a moment and take a deep

breath. Don’t let emotions get in the way. If anyone needs to get angry at the witness, let the

jurors get mad at him. Don’t steal their righteous indignation by attacking the witness. Remain

calm, be a professional, and let the facts, rather than emotions, guide the cross-examination.

(D) Thinking that everyone’s a liar.

Many inexperienced attorneys think that for their cross-examinations to be successful, they

must crush the witness and expose him as a liar. In truth, most jurors aren’t that willing to

believe that a witness is lying. In their experience, most people are good and honest, so when

witnesses promise to tell “the truth, the whole truth, and nothing but the truth,” they probably

do, right? When organizing a cross-examination along the lines of “this scumbag is lying to

you,” be able to deliver the goods. If not, counsel will risk raising the jury’s ire. A better way to

organize cross-examination is to start from the presumption that the witness is mistaken or is

relying on bad information. Jurors relate to that concept much more easily.

As the examiner, very special powers are gained during cross-examination. Counsel can force

someone to answer the questions. Through the use of leading questions, counsel can put words in their

mouths. And counsel has the power to talk about embarrassing impeachment material, ranging from

criminal convictions, to lies, to (if appropriate) sexual indiscretions, alcoholism, or drug addiction.

All of these powers can be used effectively to reach the truth during cross examination. But,

one of the dangers of cross-examining witnesses is that jurors usually identify with the witness, rather

than the attorney. When the jurors walked into the courtroom for jury selection, they too, were on the

receiving end of the questioning process. They may identify with the person who’s forced to answer the

questions, rather than with the person who asks the questions. That means that they can feel counsel is

abusing power simply because counsel is aggressively cross-examining a witness. Since the jurors may

identify with the witness, and not with counsel, the most important thing counsel must do when exam-

ining the witness is to be polite. If counsel is going to be the guide they can trust, counsel can’t suddenly

take off the guide hat during cross examination.

Just because he’s charged with a crime doesn’t mean counsel can cross-examine him differently

than any other witness. Don’t raise your voice or lose your cool...even if the witness lies straight to your

face. Treat the witness with respect, even when he hasn’t earned it. Always take the high ground. When

the witness quibbles or fights, don’t lower yourself to his level.

6. Taking Control of the Cross-Examination

Tell a story. Use leading questions to tell a story. It might be the client’s story, the story of

missed opportunities (what else could the witness have done or should the witness have done?), or

the story of impediments to observation (what did the witness misread, fail to observe, or neglect to

observe?) There are numerous stories to be told - pick the story, and then tell it with leading questions.


Practice by telling the stories already known. Counsel represents the Three Bears, and has the

opportunity to cross-examine Goldilocks. What story will be told through leading questions? Cross-

examining the Big Bad Wolf, can counsel tell a story from the Three Pigs’ perspective? Or, cross-examine

a favorite movie villain. Practice telling stories with leading questions until it becomes second nature.

One fact per question. Only ask for ONE fact per question. Examine each question. How many

facts does each question request? If counsel asks for too many facts per question, it gives the witness

room to escape. If counsel asks for only one fact with each question, counsel will tell a more effective

story. Limit questions to ONE fact per question. Drop the taglines. Most attorneys add taglines to their

questions (“...didn’t you?” “...is that not true?” “...correct?”), but they are probably not needed. Use tone

of voice to indicate that the statement is really a question. Although some judges require adding taglines

to create a “proper” leading question, most will not. If they do, consider using taglines for the first few

questions, but then dropping them once the witness gets into the proper rhythm. Here is the rhythm

to develop: Counsel asks a question, the witness says “yes” or “no,” and then repeat as necessary. Once

counsel develops a command of leading questions, something amazing will happen. The witnesses stop

evading questions. Counsel will tighten the cross examinations. Best of all, jurors will look to counsel

for the answers during cross examination.

7. Destroying Safe Havens

“Quibble words”

When cross-examiners ask questions containing quibble words, they provide witnesses with

easy escape routes. Quibble words color the testimony, ask for opinions, or taint answers to favor the

questioner’s position. Although quibble words can take any grammatical form, they are typically modi-

fiers, such as adverbs or adjectives. Here are some examples of questions asked with quibble words.

— “You went to the store quickly, didn’t you?”

— “You hit the man with a stick repeatedly, correct?”

— “Mr. Uhmlaht hated you a lot, didn’t he?”

Each of the highlighted words modifies the witness’s response to favor the attorney’s case. They

color the testimony. And, they’ll become the bones of contention when the witness answers the ques-

tion. The most common quibble words are adverbs, so focus attention there. Review the rough draft of

cross-examination questions. Review the language. Hunt for the adverbs. Strike it from the page. These

are the words that cause the most contention between the questioner and the witness. Every time an

evasive witness hears an adverb, he has the opportunity to argue with the questioner Quibble words

give the witness room to honestly argue with the questions. Take a moment to place yourself in the wit-

ness’s shoes. If you absolutely, positively did not want to answer the question, to which words would

you take exception? With which words would you argue? These are the quibble words. These are the

words with which the witnesses will find contention. Eliminate them.

8. Handling and Introducing Exhibits

Demonstrative evidence is used as an illustrative aid to testimony. Demonstrative evidence

includes diagrams, charts, models, graphs, computer generated simulations, animations, etc. These aids

to testimony may help the jury understand the witness’ oral explanations. In themselves, they don’t pro-

vide the basis for inferences; they simply assist in communicating information from the witness to the

jury. Illustrative aids don’t have to be admissible in evidence. Authenticity, i.e., that the item is in fact the


real item in question, is not an issue when you are dealing with demonstrative (illustrative) evidence.

The demonstrative or illustrative aid to testimony will have to be authenticated in the sense that a wit-

ness will have to testify: (1) what the demonstrative or illustrative exhibit portrays or represents and (2)

that such exhibit will aid the jury in understanding what the witness will be trying to explain to the jury.

The true purpose of the demonstrative exhibit is to help explain the testimony of a witness

9. Effective Cross-Examination of Experts

Preparing the Cross of the Opposition Expert:

• Try to determine the expert’s previous relationship with any persons associated with the

opposition, such as experienced prosecutors working with crime lab personnel for long peri-

ods and opposing counsel having exclusive relationship with IME doctors. Remember, there

may also be social friendships involved.

• As counsel interviews/deposes the opposing expert, think about developing facts that may

provide one or more of these attack points:

— The expert himself

— The expert’s technique

— The facts and assumptions involved in the expert’s opinion

— The manner in which the expert applied the theory or technique

— The ultimate conclusion or inference that the expert draws

• Get a copy of the opposing expert’s publications. Read them. Understand them. Ready your-

self for cross-examination. When the opposing expert testifies inconsistently, impeach him

with his own writings as prior inconsistent statements. When the opposing expert does not

mention a relevant subject in his testimony, but his publications contain statements that are

favorable to your position, show him his own publication, ask if it is a reliable authority, and

when he says it is, offer the favorable portion as a learned treatise, and read it to the expert.

[The preceding suggestion only works if there is nothing damaging in the portion of the

learned treatise not offered. For if there is such damaging information, the opposition may

offer it under the completeness rule 102.

• Independent experts typically have web pages where they tout their services. Check the oppos-

ing expert’s web page. Look for puffing (overblown claims) that can be used for impeach-

ment.

Cross examination of the opposition’s expert, like cross of any witness, can be of two types: (1)

Supportive and Concession Based - here the cross-examiner seeks to obtain helpful concessions from

the opposing expert, or (2) Discrediting - here the expert’s credibility is attacked. The rules of cross-

examination and impeachment apply to expert witnesses in the same manner that they apply to non-

experts. The only additional mode of impeachment available to those who cross-examine an expert is

by way of challenging the witness with statements contained in a learned treatise. A discrediting cross-

examination may focus on factors such as the following:

• Bias or fees or prejudice

• Reliance on facts and/or data that are not credible

• Lack of thoroughness in gathering and reviewing information

• Failure to prevent contamination and/or corruption of samples


• Insufficient testing

• Subjective nature of the opinion

• Differing opinions within the field

• Other likely causes

As a cross-examiner, counsel will not be able to change the opposition expert’s opinion.

Instead, attack the opinion by revealing its deficiencies. Instead, take the opposition expert apart by

undermining his education, his experience, his examination, and his explanation.

Tip: When deposing the opposing expert, try to get him to admit the competence of your expert.

Planning for cross-examination at trial should fall into place if counsel has adequately pre-

pared before trial. By the time of trial, counsel should know the strengths and weaknesses of the case.

He should also know the strengths and weaknesses of the opposing expert’s opinions. Focus on the

weaknesses for purposes of cross examination. Never enhance the opponent’s case by emphasizing its

strengths. While every trial attorney has his own style, the following guidelines should help to insure a

solid cross-examination.

(A) Despite the stress and excitement of cross-examination, the attorney must:

(i) stay in control;

(ii) have all materials ready and at hand;

(iii) have a previously prepared list of points to be made on cross-examination of each wit-

ness;

(iv) be prepared to back up each point to be made on cross-examination with direct testi-

mony;

(v) prioritize the points to be covered and spend appropriate time on each point in order

of strength;

(vi) know what the witness will answer before asking the question;

(vii) ask to examine all notes that the doctor brings with him;

(viii) don’t feel the need to cross-examine every expert. If you feel that the expert did not

damage your case too much, then do not give him the opportunity to hurt your case dur-

ing cross-examination

(ix) the cross-examination should flow from one in logical sequence from one subject to

another.

(B) Some things to try to reveal if possible are:

(i) the doctor who only appears for plaintiffs

(ii) the doctor is an academic with little practical experience

(iii) the doctor has never personally seen the patient

(iv) the doctor never saw the plaintiff before the injury for comparison purposes

(v) the doctor’s fee is outrageous,

(vi) the doctor’s license has been suspended or he has had malpractice suits against him

The cross-examination of medical experts is one of the most challenging cross examinations

that can be encountered. Medical experts are often evasive on the stand, and the technical nature of

their testimony mandates that attorneys prepare adequately. Cross-examination of medical experts is a

learning process, and with hard work and experience, counsel can learn to make the cross-examination

of medical experts a strength for the client’s case.

a. The Medical Expert


The cross-examination of the medical expert witness is similar to the cross examination of a lay

witness. Basic rules such as asking questions clearly and politely, making good use of leading questions,

insisting on questions being answered, and using a firm, authoritative voice should be followed. However,

the effective cross-examination of the medical expert witness also requires special care and preparation.

As a result, this section will not reiterate the basic tenets of cross-examination, but rather will focus on

the special challenges that arise in the context of the cross-examination of a medical expert witness.

(1) Preparation

The following steps should be followed to prepare for the doctor’s deposition.

(A) If an initial review of the medical records suggests that counsel might need an expert of his

own, hire a medical expert as soon as possible. Counsel’s own expert will not only provide

important testimony, but will also help to educate counsel and provide insight for cross-

examination of the opponent’s medical expert.

(B) Learn the identity of the medical expert as soon as possible. Interrogatories are a useful

tool for this purpose.

(C) Obtain the curriculum vitae for all medical experts. Consider contacting the doctor’s for-

mer employers to determine the doctor’s qualifications. Take a look at any publications

attributed to the doctor.

(D) Search for previous depositions or trial testimony for the doctor. Start the search within

your law firm, then move on to brief banks, or other local counsel. Each deposition should

be analyzed. It is important to know both the good and bad of each doctor. If a doctor has

impeccable credentials, then the best cross examination is probably a short one.

(E) Make sure to have all test results, x-rays, etc. that the doctor relied on prior to the deposi-

tion or trial.

(F) Determine whether the doctor consulted with any other specialists. If so, get copies of these

consultation reports.

Take the doctor’s deposition. Use your judgment when taking the deposition. You may or may

not want to tip your hand as to potential weaknesses in the opponent’s case in the deposition. The ques-

tions asked depend on what counsel is trying to accomplish in the deposition.

b. The Scientific Expert

Cross examining the scientific expert is substantially similar to cross-examining the medical

expert. However, there are some issues that are more likely to come up within the context of cross-

examination of the scientific expert. One of the issues is whether or not the witness is an expert. Are

they experts? Scientific experts can come in the form of vocational rehabilitation experts, engineers,

accident reconstructionists, and many other forms.

(1) Daubert and its progeny

(a) District Court is the gatekeeper in admission of expert testimony

(b) Court must determine whether the expert’s testimony pertains to scientific knowledge

that requires the District Court to consider whether the testimony has been subjected

to the scientific method and the Court must rule out subject belief of unsupported

speculation.

(c) Non-exclusive list of factors which District Court should consider when making this

determination is:


• Whether the theory could be and has been tested.

• Whether the theory has been subjected to review and publication.

• The known or potential rate of error.

• General Acceptance of the theory in the scientific community.

c. Other Experts

Most trials require the introduction of, and therefore challenges to, evidence introduced by and

through expert witnesses. Typically, expert opinion evidence will be extremely important due to the

powerful effect if will have on the trier of fact, be it the Court or a jury. The following are general points

regarding obtaining and examining experts at trial:

(1) Retain an expert that clearly knows their field and who has credentials in the area.

(2) Retain an expert that can communicate what he has to say in a clear and cogent fashion.

(3) Goals in introducing expert testimony at trial:

(4) Focus on credibility of your expert;

(5) Allow the expert to educate the trier of fact;

(6) Allow the expert to persuade the trier of fact;

(7) Focus on what your expert must testify to for you to make a submissible case;

(8) It is important to use exhibits while examining your expert witness —allow the expert to

teach the trier of fact with the exhibits; and

(9) Anticipate and diffuse points of attack against your expert on cross examination.

d. Structure of Direct Examination of Expert Witness:

(1) Establish the special qualifications the expert has to render his/her opinion;

(2) Review what the expert has done to arrive at opinions/conclusions;

(3) Educate trier of fact regarding standards used by expert in rendering opinion;

(4) Ask the expert to “please confine all opinions rendered to a reasonable degree of medical

certainty”; and

(5) Ask the expert for his/her opinion and then allow the expert to narrate/elaborate on the

opinion.

(6) Structure/Important Points on Cross Examination of Expert Witness:

(a) Do not assume that the opposing expert is completely adversarial, determine what can

be obtained from the opposing expert to support his case;

(b) Do not try to “take on” the expert in his/her field of expertise;

(c) Always challenge the facts that form the basis of the expert’s opinion;

(d) Always develop the bias of the expert, but try not to do so in an adversarial fashion;

(e) Do not attack an opposing expert in areas that your expert is also subject to attack;

(f) Always develop the areas of disagreement between opposing experts;

(g) Always use short, focused questions to maintain control over an opposing expert wit-

ness; and

(h) If available, use collateral sources to impeach


Preparation of expert witnesses for testimony, and preparation for cross-examination of

opposing expert witnesses is absolutely critical. Always be completely aware of the role played by the

expert witness in the presentation of a client’s case, and the necessity of questioning expert testimony

that will be used by an opponent.

J. Objections

1. Preliminary Issues

Making and meeting objections during the examination of a witness is perhaps the most diffi-

cult trial skill to master. We are taught as children not to interrupt and to be quiet when others are talk-

ing. To the contrary, an objection is an interruption. In fact, counsel is asking the judge to tell opposing

counsel to “stop”. An objection involves a short, concentrated exchange, requiring substantive, tactical

and technical questions to be solved within a moment. Counsel must argue succinctly how and why

the evidence is proper or improper. The speech should be anticipated, prepared, polished and delivered

convincingly and accordingly.

One key to mastering objections is in recognizing “buzz words” (words or phrases that an expe-

rienced trial lawyer is conditioned to know are objectionable) and reacting to them in a timely fashion.

This can only be done through experience (not through a textbook - or a seminar). However, learning

the rules, studying, attending seminars, and watching others try cases, combined with hands on experi-

ence, will result in mastering the essential trial skill of objecting.

a. When to Object (Whether or not to Object)

Many times an objection may be proper but not wise. Instantaneous decisions must be made as

to whether or not the objection should be made at all. Most times, jurors do not like objections, unless

they do not like the witness or the opposing lawyer. When possible, make pretrial motions in limine,

object outside the presence of the jury, or object during a side-bar conference. Warn the jury during voir

dire that you may be objecting and that such is required by the Rules of Evidence and to properly repre-

sent your client.

If the answer is not going to hurt your case, don’t object. Unless, however, your objective is to

interrupt the flow. An objection can be used as a tactical device as it interrupts the flow and pace of the

testimony. However, have a valid basis for the objection!

b. How to Object

(1) Timeliness

Evidentiary objections must be timely made. Rule 103(a)(1). That means, before the answer is

given. Normally, the objection should be stated immediately after the question, and before any answer.

However, if the question itself is prejudicial, jump in—don’t wait—interrupt! In fact, keep interrupting,

asking for a sidebar on your way to the bench. It could avoid a mistrial. If a speedy answer is improper,

and made before or during an objection, object immediately and move to strike that portion that got

before the jury if the judge sustains your objection. Counsel may also seek to have the jury admonished

(instructed not to consider) and an additional jury instruction prior to deliberations would also be in

order.

c. Be Specific

Objections must be specific. Rule 103(a)(1). Assert all possible grounds for objecting at the

time you object. Before ruling on objections, judges often ask attorneys for a more in-depth explana-


tion of why the objection should be sustained in the context of the trial proceeding. Therefore, have a

clear understanding of all objections in order to engage in a meaningful discussion with the judge when

asked why the objection should be sustained. The judge may find one basis improper and another of no

consequence.

The objection should be specific enough to alert the judge to the proper course of action and

to enable the opponent to obviate the objection, if possible. What constitutes a “specific ground” varies

with the situation. Normally an objection suffices without any citation of authority, though as a prac-

tical matter rattling a rule or precedent at the judge may improve the objector’s chances of getting the

evidence excluded and thus eliminate any need to preserve error for appeal.

d. The Mechanics

Don’t start with a speech. Start by saying “Objection.” Then, state the specific reasons, rule, etc.

for the objection. If your opponent gives a speech instead of a proper objection, move to strike. And,

if it continues, ask that he/she be admonished. This is not to say, however, that points about your case

can’t be made during the objection. They very well can be.

Don’t start by explaining how you’d like to object, the judge may have a clever response:

Counsel: “Your Honor, I’d like to object.”

Judge: “That’s wonderful, counsel. When you do I will rule on it. Move along.”

or

Counsel: “Judge, I think he’s leading the witness.”

Judge: “Very well, thank you; Your thoughts are on the record.” “Let me know if you ever

have an objection.”

Normally, counsel should stand up when making an objection. Look confident, assertive and be

direct. When citing to a Rule of Evidence, cite the Rule number and pick up your Evidence Handbook.

You at least look to the jury like you know what you are doing.

Talk to the judge, not the witness or your opponent. Most judges do not permit counsel to

address anyone but the Court.

Make sure to get a ruling. If counsel does not get one from the judge, ask for it. If you don’t get

one and you don’t ask, no error is preserved. U.S. v. Griffin, 818 F.2d 97 (1st Cir. 1987).

When responding to objections, stand up to signal first that you want to respond, and second

that you are confident in what you are saying.

e. Preliminary Questions

If a line of inquiry is inappropriate, or that by questioning the witness further an objection

to the testimony or exhibit can be made, move for leave to ask preliminary questions to formulate the

objection. Sometimes, damaging cross examination can be done at this juncture.

f. Continuing Objections

If there is an objection to a series of exhibits, or an entire line of questioning, ask the court

for permission to enter a continuing objection. Don’t be a pest! However, remember that the continu-

ing objection must be specific. See, State v. Churchill, 646 P.2d 1049 (Kan. 1982). A continuing objec-

tion that lacks the specificity required by Rule 103 will not preserve error. A continuing objection only

preserves the ground specified; if a different ground emerges in subsequent questions, a new objection

asserting that ground must be interposed.


g. Waiver

If counsel fails to object, he cannot complain on appeal that the admission of the evidence was

improper unless it was “fundamental error.”

If an objecting party offers similar evidence, the issue is waived. See, St. Louis & S.F. Ry. Co. v.

Sullivan, 48 P. 945 (Kan. App. 1897). Your opponent has opened the door!

Likewise, if an objecting party did not object to similar evidence, the issue is waived. Id.

h. Offers of Proof

When your opponent objects to your evidence, counsel may need to make an offer to prove.

This is merely a way of placing the excluded evidence into the record for appeal. See Ind. Trial Rule

103(a)(2). General conclusory summaries are not sufficient. Be specific about what the evidence would

be if admitted. Counsel can make the offer orally, it can be in writing, or it can come directly from a

witness or an exhibit.

2. Hearsay Evidence and Its Exceptions

a. What Determines Hearsay vs. Non-Hearsay

Hearsay is an out of court statement, which asserts facts, and is offered in court to prove the

truth of the facts asserted. The “statement” can be oral, written or nonverbal/conduct. General princi-

ples of hearsay are found in Ind. Trial Rules 801, 802, 805 and 806.

If the “statement” is not one of fact, it is not hearsay. Questions, commands and requests are

not hearsay. Further, only statements of fact which are offered for their truth are hearsay. Some attor-

neys try to get all hearsay in by using the response, Anot offered for the truth, just that the statement

was made. However, it is rarely contested that the statement was made. Legitimate purposes for state-

ments used other than for their truth are:

— impeachment

— rehabilitation

— state of mind

— identification

— notice

b. Blocking Unreliable Hearsay

Most hearsay exceptions are based upon the concept that the statement is otherwise reliable

and should be admitted. For example, the present sense impression exception is permitted because a

person is not apt to fabricate a statement made while an event is happening because there is no time for

reflection. The same is true with excited utterances. Similarly, statements of physical condition made to

a doctor are deemed reliable because one would not ordinarily lie to a doctor if they are seeking medical

treatment. Likewise, for the dying declaration, one is considered to make reliable statements when he is

at the doorway of meeting his maker. However, to block unreliable hearsay you must go to the necessary

foundations and show, for example, time for reflection, ulterior motives, etc.

Additionally, if a lack of trustworthiness can be shown, then records can be excluded under

803(8), 803(6), 803(7).

Also, consider using Rule 403 to exclude unreliable hearsay as its unfair prejudice substantially

outweighs its probative value.


Additionally, when a hearsay statement or statement defined in Ind. Trial Rule 801(d)(2)(C),

(D), or (E) is admitted into evidence, the credibility of the declarant may be attacked by any evidence

which would be admissible for those purposes if the declarant had testified as a witness. For example,

evidence of character reputation for truthfulness (608 (1)), prior criminal convictions (609), inconsis-

tent with statements (613), bias, prejudice or interest (616), may be admitted.

c. Exceptions

The following exceptions apply to permit the introduction of hearsay. Know them to get hear-

say into evidence, and know how they block hearsay from being admitted. The Rules of Evidence and

case law have changed since many judges/attorneys began practicing. Old habits are hard to break.

Know your Rules and take an evidence handbook with you to trial.

(1) Statements by Party Opponents

Under Ind. Trial Rule 801(d)(2), statements made by or attributable to the opposing party are

not considered hearsay. These statements used to be referred to as “admissions.” However, now, they do

not have to be against interest. Additionally, the old “Patterson” rule has been abrogated which allowed

prior statements of any witness present in court to be admissible. Now, the statement must be one made

by or attributable to your opponent. This prohibits counsel from introducing prior statements of his/her

own client. Many attorneys, as well as judges, confuse the old “Patterson” rule with the new rule.

If your opponent attempts to introduce a prior statement of his/her client, object and cite to

Ind. Trial Rule 801(d)(2) and the fact that Patterson is no longer good law.

(2) Present Sense Impression

Ind. Trial Rule 803(1) provides that statements describing/explaining a material event made

while the declarant was perceiving it or immediately thereafter are admissible under the present sense

impression exception. Example:

Q: When Mary left the store did you see her look anywhere?

A: Yes, out the side window.

Q: While she was looking out the side window, did she say anything?

A: Yes. She said, “I wonder why Frank is running from the bank?”

If confronted with an objection, respond as follows:

“This is a present sense impression, an exception to hearsay under 801(1). I have laid the

foundation that the declaration was made by a witness, it describes the event, and was

made contemporaneously with the event.”

(3) Excited Utterance

Under Ind. Trial Rule 803(2), an excited utterance is a statement relating to a startling event/

condition made while the declarant was under the stress or excitement caused by it. There must not be

time for reflection or fabrication.

(4) Complaint of Sex Crime Victim

Evidence that a sex crime victim made a prompt complaint is an exception to the hearsay rule.

If the victim is an adult, only the act that the person made the complaint is admissible, the details are

not. However, if it is a child victim, the details are admissible.

Watch the form of the question. If it is too broad, object as the witness (if an adult) can only

state whether or not a complaint was made.


(5) Statements of Then-Existing State of Mind

Ind. Trial Rule 803(3) provides that statements of then existing state of mind or emotion are

admissible if the declarant’s state of mind is relevant.

If an objection is raised you must explain how the declarant’s state of mind is in issue if it is not

obvious.

(6) Statements of Physical Condition

Ind. Trial Rule 803(4) permits statements describing then-existing or past physical condition,

symptoms to be admitted if made to medical personnel for purposes of medical diagnosis/treatment.

One possible objection to this type of testimony can be based on the intent of the declarant.

Statements by a personal injury plaintiff to a consulting physician may not be made for treatment. They

may be made for purposes of a lawsuit.

Additionally, one may object if the statements go too far and give more information than nec-

essary for the treatment. For example, a description of the accident may be pertinent, but naming the

driver of the car and other information may not be.

(7) Recorded Recollection

Written records made by a witness while fresh in the witness’ mind are admissible under

803(5). Total lack of memory is not necessary, only insufficient recollection to permit full/accurate testi-

mony. The record may be read but not introduced.

(8) Business Records

This is probably the most widely used exception to the hearsay rule. Rules 803(6) and (7) per-

mit records to be introduced when they were made in the routine course of business, at or near the time

of the event, based on personal knowledge and maintained by the business as a permanent record. The

foundation can be laid by affidavit.

If the record was prepared in anticipation of litigation, object. This would apply to letters in a

doctor’s file to/from plaintiff ’s attorney.

(9) Public Records

Properly certified public records are an exception under Rules 803(8) and (10).

(10) Statements of Family History

Statements of family history are admissible if: (1) kept in records of religious organizations

(803(11)); (2) marriage, baptismal and similar certificates by authorized persons (803(12)); (3) a wide

variety of permanent records (803(13)); or oral statements if the declarant is unavailable (804(b)(4)).

(11) Documents Affecting Property Interests

Records affecting property interests are admissible under 804(14) (if properly recorded),

803(15) (if consistent with the way the property has been treated), and 803(16) (ancient documents).

(12) Commercial Directories and Market Reports

Market quotations, tabulations, lists, directories or other published compilations generally

used and relied upon are admissible under 803(17). This includes telephone directories, stock market

reports, used car price guides, and television schedules.

(13) Learned Treatises

Rule 803(18) permits evidence of reliable learned publications that contradict an expert’s tes-

timony. The treatises must be reliable authority. That can be established by judicial notice, expert testi-


mony or stipulation. The expert’s attention must be called to it. The contradictory passages may be read

into evidence but the treatise is not admissible.

(14) Reputation

Evidence concerning reputation may be admissible under 803(19) (family reputation), 803(20)

(community reputation regarding property or history), and 803(21) (reputation as to character). The

foundation is that the witness have knowledge and that the reputation is relevant to the issue at hand.

(15) Judgments

Rule 803(22) excepts judgments for convictions for felonies and Rule 803(23) excepts judg-

ments concerning family or personal matters, property boundaries or general history. Admissibility

depends on relevance.

(16) Former Testimony

Testimony given at a former trial, hearing or deposition may be admissible if the declarant is

unavailable. Rule 804(b)(1). It should be noted that substantive objections may be made at trial to any

part of the deposition that would be inadmissible if the witness testified in person. Trial Rule 32(B).

However, objections that go to the form are waived unless asserted at the deposition. Trial Rule 32(D)(3).

(17) Dying Declaration

Statements made by a person facing impending death are admissible if the statement concerns

the cause/circumstances of the impending death and the declarant believes death is imminent. The

declarant must be unavailable at trial but need not have actually died. Rule 804(b)(2).

(18) Statements Against Interest

Under Rule 804(b)(3), statements against interest are admissible if the witness is unavailable.

(19) Statements by Child Crime Victim

Where the child is of very tender years, inability to appreciate the proceedings, guilt or fear, fad-

ing or faulty memory are not unusual, therefore, the necessity of admitting hearsay statements become

more apparent. Experts are of the opinion that statements of children in this regard are reliable. Thus,

pursuant to K.S.A. §60-460 (dd), statements are admissible if “the trial judge finds, after a hearing on

the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable

and the child was not induced to make the statement falsely by use of threats or promises.”

d. Refuting Hearsay Objections

The best way to refute hearsay objections is to know the Rules and prepare in advance under

which exceptions your evidence will fall. On key issues, have short briefs or memoranda of law prepared

on the issue. Have a copy of key cases with pertinent points highlighted for the Judge. Pull out your evi-

dence book and have the appropriate pages tabbed.

3. Rule 403

Even if a question is relevant and proper in all other respects, it may be objectionable if the pro-

bative value is substantially outweighed by the potential prejudicial effect. See Rule 403.

Just because the evidence prejudices a party is not sufficient. However, evidence is unfairly

prejudicial if it unduly arouses the jurors’ sympathy, bias or hostility, if it involves a collateral matter

and will confuse/mislead the jury, or if it will cause undue delay and be cumulative. Also, if the answer

would endanger a witness (e.g., an address) it can be excluded.


4. Expert Witnesses

Unlike lay witnesses, expert witnesses may base their opinions on the factual findings of oth-

ers. (Rule 602). For this reason, experts are sometimes allowed to stay in the courtroom to hear tes-

timony of other witnesses which can, subsequently, support the opinions of the expert. To have an

expert remain in the courtroom, the attorney should take the position with the court (Rule 615(3)) of

the Rules of Evidence) that such expert and his opinions are essential to the presentation of the parties’

cause. An attorney seeking to prevent the expert from staying in the courtroom may gain some success

by showing that the expert has already rendered opinions by report, deposition, or otherwise, and that

even if the expert forms new opinions at this late stage, it would be unfair to allow such opinions to be

submitted to the trier of fact without the opportunity for proper discovery. At this point, the attorney

seeking to keep the expert in the courtroom should point out to the court that pursuant to Rule 703 of

the Rules of Evidence, “[t]he facts or data in the particular case upon which an expert bases an opinion

or inference may be those perceived by or made known to the expert at or before the hearing.” (Rule 703). However, an often overlooked objection is based upon whether the testimony even requires

expert opinions. A close look at Rule 702 of the Rules of Evidence discloses that an expert witness must

satisfy two significant tests. First, scientific, technical, or other “specialized knowledge” must be needed

to substantially assist the trier of fact to understand the evidence or to determine a fact in issue. Second,

the witness must be qualified based upon his knowledge, skill, experience, training, or education. (Rule 702). The gray area of determining whether the expert’s testimony will “substantially assist” the jury

is a question for the court. The question is generally considered under Rule 104(a) of the Rules of Evi-

dence regarding general admissibility of testimony. The basis of an expert’s opinion must be of a type

reasonably relied upon by experts in the particular field. (Rule 703). The court “shall disallow testi-

mony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthi-

ness.” (Id.) If the appropriate foundations are met, an expert witness can testify with opinions that are

based upon inadmissible hearsay.

The court must determine whether the evidence will substantially assist the trier of fact to

determine a fact in issue, and whether the facts and data underlying the evidence indicate a lack of

trustworthiness. The rules together necessarily require a determination as to the scientific validity or

reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not substantially

assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no

requirement in the Rule that it be generally accepted.

A non-exclusive list of factors to determine reliability are useful in applying Rules 702 and

703. A court may consider in determining reliability: (1) The theory upon which the procedure, test, or

experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts,

or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3)

The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

Although the trial court must analyze the science, and not merely the qualifications, demeanor

or conclusions of experts, the court need not weigh or choose between two legitimate but conflicting

scientific views. The court instead must assure itself that the opinions are based on relevant scientific

methods, processes and data, and not upon an expert’s mere speculation. The trial court should keep in

mind that the preliminary question under Rule 104 is one of admissibility of the evidence.

Though there are limitations on lay witnesses providing testimony on certain ultimate issues,

opinions or inferences given by an expert are not objectionable simply because they embrace the ulti-

mate issue to be determined (Rule 704).


5. Impact of Kumho Tire on Daubert

KumhoTire reinforces the notion, that if courts are to exercise their assigned duty as “gate keep-

ers” of reliability, they must apply a Daubert type analysis to ensure that there is a reliable foundation

for expert testimony, regardless of the witnesses’ field of endeavor. The Kumho Tire case held that the

Daubert factors may apply to testimony of engineers and other experts who are not scientists. It rein-

forced the gate keeping obligations that applied Daubert, not only to “scientific” testimony, but to all

expert testimony. It recognized that Federal Rule of Civil Procedure 702 does not distinguish between

scientific knowledge and technical or other specialized knowledge, but basically that any such knowl-

edge might become the subject of expert testimony. Further, it is the Kumho Tire court that held it is the

word “knowledge” not the words like scientific that modify that word that establishes a standard of evi-

dentiary reliability.

6. Qualifications

It is beyond dispute, that all expert testimony, at least in the Federal court systems currently,

will need to be demonstrated to the court to be relevant and reliable. Meaning, all the backgrounds

found in the Daubert method, must be demonstrated to insure that all information brought forward to

the court and/or the fact finder, is reliable, has been tested, and is accurate. It is there to eliminate “junk

science.” The more that society changes, the more methods of scientific investigation occur. In order

to bring forth such information in the Federal court system, it will become increasingly important for

such scientific and other expert methodologies to be generally accepted; tested; and reliable.

7. Objections During Cross Examination of the Expert Witness

Some courts have Local Rules that give detailed directions for objections at a deposition and

limits objections to, essentially four (4) categories:

a. Objections that would be waived if not made under [Trial Rule RE: errors and irregularities

in the deposition];

b. Objections to assert a privilege, enforce a limitation on evidence directed by the court, pres-

ent a motion under Rule 30(d) [motion to terminate or limit examinations]; or,

c. Objections that the questioning is repetitive, harassing or badgering; and,

d. Objections that the questioning is being done in bad faith or is being done in such a manner

as to unreasonably annoy, embarrass or degrade the deponent.

The Rule may further provide that “No other objections shall be raised during the course of

the deposition.” (Emphasis added). The rule may also provide for a remedy of calling the trial judge, by

conference call, for direction.

8. Leading

A leading question is one that suggests the answer or merely requires a “yes” or “no” answer

because it merely asks the witness to agree with the attorney’s statement.

Examples: *Did Jason scare you?

vs.

How did Jason make you feel?

*Did you cry out in pain?


vs.

What did you do or how did you feel?

As a general rule, leading questions are not proper on direct except to lay a foundation, if the

witness is hostile, when the witness is a young child, to refresh the witness’ memory, when inquir-

ing about preliminary matters/foundation, or asking for specific details after a general answer. Lead-

ing questions are permitted on cross, Rule 612, except when examining one’s own client who has been

called as an adverse witness.

Qualifiers such as “if anything,” “did you,” or “did you not,” do not make an otherwise leading

question proper.

9. Speculation/Conjecture

Witnesses who lack personal knowledge cannot speculate. Rule 704(b). Asking a witness a

question that would require the witness to guess or speculate is improper. However, a witness can give

their best estimate or an approximation.

Warning Words:

“Isn’t it possible that...”

“What would you have done if...”

“Couldn’t Mrs. Smith have ...”

10. Form of the Question

Objecting to just the form of the question is not specific enough. State why it is improper.

a. Confusing, vague, unintelligible, ambiguous

A witness is entitled to be asked questions that are not confusing, vague, unintelligible or

ambiguous.

Examples:

*Asking the witness to describe “the” person when several people were involved.

*Asking the witness to say what he wrote in “the letter” when several letters were written.

In the objection, be specific and call the Court’s attention to the confusion, uncertainty or

ambiguity.

If your opponent continues to object to questions as vague, etc., ask the witness to please tell

you if they do not understand a question that you ask and if they don’t state so, you’ll assume they

understand it. Reach an agreement with the witness who is less likely (most times) to be disruptive.

b. Compound

A question that asks several things at once is generally improper if the different parts might be

answered differently.

Example: Did you go to K-Mart on the 13th and Target two days later?

Did you go to Cub Foods on Sunday and if so, did you see Mrs. Smith there?

The danger of the question is that the witness will give a simple “yes” or “no” and part of the

answer will be improper.

If you are confronted with this objection, just break your question down and move on.

Example:


Mrs. Jones please tell the jury what you know about the accident?

If the question is otherwise proper, such as “what did you do after you stopped,” but the witness

continues to narrate, object. When confronted with a narrative objection you can either respond that

the witness is explaining, or ask “What happened next?” Or state, “I am simply giving the witness the

opportunity to relate what happened in her own words.”

11. Improper Foundation

Although this objection is typically made when exhibits are introduced, it can be made when a

witness is asked about a conclusion, opinion or the like, as counsel may not have laid the proper foun-

dation for the testimony.

12. Assuming Facts Not In Evidence/Issue

It is improper to assume or insinuate facts not proven. For example:

Q: Sir, was Mrs. Smith intoxicated as she was speeding down the street?

Objection: There is no evidence that Mrs. Smith was driving the car, much less speeding.

The improper question can be remedied by breaking it down into several questions or leaving

out the objectionable word or phrase.

13. Asked and Answered—Cumulative

Rule 403 provides that relevant evidence may be excluded if it is needlessly cumulative. Mere

repetition is not sufficient. For a discussion, see Doty v. Wells, 682 P.2d 672 (Kan. App. 1984).

An attorney cannot ask the same question twice of the same witness. The proper objection is

Aasked and answered.@ The following exceptions apply:

a. The question is different in some respect;

b. A question asked on direct can be repeated on cross;

c. A question asked on direct can be repeated on redirect to clear up confusion caused by

cross;

d. A question asked of one witness can be repeated to a different witness;

e. A general question may be followed by questions for specific detail;

f. The same question can be repeated if the witness gives an evasive/incomplete answer.

14. Argumentative

Rhetorical questions are argumentative. Sarcastic comments are argumentative. Any question

that is essentially an argument to the jury is improper. If it does not elicit new information or simply

states a conclusion and asks the witness to agree with it, it is argumentative and should be saved for

closing argument.