Examining witnesses looks easy on television and in the movies. Whether direct or cross examination, on television & the movies, it is always brief, entertaining and totally successful. It always looks so easy, until you do it in a court room with a real live witness. Your well-planned cross examination can unexpectedly not be the examination you had in mind when you started. Direct examination can be as much a challenge as well. That’s the real world for trial lawyers during the examination of witnesses. The solution to promoting success in witness direct examination is by careful advance preparation. While there are no guarantees that things will go the way you plan, there are some fundamental steps you can take in preparing.
FRAME ISSUES PERSUASIVELY
The preparation for examination of witnesses involves the preliminary question of how to express or “frame” the important issues in the case during examination of witnesses. The tort reformers use of “frivolous lawsuits” or “greedy trial lawyers” are examples of framing. Identifying the issue as one that “protects the guilty and punishes the innocent” is also an example of framing. We need to decide in advance of the examination of witnesses how we are going to frame the issues in the most persuasive manner.
CREATE A THEME AND STICK TO IT
To be persuasive our cases should be presented in a way that is understandable, brief and compelling. One way to accomplish this in examination of witnesses is by themes that tell a story. A theme is a way to come to a conclusion without going through a process of significant analysis. The theme is not so much clever words as it is the creation of an image, idea or concept which triggers an emotional reaction. The theme of the case against a pharmaceutical company could be: “This drug company played Russian roulette with the health of the patients who took it” or “This drug company put profit over safety of people using their product.”
The best way of determining the case theme is through learning people’s reaction to the facts of your case. That can be done through formal focus studies, internet focus studies or talking to non-lawyers about the facts of the case. People’s common all reactions are the best source of creating themes that are compelling and meaningful.
WITNESS EXAMINATION SHOULD BE INTERESTING BUT BRIEF
Jury research has clearly established that a trial is a battle of impression and not logic. Most of us were taught in law school that people are persuaded by rational thinking and the application of logic. We know from scientific research this simply isn’t true. Most opinions and decisions are made at a subconscious level and then adopted intellectually. Furthermore, emotion plays a pivotal role in opinion formation. With that in mind we should be very conscious of the impression being treated in the jury these minds while we conduct examination of witnesses whether on direct or cross examination.
We are not going to make a very favorable impression if we don’t keep the interest of the jurors or bore them with irrelevant information. Jurors who are not listening are not being persuaded. Tell your story through the witness in a way that is not only informative but interesting. The first few minutes and the final few minutes are the most important and terms of the jurors paying attention
DIRECT EXAMINATION POINTERS
In preparing for direct examination consider beginning the direct examination by immediately disclosing to the jury the reason the witness has been called. This keeps the jury from being distracted by trying to figure out why the witness has been called. With a malpractice expert witness, one might begin with:
- Did I ask you to review the facts and records in this case and offer your conclusions as an expert witness about the standard of care given (name)?
- Are you prepared to offer your conclusions regarding the standard of care given by the defendant physician in this case?
With experts it’s important to let the jury know why they should listen to this person, but an endless recitation of qualifications is counterproductive and boring. The primary question in the juror’s mind is the witnesses experience and knowledge regarding the issue involved. To do this one could ask in the introductory part of the examination:
- Can you tell us about your knowledge and experience that would qualify you to offer these opinions? Let’s start with your education.
(1)What college and professional education do you have? (Cover college, medical school, internship, residency and specialty training)
(2) what is your specialty? Please describe it.
(3) what licenses and board certification do you have? Please explain.
(4) how long have you been practicing your specialty?
(5) describe your medical experience and familiarity with the situation we have in this case.
Expert opinions generally must be based upon reasonable probability. Rather than continually repeat the phrase “reasonable probability” as part of each question you ask regarding opinions, consider laying the foundation at the beginning of the examination so that the foundation question doesn’t have to be repeated each time you ask for an opinion. With a medical expert one might lay the foundation this way:
- Do you realize that any opinions you express must be based upon reasonable medical probability, which means more probably true than not?
- Will you make sure that your opinions are based upon reasonable medical probability and if you are not able to express an opinion on that basis, you will say so?
In addition to the jurors wanting to know why the witnesses being called and what makes the witness qualified, they also want to know what opinions the witness intends to express. In preparing the examination bring this aspect out early and later have a more complete explanation. One way of doing this with a medical malpractice expert would be:
- Have you arrived at conclusions based on a reasonable medical probability regarding the care given in this case by the defendant physician?
- What opinions have you reached regarding whether Dr. (name) exercise the degree of skill, care and learning expected of a reasonably prudent surgeon acting in the same or similar circumstances at the time of the care and treatment in this case? (WPI 105.01)
Research also has shown us that we learn best by being shown something rather than only being told about it. Visual aids have also been shown to be more likely to be remembered over verbal descriptions. PowerPoint can easily be overdone and with witnesses, who have the skill to draw illustrations, a drawing may be more effective than a PowerPoint. The technique can be as simple as this:
- Would a drawing be helpful for the jury to have a clear understanding of what you mean?
- Doctor, would it be possible for you to illustrate what you mean for the jury on the whiteboard?
these are very basic ideas to build on for great preparation.