The basics of direct and cross-examination of a fact witness.
We trial attorneys are dramatists at heart. We want jurors to devote that same eager attention that I paid to my mother's stories to our clients and our witnesses. So, how do we get them to close the curtains and shut out life's numerous distractions while we lay before them the pathos of our cases?
Although courtrooms are designed to shut out the distractions of the outside world, they still present a theatrical challenge. We trial attorneys must present a real-life drama to fact finders with varied life experiences and attitudes who have come to the "play" merely because it is their turn at jury duty. Moreover, we are limited to using the "actors" who actually took part in the events being portrayed. Often, they did not go to drama school.
When presenting or cross-examining a fact witness, the objective is to capture the attention of the fact finder while skillfully eliciting evidence that supports the client's theory of the case. The most effective way to accomplish this is to turn the witness into a storyteller on direct examination and to assume the role of storyteller yourself on cross-examination.
On direct, the actual participants to the drama may tell the story in their own way. On cross, they must follow your lead and tell the story your way.
Direct examination: the witness from central casting
Lawyers who think they can order up witnesses from central casting should take a career detour and go to script-writing school. In our profession, we largely take fact witnesses as we find them--we, after all, do not make up the facts, we just present them.
As a result, a successful direct of a fact witness is one that makes the fact finder like and respect the witness and gives the fact finder emotional and factual reasons to find in favor of the party who offers the witness. With practice, an attorney can build up the likability and credibility of almost any witness in a clear and forthright manner.
By putting a human face on the witness and showing where the witness fits into the community and the events in question, the attorney gives the fact finder a basis for believing what the witness says. Having first established that the witness is believable, the attorney may then proceed with the examination logically and efficiently and in a lively manner so that it will have a significant impact on the trial's outcome.
The key to effective witness presentation, like virtually everything else in a trial, is careful preparation. Before planning the details of the examination, you must gather every document and item of tangible evidence relating to the matter the witness has seen or acted upon. When arranged chronologically, this paper trail will help guide your examination and expose possible pitfalls. Not only should you discover what the witness has to say about his or her observations of an event or controversy, you also need to know what the witness has said about the case to others, either directly or indirectly.
You should list the elements of each claim or offense and map out, based on the case law of the jurisdiction, what proof is available for each claim. Then, craft questions for each witness designed to elicit relevant, admissible evidence that will help prove the client's case. These questions will help you see what "holes" need to be filled so that all the elements of the claim, including that the events occurred at a location that establishes venue and jurisdiction, will be firmly in place at trial.
Another important aspect of the planning is to establish the basis for the argument you will present at the end of the case. Because closing argument must be based on the evidence elicited at trial, be sure to get the witness to present the points you will later argue as a basis for a favorable verdict.
In many ways, the task of the lawyer on direct is the opposite of the goal of the lawyer who examines the same witness on cross. The objective of the direct examiner is to make sure that the jury or judge focuses on what the witness is saying, not on what the lawyer is saying.
A good way to ensure that jurors look at the witness and not at you is to stand behind the end of the jury box farthest from the witness stand. This should be the place where you automatically return after beginning a witness examination if the rules of the court permit this. If you practice in a jurisdiction where you must sit or question from an immovable podium, moderate your behavior accordingly so that the attention of the fact finder is directed at the witness and not at you during the direct examination.
At the same time, the witness should be instructed to look at you when you are asking questions but to face the jurors or the judge and make eye contact with them when answering. The witness should make eye contact briefly with each juror in such a way as to establish rapport without making the juror feel uncomfortable.
Witnesses should use a voice level in the mid range and keep their voices steady. This persuasive style will cause listeners to believe that your witnesses are more assertive, competent, confident, intelligent, and knowledgeable than witnesses who do not look jurors in the eye and do not keep their voices steady.
Similarly, witnesses who avert their eyes, shift in their seats, and cover their mouths while speaking may be perceived as liars. They also may be seen as nervous and possibly lacking in confidence.
Above all, witnesses must be instructed to be themselves. Jurors do not like those who speak in a manner they perceive as manipulative, patronizing, or difficult to comprehend.
Witnesses during an examination in open court feel as if they are on the hot seat. This is not their arena, and these are not their rules. They may forget every hint you gave them in your office. So give the witnesses a series of background questions up front that they will be comfortable with before launching into the events that gave rise to the lawsuit.
Your first task is to let the jurors and the court know where the witness fits in the community, and in the controversy. Merely eliciting the chronology of what the witness saw and when he or she reported it is not enough. You must first establish that the witness is a reliable reporter of the facts and a person worthy of trust. In some respects, a fact witness needs a "pedigree" even more than an expert because the fact witness often has a more immediate connection with the matter in controversy and may even be the plaintiff or the defendant.
Most jurors identify with lay witnesses more so than with experts, but jurors still need to learn about the background of the fact witness to find the witness worthy of trust. To establish the credibility of a fact witness, ask about the witness's educational background beginning with high school (especially if he or she grew up locally), how the witness is currently employed, and what his or her duties are. Be sure to ask if he or she has had any specialized training that is particularly relevant to the case or has won special awards at work. Awards show that the witness is held in high regard by peers in his or her line of work.
To the extent possible, the witness should come across as a pillar of the community or at least experienced enough to report accurately the events that he or she is being called on to describe. If the witness is married and has a family, that should be mentioned because many jurors will identify that as a positive and stabilizing factor.
Without dwelling on it, you should also bring out negative information about the witness in a nonjudgmental way. Just say enough about the issue to defuse the cross-examination that is sure to come from the other side.
When switching from personal- and professional-background questions to the action part of the examination, it is useful to ask witnesses transition questions such as where they were at a particular time and on a particular date and what they were doing at that time. Then, the witness can describe the location where the events took place as if setting the scene in a play.
Having set the scene, you may logically take the witness through the event by asking who, what, why, where, when, and how questions. These open-ended questions invite the witness to talk and the lawyer to remain in the background as an interested observer. What happened before, during, and immediately after the event should be described so that facts that support your theory of causation and damages are established. Enough time should be spent tin a detailed description of the events so that the fact finder has a sense of being present as an omniscient observer.
As part of the chronological rendition of the events, it is important that witnesses demonstrate they had a good opportunity to observe the events they are describing. Questions about the lighting conditions, the proximity of the witness to the action, and the length of time the witness observed the activities can help do this.
A good witness delivers the tale as naturally as if he or she were recounting the event to a group of friends over the dinner table. Attorneys and their witnesses can engage the fact finder's interest with clear and simple language, a central theme, dramatic appeal, and human interest.
Try to get the witness to add details that qualify as "human interest" material, such as why this event was a departure from his or her normal routine. This is a way to corroborate your witness's reason to remember the event as well as to lead off the testimony that will establish the case on damages.
The witness should describe any physical injuries the witness suffered or observed and recount the medical treatment received in the emergency room and immediately after. He or she should then describe the course of continuing medical treatment where this testimony is appropriate. The plaintiff witness also must detail the physical limitations that he or she will face and the economic damages he or she has suffered and will suffer.
I like to have my witness tell the story once, and then I break the event down further by asking individual questions that get at the core of the transaction or the words that were said. You should prepare the witness to answer the key question of why he or she remembers this incident so clearly at trial when there have been many intervening events in his or her life. Often, a way to get the witness to recount the tale vividly is to use diagrams or exhibits to explain where each item fits in the chronology of the factual scenario. These aids can transport jurors via their imaginations into a "we are there" experience and bring home the points you are trying to establish with a witness.
In using demonstrative exhibits, it is important to know your fact finder. Some jurors will regard fancy exhibits as a mark of the professionalism and high purpose of the attorney presenting them. Other jurors may be put off by aids they regard as being too "slick." A case that can be won in one jurisdiction can be lost in another based on that difference.
A schematic diagram or map of the location of an event is an exhibit that will allow witnesses to get off the stand and into the well of the court and tell their story while showing where the events happened on the diagram. The attorney directing that type of examination should note where the witness is pointing on the diagram for the transcript in the event the decision in the case is appealed.
When offering exhibits for the witness to identify (when I was a prosecutor, we referred to them as "toys"), you should
* mark them for identification,
* present the exhibits to the witness individually;
* ask if the witness recognizes them and how,
* establish the appropriate link in the chain of custody of the exhibit, and
* give the witness yet another opportunity to retell his or her story in the context of describing how he or she previously had seen the item.
Since the jurors or judge will be curious about the "toys," make sure to "publish" them to the jury as soon after they are identified as permitted by the court. In document-intensive cases, you may wish to have individual books of the evidentiary documents made up for each juror if the opposing side and the court agree to that procedure. These days, the vast array of computer-generated and artistically appealing exhibits should be considered.
Large-scale projections of documents are also effective. But make sure the exhibits are prepared by a graphics designer who understands that some jurors may have difficulty, viewing words at a distance.
Cross-examination: the art of the challenge
Unlike direct examination, cross is optional. So, the first thing you must decide is whether to cross-examine the witness at all. If the witness has not hurt your client's case on direct and the witness knows of no helpful facts, the wise attorney may elect to forgo cross.
Except in criminal cases, you should know from discovery what the witness is going to say. Armed with that knowledge, you can make an intelligent decision about whether to cross-examine based on your trial preparation as well as the witness's courtroom testimony and demeanor.
When preparing for cross, you should have in mind three key points that support your client's theory to elicit from the witness and have a plan for accomplishing that task. It is desirable to begin and end on a high point as the attention of the jurors should be focused on you, rather than on the witness, particularly as you rise to begin your cross.
In a good cross-examination, the witness merely answers "yes" or "no" to opposing counsel's masterfully crafted leading questions that tell the tale the way the attorney wants it told. So, it is safe to start off a cross with the facts that the witness must agree with, that support the cross-examiner's theory of the case, and that will have an impact on the jury.
Ideally, ask only questions to which you already know the answer. Use short questions that break down the action. Do not ask "why" questions or compound questions. Do not let the witness explain an answer. If the witness's counsel is alert, the explanation will come out on re-direct.
Where possible, use the witness being cross-examined to corroborate the testimony of your fact witnesses. Do not, however, repeat the direct examination as a means of accomplishing this corroboration and do not even try it unless you are sure the witness will give you what you want.
Instead of unobtrusively standing behind the jury box on cross, you should be in the well of the courtroom about 10 to 1.5 feet from the witness. That is a position that invites jurors' attention and distracts their attention from the witness. In some federal and state courts, you may not be permitted to stray from the podium or counsel table, so find out in advance what the court will and will not permit.
Unfavorable testimony elicited by your opponent from a witness on direct may be discredited in a number of ways. Usually you can establish facts that suggest that the witness had a poor opportunity to observe the events in question (or at least a worse opportunity than your client), either because of conditions at the scene or the quick and surprising nature of the events.
Depending on what was going on at the time of the incident, you should ask the witness leading questions that lay the foundation for an argument that the witness's attention really was elsewhere or that the events the witness described took place too far away or too quickly and unexpectedly to report them accurately. Any obstructions to the witness's view should be brought out as well as the witness's limited memory of the event, the details of which he or she has probably forgotten or confused with intervening events.
Thoroughly explore any bias a witness may have for or against your client. The witness may have a motive to testify, falsely, such as a pecuniary interest in the outcome of the case.
If a witness has committed prior bad acts that show he or she was untruthful on an earlier occasion (such as lying on an application for a loan or a job), the witness may be questioned about them during cross in, federal court to discredit the witness's current testimony under Federal Rule of Evidence 608(b). If a witness has been convicted of a crime, depending on the law of the jurisdiction, evidence of that conviction may be used to attack the witness's credibility, under Rule 609.
To impeach the witness's testimony, use any of the witness's prior statements that contradict the unfavorable testimony being offered. Depending on the law of the jurisdiction, the prior statement may or may not come in as substantive evidence.
In federal court, under Federal Rule of Evidence 613(b), the prior statement is not admissible unless the witness is given a chance to explain or deny the earlier statement and the opposing party is given a chance to interrogate the witness on the prior statement or "the interests of justice otherwise require." Under Rule 801(d)(1), the witness's prior statement is not hearsay as long as it is (a) inconsistent with the testimony offered at trial and was given under oath on the prior occasion, or (b) consistent with the witness's trial testimony and offered to rebut an inference of recent fabrication or improper influence or motive, or (c) an out-of-court statement identifying a person after seeing the person.
In presenting or opposing a fact witness, you act as a producer, director, and star in the drama of the trial. Often you have no choice about whether to call or cross-examine a fact witness. So, use the opportunity to present or cross-examine as a way to enliven the proceedings while establishing the elements of your claims and refuting the defenses.
Then, when the big trial is over, you may wish to follow a venerable tradition I learned while in the misdemeanor trial section of the U.S. Attorney's Office: Take the day off.
Pamela B. Stuart, a former assistant U.S. attorney for the District of Columbia, practices in Washington, D.C.
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|Author:||Stuart, Pamela B.|
|Article Type:||Brief Article|
|Date:||Jan 1, 1999|
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