WRITTEN MATERIALS FOR:

Trial Skills: Direct Examination

Presented by Arizona Bankruptcy American Inn of Court Pupillage No. 7

March 14, 2019

ARIZONA COUNTRY CLUB

Hon. Eddward P. Ballinger Don Fletcher Philip J. Giles D. Lamar Hawkins Scott W. Hyder Tami Johnson Patrick F. Keery Trudy Nowak Michael Rolland Khaled Tarazi DIRECT EXAMINATIONS

I. GENERAL MATTERS A. The usual way of introducing evidence at trial on disputed issues is by obtaining the answers of a witness in open court in response to nonleading questions by counsel. The straight narrative of a witness has the advantages of naturalness and freedom from interruption. B. Usually the plaintiff/movant has the burden of proof and must initially present the case in chief by introducing facts sufficient to establish each controverted element of the claim asserted. – known as putting on a prima facie case. Plaintiff brings forward successively all witnesses on whom plaintiff will rely to establish these facts, together with the documents and other tangible evidence, which will be offered when the witnesses authenticate the tangible evidence through testimony, as required by FRE 901. C. Purpose of direct examination is to establish the factual and legal basis of the case. Counsel stands in as the surrogate for the fact-finder and asks the questions that are necessary to elicit the relevant facts. D. Redirect examination may be allowed after cross-examination to deal with new facts or to rehabilitate a witness. Questions on redirect cannot exceed the scope of the cross-examination. A witness may be asked with questions designed to explain apparent inconsistencies between statements made on direct and cross, or to deny or explain the making of an alleged prior inconsistent statement. FRE 613. Counsel should not ask on redirect whether the witness’s testimony on direct was the truth. E. Consider requesting exclusion of a witness during testimony of another witness. FRE 615. F. Consider requesting that a witness be sequestered during recesses that interrupt the witness’ testimony to prevent improper attempts to influence the witness. See Geders v. U.S., 425 U.S. 80 (1976). FRE 611.

II. FEDERAL RULE OF EVIDENCE 611 A. Extremely encompassing rule speaking to the variety of aspects of the mode and order of interrogation and presentation of evidence at trial. B. FRE 611(a) provides generally for the exercise of reasonable control by the court over the mode and presentation of evidence. C. FRE 611(b) limits the scope of cross-examination to the subject matter of direct and matters of credibility. D. FRE 611(c) delineates when leading questions should be permitted.

III. DIRECT EXAMINATION A. Keep focus on the witness. B. Accredit the witness, set the scene and roll the action. C. Who, what, when, where, why and how, tell us, describe, explain, what happened next…

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D. Avoid yes/no questions – let the witness speak fully. Use open questions. E. Use headnotes – Let’s talk about the day you… F. Employ simplicity and ruthlessly eliminate anything that unnecessarily complicates the presentation of the facts. G. Avoid talking like a lawyer. H. The fact-finder needs to know the elements of the cause of action and needs to hear evidence that supports the allegations. I. The fact-finder often wants to know the motives behind a particular transaction; eliciting this information makes the direct case compelling and interesting. J. Counsel is given the opportunity to have the witness explain or minimize the impact of a missing part of the narrative. Counsel, in anticipation of the counter case, may want to elicit testimony to mitigate or minimize its impact. Counsel should try to confront and diffuse weaknesses by minimizing the problem, explaining the problem away, or challenging the credibility of the witnesses supporting that weakness. K. The most common form of the structure of direct is chronological. Another approach is to break the testimony down by topic and then use chronology within each topic. L. Adjust the pace. Slow down when going over important point and don’t neglect to pause after making a point to emphasize it.

IV. DIRECT TESTIMONY BY DECLARATION A. The Court may enter a pre-trial order requiring that direct testimony be presented by declarations in lieu of direct oral evidence. This is an accepted and encouraged technique for shortening bench trials. See In re Generes, 69 F.3d 821 (9th Cir. 1995); In re Adair, 965 F.2d 777 (9th Cir. 1992). B. Local Rule 7016-1 – Contents of Joint Pretrial Statement 1. Must contain a list of each party’s trial witness and a summary of the substance of witness’s’ testimony. 2. Must identify those witnesses whose direct testimony will be presented by declaration or deposition testimony. 3. No witness will be permitted to testify other than in person absent prior Court permission. 4. The Pretrial Statement must contain a copy of any witness declaration a intends to introduce at trial. 5. Unless the Court orders otherwise, no witness may provide testimony via a declaration unless the witness appears in person at trial and is subject to cross-examination. C. See Attachment 2 to this outline which lists specific items related to declarations found in the Arizona Judge’s Procedures on the District of Arizona Bankruptcy Court website.

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V. TRIAL OBJECTIONS A. Sole purpose is to exclude problematic evidence B. To exclude improper evidence. C. To make record on appeal. D. To prevent unfair treatment and unfair tactics. E. What to object to: 1. Attorney questions. 2. Witness testimony. 3. Introduction and use of evidence. 4. An attorney’s behavior. 5. Conduct of the Judge. F. Types of objections: 1. Relevance. 2. Speculation. 3. Hearsay. 4. Leading questions. 5. Lack of foundation. 6. Argumentative. 7. Compound question. G. Get a ruling on the objection.

VI. LEADING QUESTIONS A. FRE 611(c) provides that leading questions should not be used on direct examination of a witness, except as may be necessary to develop his testimony, or where a hostile witness is called to testify. B. Test: whether the question suggests the answer desired by the examiner. C. A question may be leading because of its form (“Didn’t he…”), its detail, or be made suggestive by reason of the examiner’s emphasis on certain words, tone, or non-verbal conduct.

VII. LACK OF FOUNDATION A. Opposing counsel may object that the evidence presented fails to support introduction of the evidence being offered. Use this objection for: 1. Competency of a lay witness. FRE 601. 2. Qualifications of an expert witness. FRE 702. 3. Intro of opinion testimony. FRE 701-705. 4. Personal knowledge. FRE 602. 5. Unavailability in connection with hearsay exception. FRE 804(a). 6. Satisfaction of the requirements of the hearsay exception. FRE 803-804.

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7. Authentication or identification. FRE 901. 8. Admissibility of evidence other than the original writing. FRE 1004. 9. Existence or waiver of a privilege. Art. V. 10. Relevancy. FRE 401.

VIII. EXHIBITS A. Exhibits amplify, but do not replace, witness testimony and engage the fact finder. B. Mark the exhibit. C. Show it to opposing counsel. D. Show it to the witness. E. Lay the foundation. F. Offer then into evidence.

IX. WITNESS PREPARATION A. Discuss the role of the witness and effective courtroom behavior. B. Have the witness give an initial recitation of the facts in narration form. C. Review the factual context into which the witness’s observations or opinions will fit. D. Review with the witness past depositions, answers to interrogatories, all documentary or demonstrative evidence, and all other material that may be referred to in trial. E. Discuss the applicability of law to the events in issue. F. Suggest choice of words that might be employed to make the witness’s meaning clear. G. Loosely rehearse testimony - practice direct examination and cross-examination.

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BANKRUPTCY COURT, DISTRICT OF ARIZONA JUDGES’ PROCEDURES – March 2019

JUDGE BALLINGER: USE OF DECLARATIONS -- Unless otherwise ordered, the direct testimony of any expert witness shall be by written declaration and the witness shall appear in person at the hearing and shall be subject to cross examination.

JUDGE MARTIN: USE OF DECLARATIONS AND AFFIDAVITS -- Unless otherwise ordered, the Court will not accept affidavits or declarations as trial evidence over the objection of an opposing party. Prior to the trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness' testimony to be provided by direct examination.

JUDGE NIELSEN: USE OF DECLARATIONS AND AFFIDAVITS -- Unless otherwise ordered, the Court will not accept affidavits or declarations as trial evidence over the objection of an opposing party. Prior to the trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness' testimony to be provided by direct examination.

JUDGE WANSLEE: AFFIDAVITS OR DECLARATIONS GENERALLY -- Unless otherwise ordered, the Court will not accept affidavits or declarations as evidence over the objection of an opposing party. Prior to the hearing/trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination, and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness' testimony to be provided by direct examination. DECLARATIONS FOR EXPERT TESTIMONY -- Unless otherwise ordered, the direct testimony of any expert witness must be by written declaration and the witness must appear in person at the hearing and will be subject to cross examination.

JUDGE WHINERY: AFFIDAVITS OR DECLARATIONS -- Unless otherwise ordered, the Court will not accept affidavits or declarations as evidence over the objection of an opposing party. Prior to the hearing/trial, the parties shall stipulate which, if any, declarations or affidavits may be received into evidence without qualification, which may be received in evidence, provided the witness is available at the hearing for cross examination and which witnesses must testify on direct examination. Notwithstanding the parties' agreement, the Court may require any witness to testify on direct examination.

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6 Elements to Prove under 11 U.S.C. § 523(a)(6)

A discharge does not discharge an individual debtor for any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity” Willful Injury Requirement • Debtor must have a subjective motive to inflict injury or the debtor believes that injury is substantially certain to result from his own conduct. • A deliberate or intentional act that leads to injury is not enough. Malicious Injury Requirement A malicious injury involves: • A wrongful act; • Done intentionally; • Which necessarily causes injury; and • Is done without just cause or excuse

7 “The Art of Direct Examination”

Reprinted with permission from: New York State Bar Association Journal, March/April 2017, Vol. 89, No. 3, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

8 The Art of Direct Examination By James A. Johnson

Jury Instructions Trials are nearly always won based on what happens One of the first tasks an attorney should perform in start- during the direct examination of witnesses. Direct exami- ing or defending a case for trial is to prepare the jury nation is pivotal to the outcome of your case at trial. The instructions. This step alone should prevent a directed jurors are your audience and they are the dispensers of verdict at trial. In preparing the jury instructions you will justice. Use ordinary, everyday language and avoid legal set out the elements of your cause of action or defense. jargon. For example, it should be: you stepped out of the Preparation of direct examination cannot be accom- car and not you exited the vehicle. Both the attorney and plished in isolation from preparation of the other compo- the witness must be well prepared for trial. Otherwise nents of the trial. Now you will have the information for jurors will doubt the witness’s testimony. The attorney preparing voir dire, opening statement, direct examina- must review the contemplated testimony with the wit- tion, cross examination and summation. The jury instruc- ness before trial so the examination will flow smoothly tions will have all the substantive law essential to prove and with rhythm. or defend your case. The jury instructions or court’s charge should be your bible and road map. Take my word Theme for it, you can now focus on the details of how you are The theme of the case is a one-sentence explanation of going to present your case, prepare the witnesses, deposi- your theory. A theory is a succinct statement as to why the tions, exhibits and develop the best theme for your case. plaintiff should win or why the criminal defendant is not The primary purpose of direct examination is to estab- guilty of the charged crime. Here’s a sampling: lish the essential proof of facts in support of a claim or • “This is a case about a broken promise.” defense. Proper execution requires detailed preparation and command of the rules of evidence, procedure and careful listening to the witness’s answers. Examining wit- James A. Johnson ([email protected]) of James A. Johnson, Esq. nesses is like telling a story and you want to make certain in Southfield, Michigan is an accomplished trial lawyer. Mr. Johnson con- that each witness tells his or her part of the story with centrates on serious Personal Injury, Entertainment & Sports Law, Insur- clarity and believability. Prepare an outline and a proof ance Coverage and Federal Crimes. He is an active member of the Mas- checklist, in advance, as a guide setting out the important sachusetts, Michigan, Texas and Federal Court Bars and can be reached facts that you need to elicit on direct examination. at www.JamesAJohnsonEsq.com.

20 | March/April 2017 | NYSBA Journal 9 Electronic copy available at: https://ssrn.com/abstract=2942177 • “Accidents don’t just happen . . . they are caused . . . ing or identifying an item of evidence, the proponent by people.” must produce evidence sufficient to support a finding • “This is a case about risks, rules and responsibili- that the item is what the proponent claims it is.” The ties.” foundation is very simple when you elicit from the wit- • “This is a case about a person who is less than ness that he or she recognizes the author’s handwriting a man and more than a man. Less than a man on the letter, that he or she is familiar with the author’s because . . .” handwriting and has a sufficient basis for familiarity. Rule • “This is a case about defective construction work by 901(b)(2) recognizes this authentication technique. This is the general contractor.” only one way of authentication. Another method is the The defendant in a criminal case needs a good theme, reply letter doctrine. Space constraints preclude me from just as much as, if not more than, the plaintiff in a civil setting them all out. Failure to clear foundation hurdles case. For example: “This is a case of self-defense.” “This is means that the item of evidence will be inadmissible.1 not a case about justice . . . . This is a case about injustice. Only you, through your verdict, can do justice.” Authentication of Computer Records The theme should flow logically from the facts and The proponent of computer-generated evidence can relate to the jurors’ life experiences. Keep in mind that authenticate a computer record containing data by prov- you have already given the jury your theme in opening ing the reliability of the particular computer used. If the statement. The theme of the case is the basic underlying readout uses symbols and technical terminology, the idea which explains both the legal theory and factual proponent, after introducing the record, may need an background of the case. It ties these three parts together expert witness to explain the record. The elements of the as a coherent and believable whole. Each witness’s tes- foundation are as follows: timony must be assessed against the theme of the case. 1. The business uses a computer. Decide which part of the story can best be told by each 2. The computer is reliable. witness. The theme also dictates what witnesses to call 3. The business has developed a procedure for insert- and their order. The theme should be evaluated, honed ing data into the computer. and changed throughout your preparation, until you 4. The procedure has built-in safeguards to ensure have the best one. A careful and planned order of wit- accuracy and identify errors. nesses is vital to a coherent presentation of the case. 5. The business keeps the computer in a good state of Direct examination questions should be styled to empha- repair. size the theme. 6. The witness had the computer read out certain data. A good theme should be brief. It should be interesting, 7. The witness used the proper procedures to obtain obvious and easy to remember. It is crucial that the theme the readout. be stated in just a few words or in short sentences. The 8. The computer was in working order at the time the essence of a good theme is that it is catchy and quick and witness obtained the readout. can immediately and easily be understood by the jurors. 9. The witness recognizes the exhibit as the readout. The purpose of the theme is to grab the attention of 10. The witness explains how he or she recognizes the the jurors. You want to captivate their interest and under- readout. standing all the way to the jury deliberation room. Now, 11. The witness explains the terms or symbols.2 you can discern that direct examination, opening state- ment and closing argument are not separate and distinct, Authentication of Business Records but work in tandem. One of the most significant exceptions to the hearsay rule The best themes are not always catchy phrases. Using is the business record exception. Business entries have a visual aid to convey a theme is just as powerful as a a high degree of trustworthiness because the entry is catchy phrase. Better still, use both a catchy phrase in routine and that helps ensure the reliability of the report. opening statement and a visual aid on direct examination Federal Rule of Evidence 803(6), Records of a Regularly to tell a compelling story. Conducted Activity, states: A record of an act, event, condition, opinion, or diag- Evidentiary Foundations nosis if: An important procedural rule is that the proponent of (A) the record was made at or near the time by— an item of evidence must lay a foundation or predicate or from information transmitted by—someone with before formally offering the item into evidence. For knowledge; (B) the record was kept in the course of a regularly example, the proponent of a letter or photo must present conducted activity of a business, organization, occupa- proof of its authenticity as a condition to its admission. tion, or calling, whether or not for profit; The proponent must present proof that the article is what (C) making the record was a regular practice of that the proponent claims that it is. Federal Rule of Evidence activity; 901(a) states: “To satisfy the requirement of authenticat- (D) all these conditions are shown by the testimony

NYSBA Journal | March/April 2017 | 2110 Electronic copy available at: https://ssrn.com/abstract=2942177 of the custodian or another qualified witness, or by a not be used on direct examination except as necessary to certification that complies with Rule 902(11) or (12) or develop the witness’s testimony.” Rule 611(c) is a rule with a statute permitting certification; and of guidance and not prohibition. There are exceptions to (E) neither the source of information nor the method this rule. There is no prohibition against using leading or circumstances of preparation indicates a lack of questions on preliminary matters and on undisputed facts. trustworthiness. The use of leading questions on direct examination is left

Leading questions may be used on voir dire of a witness on direct examination.

The elements of the foundation for the business entry to the sound discretion of the trial judge.4 For example: hearsay exception are: Your name is John Robinson?; You work at CVS pharmacy?; 1. The report was prepared by a business employee. The accident occurred on Main Street in front of the CVS 2. The employee had a business duty to report the Pharmacy? These leading questions are undisputed facts. information. New York, along with a few other states, has not codi- 3. The employee had personal knowledge of the facts fied its law of evidence. Cross examination in New York or events reported. trial courts is limited to matters covered on direct exami- 4. The written report was prepared contemporane- nation, inferences drawn therefrom and the credibility ously with the facts or events. of the witness. However, the use of leading questions on 5. It was a routine practice of the business to prepare direct examination is in the sound discretion of the trial such reports. court and will not be disturbed absent a clear demonstra- 6. The written report was made in the regular course tion of an abuse of discretion. Also, under New York case of business. law and Rule 611(c)(2) leading questions are allowed The witness laying the foundation for admission of on direct examination when a party calls a hostile wit- business records is usually the custodian of business ness, an adverse witness, or a witness identified with an records. But any person who is familiar with the busi- adverse party.5 ness’s recordkeeping can qualify. The witness need not There is another situation when cross-examination have personal knowledge of the entry’s preparation. The is permissible on direct examination. Leading questions testifying witness need only to explain his or her con- may be used on voir dire of a witness on direct exami- nection with the business and then describe the habitual nation. When a preliminary fact is conditioned upon a method with which the business prepares and maintains finding by the court under Rule 104(b) the judge rules on its reports. the evidence’s admissibility or the expert’s qualifications Also note that many jurisdictions have a form affidavit under Federal Rule of Evidence 104(a). Before the judge for execution by the custodian of records that eliminates rules the opponent may interrupt the direct examination the personal appearance at trial for the admission of busi- by requesting the judge’s permission to take the witness ness records.3 on voir dire. In many jurisdictions, the technical evidentiary rules Voir dire is functionally a cross-examination during do not apply to foundational questions. Federal Rule of the proponent’s direct examination. The opponent con- Evidence 104(a) provides: “Preliminary Questions: The ducting the voir dire may use leading questions. How- court must decide any preliminary question about wheth- ever, voir dire’s limited purpose is to test the competency er a witness is qualified . . . or evidence is admissible. In of the witness or evidence. Keep in mind voir dire has a so deciding, the court is not bound by evidence rules, limited scope and the opponent may not conduct a gen- except those on privilege.” However, you want to reduce eral cross-examination on the merits of the case under the the risk that the opponent will interrupt your foundation guise of voir dire. with an objection so that your direct examination will flow smoothly and without interruption. Therefore, it is Sample Request to Take a Witness on Voir Dire best to comply with the technical evidentiary rules. The fact situation is a murder prosecution. The prosecu- tion witness is the bouncer in a nightclub. The prosecutor Leading Questions intends to elicit the bouncer’s testimony that he heard the Leading questions are not ordinarily permitted on direct decedent identify the defendant as the person who shot examination and are objectionable. A leading question is him. The prosecutor believes that the decedent’s state- one that suggests the answer to the witness. Federal Rule ment falls within the dying declaration exception to the of Evidence 611(c) provides: “Leading questions should hearsay rule. The proponent is the prosecutor.

22 | March/April 2017 | NYSBA Journal 11 Electronic copy available at: https://ssrn.com/abstract=2942177 P: What is your occupation? Offer of Proof B: I am the bouncer at the ABC Nightclub. If the judge sustains an objection during direct examina- P: What were you doing on the night of Feb 8, 2015? B: I was on duty as the bouncer at the ABC Nightclub. tion precluding a material line of inquiry, you should 6 P: What happened that night? make an offer of proof. An offer of proof states what the B: A fight broke out and Mr. Smith was shot. witness would have testified to and why the proponent P: What was his condition? wanted to elicit that testimony. And, get a definitive rul- B: It was serious and he lost a lot of blood. ing on your offer of proof. Otherwise renew your offer P: What, if anything, did he talk about? of proof.7 Depending on the jurisdiction, the offer of B: He talked about who shot him. proof can be made, on the record, in question and answer P: Who did he say shot him? form by the witness or in narrative form. The purpose O: Your honor, I object to that question on hearsay of the offer of proof, on the record, is twofold. If there is grounds. I request permission to take the witness on an appeal the appellate court can evaluate whether the voir dire. O: Isn’t it true that before he died, Mr. Smith said he omission-error was prejudicial and whether the appropri- was going to get the person who shot him? ate disposition is to remand or enter judgment for a party. B: Yes. The second reason is that the trial judge may reconsider O: Isn’t it a fact that he said he wanted to go to the and change the ruling. If the proponent anticipates an hospital as soon as possible so he could be in condition unfavorable ruling in the planning of direct examination, to get the person who shot him? prepare a written offer of proof for insertion in the record. B: Yes. Federal Rule of Evidence 103(a)(2), Rulings on Evi- O: Your honor, the witness’s testimony shows that the dence, provides: “if the ruling excludes evidence, a party decedent, Mr. Smith, did not believe that his death was informs the court of its substance by an offer of proof imminent. The declarant had not abandoned all hope unless the substance was apparent from the context.” of recovery. The dying declaration exception is not The elements of an offer of proof are as follows: applicable. I renew my objection. Judge: Objection sustained. 1. The proponent asks for permission to approach the bench or for an out-of-court hearing. Expert Witnesses 2. The proponent states that he or she intends to make Expert opinion testimony is governed by Federal Rule of an offer of proof. Evidence 702: “If scientific, technical, or other specialized 3. The proponent states what the witness would have knowledge will assist the trier of fact to understand the evi- testified to if the judge had permitted the proponent dence or to determine a fact in issue, a witness qualified to pursue the line of inquiry. as an expert by knowledge, skill, experience, training or 4. The proponent states the purpose for which he or education, may testify thereto in the form of an opinion she wanted to offer the testimony and explains its or otherwise” (emphasis added). If the proposed expert logical relevance. testimony will not assist the trier of fact or is unreliable 5. The proponent explains why the evidence is admis- (Daubert) you can keep the expert from testifying at trial. sible. The point of calling an expert witness is not to put a hired gun on the stand. The consummate trial lawyer Motion in Limine will put a teacher on the stand. For example, after you A motion in limine is a pre-trial procedural tool that can qualify your expert: Dr. Smith: We need you to teach us affect direct examination. This motion can be used to about the location and function of the prostate gland in men. offer or exclude evidence at trial. But such motions are more Could you tell us what is meant by the symbols BPH? Or, frequently used to suppress evidence. A motion in limine tell us, Dr. Smith, why are you here today? Use headlines is filed by a party to a lawsuit that asks the court for an or transition phrases in guiding the witness’s testimony. advance ruling limiting or preventing certain evidence The engaging expert should act as a guide that can lead from being presented by the other side at the trial of the the fact finder through the technical, confusing or case. Its purpose is to prevent highly prejudicial infor- unclear elements of the case. Choose an expert who is mation from being introduced to the jury. For example, able to explain and convey information in a way that a party may use the motion to prevent any mention in a lay person can understand. Moreover, the advocate a civil case of a party’s automobile liability insurance, should have the expert repeat the attorney’s theory of worker’s compensation insurance, or that recovery by the case in his testimony. Permit the judge and jury to the plaintiff would or would not be subject to taxation. hear your story in another voice. By reiterating this story This also applies in a criminal case to a defendant’s through a different voice, you have reinforced your prior convictions. For example, if the prior conviction is theory and persuaded the jury to accept your version identical to the charged crime, the prior conviction has and the correct verdict. Trust me, careful preparation tremendous potential for prejudice. If the judge grants a and choice of words used by the expert on direct exami- pre-trial motion in limine to exclude the conviction, the nation will pay dividends. defense attorney can confidently place the defendant on

NYSBA Journal | March/April 2017 | 2312 Electronic copy available at: https://ssrn.com/abstract=2942177 the stand. These are just four of a plethora of evidentiary this article will make your direct examination come alive, matters that can be raised in a motion in limine. More- interesting and compelling. If you can construct a story over, this motion can also be used to offer evidence at trial that the jurors can see themselves without improperly where a party anticipates an evidentiary issue arising telling them to put themselves in the shoes of your client, at trial. An advance ruling permits an attorney to make you have made great strides in winning your case. More- strategy decisions on direct examination. over, if you can develop and deliver the right theme, as a There is no specific provision in the New York Civil model for understanding the evidence on direct examina- Practice Law and Rules for motions in limine. New York tion and throughout the trial, one or more of the jurors state and federal courts entertain motions in limine under will be arguing your case in the jury deliberation room. the courts’ inherent power to manage the course of trials.8 “That is not what this case is about. – This case is about a broken promise.” Conclusion But for those of you who can’t follow the guidelines During direct examination you have the opportunity to and suggestions set out in this article, I paraphrase actress shape your case to tell an interesting and compelling Bette Davis, in All About Eve – “Fasten your seat belts. It story. You want the jury to see the facts from your client’s is going to be a bumpy ride.” n point of view. If possible, find out the customary court- room practices of the judge before whom the case will be 1. Rainbow v. Albert Elia Bldg Co., 79 A.D.2d 287 (1981). tried. Effective direct examination begins long before you 2. Edward J. Imwinkelried, Evidentiary Foundations, Authentication; see also Hon. Edward M. Davidowitz, Robert L. Dreher, Esq., Foundation Evi- go into the courtroom. Prepare the jury instructions or dence, Questions and Courtroom Protocols, 5th ed. 2014, New York State Bar court’s charge early and let it be your road map through- Association. out the trial. The jury instructions will be your guide 3. See also CPLR 4518 (Business Records). while working on voir dire, drafting the opening state- 4. Sanders v. NYC Human Resources Admin., 361 F.3d 749, 757 (2004); Imwin- ment, closing argument and in planning direct examina- kelried, Evidentiary Distinctions (1993) p. 101. tion and cross. Success or failure at trial rests in the man- 5. People v. Rozanski, 209 A.D.2d 1018, 1018–19 (4th Dep’t 1994); see Ostrander v. Ostrander, 280 A.D.2d 793, 793 (3d Dep’t 2001), citing Becker v. Koch, 104 N.Y. ner in which you prepare and present your witnesses. It 394, 401–02; see Prince, Richardson on Evidence § 6-223 (Farrell 11th ed. 1995); is best to have a final witness whose strong testimony can John Durst, New York Courtroom Evidence, 4th ed. (2013). provide a natural lead-in to the closing argument. 6. People v. Williams, 81 N.Y.2d 303 (1993); People v. Mejia, 221 A.D.2d 182, The advocate should weave the theme throughout the 183 (1st Dep’t 1995), app. denied, 87 N.Y.2d 975 (1996). trial. Determine a theme that will predominate and reso- 7. See Federal Rule of Evidence 103(b). nate with the jurors. Using good storytelling techniques, 8. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); Davis v. City of Stamford, demonstrative evidence and visual aids as suggested in 216 F.3d 1071 (2d Cir. 2000). Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression. NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law. Call 1.800.255.0569

NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM

24 | March/April 2017 | NYSBA Journal 13 Electronic copy available at: https://ssrn.com/abstract=2942177 “Tips from the Bench: Direct Exam”

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“Pocket Guide to Common Evidentiary Issues in Bankruptcy”

Reprinted with permission by the Hon. Pamela Pepper, Bankruptcy Judge for the Eastern District of Wisconsin.

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POCKET GUIDE TO COMMON EVIDENTIARY ISSUES IN BANKRUPTCY (If you have a BIG pocket)

Pam Pepper, E.D. Wisconsin [email protected] (414) 297-3335

FOUNDATIONAL REQUIREMENTS

The “on-the-bench” thumbnail: Laying a foundation is all about providing enough background and context to give the evidence some meaning– to show that it is relevant. Proponents who offer evidence need to establish the “who, what, when, where” information about that evidence in order to demonstrate its relevance.

It is common to hear foundation objections when a party tries to admit photographs, conversations or recordings of some sort. You also hear foundation objections when the objecting party thinks the witness is testifying to something the witness knows nothing about.

There are also foundational issues involved with electronic evidence; these tend to be thorny. If a party attempts to admit an e-mail, or a web site, and the opposing party objects to foundation, the moving party might have to have some technical knowledge to be able to lay an appropriate foundation.

Great primer: Edward J. Imwinkelried, Evidentiary Foundations, published by LexisNexis. The book is older and out of print, but priceless–it contains actual scripts lawyers may use to lay foundations for just about everything one can imagine, including many types of electronic evidence.

The actual rules:

Fed. R. Evid. 104(a), Preliminary Questions Fed. R. Evid. 401, Definition of “Relevant Evidence” Fed. R. Evid. 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible Fed. R. Evid. 403, Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Fed. R. Evid. 602, Lack of Personal Knowledge

Reprint permission granted by author.

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JUDICIAL NOTICE

The “on-the-bench” thumbnail: In order for a judge to take judicial notice of a fact, it has to be a fact that is not subject to reasonable dispute, either because it is generally known within your territorial jurisdiction (such as the fact that a particular restaurant is located on a particular corner in the town where you sit) or because it is capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned (such as that the prime rate of interest today is 3.25%).

The rule has a discretionary component–you may take judicial notice of a fact if you think that fact fits the rule’s requirements. It also has a mandatory component–you must take judicial notice of a fact if a party asks you to do so, and provides you with the appropriate supporting information, provided that you give any objecting party the opportunity to be heard on why such notice isn’t appropriate.

Lawyers often ask the judge to take judicial notice of facts that are likely in dispute, such as the value of an asset or the existence (or absence) of a debtor’s good faith. These are not the kinds of facts of which the rule allows us to take judicial notice.

Lawyers also ask judges to take judicial notice of “the schedules and statements in the debtor’s court file.” We may take judicial notice of the fact that on such-and-such a date, someone filed Schedules A-J bearing the debtor’s name, and that those schedules contain certain representations. But when we take judicial notice of the fact that Schedule I indicates that the debtor earns $2,000 per month, this does not mean that the debtor has proven that he does, in fact, earn $2,000 a month. All it means is that we officially have observed what anyone else who wished to do so could observe–that there is a document on file that says so, and that the parties do not have to waste time litigating whether there is a document on file that says so.

The actual rule:

Fed. R. Evid. 201, Judicial Notice of Adjudicative Facts

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CONTROLLING THE EXAMINATION OF WITNESSES

The “on-the-bench” thumbnail: You, as the judge, have the authority to exercise reasonable control over examination of witnesses, in order to avoid wasting time, protect witnesses from harassment, and make sure the lawyers are getting to the heart of the matter.

During direct examination, lawyers usually cannot use “leading” questions unless they are trying to set up the background for an issue. This is because a “leading” question is one that provides its own answer, and thus if the lawyer asks “leading” questions on direct, it is really the lawyer–not the witness–who is testifying. “Leading” questions are allowed on cross- examination.

It is a common misconception that a leading question is a question that is susceptible to a single-word, affirmative or negative answer–not true. A leading question is a question which contains, or strongly suggests, its own answer. “Are you hungry?,” while susceptible of a yes or no answer, is not a leading question. “You’re hungry, aren’t you?” is a leading question, because it tells the witness what the answer ought to be. The issue gets sticky when a lawyer asks an open-ended question which is so packed with information that she practically has answered the question for the witness: “You’ve told us that you signed the schedules without reading them, and that you never told your lawyer that your house was worth $300,000, and that you believe that your house is worth only $150,000 but that you don’t have an appraisal or any other professional estimate of value—is your house worth $150,000?” It’s an open-ended question, but it’s clear that the witness is to say “no.” Leading?

Normally you should limit the scope of cross-examination to the topics that the witness discussed on direct examination.

The actual rule:

Fed. R. Evid. 611, Mode and Order of Interrogation and Presentation

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IMPEACHMENT

The “on-the-bench” thumbnail: While it is counter-intuitive, a party may impeach his or her own witness.

A party may impeach with prior oral or written statements, and doesn’t have to show the witness the statement unless opposing counsel demands it.

A party cannot introduce extrinsic evidence to prove that a prior statement was inconsistent unless the party gives the witness an opportunity to explain the evidence, or unless “the interests of justice” require it. (So if the witness says it didn’t rain on June 5, the lawyer can’t introduce a weather report for June 5 unless the lawyer has complied with the requirements of Fed. R. Evid. 613(b).)

Many lawyers aren’t great at impeaching! Issues often arise around whether the prior statement really was inconsistent. If not, it doesn’t impeach anything.

The actual rules:

Fed. R. Evid. 607, Who May Impeach Fed. R. Evid. 613, Prior Statements of a Witness

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REFRESHING RECOLLECTION

The “on-the-bench” thumbnail: The point of this rule is to allow a witness who says he or she can’t remember something to refresh his or her memory. If the witness insists that he or she does remember something, but the lawyer thinks the witness is remembering wrong, the remedy is for the lawyer to impeach the witness, not to try to refresh recollection.

If a lawyer wants to use a document to refresh recollection, the opposing side is entitled to be able to see that document and cross-examine the witness on it, as well as to ask the court to excise any portions of the document that aren’t relevant to the refreshing.

The document doesn’t have to be admissible into evidence to serve as a refresher.

The actual rules:

Fed. R. Evid. 612, Writing Used to Refresh Memory Fed. R. Evid. 802(5), Recorded Recollection

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LAY AND EXPERT WITNESS TESTIMONY

I. Lay Witness Testimony

The “on-the-bench” thumbnail: Lay witnesses may give opinions on things (including the value of their own homes or businesses), as long as they testify from their own perceptions and experiences, and as long as they don’t testify based on scientific or specialized knowledge. (Often lay witnesses–such as debtors testifying to the value of their houses–are not testifying from their own experiences. Bankruptcy judges, however, usually allow some leeway or flexibility here, because something seems wrong about refusing to allow a debtor to tell the court what she believes her own house is worth.)

The actual rule:

Fed. R. Evid. 701, Opinion Testimony by Lay Witnesses

II. Expert Witness Testimony

The “on-the-bench” thumbnail: If a party wants a witness to testify based on some sort of scientific, technical or specialized knowledge, the party first must disclose the person’s identity, and the substance of the person’s testimony, well in advance of the date the expert is scheduled to testify. The party must do so in a specific format, and within a specific time period.

Second, the party must get that person qualified as an expert. That means demonstrating specialized knowledge, skill, training or education.

Third, in order to get the expert’s opinion admitted, the party must show that the testimony the proposed expert will give will be based on sufficient facts or data; that it is the product of reliable principles or methods; and that the witness has applied those principles or methods reliably to the facts in the case before you.

The expert, once qualified, may rely on hearsay or other inadmissible evidence in forming his or her opinion.

Many so-called “expert” witnesses in the bankruptcy world are hybrid witnesses. They may have specialized knowledge of some sort, but they also are fact witnesses in the case–the realtor who is trying to sell the debtor’s home, for example. Also note that it is not unusual for bankruptcy litigants to try to qualify folks as experts who don’t really need to be qualified–that realtor doesn’t have to be qualified as an expert to testify to what steps she’s taken to try to sell the house.

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Finally, note that you have a lot of discretion regarding whether to qualify an expert, and what weight to give that expert’s testimony once he or she has given it.

The actual rules:

Fed. R. Evid. 702, Testimony by Experts Fed. R. Evid. 703, Bases of Opinion Testimony by Experts Fed. R. Evid. 704, Opinion on Ultimate Issue Fed. R. Evid. 705, Disclosure of Facts or Data Underlying Expert Opinion Fed. R. Civ. P. 26(a)(2), Disclosure of Expert Testimony

The main cases:

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) (applies Daubert standards to all experts, not just scientific experts)

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HEARSAY IN GENERAL

The “on-the-bench” thumbnail: Anything that anyone says outside of the courtroom is hearsay–except a party-opponent’s admission, which isn’t hearsay (and doesn’t have to be an “admission” in the sense of a confession of something the person would rather not have to confess). Hearsay isn’t admissible, unless the proponent can convince you that the hearsay meets one of the exceptions found in Rules 803 (exception applies regardless of whether the declarant is unavailable) and 804 (exception applies only if the declarant is unavailable).

A common response to a hearsay objection is that the party isn’t offering the alleged hearsay “to prove the truth of the matter asserted.” If the statement is not being offered in order to prove the truth of the matter asserted in the statement, then it isn’t hearsay.

This often begs the question, however–if the proponent isn’t offering the statement for the truth, then why is he offering it? First look at what the statement asserts, then determine whether the proponent seems to be trying to get the statement in to prove that assertion. If so, the proponent is offering it for the truth, and it is hearsay unless there is an applicable exception.

The actual rules:

Fed. R. Evid. 801, Definitions Fed. R. Evid. 802, Hearsay Rule

“HAIL, MARY” EXCEPTIONS–PRESENT-SENSE IMPRESSION AND EXCITED UTTERANCE

The “on-the-bench” thumbnail: Both of these exceptions may be used whether or not the declarant is available.

For “present-sense impression” to apply, the witness’ statement must be a statement describing the event or condition, made “while the declarant was perceiving the event or condition, or immediately thereafter.”

For “excited utterance” to apply, there has to have been a startling event or condition, and the witness’ statement has to have kind of erupted out of him or her in pretty much immediate response to that event or condition. If the statement was made a week–or an hour, depending on the circumstances– later, this probably isn’t an “excited utterance.”

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Lawyers often confuse these two exceptions, and mis-use them.

The actual rules:

Fed. R. Evid. 803(1), Present sense impression Fed. R. Evid. 803(2), Excited Utterance

THE OFTEN-ABUSED “BUSINESS RECORDS” EXCEPTION

The “on-the-bench” thumbnail: This exception may be used whether the declarant is available or not.

There are five (5) requirements that hearsay must meet in order to be admitted under the “records of regularly conducted activities” exception–

–The record has to be made at or near the time of the activity to which it relates took place;

–It has to be made by a person with knowledge;

–It has to be kept in the course of a regularly-conducted business activity;

–It has to be the regular practice of that business activity to make the record; AND

–The person who has to prove all that must be the “custodian” of those records.

The fact that somebody at a business wrote a letter to someone, or made a notation, or created a document, or kept a letter in a business file, does not make that letter or notation or document a “business record” (record of a regularly-conducted activity).

The issue frequently comes up regarding appraisal reports. Generally, an appraisal report is not a “business record” for anyone but the appraiser. Usually what the proponent really wants to get in is the appraiser’s opinion of the value of the property–and that ought to come in through the appraiser, testifying as an expert. The opposing party can’t cross-examine the appraisal report. Same thing with valuation reports. Hearing from the appraiser is particularly critical when you have competing appraisals.

The actual rules: Fed. R. Evid. 803(6), Records of regularly conducted activity

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Fed. R. Evid. 803(7), Absence of entry in records kept in accordance with the provisions of paragraph (6)

THE “PROPERTY RECORDS” EXCEPTION

The “on-the-bench” thumbnail: Again, this exception is available regardless of the declarant’s availability.

This exception applies to recorded documents like mortgages and deeds, as well as to statements in those documents. It does not make exception for just any old documents that may reference property (like, for example, a letter that tells the debtor that the bank is about to foreclose). (A question to consider–does this exception cover the promissory note?)

The actual rules:

Fed. R. Evid. 803(14), Records of documents affecting an interest in property Fed. R. Evid. 803(15), Statements in documents affecting an interest in property

THE “MISSING WITNESS” EXCEPTIONS

The “on-the-bench” thumbnail: If a witness is “unavailable,” that witness’ hearsay is admissible under certain circumstances.

The first question to answer is whether the witness is, in fact, “unavailable.” The rule is very specific; witnesses are “unavailable” only if:

–they are exempt by court ruling due to privilege, –they refuse to testify despite a court order, –they claim lack of memory of the subject matter of the declarant’s statement, –they are dead, or are too physically or mentally ill to testify, OR –the proponent has been unable to obtain their attendance “process or other reasonable means.”

If the witness is unavailable, his or her testimony is admissible if it was: –Former testimony given at another, similar kind of hearing where there was an opportunity for cross-exam; –A statement under belief of impending death; –A statement which was, at the time the declarant made it, so far contrary to the declarant’s pecuniary,

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proprietary, criminal or civil litigation interest that a reasonable person in that position wouldn’t have made it unless it were true; or –A statement regarding the declarant’s own family history.

The actual rule:

Fed. R. Evid. 804, Hearsay Exceptions; Declarant Unavailable

THE MIS-NAMED AND MISUNDERSTOOD “CATCH-ALL” EXCEPTION

The “on-the-bench” thumbnail: It isn’t a catch-all exception, and it rarely ever applies. In particular, the hearsay has to be more probative than any other evidence the proponent might offer on the particular point, AND the proponent has to disclose it–as well as the identity of the witness testifying to it–to opposing counsel well in advance of trial.

The actual rule:

Fed. R. Evid. 807, Residual Exception

THE DOCTRINE OF “INDEPENDENT LEGAL SIGNIFICANCE”

This is a somewhat confusing, judge-made “exception” to the hearsay rule that is not specifically articulated anywhere in the rule itself. As discussed above, Rule 801(c)(2) defines hearsay as an out of court statement offered to prove the truth of the matter asserted. The “independent legal significance” doctrine–also sometimes called the “verbal acts” doctrine–provides that “[i]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” Advisory Committee Notes to subdivision (c) of Rule 801, 1972 proposed rules, citing Emich Motors Corp. V. General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev’d on other grounds, 340 U.S. 558 (1951). The doctrine “exclude[s] from hearsay the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the statement itself affects the legal rights of the parties or is a circumstances bearing on conduct involving their rights.” Id. See also, U.S. v. Stover, 329 F.3d 859, 870 (D.C. Cir. 2003); Weinstein’s Federal Evidence §801.11[3] (2d ed. 1977). This notion that certain out-of-court statements, such as contractual promises, have a function so powerful that the issue of whether they are true and reliable is irrelevant, can be difficult to apply. Be aware that it is out there, and may be applicable in situations involving contracts or other legal documents.

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AUTHENTICATING EVIDENCE

The “on-the-bench” thumbnail: “Authentication” is a particular foundational requirement that helps assure that the evidence is what it purports to be. The proponent of the evidence must offer sufficient proof to show that the item is genuine.

Some sorts of evidence are “self-authenticating;” Fed. R. Evid. 902 provides a list. For others, the proponent has to offer some evidence to show that the item is what it purports to be.

Even if the proponent succeeds in “authenticating” the evidence, that does not necessarily mean that the evidence is admissible. It still may face some other bar to admission, such as hearsay, lack of relevance or the fact that its probative value is substantially outweighed by the danger of unfair prejudice.

The actual rules:

Fed. R. Evid. 901(a), Requirement of Authentication or Identification; General Provision Fed. R. Evid. 901(b), Illustrations Fed. R. Evid. 902, Self-authentication

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THE MYTHICAL “BEST EVIDENCE” RULE

The “on-the-bench” thumbnail: There isn’t a rule that says that a party has to offer the “best,” or most probative, evidence available to it to prove its point. Nor is there a rule that says a party always must offer the original, and never a copy, of a piece of evidence.

The “original writing” rule–Fed. R. Evid. 1002–says that if a party is trying to prove the contents of a writing, recording or photograph, the party has to provide the original. (There’s an exception for the contents of “public” records, and a provision for the admission of summaries of voluminous writings, recordings or photos.)

In spite of this, Fed. R. Evid. 1003 specifically states that a duplicate is admissible to the same extent as an original, unless there’s a “genuine” question as to whether the copy is authentic, or under the circumstances it would be “unfair” to admit the copy instead of the original.

Distinguishing between “authentication” and “original writing:” An “authentication” objection goes to whether this truly is a receipt for clothes the debtor purchased at Macy’s. An “original writing” objection says that if you want to use that receipt to prove that it really shows that the debtor bought a $3,000 jacket, you need to produce the original receipt, not a copy.

As with authentication, the fact that the evidence meets the requirements of the Original Writing Rule does not ensure that it is admissible. The proponent still may need to clear the hurdles of hearsay, Rule 403, relevance, etc.

The actual rules:

Fed. R. Evid. 1002, Requirement of Original Fed. R. Evid. 1003, Admissibility of Duplicates Fed. R. Evid. 1005, Public Records Fed. R. Evid. 1006, Summaries

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FINAL FOOD FOR THOUGHT

– Few of us ever preside over jury trials. We are, therefore, often tempted to employ evidentiary shortcuts. From a judicial philosophy standpoint, it may be worth recalling that:

* The Rules of Evidence are rules–just like the Federal Rules of Bankruptcy Procedure.

* The rules are designed to try to ensure, to the extent possible, that the evidence upon which we (the fact finders) rely in making decisions is as accurate and reliable as possible.

* Enforcing the rules of evidence helps to level the playing field.

* District and court of appeals judges are used to these rules, and enforce them in their own cases.

– On the other hand, we are not parties. From a judicial philosophy standpoint, it is worth asking yourself: If no one objects, should I weigh in?

– Some handy resources to keep on the bench, should you choose to do so, are:

Instant Evidence: A Quick Guide to Federal Evidence and Objections, by Timothy E. Eble. This laminated, spiral-bound booklet is a nice quick reference to the rules, common objections, and common motions. You or your librarian may order the booklet from the National Consumer Law Center’s web site, http://shop.consumerlaw.org/instantevidence.aspx.

Federal Rules of Evidence with Objections, Twelfth Edition, by Anthony J. Bocchino and David S. Sonneshein. This is a pocket-sized, spiral-bound NITA publication, organized by objection. Find it at www.lexis.nexis.com/nita, and click on “Publications.”

Objections at Trial, Seventh Edition, by Myron H. Bright, Ronald L. Carlson and Edward J. Imwinkelried. Another pocket-sized, spiral-bound NITA publication. Find it the same place you find the previous resource.

Federal Trial Objections * Quick Reference Card * 2nd Edition. Yet another NITA publication, this one a laminated 8 ½ x 11 card dividing the rules into type of objection—form, relevance, response, type of question, etc. Again, you kind find it at the Lexis/Nexis NITA site.

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