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Direct Examinations of Witnesses Equally

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Direct Examinations of Witnesses Equally BENCH TRIAL HANDBOOK GETTING STARTED The hardest part of preparing any case for trial is determining where to begin. The following steps are an outline for preparing your case. The outline is merely a guideline. You may have different techniques or organization skills you may wish to use separately or in conjunction with the following steps. First Things First: 1. Find a partner – someone you can meet with regularly; 2. Decide which side of the case you want to represent a. Criminal case = prosecution or defense b. Civil case = plaintiff or defense Developing your Case: 1. Read the case and instructions one time through. 2. Separate the instructions and jury instructions 3. On a piece of paper draw three columns. 4. In the first column, identify the cause of action or crime, and write the elements which make up the cause of action or crime on the lines beneath it. 5. In the second column list all of the facts that establish the elements of the cause of action or crime. 6. In the third column list all of the facts that negate the elements of the cause of action or crime. 7. Determine which facts repeatedly support your position. 8. Develop theme and theory of the case. Preparing for Trial: 1. Who is going to give the opening statement? 2. Who is going to give the closing argument? 3. Divide the task of direct examinations of witnesses equally. 4. Divide the task of cross examinations of witnesses equally. 5. Find your witnesses. Trial Court Handbook Page 1 WITNESSES You will supply the witnesses for your case. A witness may testify only to facts stated in or reasonably inferred from his/her witness statement or the fact pattern (if he/she reasonably would have knowledge of those facts). If you need clarification, or are unsure whether your inference is reasonable or not, speak with your attorney coach, and he/she will help you to fill in any gaps in the official materials. The fact pattern is a set of indisputable facts from which witnesses and attorneys may draw reasonable inferences. If a witness is asked a question calling for an answer which cannot reasonably be inferred from the materials provided, they must reply, “I don’t know” or “I can’t remember.” It is up to the attorney to make the appropriate objections when witnesses are asked to testify about something which is not generally known or cannot be reasonably inferred from the fact pattern or a witness statement. A witness can be impeached if he/she contradicts the material contained in his/her witness statement. THEME/THEORY You and your partner should first develop a theme and theory for your case – this will bring your entire case together in a cohesive way, even though each of you are responsible for conducting separate portions of the trial. The theme and theory is how you grab the judge’s attention. A theme is important in any case because it gives the judge a sense of direction regarding how you will present your case. When your case revolves around a theme, the judge will remember testimony, case development, and your position. The theme is a short phrase that you use to grab the judge’s attention. In composing a theme you should provide your most telling fact with broad encompassing statement of the law. For example in a personal injury and medical malpractice case, a plaintiff may use the theme of “Failure to take the time.” Notice that the theme incorporates a standard of care, time, and the breach of that standard. The theme is incorporating the elements that must be proven in order for the plaintiff to prevail. For an example in a criminal case, think back to the O.J. Simpson case, and the impossible to forget theme of, “If the glove doesn’t fit, you must acquit.” The theory is how you prove your case, and expands upon your theme. The theory of the case is how you expect to prove your position. How did the defendant’s acts demonstrate a failure to take the time? Explain your theory of the case immediately after you state your theme. While the theme is a single catchphrase, explaining your theory of the case will take a few sentences or so, if not more. Trial Court Handbook Page 2 OPENING STATEMENT Purposes of Opening Statement An opening statement is the first chance the attorney has to tell the judge about the case and, more importantly, why the judge should find in your favor. Specific purposes of the opening statement are to: 1. Set forth your theme and theory of the case; 2. Provide the judge with a roadmap of how you expect your case to proceed/develop in trial; 3. Inform the judge, in a general way, of the nature of the case and any defense(s); 4. Advise the judge of the facts relied on by the parties to make up the right of action, crime, or defense; 5. Define the nature of the questions and issues involved; and 6. Explain what you expect the outcome of the case to be at the conclusion of your trial. Structure of Opening Statement The structure of the opening statement can vary based on the facts of each case. An opening statement is a story. The opening statement is when you introduce your theme and the characters involved in the case. You give a short summary of the evidence and briefly explain the applicable law at issue in the case. At the end of your opening statement you need to tell the judge what you want him/her to do (i.e. find the defendant guilty/not guilty of the crime charged; hold the defendant liable/do not hold the defendant liable for the injuries caused, etc.). An opening statement is not the time for argument. Argument is reserved for the “Closing Argument” which takes place at the end of the trial. One basic rule to keep in mind is if a witness is not going to take the stand and say it, then it is more than likely argument. An opening statement is simply a roadmap of your case, and an outline of what you expect to happen during the course of the trial. Trial Court Handbook Page 3 Helpful phrasing for an opening statement includes: “The evidence will indicate that …” “The facts will show…” “Witness __________ (full name) will be called to tell…” “The defendant will testify that…” “You will hear that …” The most important thing to remember in your opening is that you know the facts better than the judge ever will. It is your job to take all of the facts and the law and present it in a simple story for the judge to understand. Don’t get bogged down in the facts. You do not want to articulate every single fact of your case in excruciating detail during your opening statement. Keep things simple, but focused. Anticipate Weaknesses of Your Case If you know that there is evidence which is damaging to your case, you should volunteer this evidence as soon as possible -- opening statements are your first opportunity to present information to the judge. The advantage of introducing damaging evidence in an opening statement is that you have a chance to explain the weakness or unfavorable evidence, and hopefully present it in a more favorable light. Think “damage control.” Physical Presence in the Courtroom: There is no one court room style and where you stand during your opening statement will depend on the judge’s preference and you. However, to be sure, ask permission to move into the well (the center of the courtroom) before doing so, or clear this matter up with the judge before your trial begins. Generally, when the trier of fact is a judge (no jury) opening statements are presented from counsel table or the podium. ` Trial Court Handbook Page 4 DIRECT-EXAMINATION Direct examination is when an attorney asks a witness they called to the witness stand a series of questions. Direct examination is conducted from behind counsel table, or from the podium. When it is time for you to call your witness to the witness stand, ask the judge the following: “Your honor, I would like to call (name of witness) to the stand.” The witness will then be sworn in before testifying. After the witness swears to tell the truth, you may wish to ask some basic introductory questions to make the witness feel comfortable. Appropriate areas of inquiry include: • The witness’s name. • Length of residence or present employment, if this information helps to establish the witness’s credibility. • Further questions about professional qualifications are necessary if you wish to qualify the witness as an expert. A direct examination is the judge’s opportunity to relive reality from your side’s perspective. The witnesses should tell/show what happened so that the event is re-created for the judge’s benefit. This must be done while keeping in mind the elements of the crimes, claims, or defenses, and the ever-present requirements of simplicity and efficiency. The purpose of a direct examination is to ask questions that develop a subject in a logical sequence. It is important to listen to both the questions and the answers, so that the next question continues developing the subject in a logical sequence. Direct examination is your time to introduce your witnesses and have them tell the story through a series of questions and answers. On direct examination, counsel should ask open-ended questions.
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