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Examining Witnesses MICHAEL E. TIGAR SECTION OF LITIGATION American Bar Association This book is dedicated to my children, and their children Excerpt from Stevie Smith, Collected Poems of Stevie Smith. © 1972 by Stevie Smith. Reprinted with permission of New Directions Publishing Corporation. exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 1, DRAFT, NOT PUBLISHED Contents Preface Acknowledgments Chapter One The Theory of the Case: Dead Reckoning, Gestalt, and the Closing Argument Deciders Perceive Whole Stories The Way You Tell It Makes All the Difference Structure and Order Proof of Facts The Essence of Direct and Cross Are You Sure? You Always Navigate by Dead Reckoning Chapter Two Direct Examination: Friendly Folks Why Direct Examination Is Difficult The Story Within the Story Preparing the Friendly Witness Beginning Strong Stating and Restating Your Theme – Helping the Jurors Direct Examination Organization Loops Prologues and Transitions Demeanor, Tone, and Movement Deconstruction (Without a Yellow Pad) Two Examples Leading Questions and Avoiding Narrative Chapter Three Direct Examination: Neutral Fact Witnesses Are There Neutral Fact Witnesses? The Partisan The Record Keeper The Bystander The Professional The Journalist Chapter Four Direct Examination: Difficult Attributes The Difficult Direct Examination Foreign Language Testimony and Related Problems The Child Witness The Witness Who Was Wrong The Witness Who Doesn’t Want to Be There The Character Witness Chapter Five Direct Examination: Your Client Does the Client Testify? The Criminal Defendant as Witness exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 2, DRAFT, NOT PUBLISHED Preparing the Client to Testify The Client on the Stand Chapter Six Demonstrative Evidence and Illustrative Materials: Say It with Pictures Basic Principles Agreement or Ruling? Basic Publication Strategy Skepticism About Hardware Read It ELMOs And Overhead Projectors Multiple Copies Large Posterboard Charts The Object Itself Pad or Blackboard? Models Video Images CD-ROM And DVD-ROM Document Storage and Retrieval: Another Cautionary Tale Chapter Seven Adverse Examination: Inviting the Enemy in to Dine Rules and Cases When and Whether to Call an Adverse Witness How to Do It Chapter Eight Cross-Examination: Venial Violations of the Ten Commandments The Ten Commandments The True Rules of Cross Control The Theory of Minimal Contradiction Meaning Perception Memory Veracity Minimal Contradiction Redux Witness as Object, Witness as Observer “Liar” Chapter Nine Cross-Examination: Difficult Witnesses, Witnesses with Difficulties The Eyewitness The Representative The Informer Character Witnesses Special Care Witnesses Foreign Language Witnesses Chapter Ten A Real World Cross-Examination, Annotated Chapter Eleven Cross-Examination: Preparing Your Witnesses for Its Rigors exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 3, DRAFT, NOT PUBLISHED The Locker Room Speech Scrimmage--The Ground Rules Is There a Gentler Way? Perception, Memory, Meaning, Veracity How to Scrimmage Chapter Twelve Expert Witness: Soft Subjects--Choosing and Presenting Your Expert Hard Expertise and Soft Expertise Materiality Relevancy Rules about Experts Scientific, Technical or Other Specialized Knowledge Facts or Data Principles and Methods Reliably Applied Demonstrative Evidence Choosing a Testifying or Shadow Expert Search Techniques How to Prepare Yourself for the Search The Nontestifying Expert Preparing Your Expert to Testify Direct Examination Begins: Biographical Information Qualifying the Expert Introducing the Themes Making the Point Arrogance Chapter Thirteen Expert Witness: Soft Subjects--Cross-Examination “Someone” Are You Competent? About This Subject? How Did You Get Here? Will It Assist the Trier of Fact? Is It Reliable? “Who Was Not There” “But Who for a Fee” “Will Gladly Imagine What It Must Have Been Like" The “Other Expert” Cross Chapter Fourteen Expert Witness: Hard Subjects--Choosing and Presenting Your Expert The Search Do You Need an Expert? Presentation Chapter Fifteen Expert Witness: Hard Subjects--Cross-Examination Is It a Specialty? Make the Expert’s Conclusions Irrelevant exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 4, DRAFT, NOT PUBLISHED Make the Expert’s Conclusion Doubtful Liars and Very Badly Mistaken People “No Questions”? Chapter Sixteen Closing Thoughts: Dignity--Yours and the Witness’s An Anecdote about Dignity Who Are You? The Jurors Answer Witnesses and Dignity Levels of Formality--Some Cautionary Words Seven Deadly Sins Speaker and Hearer: Context Concluding Words Bibliography exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 5, DRAFT, NOT PUBLISHED Preface This book is by a trial lawyer for trial lawyers. I have been trying cases for thirty-five years and writing about trials for nearly that long. For nearly fifty years, I have been soaking up as much trial lore as I could. I believe that fair trials in the adversary system are the best way to settle disputes that cannot be settled amicably. Most cases do settle, but the best settlements are made only after the lawyer has understood the case enough to try it. These days, too many judges are hiding in their chambers and, with the help of law clerks, scratching out written responses to pleadings, instead of getting on the bench and making decisions. Judge Patrick Higginbotham has documented that federal “trial judges” are in fact trying fewer cases than in the past. This failure to use open court hearings to resolve disputes saps confidence in the system that calls itself justice. This is a second edition. Some subjects, such as expert witnesses, have been changed in significant ways by United States Supreme Court decisions and amendments to the rules of evidence. Since the first edition, I have tried cases to juries and judges, taught advocacy, written about persuasion, and reflected on the themes in the first edition. My colleagues and friends mostly concurred that a second edition was a good idea. I have reworked every chapter, and added much new material. I continue to believe that “the great advocates of this and every other time in recorded history have been students of society and not carnival barkers.” This statement covers a lot of territory. For purposes of this book, which deals with the art, science, and technique of advocacy, it means that to win trials, you have to understand how jurors and judges are persuaded by the drama of evidence and the rhetoric of lawyers. In this book, I have tried to provide more than recipes. With a recipe, you can cook something. With theory, techniques, and skill--informed by experience--you are a cook. I believe that good lawyering can be taught. We are talking about skill in this book. Mark Twain, in an 1870 story called “Science and Luck,” tells the story of a dozen men on trial for running a game of chance, to wit, “seven-up” or “old sledge.” Their lawyer, old Jim Sturgis, brought witnesses to say that it was a game of skill, but deacons and dominies summoned by the prosecutor pronounced it a game of chance. So Sturgis convinced the judge to put four deacons and two dominies on the jury, along with six old gamblers, give them candles and a couple of decks of cards, and “just abide by the result.” As the deliberations went on, various of the “chance” jurors sent word into court to borrow money from their friends. At dawn, the jury returned its unanimous verdict: We, the jury in the case of Commonwealth of Kentucky vs. John Wheeler, et al., have carefully considered the points of the case, and tested the merits of the several theories advanced, and do hereby unanimously decide that the game commonly known as old sledge or seven-up is eminently a game of science and not of chance. In demonstration whereof it is hereby and herein stated, iterated, reiterated, set forth, and made manifest that, during the entire night, the “chance” men never won a game or turned a jack, although both feats were common and frequent to the opposition; and furthermore, in support of this our verdict, we call attention to the significant fact that the “chance” men are all busted, and the “science” men have got the money. It is the deliberate opinion of this jury, that the “chance” theory concerning seven-up is a pernicious doctrine, and calculated to inflict untold suffering and pecuniary loss upon any community that takes stock in it. exwit2master.doc, 12/15/13 7:12:51 a12/p12, page 6, DRAFT, NOT PUBLISHED Good lawyering is not a game of chance, or luck, even though both of these may play a role. Day in and day out, in the tournament of trial, skill wins out. Mostly, this book is about jury trials, civil and criminal. The American jury has taken a lot of criticism; I think it is the best way to resolve the cases that can’t be settled. You will find, however, that persuasive techniques are the same whether a judge or jury is deciding. Lawyers who think that they can present their case more “neutrally” to a judge will quickly learn from that mistake, though at their clients’ expense. Indeed, you can usefully master the theory and skill of persuasion even if you are not a trial lawyer. Historically, the study of rational and nonrational persuasion was the work of philosophers and dramatists before it became the province of lawyers. Today, as I show in Chapter One, social scientists and students of language contribute to our understanding of trials; representatives of these disciplines can usefully be retained to help prepare for specific cases. Authors think they write clearly enough that nobody needs a road map through the thicket of their words. Editors, who fancy themselves advocates for readers, think otherwise. The editors usually win. Here is a road map. This book is designed so that young lawyers and law students can read it from cover to cover and see how one moves from meeting your client, to seeing your case, to presenting your case.
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