Direct and Cross Examination, Opening/ Closing Statements

Home , Direct examination, Documentary evidence

July 20, 2016

Adam Samansky, Member

IP Summer Academy 2016 Direct and Cross Examination, Opening/ Closing Statements IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016

Trial is Theater

© 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. Direct and Cross Examination, Opening/ Closing Statements IP Summer Academy 2016 Boston, Massachusetts July 11 – 22, 2016

Overview of Trials

• Opening Statement (The narrator sets the stage)

• Presentation of Witness Testimony and Documentary Evidence (The characters make their appearances and conflict develops between the main characters)

• Closing Statements (The climactic scene)

• Judge’s instructions on the Law (If trial is to a jury)

• Verdict by Jury/Findings of Fact and Rulings of Law by Judge (The conflict is resolved and everyone goes home – or to the Court of Appeals)

Opening Statements

• Lawyers explain the case to the jury (or Judge)

– Introduce witnesses they will meet

– Explain the technology at issue

– Highlight important documents

– Familiarize jury with important factual disputes and legal issues they will have to decide

• Not evidence to be considered by the jury

• No argument – legal or factual – during opening statements

• Sometimes skipped in Bench Trials

Presentation of Witness Testimony

• Direct Examination

– The witness tells the story through open-ended questions

– No leading questions

Leading Questions Call for Yes or No Answers, So Lawyer is Telling the Facts

• Examples:

– Did the defendant steal your trade secrets?

– Does the accused device copy your invention?

Non-Leading Questions Ask Witness to Tell Facts in His or Her Own Words

• Examples:

– Please describe your invention?

– How does your invention differ from the prior art?

– How does the defendant’s device compare to your invention?

Presentation of Witness Testimony

• Direct Examination

– Witness tells the story through open-ended questions

– No leading questions

– Use the order of witnesses and issues covered by each to present your story as persuasively as possible

– Use direct testimony of your witnesses to present and explain documentary evidence

Presentation Of Witness Testimony

• Direct Examination (continued)

– Visual evidence assists witnesses’ testimony and it presents information to Jurors/Judges in the way they are used to learning

– With good preparation you can use direct examination to undermine or respond to the opposing party’s arguments before it even has a chance to fully explain them to the Jury

– A party can bring out and respond to weaknesses in its own case during direct testimony before the opposing attorney brings them out in Cross-Examination

Choose Witnesses Like You Would Choose Actors for Your Play – They Must Fit Their Roles

Presentation of Witness Testimony

• Cross Examination

– Cross-Examination is often called the trial’s great crucible in which the truth is discovered

– Lawyers keep control of testimony with leading questions

– The goals are to undermine the opposition’s direct testimony and begin presenting facts to support the responsive case

Presentation of Witness Testimony

• Cross-Examination (continued)

– The credibility of the witness is just as important as any factual issue about which he or she testifies

• Cross-Examination is often designed to show the witness is a liar, even if the lie concerns an issue that was not the topic of direct testimony

– Lawyers must be careful not to go too far in Cross-Examination, because their own credibility is at stake

Closing Statements

• The Closing Statement is the Lawyer’s opportunity to bring the drama of trial to a close by explaining the play to the audience

• The Closing Statement is an argument

• Closing Statements rely on the evidence and fair inferences from the evidence

Closing Statements (continued)

• Information that was not admitted in evidence during trial and the Lawyer’s personal beliefs/knowledge are inappropriate to include in the closing

• Visual aids or other tools may help make persuasive arguments

• Lawyers often write their closing arguments long before trial in order to make sure the important themes supporting their arguments are identified early and repeated often