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… 1 2 DIRECT EXAMINATIONS 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. 2 3 DIRECT EXAMINATIONS 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. 3 4 DIRECT EXAMINATIONS 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. 4 5 DIRECT EXAMINATIONS 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.