CHECKLIST: Preparing a Witness for Trial

 

How you prepare your witnesses for direct and cross-examination is critical to your success in trial. The following is an indispensable checklist along with notes for thorough and effective witness preparation.

 Preparation for the courthouse and courtroom:

– Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

– Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

– Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

 Preparation on the witness’s role and substance:

– Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell  the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

– Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

– Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

– Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations.

– Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

 Preparing the Witness on How to Testify:

– MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible. 

– 1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

– 2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

– 3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

– 4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 

Inexpensive Persuasive Trial Visuals

 

INEXPENSIVE PERSUASIVE TRIAL VISUALS

If your case calls for a diagram of a floor plan, diagram of a landscape, diagram of a crime scene, a  timeline, or the like and you don't have a large budget, SmartDraw is for you. It is inexpensive at $9.95 per month and easy to use with no artistic skills required. Also, you can use it for a trial period. Naturally you could hire a litigation consultant to create these, but that could be expensive. I have the student's in my law school Visual Litigation and Today's Technology course, use the free trial to create persuasive trial visuals.

SmartDraw has a set of tutorials that you can watch to learn about what it will offer you. 

For Creating the Floor Plan go here for the tutorial.

For Creating Landscape go here for the tutorial.

For Creating a Crime Scene Diagram go here for the tutorial.

For Creating a Timeline go here for the tutorial.

DAVID BOIES: 5 TRIAL ADVOCACY TIPS

 

David Boies is America’s preeminent trial lawyer. His successes include cases, such as that against California’s Proposition 8 and the Microsoft antitrust case. In an interview with Katrina Dewey for Lawdragon, http://www.lawdragon.com/feature-articles/cocktails-with-david-boies/  he described his belief that it was an honor to make a living and a difference practicing law: 

“I’ve always believed that one of the great things about being a lawyer is you have an opportunity to really make a very comfortable living. at the same time, it allows you to make a real contribution to society and really make change. the opportunity is there.”

In the interview, along other observation, Boies provided five trial advocacy tips.

1.  Outwork the Other Side

When asked how he achieved what he had, he answered: “Well, I will outwork the other side every single time. At the start of every trial, the other side starts out working as hard as I do. But at some point, they say, "I’m going to go out with my girlfriend," or spouse, go to the opera, go see the latest movie. And at every trial I’ve ever had, the other side stops working as hard as me – if they ever did, some- times they never do.”

2.  Pick the Few Things that Matter

“In Microsoft, general counsel Bill Neukom, who I like, would go out and say after court, “My witness made 48 points,” and David Boies only attacked four of them. The problem was, those were the four important ones and when we attacked those four points, they had no credibility left. He was absolutely right – I had only four of his 48 points, but they were what mattered!”

3.  Be Real

“. . . And what juries are looking for is authenticity, someone who is real. A jury is like 12 people who you lock into a boat in a storm and they have no idea how to get out. And then two people come along and one says I know the way, and the other says no, I know the way. If you understand your job is to be the one that the 12 jurors follow, then you can win your case.”

4.  Be Patient

“The other thing is patience. I’m very patient. I will wait for the right opportunity. I don’t try to make things hap- pen or feel frustrated or impatient. Part of it is patience to develop your story in a way that maybe his is the most dramatic story in the beginning, but yours builds over time.”

5.  Talk Sense

“. . .If I were a screamer kind of guy, it would be very hard to do what I have to do. What I have to do is change people’s minds. you very rarely change people’s minds yelling at them. You can excite your base by yelling. But you can’t change people’s minds. to change people’s minds, you have to talk to them. That’s one of the things I do, I talk to the jurors. 

“Adlai Stevenson, when he was running for president, said he was going to talk sense to the American people. that didn’t work probably because he was against the most popular person in the country, but that has always been my goal: to talk sense to whoever you’re talking to. and what you find is if you trust people., a remarkable number of them actually respond to you. People actually like to be treated like thinking adults, even people who start off very antagonistic, you talk sense to them. you can slowly – not always, it’s not perfect, it’s a process, but one that succeeds remarkably often.”

Trial Advocate's Right Words

 

THE RIGHT WORDS FOR TRIAL LAWYERS—THE RULE OF THREE

Successful trial lawyers know how to pick the right words to persuade. They use similes, metaphors, analogies, famous quotes, and the rule of three. We’re going to explore all of these, and we start with the rule of three.

Rule of Three: For a trial lawyer or for any public speaker, the application of the rule of three is a must. The pattern of three has an impact on the listener. The audience, the jury, will feel the triple phrases emotionally and retain it better. The rationale for the rule of three is that when things come in threes, they are more effective than when they come in any other number. 

Think of all the great speeches and documents that incorporated the rule of three:

Joe Biden, June 2, 2020--“We are a nation in pain – we must not let our pain destroy us.

We are a nation enraged – but we cannot let our rage consume us.

We are a nation exhausted – but we will not allow our exhaustion to defeat us.”

Martin Luther King, Jr.’s I have a dream speech—"Free at last, Free at last, Thank God almighty we are free at last.” 

Declaration of Independence—“Life, Liberty, and the pursuit of Happiness”

Abraham Lincoln’s Gettysburg Address—“We cannot dedicate—we cannot consecrate— we cannot hallow — this ground.”

Also, from Abraham Lincoln’s Gettysburg Address—“and that government of the people, by the people, for the people, shall not perish from the earth.”

Winston Churchill—"Never Never in the history of human endeavor has so much been owed by so many to so few.”

Winston Churchill—“I have nothing to offer but blood, sweat and tears.” Actually, on May 13, 1940, he said “blood, toil, tears and sweat," but is attributed with the other probably because it follows the rule of three.

Dale Carnegie—"Tell the audience what you're going to say, say it; then tell them what you've said."

Julius Caesar—“I came, I saw, I conquered.” Or in Latin, “Veni, vidi, vici.”  

Vincent Bugliosi’s concluding remarks in summation in the Charlie Manson murder  trial—“Under the law of this state and nation these defendants are entitled to have their day in court. They got that.

They are also entitled to have a fair trial by an impartial jury. They also got that.

Since they committed these seven senseless murders, the People of the state of California are entitled to a guilty verdict.”

Pretrial and Trial Writing Tips for Lawyers--Humorous

 

WRITING POINTERS FOR LAWYERS - HUMOROUS

Lawyers are notoriously lousy writers, filling page after page with legalese, compound and convoluted sentences, and so on. Sally Bulford, a Utah prosecutor, provided these humorous writing pointers (that bear repeating here) under the title “How to Write Good”. 

1. Avoid alliteration. Always.

2. Prepositions are not words to end sentences with.

3. Avoid cliches like the plague. (They're old hat.)

4. Employ the vernacular.

5. Eschew ampersands & abbreviations, etc.

6. Parenthetical remarks (however relevant) are unnecessary.

7. It is wrong to ever split an infinitive.

8. Contractions aren't necessary.

9. Foreign words and phrases are not apropos.

10. One should never generalize.

11. Eliminate quotations. As Ralph Waldo Emerson said, "I hate quotations. Tell me what you know."

12. Comparisons are as bad as clichés.

13. Don't be redundant; don't use more words than necessary; it's highly superfluous.

14. Be more or less specific.

15. Understatement is always best.

16. One-word sentences? Eliminate.

17. Analogies in writing are like feathers on a snake.

18. The passive voice is to be avoided.

19. Go around the barn at high noon to avoid colloquialisms.

20. Even if a mixed metaphor sings, it should be derailed.

21. Who needs rhetorical questions?

22. Exaggeration is a billion times worse than understatement.

Critical Pretrial and Trial Checklists

Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 5th Edition and Trial Advocacy 4th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

CLOSING ARGUMENT CHECKLIST

Preparation

 Preparation begins soon after entry into the case. Counsel should keep notes of ideas for closing.

 Prior to trial, write the closing argument, with final editing during trial. Reduce closing to outline notes.

 Rehearse closing argument. Just like opening statement, commit concluding remarks to memory so they will flow smoothly.

Content 

 Case theories should serve as guides for planning closing.

 Regarding the legal theories, jury instructions, among others, serve as the core around which to craft closing argument:

 Elements of the claim or defense,

 Burden of proof,

 Issues in dispute, and

 The other side’s case theory.

 In arguing the factual theory, counsel should use jury instructions that pertain to crucial facts, as well as a story embodying those facts.

 The case theme should be incorporated into the closing.

 Closing should meet the other side’s case theory and attacks.

 Juror beliefs and expectations that could be detrimental to the case should be identified, met, or distinguished from your case.

Length

 Length of closing should be suitable to the complexity of the case, and should not run overly long.

Aristotelian Appeals 

 Closing should make all three appeals: logical, emotional, and ethical.

 Persuasive language should include:

 Words with connotations, and

 Rhetorical devices, such as postponement, concession, anti¬thesis, metaphors, similes, analogies, and rhetorical questions.

Structure 

 The closing should begin by seizing the jury’s attention.

 The body of the closing should be well organized, emphasizing the strengths of the case before dealing with case weaknesses or the other side’s attack. 

 The closing should conclude by referring to the theme and reasons for the requested verdict, thus motivating the jury to make the right decision.

 Rebuttal should refute the other side’s arguments and finish strong.

Bench Trial 

Counsel should:

 Be prepared to answer the judge’s questions during closing.

 Not spend an inordinate amount of time explaining the basic law in the case. 

 Assist the court in making findings of fact and conclusions of law.

 Make logical and ethical arguments. Do not seek to appeal the judge’s emotions, except as telling of the facts evokes emotion.

 Be concise and to the point.

 Be candid, accurately stating the facts and law, and conceding what should be conceded.

Delivery 

Counsel should:

 Project sincerity;

 Avoid distracting behavior, such as pacing back and forth;

 Maintain eye contact with jurors or judge;

 Deliver the closing with a minimal outline;

 Position her body to hold the fact finder’s attention; and

 Make purposeful movements.

Counsel should use trial visuals effectively:

 Ensure use is permissible,

 Make visuals persuasive,

 Position equipment and visuals appropriately, and

 Have a backup plan if equipment malfunctions.

Ethical Boundaries

 Counsel should not state a personal opinion.

 Counsel should not venture outside the record.

 Counsel should not introduce irrelevant matter.

 Counsel should not invoke the golden rule.

Resources: Jury Selection and Unconscious Bias

 

Two valuable resources are available for identifying unconscious juror bias and talking to jurors about it in civil cases. First, the United States District Court for the Western District of Washington created a video about unconscious bias that is shown to prospective jurors as part of their orientation. The video features John C. Coughenour, United States District Judge, and attorneys Jeffery Robinson and Annette Hayes. Other courts have adopted the video as part of their orientations process for prospective jurors. This is the United States District Court for the Western District of Washington video. 

Second, Judge Theresa Doyle (Ret.) article entitled “How to Talk to Jurors in Civil Cases About Implicit Bias” is a fine companion piece of the video. In her article, Doyle explores how to discuss unconscious bias with prospective jurors and offers voir dire questions designed to get the prospective jurors to reveal their beliefs. Indeed, she suggests beginning the questioning by asking for their reaction to the orientation video. Doyle was a King County Superior Court Judge and has been Assistant Chief Criminal Judge, and has served on Unified Family Court, Drug Court and on the civil and criminal trial calendars. Prior to taking the bench she a trial attorney at the Defender Association (TDA), and an associate at Riddell, Williams, Bullitt & Walkinshaw.

The following is Judge Theresa Doyle’s (Ret.) article.

How to Talk to Jurors in Civil Cases About Implicit Bias

Say you’re getting ready for trial and your client is a person of color. You have this vague concern that because of racial bias, the jury might not find your client credible or treat your client fairly. But you’re at a loss as to what to do. 

Implicit Bias

You are right to be concerned. White juries in criminal trials are more likely to convict Black and Latinx defendants than white defendants on similar facts.   There is little reason to think that white juries in civil trials are any less biased toward plaintiffs or defendants of color.   That’s because racial bias in society is pervasive, largely unconscious, and widely held across all demographics.   Results of the Implicit Association Test (IAT)  taken by millions of people show that 75 percent of test-takers have a pro-white bias.   Even among Black test-takers, 40 percent show some pro-white bias.  Jurors bring these biases to court when they report for jury service.

Juror Orientation Video

So, how do you go about addressing race effectively in voir dire without unnecessarily alienating jurors or putting your foot in your mouth? Well, if your trial is in King County or Pierce County Superior Court, the groundwork has already been laid for you. Jurors in those counties will already have watched a juror orientation video about implicit bias prior to even being assigned to your trial, whether it’s by Zoom or in-person. 

In 2016 or thereabouts, a group of smart and forward-thinking King County judges imported from the United States District Court for the Western District of Washington a great instructional video for jurors about unconscious bias: 

https://www.wawd.uscourts.gov/jury/unconscious-bias

 Featuring Jeff Robinson, Judge John Coughenour and others, the video describes visually and in plain language the results of social science research into our unconscious biases based on race, gender, sexual orientation, national origin, and other immutable characteristics. Explained is how such automatic preferences and biases can influence our perceptions and decisions. Judges in King County adopted this revised version of the federal court video, substituting some of our own judges and otherwise improving it, in our view. 

Targeted Voir Dire

So, back to your trial. Your jurors have watched the implicit bias video so are primed on the subject. My advice is, don’t drop the ball. 

Heed this cautionary tale:  I had a trial with a Black defendant, so before the jury panel arrived in the courtroom, I reminded the lawyers about the juror orientation video and asked if either of them planned to address racial bias in voir dire. Blank stares. Then, toward the close of the voir dire, one of attorneys posed a common but perilous question: was there was anything jurors wished he had asked them but didn’t? 

Several jurors piped up in response, the first pondering whether our Black defendant could get a fair trial because there were no Black people on the venire and “what with implicit racial bias we learned about in the video and all.” Other jurors then volunteered comments about the pervasiveness of racial bias and the problem of mostly white jury pools. The poor lawyer who had asked the open-ended question had no follow-up except, “thank you for your comments.”  

You don’t have to be that lawyer. You’ve already shown the good sense to read this article.

To backtrack; why does it matter? Addressing implicit bias in jury selection is important because research shows racial bias is most likely to influence the verdict when race plays no active role in the case.  Like in a garden variety motor vehicle accident case where one party is white and the other is Black, as contrasted with a race discrimination employment case where race is central in the trial. Counterintuitive? Not really. When race is an obvious issue at trial, jurors may be 

on guard against racial bias. However, in trials without salient racial issues, jurors may be less likely to monitor their behavior for signs of prejudice, and therefore more likely to render judgments tainted by racial bias.

In other words, it’s the unconscious nature of implicit bias that’s the problem. Hence, social scientists and academics recommend that attorneys “make race salient.”  Tackle racial bias up front, in jury selection, lest it come back to bite you in the verdict.

If opposing counsel objects with, “this is not a race case,” cite the authorities in this article and in the video. You shouldn’t have any problem in a Washington court. Our judges are well-versed in the topic from the numerous judicial trainings at conferences over the past decade. If necessary, remind the judge and opposing counsel that the very purpose of voir dire is to uncover bias to use cause and peremptory challenges effectively.

Sample Questions

Best are open-ended questions that probe thought processes and values. You want to spark conversation; “to get jurors to reveal their true beliefs,” Jeff Robinson says. 

Try, “what did you think of the implicit bias video?” Or play devil’s advocate and ask whether implicit bias really exists; or “don’t we pay too much attention to race?”

Ask what the Confederate flag symbolizes; what’s the big deal about monuments to the Confederacy?

What is “critical race theory” and why are people so exercised about it?

If your client is Black, ask jurors their thoughts about systemic racism; does it exist? 

If your client is a recent immigrant or not a native English speaker, probe attitudes about immigration? Do immigrants contribute more in taxes than they receive in government benefits, or vice versa?

If your client is an Asian-American woman, bring up the recent violence against them and ask jurors for their thoughts.

Ask jurors to name the usual stereotypes about the race/gender/national origin/sexual orientation of persons like your client. 

Ask about the regularity of social interactions with persons of other races at work, school, in their neighborhood.

Consider these sample questions inspired by lawyer trainings given by Jeff Robinson:

What does it mean to “play the race card?”

Have you ever witnessed expressions of racial bias, and how did that make you feel?

What would you do if a fellow juror, during deliberations, were to make a racial slur? Would it matter if the slur was about your client? 

 If you were a party to a lawsuit and upon entering the courtroom discovered that you were the only [insert your client’s race] there, what would 

be your thoughts, concerns?

  The Bottom Line

You can have an intelligent and fruitful conversation with jurors about implicit bias without alienating them or feeling like an idiot. It’s worth the 

effort, because unconscious bias and stereotypes that lurk below the surface can pose a substantial risk to your client’s case. 

“The fact is that every single person in that courtroom has racist thoughts. It’s not a white or Black issue; it’s an American issue,” says Jeff Robinson.

  1. Jerry Kang, Judge Mark Bennett, et al., “Implicit Bias in the Courtroom,” 59 UCLA L. Rev. 1124, 1142-43 (2012), https://www.uclalawreview.org/pdf/59-5-1.pdf

 2.  Id. at 1164.

  3. Kristin A. Lane, et al., “Implicit Social Cognition and the Law,” 3 Ann. Rev. L. & Soc. Sci. 427 (2007),  https://www.researchgate.net/publication/228189909 

  4. The race IAT is a test designed by social scientists to measure implicit attitudes and prejudices by having test-takers respond quickly to images of whites and blacks, then recording reaction time.  See id., 59 UCLA L. Rev. 1124. The IAT can be found here: https://implicit.harvard.edu/implicit/takeatest.html

  5. Cynthia Lee, “Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society,” 91 N.C. L. Rev. 101, 117–18 (2013), https://aasa.org/uploadedfiles/Making-Race-Salient-CynthiaLee.pdf

  6. Id