ESSENTIAL WITNESS PREPARATION CHECKLIST

Cross-Examination in the Dr. Conrad Murray (Michael Jackson manslaughter 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.

Ö      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.

Ö      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.

Ö      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: You want to avoid the type of cross-examination discussed in Cross-Examination Handbook. 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 to listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 

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ABOTA & ACTL SPONSOR 2015 ADVANCED TRIAL ADVOCACY INSTITUTE

“I attended, participated in and enjoyed the Advanced Trial Advocacy Institute.

It is a comprehensive ‘how to’ demonstration curriculum in which the attendees have an opportunity to observe and then perform everything from voir dire to examination of witnesses to closing argument …”

Ron Ward

President, Washington State Bar Foundation, 2008-2011

President, American Board of Trial Advocates, 2012

Washington State Trial Lawyers Association President’s Award
Super Trial Lawyer since 2003

Save the Dates - June 15-19, 2015 – for the Advanced Trial Advocacy Institute at Seattle University Law School.

The Advanced Trial Advocacy Institute, June 15-19, 2015, is co-sponsored by the American College of Trial Lawyers and the American Board of Trial Advocates. ATAI offers a proven conceptual approach to trial practice combined with premier trial principles and strategies for every phase of trial from preparation through closing argument. During the week-long course, the best of the best trial lawyers and faculty will provide you with lectures and demonstrations of successful trial skills.

To register and for complete information, click here. 

Who should attend

The course is designed for both beginning and experienced practicing lawyers, who are seeking a firm foundation of the finest trial skills taught by experienced trial lawyers, who will to take their lawyering skills to a higher level. The course is also open to a few select law students who have completed their second year and have taken an Evidence course. Seattle University Law Students will receive two academic credits for successfully completing the course.

Topics to be addressed include:

Developing Case Theories, Themes and Trial Strategies .Courtroom Communication Techniques .Trial Preparation and Planning .Effective Jury Selection .Convincing Opening Statement .Conducting a Compelling Direct Examination .Presenting and Attacking Expert Testimony .Creating Dynamic Trial Visuals .Today's Courtroom Technology .Trial Ethics and Avoiding Pitfalls. Impeachment and Concession Cross-Examination and Persuasive Closing Argument.

Distinguished Faculty Members

Judges

Hon. Terrence A. Carroll, King County Superior Court (ret.)

Hon. John H. Chun, Judge, King County Superior Court
Hon. John P. Erlick, Judge, King County Superior Court
Hon. Dean Lum, Judge, King County Superior Court
Hon. Jack Nevin, Judge, Pierce County Superior Court

Attorneys and Academics

Dan ‘L W. Bridges, McGaughey Bridges Dunlap PLLC

Amy T. Forbis, Bennett, Bigelow & Leedom
Barbara Frost, Adjunct Professor, Seattle University School of Law
Erick D. Gilman, Gordon, Thomas Honeywell
Karen Koehler, Stritmatter Kessler Whelan
Avi Lipman, McNaul Ebel
Thomas A. Lemly, Davis Wright Tremaine
Lisa Marchese, Dorsey Whitney
Simion Osborn, Osborn Machler
Stephen Penner, Chief Deputy Prosecuting Attorney, Pierce County Prosecutor's Office
Jeffrey Robinson, Schroeter Goldmark and Bender
Jeff Tilden, Gordon Tilden Thomas & Cordell
Lish Whitson, Lish Whitson, PLLC

Communication Specialists

R. Craig Smith, Senior Trial Consultant, Best-Witness
Thomas M. O'Toole, Ph.D., President & Consultant, Sound Jury Consulting
Tara Parker, Prolumina

DON’T LOSE THE JURY ON DIRECT EXAMINATION

The Engaging Direct Examination

A poorly executed direct examination can lose the jury or bore them to snores. There are many ways to disengage the jury from your direct. Use the windshield wiper method (“What happened next?” “What happened next?”  And then what happened?”). While this may elicit the information, it can be as mind-numbing as watching your windshield wiper go back and forth. Call an expert who constantly speaks in technical terms that jurors can’t understand. Allow a dull, monotone voiced witness to drone on, thus sucking the oxygen out of the courtroom. Have the witness never once look at the jury. Only elicit words, words and more words from the witness.

What follows is a list of HOW TO KEEP THE JURY ENGAGED DURING THE DIRECT:

Exhibits and Demonstrations: Break up the direct examination by spacing out the introduction of exhibits. This will enhance the presentation, change its pace and break up the testimony so that the jurors are not just listening to words. Most importantly your jury will have a significant number of predominantly visual learners. A demonstration will enliven the presentation and bring reality into the courtroom.

Variations in the Questioning: How you ask questions can keep the jurors’ interest. Vary tone of voice and volume. Embrace courtroom silence. If the witness gives a particularly good answer, remain silent and let the answer sink in. Change how the questions are phrased (not “What happened next?” repeated). Shift the tense from past to present tense to bring the action or scene to life. For instance: “When you enter the intersection, tell us what you see on your right?”

Directions: Keep the jury informed of where you are, where you are going and what they have heard. You need not tell a linear story during the direct. You can flash forward in time, flash back in time and even freeze on a subject or scene. But, wherever you go, the jury should not get lost. This can be accomplished with declarative sentences, such as, “Now, let’s move ahead to when. . .” Or, freezing on a subject, “Now, let’s discuss the scaffold.” While these are not questions, they normally are never objected to because people in the courtroom want to follow the testimony. Juror attention can be directed to what they have heard by using the looping technique, which involves incorporating the witness’s answer into the next question. For example, the witness answers, “I put on the brake,” and the next question is “When you put on the brake, what happened next?”  Looping repeats and highlights the testimony, and thus directs the jurors’ attention to the answer.

Energy: An antidote to counteract the poison of a dull direct is your energy. Ask questions with enthusiasm, informing the jurors that you want to know the answer. Sound interested in the answer. Energetically ask questions that the jury would want answered.

Witness Speaks to the Jurors: A common mistake on direct examination is to have the witness speak to the lawyer when answering questions. The only people in the courtroom who matter for the witness are the jurors because they are the fact finders. The jurors are the people to whom the witness should speak. During witness preparation, you can tell this to the witness and explain that the jury’s only job is to find out what happened. They are like the witness’s neighbors and have no axe to grind. They want to find what is true. Therefore, the witness should look at them and speak to them. If the court permits, counsel should stand behind the far end of the jury box away from the witness so that the witness is looking across the jurors towards counsel. During preparation, inform the witness that this placement is a cue to the witness to look at the jurors. Counsel can explain the positioning to the jurors with the first witness: “Mr. ____, I’m standing back here so that you will speak up so juror number 6 here can hear you.” This positioning results in the spotlight being on the witness and the jury looking at the witness as opposed to looking at the lawyer who asks the question and then to the answering witness as though the jurors were watching a tennis match.  If necessary because the witness looks away from the jurors, you can nudge the witness’s eyes back to them by saying, “Could you tell the jury. . .”

Direct examination provides the building blocks for the case, and therefore it is critical that the jury be engrossed during the examination. Additional practice pointers are provided in Trial Advocacy: Planning, Analysis and Strategy, 3rdEdition.

ATTEMPTED MURDER TRIAL OBSERVATIONS

Here is another student’s report containing courtroom observations. She watched trial work in an attempted murder case. Each semester in my Comprehensive Trial Advocacy course, the law students go to court, observe and write a report about what they saw and learned by watching a day in trial. Students select from federal, state or municipal court, and they can choose either a civil or criminal cases.

These reports are important for at least three reasons. First, no matter how much you stress certain principles of trial practice in a law school class, the lessons don’t stick the way seeing them come live in a courtroom. The observations accomplish this because the experience connects the principles of trial practice with real life. Second, the students’ observations often highlight points that should be emphasized during the course. Third, the reports are delightful to read. Highly recommend that any trial advocacy instructor make courtroom observation a requirement.

The following is a report by Margaret Duncan (other names and places are changed). Her report contains some excellent practice pointers:

INTRODUCTION

You have asked me to observe a day of trial and then write a report on those observations.  I attended part of a criminal trial that Judge Sherbet of the Superior Court is overseeing (State v. Gregory – scheduled to be about twenty days).  The Defendant has been charged with three counts of attempted murder after three individuals were injured as a result of a shooting that took place outside the Lemon Club. 

1.    Initial Thoughts

My first thought as I entered the courtroom was how it did not have many of the technological advances that I have seen in other courtrooms (like the U.S. District Court).  One big screen television was located in front of the State’s table, facing the jury.  When counsel used the television, for instance, to show the scene of the crime taken from one of the police vehicles, the prosecutors had to get up or people from the gallery would have to move around in order to see the television.  The courtroom also seemed cramped.

2.    Opening Statements

After I took in my surroundings, I settled in to listen to opening statements.  The State’s opening statement reminded me of what we had learned in class: telling the jurors a story, going in chronological order, humanizing the victims, etc.  The Defendant’s opening statement was more of an example of what we should not do: start off by telling the jurors that what you are hearing is not evidence, not telling a story that advocate’s for his client, and extremely short.  It felt like the Defendant’s attorney did not appropriately prepare for opening statement.  As I was watching opening statements, I directed my gaze towards the jurors.  One thing that struck me was how there was only one juror of color.  In this case, the Defendant was a young, African-American male.  I wondered about the implications of not having a diverse jury.

3.    Direct and Cross

After opening statements, the State began with its case by calling several police officers to testify as to the crime scene.  The first prosecutor to conduct direct was a younger female.  When she conducted direct, she would stand just in front of the witness.  Her direct seemed effortless in that she appeared confident in her questioning, and she had a strong rapport with those witnesses she questioned.  I also noticed how effortlessly and quickly she introduced and offered into evidence exhibits.  The second prosecutor to do direct was an older male, the same one who did the opening statement.  He was more formal with the witnesses, and he stood on the other side of the jurors in order to make sure that the witness was directing his or her testimony towards the jury.  Cross-examination of these witnesses was fairly short. 

I also saw the State call some expert witnesses to the stand.  One of which conducted the DNA testing from one of the weapons that was recovered.  The State first laid the foundation in showing that she was the proper witness to testify to the DNA results.  Once the State tried to link the Defendant’s DNA to the weapon, the Defendant attempted to break that link through cross-examination.  The Defendant did a good job of showing that one in two people could have been a match for this particular DNA sample and that the witness did not test the DNA from the weapon with DNA of other potential suspects.  The Defendant also got the witness to explain that there was not enough DNA to submit the sample to CODIS, which is a database of DNA profiles.  However, defense counsel seemed unprepared at times, and there were exceedingly long pauses when he was attempting to find a particular statement in the analyst’s report.  The judge looked frustrated, and I could see the jurors starting to look bored.

Another witness that the State called was an ATF agent that worked with a confidential informant in gaining information about the shooting.  During this testimony, I noticed that the State often pointed out its weaknesses with particular testimony, instead of leaving it for the Defendant to point out.  With the ATF agent, the State conceded that a majority of confidential informants, including the one at issue here, become confidential informants in order to get leniency in criminal charges pending against them.  Thus, the confidential informant may not be the most credible witness.  The State also conceded that one of the pieces of valuable information the ATF agent gained was not the most reliable in that it was a recording of a conversation that took place at a noisy bar.  The Defendant on cross successfully re-pointed out to the jury that this recording was not reliable because of the background noise.

CONCLUSION

            Counsel for the State and the Defendant made what we are learning in class look effortless:  they seemed at ease during opening statements, they offered and published exhibits smoothly, and they never asked the judge for guidance.  I was also impressed at how counsel for the State and the Defendant got along so well and how all of the players in the courtroom treated each other with respect.  Finally, I left the courthouse with a greater amount of respect for the attorneys on both sides than before I entered.  I am now truly beginning to see how much time and preparation goes into presenting a case.  I look forward to the challenge, and I am eager to represent a party in trial someday.

MUSINGS ON DIRECT EXAMINATION

“Cross-examination will continue to fascinate us. There is something in us that loves a good fight. Yet it is direct examination that builds the structure of a case. And sometimes jurors like to come out of the shadows to believe in something – hopefully, our client, our case. Conceiving persuasive and compelling direct examinations is an act of creation that explains the wonder of why many a trial lawyer finds the art of direct examination deeply satisfying.”

On Trial: Lessons from a Lifetime in the Courtroom, Henry G. Miller (ALM Publishing, New York)