Examination in Chief – Part 2
First, think about the order in which you’ll call your witnesses. Remember that people recall best what they hear first and what they hear last. So you want a strong and effective witness first, and a strong and effective witness last. Bury the losers in the middle.
In a civil case, if you’re acting for a plaintiff and the defendant is vulnerable to a good cross examination (and you are capable of a good cross examination), consider calling the defendant as a hostile witness as your first witness to establish liability. It can be very effective and is definitely not boring. Perhaps call your client last, to wrap up the case and establish the damages.
In a criminal case, the prosecution might save the victim for last – sure to stick in jury’s mind before they retire to deliberate.
While Australian courts do not allow the theatrics Americans some time employ, there are still a few theatrical techniques that can make your presentation stronger. So when you rise to call a witness, consider doing the following, particularly if you’re in front of a jury.
Rise. Just rise. Don’t start speaking until you have risen.
If you can, stand beside, rather than behind, the lectern. It’s a small thing but coming out from behind a lectern will enhance your presentation. If this is possible will depend a bit on how the bar table is structured but even a little bit to one side will help.
Acknowledge the judge, depending on the court and local custom this could be anything from “Thank you, your Honour” if the court indicated it was now your turn, to a more formal “May it please the Court” or perhaps just a nod depending on the circimstances.
Pause. An American trial advocacy teacher, Terry McCarthy, calls this the “LA Law pause”. Any good speaker will pause for just a beat before starting to get the attention of the audience.
If you are trying the case to the court without a jury it’s an effective way to get his or her Honour’s attention away from the cross-word puzzle and on to your witness. Remember this is your case you’re putting on, there is no point in asking questions if the trier of fact’s attention is elsewhere.
Honour primacy – to the extent possible your first question should be something important and substantive. Something to capture the court or jury’s attention right away. Obviously the nature of this will depend on the witness and on the case, but you called this witness for a reason, so get to the point right off.
After a question or two to honour primacy, then you can back-fill. Always use a formal title and surname when addressing the witness. Mr Smith, Mrs Jones, Dr Chang, Professor Burns. Then ask the witness to introduce him or herself. “Mrs Smith, please tell the jury a little about yourself.” Prompt as necessary and as relevant to the case. People generally like to talk about themselves, once they get past the natural nervousness caused by giving evidence.
Many courts permit leading questions on preliminary matters to speed things along. Resist the temptation with a good witness, this is your innings at bat and you need to collect all the runs you can. You want the witness to establish some rapport with the judge or jury, and this is an easy way to do it before you return to substantive matters.
Use transitions. Transitions are a great tool in both direct and cross examination. It smooths the way for both the trier of fact and the witness, and avoids bumbling around. The first transition might be to set the stage for your primacy question:
“Let’s talk about the night of 8 August, in front of the The Old Barrister Hotel, tell the jury what you saw?”
“I saw the defendant bash a young man with stubbie”.
Then you transition to the back-fill, “Mrs Smith, tell us about yourself, for example what do you do for a living?” Then a few more short questions about her and then transition back to the scene of the crime.
“You told us you saw the defendant bash a young man with a stubbie [this is looping, about which more shortly], where were you standing when you saw this?”
Then a few more questions to establish that she had a clear view, the light was good, her eye sight is excellent and then deal with something that is sure to arise on cross. Again, use a transition.
“You told us you were outside the Old Barrister when you saw the bashing, had you previously been inside?”
“How much had you had to drink?”
“Over what period of time?”
“Had the two glasses of wine impaired you in any way?”
Using transitions we’ve hit our key point – she saw the crime, established who she is and where she was, and then diffused a potential area of cross examination, all very smoothly and efficiently.
Generally during examination in chief, after a transition, our questions can be short: who did you see, what were they doing, where did it happen. Particularly with a good, articulate witness, this draws them out and allows them to tell the story in a natural way that enhances credibility. With a poor witness you may have to be far more narrow in your questions to keep the witness on track.
Looping is a technique of emphasis. When anyone listens to anything, whether it is the judge hearing a case or a lawyer sitting through a continuing education lecture, our minds wander. We don’t hear everything. To make sure the trier of fact hears what you think is critical evidence, you can use a technique called looping.
Looping is no more than restating the key point which you got out of the witness, the point you want heard, in the next question. Say the key fact, for whatever reason, is that the plaintiff was driving a blue car, and your witness saw it. The examination might go like this:
[Start with the transition] “Let’s talk about the afternoon of 7 July when you were walking down Edward Street. Did you see the plaintiff?”
“I did”
“And what was she doing?”
“She was driving a car”
“What colour was the car?”
“Blue”
“And which way on Edward Street was the plaintiff driving in the blue car?”
“Toward Alice Street”
“What kind of blue car was it?”
And so on. After a few loops even the most distracted judge or juror will know it was for damn sure a blue car.
Another technique is labelling. The choice of words we use can have a real impact. They did an experiment in the US where they showed a mock jury a film of a car accident, in which two vehicles collided. The experimenters then divided the group and asked one group “At what speed was the red car going before the collison?” and the other group something like “How fast was the red car speeding before the crash”. The second group estimated a speed about 50% higher than the first group because of the way the question was phrased, using labels like speeding and crash instead of neutral words like going or collision.
If done carefully you can also label witnesses. In one case an expert who had received a wildly disproportionate fee for his services, was referred to throughout the trial by the opposition as the $100,000 doctor. This must be done with care and subtlety, but often some branding can be done.
After you ask a question, listen to the witness’s answer. You know what the witness is going to say (at least you had better) and there is a temptation to review your notes or do something else while they give the answer, but if you don’t care why should the judge or jury. Always listen – and look like it’s the most interesting thing you’ve ever heard. That interest will induce the judge or jury to be interested too.
Avoid incantations and lawyer talk. For example banish the phrase “I put it to you” from your vocabulary. Use “before” instead of “prior”. Avoid incantations such as “Did you have occasion to…”, “Did there come a time”, “what, if anything, unusual occurred”. Speak plainly.
Don’t drone. Change your pitch and inflection when asking questions. When we speak in normal conversation we generally have a slight rise in pitch at the end of a question, that should occur in the courtroom as well. Remember evidence in chief is a constant war against boredom, so do everything you can to make it interesting.
There is a story from the US in which during a particularly sonorous examination in chief, a prosecutor noticed that a juror had fallen fast asleep. He looked up at the judge:
“Your Honour, I note juror #7 is asleep, would the court awaken him, please?”
To which the court replied: “You put him to sleep, you wake him up.”
Try to avoid stupid questions. I’m sure you’ve seen some of these on the Internet and thought, oh, they just made that up. But it really happens. I was in a very tragic wrongful death and personal injury case. The husband had been killed and the wife badly injured. She was giving evidence in her case, and her lawyer was establishing how close their relationship had been:
“Now, Mrs Dixon, did you and your husband celebrate your anniversary?”
“Yes, we did.”
“Did you do that once a year?”
In another case a lawyer was asking a mother about her daughter:
“And how long have you known her?”
In planning your questions, remember that you need to appeal to emotions, not intellect, go for the heart not the brain. You want to bring out the facts that illustrate a wrong was done to your client, that justice requires a result in your favor. Use repitition and looping to emphasise the facts that tell that story.
In most every case, even a good witness will have some problem or vulnerability that will be brought out in cross examination. To the extent you know what that is, bring it out yourself during examination in chief. If possible foreshadow it in your opening submissions. That way the sting is taken out and you get to put your spin on it. By the time it comes out in cross, it’s old news and no longer interesting, plus it makes you look honest by showing the judge or jury that you are giving them the whole story, warts and all.
In many cases we have to deal with the stupid or panicked witness. I was at an inquest not too long ago and put forward one of my client’s employees who in our meetings was articulate and had an excellent recall of the events. As soon as he sat in the witness chair his brain went to meltdown. He could barely remember his name. The deer in the headlights stare greeted even the most basic questions.
It was just panic. But very hard to deal with. In these circumstances forget primacy, you need the witness to be coherent before asking anything important. Sometimes spending more time on their background will help, they will adjust to the circumstances. Use some leading questions on preliminary matters, there will usually be no objection and it will sometimes get the witness out of his or her panic if he or she is lead to exactly what you want.
Use a document to refresh recollection. Sometimes just taking a moment to read something will allow their brain cells to reconnect.
Use of a document brings me to the use of exhibits. Generally you will have a bundle or binder, but whatever organizational tool you use, be smooth in the use of documents with a witness. Have each readily at hand in the order you’ll use them. In a jury trial it is excellent practice to have a projector so that the jury can follow along.
If for some reason you have not already supplied them, have a copy ready for the judge, for each opposing counsel and for the witness. If there is a key passage you want the witness to focus on have it highlighted.
Generally showing a document to a witness involves three steps:
1. Ask the judge, “May I show the witness Exhibit A”
2. Show it to opposing counsel if they have not seen it before
3. Hand it to a court officer to hand to the witness
Then, when you go to ask about it, speak plainly: “Do you know what this is?”
Avoid phrases like “do you know what this purports to be” or other such nonsense. Then establish whatever foundation you need and move to the substance.
The idea in handling exhibits is to avoid fumbling around. You want to look like you know what you’re doing, you have a plan, and are a professional. Looking good while examining a witness will give the judge or jury confidence in you and that may transfer to your witness. Recall how uncomfortable it is to watch a play where the actors are uncertain of their lines (your kids’ early dramatic efforts, for example). If you are comfortable, and best of all, not boring, your examination in chief will enhance your case and your chances of success.
Peter Axelrod
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