Regardless of how strong a case one may have, if they are unable to present it in a believable manner, the judges may not think much of it. On the contrary, when evidence is supported by a strong and believable storyline, the judges may accept it and rule the decision in its favor. Technological innovation has led to the introduction of preparation and presentation technology for attorneys.
This technology allows an attorney to prepare well for every trial. It may cut the preparation time down almost by half. In fact, the number of jurors expecting cases and evidence to be presented using technology is increasing tremendously. Some attorneys are not using technology anywhere near the level they could be.
With the various benefits that technology brings, attorneys should consider incorporating it into their daily professional practice as much as possible. These are just some of many practices can be helpful to an attorney in being efficient and effective in trial preparation.
If so, please email me Jodi Casamo at jodi casamo. Court Reporter Scheduling Checklist. Use this checklist to help you make sure your court reporter is handling as much as possible for you. We respect your privacy. Your information is safe with us. Thank you! Get Updates If you liked this post, register for email updates so you don't miss future content we post for attorneys, paralegals, legal assistants and other legal professionals.
No charge. No spam. Unsubscribe anytime. Witnesses who take their time to think about their answers are perceived as being conscientious and concerned about telling the truth. On the other hand, if the prosecutor asks whether you killed your wife, you probably don't want to pause too long!
Witnesses are not "human computers. If you don't know or remember particular facts, do not give your best guess as to the answer. In the hands of a skilled advocate on the other side, guesswork can provide just the tool needed to destroy a witness' credibility and leave him limping off of the witness stand. Particularly in the anxious and adversarial atmosphere of the courtroom, certain questions may not make sense or may get lost in the commotion of evidentiary objections.
Don't try to make sense out of the question yourself. If you don't understand a question, ask that it kindly be repeated or rephrased. Otherwise, you may unwittingly answer the wrong question, providing the wrong testimony in response. Even when dealing with opposing attorneys, witnesses should be cooperative in answering questions and should not show antagonism on the stand.
However, witnesses who are too cooperative and give the questioner what she wants to hear may kill their case.
Cooperation and courtesy do not require that you give what the questioner may think is the "correct answer. Witnesses who display an "attitude" on the stand are letting their emotions interfere with their own testimony.
On the witness stand, keep your emotions in check! Those who fight with opposing counsel rarely win in the long run. Remember, lawyers are trained to win such fights and will interpret any uncooperative "attitude" on your part as a sign of weakness. In fact, some trial lawyers will try to exploit this weakness by asking questions in an adversarial tone designed to cause witnesses to lose their cool. If need be, count to "ten" as a way to "cool down" before proceeding with your testimony.
If the only person to lose his cool is the lawyer on the other side, you will score major credibility points with the jury. When testifying, be consistent with your earlier statements in the case, deposition testimony or testimony in earlier proceedings. Those who give testimony at odds with their earlier statements leave themselves vulnerable to attack and may be perceived as lying even when they simply don't remember relatively minor details. Prepare for the witness stand.
The attorney is well aware that you do NOT want to help your opponents create the case and will try to avoid answering in such a way that assists them Further, if you have evidence that hurts their case they will NOT ask you questions that will bring that answer out Your solution is to make sure your lawyer asks you in your direct examination, of course.
Further, any good lawyer will create a " Cross Examination Answer Tree " in which any possible answer you give must help their case and which they anticipate and prepare in advance all questions to pose to you to hurt your case no matter how you answer.
What follows below are two examples of techniques in cross examination that will be used by competent opposing counsel and how to counter them: more will be discussed personally when you are prepared in "play acting" by your lawyer several weeks before trial:. Opposing counsel has already written out all of his or her questions and your possible answers, has follow-up questions so that no matter how you answer you are ultimately brought to an answer that he or she wants, has all the documents to impeach your testimony if you alter it from previously stated positions, but now faces the problem of how to make you admit something that he knows you will deny when he or she has no documents as to the relevant transaction with which to impeach you.
If he or she just asks you the question, you will deny it. What technique is available to make you either admit what he or she wants, or make you look like a fool? How do you handle it? We call this the Socratic Method of Cross Examination. Rather than ask the question really at issue, you start with seeming irrelevant and distant questions with obvious answers and continue in that vein until the witness suddenly realizes that he or she is now "trapped" and must appear an idiot or admit something.
You have sued your real estate broker for fraud, saying he sold you a house which had a defective roof after he had been told about it. You claim he never told you and you had no way to know, both of which are critical to the success of your case since if you knew or should have known about the roof, you did not rely on his advice. He has stated he thought you knew.
Let's assume that you are planning to testify that you did not know about the condition of the roof of the house you were planning to buy and had no way to know it had defective roofing.
Opposing counsel wants to prove you knew or should have known. If he asks you, you will simply say you did not know and had no reason to suspect. What can he do? Q: And do you recall your listing agreement that you executed with the brokers selling your prior homes? Your Lawyer : Objection, your Honor, this is irrelevant to the current case Q: Sir, I happen to have here the three listing agreements you executed to sell your prior homes.
Do you recognize them? A: Reading them Well, these are each three pages long, I don't really remember much about them. Q: Please read paragraphs three on the first two contacts and paragraph six on the third contract.
Your Lawyer: Your Honor, this is going very far a field and is a waste of time. I don't see how this relates. Q: Please read out loud to the jury the bold wording above paragraph three in the first contract. These defects include foundation, roof, walls, electrical, and soils.
Q: And, pursuant to those clauses, when you sold your homes, did you fill out a disclosure notice form? Q: Sir, I have the three disclosure forms for those three homes here. Would you like to see them? Q: And you knew it was required by law in California since you sold two of those homes in California, correct?
Q: But you just read to us the clause that told you it was required on the contracts that you testified you read, is that not true? A: I don't recall what I was thinking during the time I bought the house. I was thinking lots of things. Q: Did you ask your broker in this particular transaction for the Disclosure Statement of the Seller?
Q: Sir, you knew such a statement was required by law, you knew it would list any defects, you knew that such defects were vital to whether you would purchase the building By going into past transactions in which the witness was a seller, the lawyer has established that the plaintiff may have been negligent in not getting the disclosure statement as to the roofing that he knew, as a matter of law , was required.
The witness was caught off guard by not even recalling those past transactions, not thinking he would be asked what he did when he was a seller , and not realizing that as a seller he had learned that the law required such disclosure. How could that technique had been avoided by preparation?
If the witness had been properly prepared, it might have gone like this:. Q: Do your recall the listing agreements that you executed with the brokers selling your prior homes?
Q: Please read paragraph three on the first two contracts, the ones that pertain to California sales. A: I expected my broker to give it to me. He was being paid to handle the transaction so I assumed he would get it to give it to me. That's his job. The power of the cross examination is reduced significantly by a witness prepared to answer the questions in the right way ahead of time But is also shows that a good cross examination is already "armed" with documents ready to catch any answers that are not absolutely true or which try to evade But the real lesson?
The witness must practice, practice , practice and not expect to "win" on cross examination-you win on your DIRECT; your job on cross examination is not to lose too much. Let us assume the attorney wants you to state in evidence that you knew ahead of time that John was incapable of performing under the contract because John had told you he was broke and could not even hire his own workers to work on the project.
The lawyer's goal is to make you support that position. Q: And you knew that absent adequate economic resources he could not perform under the contract with my client, correct? Q: Regardless of the details, you knew John had to have some money to at least pay his subcontractors so he could perform? Q: Sir, you were a business associate, had worked with him in the past, and now you say you didn't know he had to hire people to help him work?
Here we have a typical question tree set up Assume the answer is "no Q: Sir, I have here, as Exhibit A, a letter apparently from you to your brother in which you discuss John's finances. Would you read the first paragraph. A; Reading "As for John, I think he is real trouble economically.
I'm darned if I know how he's going to come through on the job Q: But you guessed based on some evidence, did you not? You didn't just make up a story to scare your brother, did you? Q: But you were worried that he could not finish the job even then and stated so to your brother, is that not true?
A: My brother has nothing to do with this. I am tired of your tricky questions and it's irrelevant. The witness was doing all he could to avoid answering a question that the lawyer was going to force him to answer no matter what All that occurred was that the jury and judge no longer trust the witness who clearly is evading telling the truth The lawyer stayed calm, knowing he had all the tools and did not rise to the bait of the insult.
By remaining calm and professional, he makes the witness look even worse. The witness should have known that the lawyer would not ask a question without having the means to force the witness to answer the way the lawyer wants. Sooner or later the answer will be given and the more you evade, the worse you look.
The witness kept volunteering his opinion, annoying the jury, achieving nothing, and simply making the Jury more interested than ever in hearing an answer that the witness is not anxious for them to hear. By fighting the attorney, the witness made his situation much worse. Your lawyer will tell you that while you should not volunteer evidence that will hurt your case, if you have evidence that the cross examiner is going to get out anyway, just give it quickly and get it over with Q: And you knew he would have to have finances to engage subcontractors to perform on this project?
Q: I show you this letter and ask if that is a letter you wrote to your brother around the time this project began. I didn't recall the letter but it does not surprise me. Note that the same harmful evidence comes in The difference is that the witness does not look tricky or evasive and the matter quickly is ended without the jury becoming fascinated by the witness wiggling without success on the stand.
Another common cross examination technique is to make the witness emotional, usually angry or defensive, with gentle baiting or gentle sarcasm, to embarrass the witness on some trivial matter and while the witness is still flustered, to immediately launch into areas of examination that are truly critical. Lawyers have to be careful since a bully is normally disliked by a judge or jury, and sarcasm is a poor technique.
Righteous anger or pure disbelief is a better technique to make a witness suddenly begin saying too much, or gently shaking one's head in disbelief or a shrug. This can be extremely effective if the jury is looking at the witness rather than the lawyer and do not see the sarcastic shrug or raising of the eyebrows. All of us hate to be embarrassed or mocked in a public setting and react emotionally or angrily. Lawyers are well aware of this tendency and if you have been able to avoid the typical traps a clever lawyer will try, you may expect testing of your ability to withstand the illusion of contempt.
While sincerity and, at times, firm anger is certainly appropriate in such examination, to become flustered, defensive or out of control is not only inappropriate, but demonstrates to the lawyer that he or she has surmounted your defenses and you are ripe for extended questioning in critical areas.
And the more emotional and angry your answers, the happier the lawyer as he or she goes through carefully prepared examinations, prepared with the calm and cool professionalism of years of experience while you, angry or upset, not thinking but reacting, will probably fall into trap after trap.
Remember it is a game to the lawyer. He or she, if money was placed on their desk, would just as likely be sarcastic at the other side as at you. They are using a technique to overcome your most vital defense And they are doing it with the cold ruthlessness of a professional. Your task is to react with equal professionalism.
You can make your anger felt in a calm but effective manner with the emphasis on calm. An example should suffice, first bad, then the right way. Assume he or she wishes you to feel angry that your car hit a child that ran into the street. You contend you were not negligent, the child ran out without looking and there was no way to stop. They, of course, contend you were speeding.
Q: The speed limit?! Yet you hit the child Q: Sorry your Honor Sir, you say you knocked my client's child ten feet, not twenty five. I assume you didn't measure it? Q: Of course you are not. I am just wondering how you know the number of feet the child flew through the air before hitting the ground.
Am I to understand that you feel ten feet means you were traveling at the speed limit? A: I can't be blamed for the child running out like that. It's his parents' fault, not mine. I was only going at the speed limit. Q: His parents' fault. I see. And that was because he was allowed out to play? You felt that in that case the parents are to blame? Q: You were driving next to a play ground, right?
The child was in a playground. So his parents shouldn't have let him play in the play ground? Q: Watching, you say? But they were fifty feet away at the bench. The ball bounced into the street. You were the one close by, not them, isn't that true? A: Of course. But that doesn't absolve them of watching their own child.
They blame me when they should be ashamed. At this point the mother of the injured child starts crying, the father, glaring at you, holds her tight, and the jury glares at you and even if they agree with you, dislike you intently.
Everything you said was possibly true Compare that to this line of answers in which the Witness remains in control and remains sympathetic:. Q: Under?! But you were driving so fast that the child was knocked twenty five feet by your car, isn't that true? A: No it is not. I believe the police report said much less, but the point is I was under the speed limit. A: Of course not. All I cared about was getting him medical help. I read the police report much later. A: I am sure his parents are suffering horribly.
I know they must love their child very much. I don't know whose fault it is But it certainly was not my fault. I was not speeding. The first example had the witness tricked into attacking the parents. The second had the witness sympathizing with the parents In the first case the witness reacted to an attack. In the second, the witness blunted the attack and the lawyer was the one who appeared unreasonable We started this article with a story about a famous trial attorney and let me finish with a story about my very best witness.
Lawyers, doctors, and intelligent people in general usually make poor witnesses, mostly because they violate rule 7 above. Personally, I am a terrible witness I had thought I was doing quite well.
0コメント