EVIDENCE WITH IMPACT
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A Practical Approach To Witness Examination
By MICHAEL MAGGIANO, ESQ.
Each and every one of us, as a trial lawyer, has the ability, the power and the talent to conduct a winning direct. Our goal is to work together in focusing in on the key elements of direct examination and the provocative powers of communication which we possess that will enable us to win in the courtroom.
We know the purpose of direct examination is to present, in the most favorable light to our client, a clear, succinct, yet comprehensive account of the facts of the case which satisfies all the legal elements necessary to prove a prima facie case. But that does not get you a win; that just gets you to the jury. The real purpose of direct examination is to win it well.
Although cross examination is the great art of trial advocacy, and many say that is where we earn our bread and butter with regard to experts, a good cross examination at best generally only protects and solidifies what you have developed on direct. A good cross can rise no higher than your direct. Often cross examination is your tool for damage control. A good cross in most cases consists of statements forming your summation of the “winning” facts and designed to simply elicit “yes” responses from the witness. Thus, a good cross should echo your direct and be the prelude to your summation.
Yes, cross examination is one of the fine arts of advocacy, but I truly believe that there has never been a great win that had a bad direct examination.
Direct examination really is the hard part of the case because it is often difficult to make it interesting. It is the who, what, when, where, why and how of the case. This can be quite boring. Have you ever been to a party and run into an acquaintance whom you have not seen for a while? You ask her how she has been and she tells you about her operation, her week in the hospital, her Visits to the doctor, how her bandages were changed, how this ruined her summer. You want to run and hide. Boring. This is what happens to jurors. We have to be creative. We have to be subtly dramatic in our techniques and our methodology.
The cardinal rules therefore are that the direct examination should be conducted with a purpose; it should be presented with clarity and simplicity; it must combine comprehensiveness with brevity; it must have an approach; it must have a theme; it must demonstrate the importance of the case; it must be presented in provocative style; it must have a strong beginning and a strong ending. Lastly, but most importantly, we must develop a bond of trust between ourselves and the jurors. We must decide how we are going to humanize the witnesses and what we can do to humanize ourselves.
Let us focus on these rules by taking the last first. I have always believed that the two most important witnesses in any case are the plaintiff and the trial lawyer. Yes, I know we are not witnesses. We don’t testify (well, technically we don’t). However, the two people who are most heard about or speak the most in a case generally are the plaintiff and the lawyer; thus, we become witnesses of sorts in this respect. Yes, what we say is not evidence and some of us are foolish enough to say that in our openings, but the jury does not hear it that way.
Remember, the jury enters the courtroom totally unprepared and with many misconceptions about what is to take place. When they enter the courtroom, they are really entering a foreign land, and they are looking for a guide. They want to find that guide very quickly because all of us want to feel comfortable. And one way to feel comfortable in a new environment is to befriend a native to that environment— one who knows how to get through it. So if we show the jurors that we can be that trusted guide and we can help them accomplish their function in adjust way, this is the first step toward having a receptive audience during direct. After all, when it comes right down to it, most jurors really do want to do justice. If we can show them that we are here to do justice, that we are not going to fool them, we are not going to embarrass them, nor pull the wool over their eyes, they will choose us as their guide. And then as we lead them through the evidential guideposts of the trial, witness by witness, as they listen they will be more receptive to us. The jury then will usually go with you on the evidence once you have developed an aura of believability and further placed that halo effect on each witness.
What we have said on opening; what we ask and how we phrase our questions on direct and how our witnesses respond; how we phrase our cross and what we say on summation; what we say when we talk to the judge upon an objection; and generally how we act in the courtroom all send a message to the jury regarding the rightness of your cause. The jurors want to see sincerity and humanity. “Does he really care?” You can’t fake this. If you don’t care, settle.
OK, you now say, so you told us we have to win the jury over; we have to be trustworthy. How do we do it? Well, number one, when you begin your direct, give each witness the significance and importance he deserves. Stand up and say, “Your Honor, we call Robert Wells to the stand?’ Let the jurors know by your manner and tone that something important is about to happen. Number two, stop acting like somebody they won’t trust. People don’t trust lawyers. We come out low on every poll that has ever been taken. So do not talk or act like a lawyer. Act professional, of course. Indeed, you are a lawyer. Be a credit to your profession in the courtroom, but do not make those odd, fearful, lawyerlike sounds. Stop acting like a hired gun. Save the wherefores, henceforths, plaintiffs, defendants, subsequent theretos and all the legal jargon—all that mumbojumbo that scares and confuses—for your legal briefs. Go back to basics. Learn the English language over again. Speak the language of the people. For example, in a malpractice case, do not let your witness say, “the fetus was not viable”; rather, “the baby was dead” sends a clear message. The key word here is simplicity.
Use verbal techniques that make you one with the jury. In our opening we described how “we will investigate together…” During direct examination, as we stand by the end of the jury rail, we ask, “tell us how long you were stopped before the defendant’s car crashed into your car,” not “Tell the court how much time transpired from when your motor vehicle was stopped to when Mr. Jones’ motor vehicle made contact with it.” Don’t be a walking set of interrogatories in the courtroom. By personalization and simplicity, however, we become the seventh juror. And that is where you want to be. We sometimes forget that in a trial we are exercising our skills of communication and not necessarily our vocabulary. Our questions should be simple, clear and as short as possible. For whatever reason, lawyers write the longest sentences known to man. This bad habit should not enter the courtroom. No written sentence should exceed 25 words. No spoken question should exceed 15 words.
Let us examine some of the ways master advocates make their medical proofs easier to understand, more credible and easier to remember from the jury’s stand point. First, each master makes the medical -proofs as simple as possible for the jury. They do it with a number of techniques which any one of us, with a little effort, planning and thought, can learn to do as well.
What are they? First of all, the master uses simple words in every question put to the witness. Secondly, the master advocate asks short, uncomplicated questions. Third, he asks one question at a time. Fourth, he makes his medical witness explain medical terms.
Let’s examine those principles of simplicity for a moment. It is so easy to fall into the habit of using the jargon of the medical profession and, during one’s direct examination, to talk and even act like a doctor. Don’t. Avoid words such as: elicit rather than ask, ambulate rather than walk, etiology rather than cause, extremity rather than arm/leg, pathology rather than injury. Those are doctors’ words. Use laymen’s words. It makes it so much more interesting to understand. The psychology is simple.
You want to make the jury feel they are the experts. You want them to feel that you are putting them in a position where they know medicine. It’s flattering to be made to feel that you have now been made an expert in some area that you didn’t know anything about before. You cannot do that if the jury is wading through words that they do not understand
Your competition during an examination of a doctor is not your opponent sitting at the table across the courtroom. Your competition is the hundred and one things that are playing on the minds and competing for the attention of those men and women in the jury box.
The same rule of simplicity is true with sentences: Sharp, punchy, uncomplicated sentences are much easier to listen to than long sentences like these:
“Doctor, have you had an occasion in the practice of your profession to examine and treat my client, Mary Smith?”
“Doctor, can you tell us at what point in time you first examined Mary?”
How many tiresome, unnecessary words there are in those sentences~ Of course Mary came to the doctor in his professional capacity and not on a social call. Why not ask it like it like this:
“Doctor, you have treated Mary?”
“When did you first see her?”
Ask one question at a time, and not like this:
“Doctor, did you order X-rays taken of Mary and, if so, doctor, what hospital, and can you tell us whether or not there were any positive findings?”
The proper approach is:
“Doctor, were X-rays ordered?”
“At what hospital?”
“Can you tell us the results?”
Bringing forth the testimony in bite-sized pieces makes it easier to digest.
Finally, make the doctor explain complicated medical terms. All good lawyers do that. You have to listen to the doctor during his answers and when you pick up one of’ those words, you have to stop the doctor and make him explain it. The best way to avoid having to do that, more often than not, is to make that doctor understand during your preparation that it is important that lie use simple language to the extent possible. Tell him that you are going to stop him and make him explain complicated terms. Avoid questions calling for long narrative responses, because if you have to interrupt the doctor frequently during a narrative response, it is going to chop up the answer of the Witness and make it difficult for the jury to comprehend and understand the testimony of the witness. The exception to this is when you put a model in the hands of the witness and place him in front of the jury so that he can demonstrate what he is talking about. There is less need to interrupt the doctor and ask for explanations. Figures 1 and 2 demonstrate that when you combine those principles of clarity and simplicity in the presentation of medical evidence, the proofs begin to unfold persuasively.
‘Take a case where you have medical records which show that your client has suffered a compound comminuted fracture of the femur. Why not talk to the jury in a case like that about a shatter-break of the largest bone of the leg? In a case where you have a subdural hematoma, why not tell the jury that you are dealing with a bleeding brain? Specific, corporeal, difficult to misunderstand that kind of concrete phraseology is essential.
The rules of simplicity. Let’s look at those rules of simplicity one more time. Use plain, simple words. Ask short, uncomplicated questions. Ask one question at a time. Make the expert explain medical or technical terms. It is important to be as tangible as possible in the presentation of’ our medical and technical proofs. Proper use of charts, diagrams, drawings and models enhances persuasion dramatically. The more tangible, concrete and specific we make our medical and technical evidence, the more real and believable it is going to be to the jury.
There are five areas that I would suggest we can manage, with some work and effort, to make our medical proofs more tangible and therefore more believable from the jury’s standpoint. The first has to do with the language we use in describing injuries to a jury. Bring the injury down the ladder of abstraction as in our examples from a cervical neck sprain to torn ligaments and muscles of the neck. In the heart injury case, explain what had happened to Bob Jenkins–not in terms of a myocardial infarction, or even contusion of the heart muscle, but in terms of dead heart tissue.
Therefore, in the most specific, concrete terms, you lay the basis for explaining to the jury why it is that your client now finds it impossible, difficult and painful to engage in those activities the deprivation of which was the basis for his claim.
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Control and preparation are the benchmarks of the great trial lawyer.
Effective direct examination should be formulated in a fashion that clearly establishes in the minds of the jurors the purpose for which the witness was called as well as the credibility of the witness. You must be able to control each witness. When you have your witness on the stand, it must be like a pitcher and a catcher. There must be an even and rapid flow of information in dynamic but succinct and simple language. The jurors are accustomed to the TV format. They are used to receiving information as quickly and provocatively as is done on the 7:00 news or the 10:00 weather. You and your witness, through thorough preparation, must know the objective to be satisfied and understand how each objective will be reached. You and the witness must understand the cues, i.e., the transition questions that will indicate that you have covered one area and now are moving on to another area. “I am going to ask that you focus your attention on the morning of February 10, 1985, about noontime,” or “Now I want to ask you a few questions about what happened in the hospital.”
Preparation also encompasses timing and tempo. If the attorney falters, pauses too long, stammers or uses the audible pause, the jury will be distracted. The flow and rhythm will be lost as will your audience. The same rule applies with notes and exhibits. Be ready; avoid paper shuffling. Have all exhibits and demonstrative aids set up and ready as needed. Make sure you have reviewed each thoroughly with your witness, and that your witness knows it is accurate or a fair representation and that they understand how they will use it during their direct. Particularly with regard to exhibits, there is no substitute for a dress rehearsal.
Remember, if your witness understands where you want to go, even if your question is objected to and the objection is sustained, the witness nevertheless will know to try to get out (subtly) the information at the first opportunity. This, of course, should not be done with wholly objectionable matters. You do not want a mistrial or to try an otherwise good case twice. In preparation, you should anticipate any objections, be prepared to argue them and have ready, in the event you lose the objection, an alternative question or line of questions.
When I say we must control the direct, I do not mean that we should blatantly ask leading questions. What I mean is that we are directing the direct. It is poor practice to let the witness carry the ball. Long narratives are not always persuasive. The information should come in orderly pieces, systematically developing the mosaic of proofs. You must also control the witness so she does not jump ahead of the line, as you have plotted it out in your game plan.
The true art of direct examination is to ask the questions differently but have the witness repeat the testimony. You must creatively use this approach for emphasis and persuasion. Communication specialists tell us that at any given time in the courtroom, we have the full attention of only one third of the jury. Thus, creative redundancy is helpful during direct to pick up any daydreamers that we may have missed the first time around.
I am not suggesting that you repeat the witness’ prior answer in your next question, although at times that technique can be persuasive (you will not get away with it too long without objection, however). What I am suggesting is that once you have brought out the facts—for example, of the accident scene – then ask your witness to draw a diagram. Once the diagram is completed, you then by Q&A have the witness explain it, thus repeating the important points again. A third way of again bringing out your important points is through photographs of the accident scene and of the vehicles involved, and photos depicting the injuries, If you have had an investigating police officer who lays out the scene favorably to your client, you may very well want to call him before calling the plaintiff. Another excellent tool for getting evidence again before the jury is the medical summary, which is also admissible into evidence along with photographs and diagrams. This is a calendar chart showing all dates of treatment, hospitalizations and periods of disability.
As an aside, we should note that we have been talking about techniques but not strategy. Strategy encompasses your overall game plan. This you do in your office long before the day of trial.
The witness strategy. Preparation of the direct examination of each witness is part of your greater plan of preparation for trial. It is only when we have outlined the purpose of our case, set forth our objective and the approach to each witness or line of questioning, that we begin to fully appreciate the importance of each witness and how their testimony interweaves and relates to that of others. This is the mosaic of trial advocacy. The trial lawyer is a blend of the evidential mechanic and the artful persuader. We must take into account the legal elements of proof to establish our claim, the testimonial and real evidence available, the impact of the rules of evidence on what is available to us, the ways in which the evidence can be made both Understandable and interesting to the jurors, and the strengths and weaknesses of each witness.
Thus, as the evidential mechanic, we must plot out our evidentiary foundations. First, all master advocates are not just lions in the courtroom —they have done their homework. They are indeed drudges in the office. They know the law of their case and they know the evidentiary model upon which their case will be built in the courtroom. And so in your trial notebook there will be a master outline or an elements of proof checklist. The major headings are the elements of proof necessary to establish your client’s claim. Under each major heading is an outline of the facts and circumstances which will tend to establish that particular element of the cause of action and the manner in which each winning fact will be established at trial (i.e., witness testimony, documentary evidence, interrogatory answers, deposition testimony, response to requests for admissions, business records, governmental records, judicial notice, etc.). Separately, prepare a rough outline of all potential witnesses. Then prepare another outline for the testimony of each witness or a witness profile. In the witness profile, give a background on the witness and the purpose for which he is being called. You then will outline, all the positive information that can be elicited from the witness on one side of the profile and outline all the negative aspects in calling the witness. Once you have set up this balance sheet, try to determine how any negative impact can be turned around and made positive.
After you have prepared a witness profile for every possible witness, then determine which witnesses you should actually call, which witnesses you should have on standby in case a more favorable witness is unavailable, and which potential witnesses should not be called at all.
Now you have reached the point of determining the order of witnesses.
In doing so, you must remember the rule of primacy and recency, the basic philosophy of opening and closing strong on your direct. Studies show that jurors remember best, or rather, receive the strongest impressions, from that which they have heard and seen first and last. The rule of primacy, basically stated, is that what we hear first is the most persuasive. The rule of recency states that what we hear last is generally remembered best.
In preparing the order of witnesses, however, you must evaluate their trial positioning not only from a primacy/ recency standpoint (i.e., not only from what impact their direct testimony will have to the claim), but also by how the witness will withstand cross examination. Those negative aspects which cannot be sugar-coated must be sandwiched into your case during the low periods of your presentation so that you diffuse any potential damage by giving up what you have to—thereby robbing your adversary’s thunder. Moreover, in this chess game approach, the order of witnesses becomes important in understanding how possible damage caused by each witness’ potential cross can be further defused in advance based on their presentation in relationship to other witness testimony. Thus, we see that the determination of when to ‘call ,a witness does not only fall upon how strong a witness is, but also on how strong that witness is in relationship to what will be said by other witnesses on direct and cross. Only through a total witness analysis can we most effectively set up an order of witnesses that will present the testimony in the most favorable manner.
Once we have set up our outline of the elements of proof and have determined how we are going to satisfy those elements via our outline of witnesses, documents and exhibits, and we have placed those outlines in our trial notebook, we then have to plan how we are going to present the evidence persuasively.
The Testimony Plan
A good direct examination of each witness has a beginning, a middle and an end. Just as the rules of’ primacy and recency apply generally to your case, they equally apply to each aspect of your case and the testimony of each individual witness. Thus, there are some tactical choices that must be made as to what testimony is to be put in the beginning, middle, and end of each witness’ presentation.
The primary question is: Who is this witness and can he be trusted?
Therefore, we must begin by introducing the witness to the jury, explaining why the witness is here, and accrediting that witness. At the very outset, we must put a halo on the witness so that as evidence comes in through him, it tends to be more believable. Thus, we must get the “good stuff’ out quickly and not spend too much time on preliminary time stuffers. In introducing the witness to the jurors, you may want to ask some preliminary accrediting questions, such as: “Where do you work?” “Are you married”? and “How many children do you have?” These are basically the same type of questions that one would ask when meeting someone at a social gathering, at work, at school, or at a seminar lunch break. The purpose is to humanize your witness.
The heart of the testimony. Our preliminary or foundational questions should be designed to introduce the witness to the jury as a person. In doing so, we must be sensitive to the human experience. We must give certain background information about the witness that will give him (and indirectly, our client) a halo effect. We must introduce the Witness and show who he is, what he does, where he fits into society, and how he fits into this case.
Once the jury becomes comfortable with the witness, we must get to the heart of the matter. This is usually approached either chronologically or logically. Obviously chronological presentations of fact are what we are most accustomed to and are the easiest to digest. The topical approach, however, may at times be the most effective because you go right to the heart of the matter up front, and within that topic you can proceed chronologically. You, of course, must use transition sentences to shill from one topic to another.
Defusing Cross Examination
It is during this portion of the case that you should anticipate the defense and raise any troublesome matters with your witnesses so as to diffuse the defense. The technique of answering the defense questions before they are asked is a tool of credibility. However, in allowing the concept of primacy and recency, unfavorable. testimony generally should be bracketed by favorable testimony.
Again, following the concept of recency, the direct testimony of each witness should end on a strong point since cross examination will follow immediately. Because cross examination is a point in the trial when the attention of the jury is elevated, your direct examination should end on a point that cannot be attacked easily.
Important here is to skillfully draft your concluding questions to make sure that they cannot be objected to successfully. Direct should never end with an objection that has been sustained. Thus, do not telegraph your last punch to your adversary by saying, “Before we conclude, Mr. Jones, I would like to ask you . . .“or “I just have one last question…”
Of course, the last few questions and information elicited should be thematic in nature. In other words, the concluding testimony of each witness clearly should provide strong facts which emphasize the theme of the case.
If possible, however, do not give one witness too much of a job to do if you have other strong witnesses.
What theme can we give our case that will make it important to the jurors? Your theme, your message, your hook—call it what you will—is the one enticing concept that will flow through your case and enlist your jurors to do justice. Indeed, your client’s cause of action must become their cause for action. Is there something in your case that rings of basic unfairness? In a medical malpractice case involving the issue of informed consent, we can bring home the relationship of trust: “We all trust our doctors. We should trust our doctors. This is what the relationship is built on. Mary trusted Dr. Smith to tell her of the possible danger of surgery. He broke that trust.” Again we are working on the mindset of the jurors which places the doctor on a pedestal and we make it work for us.
The inadequate warning label or limited warranty becomes a case of consumer rights. The “dart-out” case is turned around to a case of safety for school children. Yours is not a New Jersey tort claims case, it is a case of governmental accountability to its people. (See Fig. 3 for more examples.)
The Damages Theme
The trial of a personal injury lawsuit is not ultimately about a defective product, negligent conduct, or esoteric medical matters, It’s about the consequences of the defendant’s conduct on your client’s life, on that person’s ability to work and love and play and sleep normally and do all of’ the things that make life worth living. Those consequences will be the basis for the judge’s instruction on the damages. They’re also the basis for the argument that you will make that these injuries justify a substantial verdict to your client. The good lawyer understands that and for that reason everything he does in preparing a medical case is done with this thought in mind: How is this evidence going to help me explain to the jury that my client is entitled to a substantial verdict because of the consequences of these injuries on his life?
Three steps to a winning damages theme. Let me suggest to you a simple three-step process for finding and developing a winning damage theme.
- Make a list of all your client’s activities during all his waking hours before the injuries in question.
- Make a similar list of that person’s activities after the injury. You can get that information from the spouse, from the children, neighbors and friends, the foremen, the fellow employees. Once you have that list, you now have a rather clear picture of that person’s life from morning until retiring at night before and after the injuries.
- Now ask yourself the third step in this process: What does my client now find physically impossible to do that he was able to do before this injury, what does my client find more difficult now compared with before the injury, and what doesn’t he feel like doing flow?
Now you have the basis for finding the theme that is going to help you tell that jury at the conclusion of the evidence why it is that your client should have a substantial verdict. As you prepare your medical proofs, as you read the medical records, as you review the case with the doctor, keep that list in mind because, ultimately, your final argument regarding what your client should get cannot lie any higher than these medical proofs.
Everything that you do in the presentation of the case should complement how you are going to reach that objective. And if you cannot reach that objective, if you cannot justify it, then you should obviously adjust your theme, that is, your argument regarding what the important consequences to your client are. While the possibilities, as far as themes are concerned, are almost unlimited—depending on your creativity and imagination – the theme in some cases will be fairly obvious. The crushing injury case, the continuing pain that the totally disabled person experiences – they suggest things that almost leap out at us from the circumstances of our client, but frequently the theme is not so obvious. We have to use our creativity as advocates to show the jury and explain to the jury that these injuries are important.
Let me give you just a few examples. Let’s start with the classic case of the older person who is retired on a fixed income, has preexisting degenerative arthritis on X-ray, and suffers a rather ordinary soft tissue kind of injury. But because of age, she is more vulnerable to these kinds of injuries. Why not make respect for the elderly (the right of a person who has worked hard all of her life to enjoy that retirement free of pain) the theme which elevates the importance of the case above soft tissue and degenerative arthritis.
How about the case of the working wife and mother who already has two jobs: taking care of her husband and children, and a job outside the home. I would likely tell the jury in those cases that here is a person who has been given a third job by the defendant’s conduct. The need to cope with pain and the inconvenience that goes along with seeking surcease from pain by having to go to the doctors, unbar-gained for but given nevertheless, deserves just, adequate and substantial compensation.
Then there is the case of the working man who has reached his middle years and who is hurt. He has been operated on in a vertebral disc or has had a bad low back sprain or neck sprain – those kinds of cases that make up the bulk of our practice – and now finds it difficult to go to work and do his job all day long as he used to. What is important about that case is not the present loss of earning capacity because that, in many cases, may not be very substantial. What is important is that that man can no longer talk back to the foreman; he doesn’t dare. He may lose his job, and who else would hire him with that kind of medical history? I call that the involuntary servitude scenario because that is what the conduct of the defendant has made this person: an involuntary servant to Circumstances over which he had no control.
The number of and possibility of scenes in the human experience are unlimited. That is what makes advocacy so exciting.
To recap, here are the three steps in finding and developing a winning damages theme.
- Make a complete list of your client’s activities before injury.
- Make a similar list after injury.
- Ask yourself these three questions:
- What is my client now physically not able to do;
- What is my client now able to do less well; and
- What doesn’t my client now feel like doing?
Now ask yourself what, regarding the difference between these two pictures, the jury will find most important. Once you have developed this focus on damages, give it an empathetic headline that will give importance to the case, that will move the jury to deliver the just award. Now you have your theme.
The jury needs motivation to listen. They need dramatization. If we accept the philosophy that a trial is a recreation, in imagery, Of a real-life event that has already taken place outside the courtroom, and is not simply the stating of data for quantum analysis, we begin to Understand the need to humanize our roles, our clients and our witnesses, and the need to give color and dimension to their stories. There is a charisma to every great storyteller and, indeed, to every great trial lawyer. I am using each synonymously in the finest sense. Each tells the pathos of life. Each sends a message. Through each, a truth is told.
Good luck in your next trial.
Michael Maggiano is a partner in Michael Maggiano Associates in Fort Lee, NJ and a past president of ATLA—NJ. He is a frequent contributor and lecturer for trial lawyer publications and seminars.