GOING TO COURT: TRIAL and TESTIFYING

Author’s Note:  The article below is a chapter or excerpt from the book “Law, Lawyers and Your Case:  A Dollars and Sense Examination” (hereinafter “LLYC”)  (2003, Graduate Group*) by David Dixon Lentz,  Attorney at Law, Author.  Please also be sure to read the very important and limiting disclaimer at the end of this article.  It is being republished here because much, if not most, of it remains valid and true today.  This article/blog which also appears in in www.reasonandbalance.com is subject to  Copyright 2021 and 2003.  David Dixon Lentz.  All Rights Reserved. .

[In an earlier blog on courts we describe what a “Court of Record” and a “Lower Court” is.   However:

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.]

[* Unfortunately, the Graduate Group has since gone out of business and therefore ceased publication]]

[This article is only for very generalized informational purposes, a nationwide audience and is not intended to provide and does not provide particularized legal advice to anyone in a particular case.  In part, this is because this article may not cite current law in all jurisdictions.  All readers must consult a licensed lawyer in his/her state in order to obtain proper legal guidance.]

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Chapter 11:  Trial Procedure and Testifying.

 

This chapter discusses the aspects of a trial that are relevant to you as a client.  Special attention will be paid to testifying at trial.  Hopefully, this chapter will instill in you a sense of the crucial importance of pretrial preparation.

 

Background.

 

Once a trial begins, both sides start with a clean slate as far as the trier of fact is concerned.  The judge and/or the jury know little, if anything, about the case.  Clients need to clearly understand this.  The judge only has a file in front of him that contains the pleadings, the pretrial orders and the motions that have been filed in the case.  The pleadings merely outline what each party intends to prove at trial with respect to their claims and defenses.  This may give the judge some idea of what the case is about, but if the case actually goes to trial, the judge is not allowed to assume that anything said in any of the pleadings or motions is true.  In short, the pleadings and motions are not evidence.  Instead, they merely outline what one side or the other hopes the admissible evidence will prove.  Thus, even the best pleadings and motions are meaningless unless there is admissible evidence that is introduced at trial to back them up.

 

If a jury is involved they know even less about the case because they do not see the pleadings, the pretrial orders or the motions that have been filed.  They don’t know anything at all until the judge gives them a very brief description of what the case is about right before jury selection.  The jury is instructed, however, that they can only consider the legally admissible evidence that has been introduced at trial when they make their decision.  They are also instructed that what the attorneys say during their arguments and motions does not qualify as legally admissible evidence.

 

Therefore, at the start of the trial, the client has to assume that the decision-maker knows absolutely nothing. This is difficult for many clients to do after they’ve spent many months of fighting over the issues involved, especially if they’ve been through any pretrial hearings.

 

Since cases do not go to trial unless there is some dispute or controversy over the facts, the evidence in the vast majority of cases is contradictory.  This means that the judge or the jury is going to hear two different versions of the facts.  Therefore, in most cases a critical issue is which party is to be believed.   In order to be believed, a party must introduce evidence that is credible, understandable and logical.  In other words, the evidence must be trustworthy and make sense to a person (the judge) or a group of people (the jury) listening to it for the first time.  Having said this, it should be noted that plaintiffs in civil cases and the prosecution, in criminal cases, must meet their burdens of proof in order to prevail.  Thus, defendants, especially criminal defendants, may elect not to put on any evidence at trial and may merely rely on the prosecution’s inability to prove guilt beyond a reasonable doubt in hopes of obtaining an acquittal or a dismissal.

 

 

 

 

The Importance of the Evidence and of the Objections Thereto.

 

In order for evidence to be considered by a trial court it must first be offered for the court’s consideration.  (For purposes of this discussion, this will be referred to as “introducing” evidence.)  This normally occurs when a witness, after being put under oath, takes the witness stand and begins testifying or when that witness identifies a particular document or item as being evidence that is worthy of the court’s consideration.  Even more importantly, however, the evidence that has been introduced must actually be admitted into evidence by the judge during the course of the trial in order for it to be considered by the trial court when it renders its decision.  Normally, any evidence that is introduced by one of the parties at trial will be automatically deemed to be admitted into evidence unless the other party objects to its introduction in a timely manner (that is, when it is introduced).  Thus, if one party does not object to the evidence being introduced by the other party then all objections to that evidence are usually waived and the evidence will be considered by the court when it renders its decision.

 

In any event, it is the testimony, documents and other items that are actually admitted (or allowed) into evidence by the trial court that count.  Consequently, any testimony, document or physical piece of evidence that is not admitted into evidence is treated as if it doesn’t exist by the trial court.  This is why trial preparation is important.  This is also why lawyers subpoena witnesses and documents to trial.   In short, lawyers want to make sure that they get all of their client’s favorable evidence actually admitted into evidence so that it will be considered by the trial court when it renders a decision.  Any evidence that is not presented to the court on the day of trial will not be considered by the court when it renders its decision.  This is true no matter how admissible it would have been if it had been introduced.

 

By the same token, any testimony, documents and exhibits that are offered into evidence by one of the parties that are ruled by the trial judge to be inadmissible are not considered by the trial court when it renders its decision.  This is true regardless of whether the case is tried before a judge or a jury.  This is why lawyers “object” when the opposing side offers certain evidence at trial.  If the objection is valid, the court will “sustain” the objection and the objectionable portion of the testimony of the witness testifying will be ignored by the trial court when it renders its decision.  The same principle applies to documents and physical items to which an objection is made.  If an objection to them is sustained by the trial court then they will be ignored.

 

If, on the other hand, the trial court “overrules” the objection of an opposing party’s lawyer to the evidence being introduced, then the testimony, document or item in question will be admitted into evidence and it will be considered by the trial court when it renders a decision.  Documents, testimony and items that one party attempts to introduce but which are refused admission into evidence by the court retain the status, however, of being preserved for the record for possible appeal purposes provided that a proper exception or objection has been made at trial disagreeing with the court’s refusal to allow the evidence.  This is why lawyers “note their exceptions” at trial to a court’s unfavorable rulings as to the admissibility of evidence.

 

As such, the trial courts rulings to the admissibility of evidence and the lawyers’ objections and exceptions thereto can be vitally important if the losing party wants to appeal the case.  Any ruling by a trial court to which an exception or an objection has not been made by the losing party at trial cannot usually be used by the losing party as the basis for any further appeal.   Assuming that a proper objection or exception has been noted at trial, however, a party who has attempted to introduce rejected evidence retains the right to have the original trial court’s ruling on its admissibility considered on appeal by an Appeals Court.  If, however, no attempt was ever made by the losing party to introduce the evidence in question at trial, an Appeals Court will ignore its existence and it will not usually grant an appeal on the basis of its alleged existence.

 

This same principle holds true for testimony, documents and other items that were admitted into evidence by the trial court.  That is, unless the losing party objected at trial to their admission into evidence an appeal will not be granted on the basis that the trial court improperly considered that evidence when it rendered its decision.

 

In this regard, it should be noted that lawyers cannot object to the opposing party’s evidence (that is, the testimony and exhibits of the opposing party) unless he has a reason for doing so under the rules of evidence.  Thus a lawyer cannot object to a document or testimony introduced by the opposing party merely on the grounds that he disagrees with it or that he dislikes it.  Instead, his objection must be based upon some defect in the testimony or the exhibits being presented that is based upon the rules of evidence.  The rules of evidence include those that prohibit hearsay evidence, irrelevant evidence, the opinion testimony of non-experts, the asking of leading questions and the like.  (A comprehensive explanation of the rules of evidence, of course, is beyond the scope of this book.)

 

It should also be noted that, aside from asking witnesses questions and making motions to the court, what a lawyer says to convince the judge or the jury of the righteousness of his client’s case is called  “argument”.  The arguments and motions that lawyers make during the course of a trial are not evidence.  Arguments given by lawyers address the way in which the admissible evidence or the law should be interpreted or applied in the case being heard.  Lawyers are not entitled to argue about facts that have not been introduced into evidence.  In other words, a lawyer cannot just “explain” a situation to the judge without having supporting evidence to back up his arguments.  Thus, all of the motions and arguing in the world by the lawyer will, as a matter of law, go unheeded and will be of no use unless evidence has been introduced in support of his arguments and motions. Moreover, all supporting evidence used by the lawyer must come from the client, the other witnesses and any other admissible documentary and tangible items that have been allowed into evidence in the case.

 

Thus, the lawyer cannot tell your story for you.  You have to do it.  Again, of course, lawyers representing criminal and civil defendants who choose not to put on any evidence or whose defense relies on the inadequacy of the plaintiff’s or the prosecution’s case can “argue” as to the insufficiency of the plaintiff’s or the prosecution’s evidence and may on that basis alone obtain dismissals, acquittals or other decisions favorable to their clients.

 

[Having said the foregoing, on some occasions, some courts will permit lawyers to “proffer” what the evidence will be and the court will accept the proffer as being the evidence if the other side does not object.  This is done for the convenience of the parties and the witnesses and where the case or the issue being decided is of less significance and the court wants to save time.  No one, however, should ever assume that this will be done in his own case, especially if it is a contested case.]

 

Jury Trials.

 

Juries vary in size depending on the seriousness of the matter and whether it is a civil or a criminal case.  Juries of five, six, seven or twelve are relatively typical.  In most states, every member of the jury must vote in favor of the verdict decided upon.  Thus, while there are exceptions, jury verdicts must usually be unanimous.

 

In cases tried before a jury, judges encourage lawyers to make pretrial motions regarding the admissibility of as much questionable evidence as possible.  Courts will often hold a hearing on these motions prior to trial and outside of the presence of the jury so that the jury does not have to sit and listen to the lawyers argue about whether certain evidence is admissible.  Holding these hearings outside of the presence of the jury reduces the chance that the jury will inadvertently hear or consider prejudicial inadmissible evidence.  This, in turn, reduces the likelihood of prejudicial error that will cause a mistrial.

 

Nevertheless, during any trial, questions regarding the admissibility of evidence do arise.  The jury, however, is usually instructed by the judge to “disregard” any evidence that it rules to be inadmissible.  In other words, the jury is to treat inadmissible evidence as if that evidence does not exist and the jury cannot consider it in rendering a verdict.  Sometimes, however, inadmissible evidence is heard by the jury that is so prejudicial that the judge is forced to grant a mistrial.  If the judge grants a mistrial the case must be tried again in front of a different jury.

 

At the close of the evidence, the jury is temporarily excused while the judge and the lawyers hold a hearing to determine what jury instructions should be given to the jury.  During this hearing the lawyers for each side submit proposed jury instructions to the judge.  They then argue as to their applicability.  Jury instructions do not tell the jury what the facts in the case are or what their decision should be.  Jury instructions merely recite what the applicable law is.

 

The jury instructions that are selected by the judge are read to the jury before they begin their deliberations.  In this regard, it is important to note that the jury is typically instructed that even if a witness’s testimony is admitted into evidence, the jury is free to ignore it if they think that the witness is incredible, untrustworthy or unable to correctly recall the facts.  For possible appeal purposes, each side is allowed to note its objections to any instructions that are given or not given by the judge to the jury.

 

In short, the judge makes all determinations regarding the admissibility of the evidence and the legal principals that should apply in the case.  It is then the jury’s duty to determine what the facts are and to apply the applicable law as contained in the jury instructions given to them by the judge to the facts in order to render a decision in the case.  Thus, it is sometimes said that jury is the finder of fact and that the judge is the determiner of the law.  It is the jury’s duty in a jury case, however, to reach the final verdict.

 

Usually, jurors are not allowed to ask questions during the course of the trial. Remember this and think about how difficult this situation is for the jurors.  Suppose that you were asked to make an extremely important decision regarding a dispute between two parties but that you, the juror, could not ask any questions.  Assume that something was said during the case that you didn’t understand but that you could not stop the proceedings and ask a question that you needed to have answered in order to understand something.  Wouldn’t this have a tendency to make it more difficult to make a decision?

 

To make matters more difficult, jurors are not usually allowed to discuss the case with each other during the trial.  Discussions of the case are not permitted amongst jurors, or by the jurors with friends, relatives or anyone else, even during lunch breaks and recesses.  Any questions that they have are simply not answered and must wait, hopefully, until their fellow jurors can provide the answers at the conclusion of the evidence when the jury has begun its deliberations.

 

Clients must also remember that many jurors would prefer not to be called for jury duty.  In other words, many jurors typically don’t want to be there in the first place.  Jurors are human.  They come from varying cultural, educational and social backgrounds.  They have different problems, intellects, prejudices and opinions.  They also have different abilities to understand the facts and the testimony in the case.  Moreover, they have different attention spans and some bore more easily than others.  Somebody in the jury box may have just broken up with his or her boyfriend or girlfriend or be going through a divorce.  In short, the client should remember that he has to make the most prejudiced, bored and distracted person on the jury understand the case and to vote for him.

 

Clients should also consider how difficult it is to get a group of people to agree unanimously on anything– even under the best of circumstances.  Some people think that the only reason jurors are able to unanimously agree on anything is that they want to get out of the jury room and back to conducting their own lives.  In this regard, a great deal of pressure is placed upon jurors to reach a verdict, even in a close case.  This is because a mistrial must be declared if a jury is “hung” and not able to agree upon a verdict.  Judges greatly dislike retrying cases and will not easily allow a jury that claims to be “hung” to end their jury deliberations without rendering a verdict one way or the other.  Regardless of this, however, not too many clients want to go through two trials because of a mistrial.  As such, parties to a lawsuit cannot afford to offend anyone on the jury by what they say, how they dress or how they act.

 

All of the foregoing is not to say that jurors aren’t responsible or that they don’t take their duties as jurors seriously.  In fact, the vast majority of jurors are very conscientious and try to do what is right.  Most of them understand that the service that they perform is central to our entire system of justice.  Nevertheless, clients must be mindful of both the circumstances under which jurors serve and the fact that they are human.

 

Bench Trials:  Trials Conducted by a Judge Without a Jury.

 

Cases tried in front of a judge are different from jury trials in several key respects. First, only one person, namely the judge, has to make the final decision about the case.  The judge determines not only what the law is but he also determines what the true facts of the case are.  He makes the final decision in the case and no jury is involved.  Thus, a group of people (namely a group of jurors) doesn’t have to be unanimously persuaded as to the righteousness of either party’s case.   Secondly, the decision-maker, namely the judge, is much more sophisticated in applying legal principles to the facts than a jury is.  Third, the judge is also much more accustomed than a jury is to listening to the evidence during a trial.  Lastly, and perhaps most importantly, a judge is also trained to be objective and is probably less likely to allow his passions and prejudices to enter into his decision-making than a jury is. ( In criminal cases, defendants should also refer to some of the other differences between judge and jury trials that are mentioned in the chapter dealing with criminal procedure.)

 

Some judges are better than others.  Some are smarter than others.  Some are more experienced than others in certain types of cases.  Normally, however, they’ve heard many stories and generally are pretty good at picking up or knowing when they are being  “conned” because they’ve “heard it all”.  Even if the judge is a relatively new judge, he is likely to be a highly experienced lawyer who is respected in the legal community.  Given these circumstances, it is unlikely that any witness is going to be able to “pull the wool over the judge’s eyes”.

 

On the other hand, judges are human.  They have their likes and their dislikes.  Care should be taken to avoid any possible dislikes that they may have.  One dislike that judges universally have is a dislike for anyone who does not, by their demeanor or attitude, appear to respect the court.  This is why great care should always be taken by the client to make sure that the client does not appear to disrespect the court in any way.

 

Trial Procedure.

 

Contrary to what is often seen on many television shows, trials are not scattered or informal discussions of the “pros and cons” of a case.  Evidence cannot be introduced whenever a party desires to do so.  Instead, all documents and testimony must be introduced at certain times.  If it is not, it may be objectionable and probably will not be considered.  In other words, any party violating the procedural rules discussed below as to the timing of when evidence is introduced risks losing his case, regardless of how righteous it is!

 

In today’s legal environment, judges hear many cases and time is critical to them.  Judges have a tendency to like to move cases along and to “dispose” of them.  This generally means that they are somewhat impatient and do not like a sloppy presentation of the evidence.  The evidence has to be presented in such a way so as not to offend the judge or any juror.  It also must be presented in a clear and easy to understand fashion so that the judge and the jury will not get bored and fail to pay attention to any critical facts.  In short, regardless of whether the case is tried before a judge or a jury, success is usually dependent upon a credible, understandable and respectful presentation of the evidence.

 

It should be noted that although the procedures set forth below are more likely to be strictly adhered to in a Court of Record, they also apply to cases tried in the Lower Courts.  Because they handle such a high volume of cases, however, the procedures set forth below happen much more quickly in the Lower Courts.  In fact, these procedures sometimes happen so quickly in the Lower Courts that they seem, to the uninformed, to disappear.

 

Usually, the typical procedure the day of trial is as follows:

 

1. Rulings on Pretrial Motions.  The judge first hears and rules on all pretrial motions upon which no ruling has yet been made.  This often includes motions to exclude or suppress certain evidence. The jury is never present during these proceedings, even if the trial itself is to be conducted before a jury.

 

2. Jury Selection. In jury cases, the next step is jury selection.  Normally, the court will give a short statement to the panel of potential jurors (who are technically called “veniremen”) telling them what the case is about. The judge will also ask the jurors certain questions (known as voir dire questions) to determine if they cannot be impartial or if they are not otherwise qualified to serve a jurors.  Usually, the lawyers are also permitted to ask the panel of potential jurors voir dire questions.  After questioning is completed, each side can challenge or “strike” a pre-established number of jurors, usually three, for any reason that they deem appropriate.  These are called peremptory strikes.  Additional potential jurors can be stricken “for cause”, such as bias.   Normally, a short hearing is then held, outside of the presence of the prospective jurors, on any motion made by either of the lawyers to strike or challenge a particular juror for cause. The judge then rules on whether cause exists to strike that juror.  There is no limitation on the number of prospective jurors who can be stricken for cause if the court determines that there is, in fact, a cause or a valid reason to strike that juror.

 

3. Exclusion of Witnesses. Also, before trial, the lawyers will normally move to have all witnesses excluded.  The judge will then require all witnesses (except the parties themselves) to wait outside of the courtroom so that they cannot hear each other’s testimony once the trial begins.

 

4. Opening Statements.  Regardless of whether the case is tried before a judge or a jury, at the beginning of the trial itself, the lawyers give opening statements in which they set forth what they intend to prove or disprove in the case.

 

5. The Plaintiff’s Case/ The Prosecution’s Case.  In a civil case, the plaintiff (the person who started the law suit) is the first to put on his evidence.  In a criminal case, the prosecution is the first to put on its evidence.  In putting on his or its case, the plaintiff or the prosecution, as the case may be, must meet his or its burden of going forward with the evidence.  They must do this by putting on sufficient evidence to prove each element of his or its case.  The “elements” of a case are the facts or circumstances that the plaintiff or the prosecution must prove in order to prevail.

 

6. The Examination of Witnesses. With respect to each witness that is called to the stand by the parties, the order of examination is as follows:

 

1. The lawyer calling the witness performs “direct examination” of that witness by asking him questions about the facts of the case. Thus, for example, the prosecution in a criminal case will call its prosecution witnesses and conduct direct examination of them.  The same is true for lawyers representing plaintiffs in civil cases.  It is usually during direct examination that the plaintiff’s or the prosecution’s documents or exhibits are introduced.  This is done through the testimony of a witness who can identify and authenticate the documents and exhibits in question.

 

1. The opposing lawyer is then allowed to “cross-examine” that same witness by asking him additional questions. Thus, in criminal cases the defense will cross-examine the prosecution’s witnesses.  By the same token, defense attorneys in civil cases will cross-examine the plaintiff’s witnesses.  Naturally, the defense can cross-examine witnesses concerning any documents or exhibits that have been introduced by the opposing side.  Sometimes, although less often, the defense can introduce documents or exhibits of its own through the prosecution’s or the plaintiff’s witnesses.

 

1. The lawyer that originally conducted direct examination of the witness in question is then allowed to conduct “redirect” examination, in which he is usually only allowed to ask further questions on matters that were raised on cross-examination. Usually, he cannot question the witness about new matters to which the witness did not previously testify.

 

1. The lawyer that originally conducted cross-examination is then allowed to conduct “re-cross” examination, but only regarding matters to which the witness has previously testified. Questions regarding new matters are not permitted.  Despite this, trial judges sometimes exercise discretion in determining the scope of questioning on cross-examination, redirect and re-cross examination.  Thus, they sometimes will permit questioning that may somewhat exceed the scope of previous questioning.

 

It is during the course of the examination of the witnesses that the lawyers for the opposing parties make exceptions and objections to the other party’s witness testimony and evidence.  As noted earlier, this must normally be done when the evidence is introduced.  Otherwise, any objections to the admissibility of the evidence in question will be waived and the evidence will be considered by the judge or the jury when they render a decision.  This is true regardless of how valid an objection would have been if it had been made in a timely manner.  This is one reason why lawyers need to be prepared for trial.  In other words, unless they know in advance what the opposing side’s evidence will probably be, they may forget to object and allow improper evidence to be considered.  Moreover, they may also lose a possible basis for further appeal.  As discussed above, however, any objection to the admissibility of the evidence must be based upon the rules of evidence.

 

Once a witness finishes testifying and has been excused, he usually cannot later be recalled to the witness stand even if he has additional important information to provide.  This is true unless the lawyers have specifically reserved the right to recall him as a witness.  Also, any witness (other than a person who is a party to a lawsuit) who sits in the courtroom during the proceedings may be disqualified from testifying (or from further testifying if he’s already testified) if the court originally issued a ruling to exclude witnesses.

 

The important point to remember, however, is that clients must be sure to let their lawyers know, in advance, of all of the questions that need to be asked of all witnesses. This is because the lawyers do not usually get a “second bite at the apple” after a witness leaves the witness stand.  At that point, any information that could be disclosed by any unasked questions is likely to be lost forever.

 

If, at the conclusion of the evidence in their respective cases, the plaintiff or the prosecution “rests” and fails to meet their burden of putting on sufficient evidence, the judge, upon motion by the defendant, may “strike” or “dismiss” the plaintiff’s or the prosecution’s case without the necessity of hearing any evidence from the defendant.  This is true even in a jury case.  Thus, if the judge feels that there is insufficient evidence at the conclusion of the plaintiff’s or the prosecution’s case to establish the elements of the plaintiff’s claims or the prosecution’s charges then the judge can excuse the jury without asking it to deliberate.  If this happens, the case against the defendant is dismissed and the defendant wins.  If the judge, however, overrules the defendant’s motion to dismiss or to strike, then the defendant is given the opportunity to put on any evidence that he has.

 

7. The Defendant’s Case.  After the plaintiff has “rested” in a civil case, or after the prosecution has rested in a criminal case, the defendant is allowed to put on his case by calling his witnesses and introducing his exhibits.  The procedure is then the same for the examination of defense witnesses as it was for the plaintiff’s or the prosecution’s witnesses except that it is the defense attorney who conducts direct examination (and redirect examination) and it is the plaintiff or the prosecution who conducts cross-examination (and recross-examination).  Naturally, it is at this point that defendants typically introduce evidence that tends to disprove the elements of the plaintiff’s or the prosecution’s case.  Also, if the defendant has raised “affirmative defenses” such as “contributory negligence”, “insanity” or “self-defense”, the defendant must put on evidence establishing the elements of these defenses.   In a civil case, the defendant is also allowed to put on any evidence pertaining to any counterclaims and cross-claims that he has against the plaintiff and/or the other defendants.  With regard to these counterclaims and cross-claims, the defendant must also put on such evidence as to the elements of the counterclaims and cross-claims as meets his burden of going forward with the evidence.  Otherwise, the judge may grant the plaintiff’s motion to strike or dismiss those claims.  Sometimes, however, judges, by pretrial order, alter the procedure under which counterclaims and cross-claim evidence is introduced.

 

In criminal cases, defendants may elect not to put on any evidence and attempt to seek dismissal or an acquittal on the grounds that the prosecution’ evidence is insufficient to establish guilt beyond a reasonable doubt.  (Remember, as discussed in the chapter dealing with criminal procedure, criminal defendants do not have to testify at trial.)   Similarly, and although it is somewhat usual, civil defendants may also elect not to put on any evidence and attempt to seek dismissal or a defense verdict on the grounds that the plaintiff’s evidence does not establish the defendant’s liability by a preponderance of the evidence.

 

8. Rebuttal and Counterclaims.   Once the defendant has rested, neither the plaintiff nor the prosecution is usually allowed to call any other witnesses or put on any other evidence.  In other words, in most cases, the evidentiary phase of the trial is over.  There are, however, limited exceptions to this rule.  For example, in a civil suit the plaintiff may be allowed to put on evidence that relates to a defense that the plaintiff has to a counterclaim that was raised by the defendant.  Also, the plaintiff and the prosecution can put on “rebuttal” witnesses and evidence.  Rebuttal witnesses are permitted to take the stand to rebut statements made by any of the defense witnesses during the course of their testimony at trial.   During rebuttal, however, neither the plaintiff nor the prosecution is allowed to introduce evidence or have witnesses testify as to matters that were not discussed by the defendant’s witnesses.  In other words, no new matter can be raised on rebuttal.  Rebuttal witnesses are only allowed to “rebut” what was said by defense witnesses.  The defendant then is allowed a right of surrebuttal, which again is limited to the right to call witnesses to contradict any testimony given during the plaintiff’s rebuttal stage.  Rebuttal witnesses and evidence are often used to show that one of the defense witnesses said something prior to trial that was inconsistent with his testimony during the trial.  Trial judges, however, are often inclined to limit rebuttal and surrebuttal evidence and many times they will not allow it, particularly if it is intended to “re-hash” evidence that should have already been introduced during the normal course of the trial.

 

9. Selection of Jury Instructions.  After both sides have rested, if all motions to strike have been overruled, the court then permits the lawyers to submit proposed jury instructions to the court.  After a hearing is held on those instructions, which is held outside of the presence of the jury, the court then decides which proposed instructions will be given to the jury.  Naturally, if there is no jury, the court does not have to consider proposed jury instructions and it will proceed on to the next step.

 

10. Closing Arguments. The lawyers are then permitted a chance to give closing arguments.  This is true in both jury cases and in cases tried by a judge.  The lawyers are, however, only allowed to make arguments that are based on the admissible evidence presented in the case.  The lawyers cannot make arguments based upon facts that have not been admitted into evidence.  They can only argue about what the admissible evidence tends to prove (or not prove) and that, under the circumstances, the existing law (or a good faith modification or extension of it) should be applied in a way that is favorable to their clients.

 

11. Consideration of the Case/Jury Deliberations. The judge or jury then considers the case.  If a jury is not involved, and depending on the complexity of the case, the judge may order the lawyers to submit proposed findings of fact and conclusions of law in written briefs that are due either before or after the trial concludes.  In such cases, the judge will later issue a written opinion containing the court’s decision.  Courts, however, can and do issue their final decisions regarding the case from the bench on the day of trial itself.  In jury cases, the judge will read any jury instructions that he deems to be proper to the jury.  He will also request the jury to select one of its own members to act as its foreman to preside over the jury’s deliberations.   The jury will then adjourn and begin their deliberations in order to reach a verdict.

 

12. Motions at the Conclusion of the Evidence or After Verdict. In jury cases, if the jury renders a decision, the lawyers typically have the right to “poll the jury”.  The judge then asks each juror if the verdict that was announced by the foreman was, in fact, the verdict of that juror.  The losing side will often make a motion to set aside the jury verdict as being contrary to the law and the evidence.  If the judge grants this motion he can actually ignore the jury verdict and enter a judgment in favor of the losing side.  It is very unusual, however, for a judge to grant such a motion because he can only do so on the grounds that the admissible evidence was not sufficient, as a matter of law, for the jury to have rationally reached the decision that it did.   Moreover, judges cannot generally set aside a jury verdict of not guilty in a criminal case.

 

In civil cases, if the jury wants to render a verdict in favor of the plaintiff, they must also determine the amount of damages that the plaintiff should be awarded.  The jury, however, can only award the plaintiff the damages that he has proven through the introduction of admissible evidence relating to his damages.  In civil cases, many times, the defendant will make a motion to set aside a jury verdict as being excessive because, the defendant will argue, the jury could not have awarded the damages that it did based on the evidence or the law of the case.  If this is correct, the judge can set aside the damages verdict as being excessive.

 

13. Criminal Sentencing. (For a discussion of criminal sentencing see the chapter that discusses criminal procedure.)

 

14. Post-Trial Proceedings. There is then a period of time within which the losing party can appeal to a higher court or request the trial court to set aside the judgment or permit a new trial.  If the losing party does not do any of these things within the required time period, the case is over and the judgment is binding upon the parties.  At that point, there is, except in extremely limited circumstances, no chance for reconsideration of the case.  In essence, the parties are then bound by the judgment rendered with no chance of it ever being reconsidered.

 

Be Prepared.

 

Did you ever have to memorize a poem and get up in front of a class and recite it?  Have you ever had to give a speech or do anything in front of a group of people?  Did you ever have to take an oral examination in class, where you had to stand up and let the teacher ask you questions?  People who cared about their grades or who wanted to make a strong impression prepared for these types of events beforehand.  They did their homework.  They probably worried about being asked a tricky question and therefore tried to anticipate a few of the potential problems that they might face and planned for what they would do.  We all remember people in our classes at school who didn’t prepare.  They often looked foolish, received bad grades and/or failed.  The same is true with respect to preparing to testify in a trial.  You must do your homework and prepare.  Can you imagine not being sufficiently motivated to prepare for an event in which your life, liberty, property or money is at stake?

 

Review the Critical Elements of the Case With Your Lawyer.

 

The first step in preparing for trial is to make sure that you get your lawyer to tell you what the elements of your case are as far in advance of the trial as possible.  The elements of a case are the facts and circumstances that must be proven in order for one side or the other to win.  You should also discuss the elements of any potential defenses that either party has.  For example, one of the elements of a murder case is the element of “intent” on the part of the perpetrator.  Accidental killings do not constitute murder and the prosecution must somehow show that the defendant intentionally killed the victim in order to get a conviction.  Similarly, an element of a breach of contract case is that there was a contract in the first place.  Thus, a plaintiff cannot win a breach of contract case unless he proves that there was a contract in the first place.  In other words, you must have a clear understanding of what the issues are and, just as importantly, you must have a firm understanding of which facts in your particular case relate to those issues.  In this way, when the day of trial comes, you’ll know what your lawyer wants you to emphasize when you testify.   This will also make your testimony go much more smoothly and it will be easier for the judge and jury to understand it.

 

Review Your Documents and the Tangible Evidence.

 

If you’ve followed the suggestions made earlier in this book, as part of your pretrial preparation, you should go through the file that you’ve created for the case.  Review the outline that you’ve prepared of the facts of the case.   Also, review any relevant documents, letters, photographs, bank statements or other items of tangible evidence that may be introduced.  In addition, you should be familiar with anything that you may be shown on the witness stand, including those documents and items that may be shown to you by the opposing lawyer on cross-examination.  In civil cases, it is particularly important to review all of the answers to interrogatories, requests for admissions and the depositions that you have given in the past.  If it is a breach of contract case, you would certainly want to review the underlying contract and any amendments and documents related to it.  This would include any documents and pictures related to whether or not the contract was breached.   Review all of these documents and items and pay particularly close attention to the aspects of those items that have relevance to the elements of your case.  Don’t assume that you will remember old pictures and documents.  Criminal defendants should review any statements (whether written or oral) that they’ve made to the police.  They should also discuss or review with their lawyers any other exhibits that will be introduced at trial regardless of whether they will be introduced by the defense or by the prosecution.

 

The Importance of the Rule Against Leading Your Own Witness.

 

When testifying, you must remember that the facts and the evidence proving your side of the case must come from you and your other supporting witnesses and documents – and not from your lawyer.  In this regard, it is important to note that a lawyer is not allowed to ask “leading” questions to any witness that he calls to testify during direct examination.  Leading questions are questions that implicitly provide tips, hints or clues as to what the desired answer is.  Thus, a lawyer is not allowed to “coach” his client (or any other supporting witness) when he takes the witness stand by phrasing his questions in such a way so as to let him know what he wants him to say.

 

For example, many times a lawyer cannot ask his own client questions that call for a “yes” or “no” answer because they often provide too much of a clue as to what the desired answer is.  In a personal injury case, for example, a plaintiff’s lawyer may not, on direct examination, be allowed to ask his client a question such as:  “Isn’t it true that as a result of the accident you suffered extensive and serious injuries?”  This is technically a leading question because it clues the witness as to what the desired answer is which, in this example, is that he was extensively and seriously injured as a result of the accident.  Instead, the lawyer might be required to ask a series of more nebulous-sounding questions such as:  “Describe any medical treatment or medication that you were given after the accident”  “When did you seek this treatment?”  “Describe whether these treatments had any connection to the accident?”  The client must then, in his own words, describe any treatment that he was given and tie those treatments to the accident.  Thus, if a lawyer asks a question such as: “What, if anything, happened as a result of the accident?”  The client would, hopefully, respond: “I was injured, I hurt my head, back and foot.”  Many clients, however, will freeze or look quizzically at the lawyer and haltingly blurt out: “ Ah, er…well, traffic was tied up for a half an hour.”  While the judge and jury may find this amusing the plaintiff’s lawyer would know that he was in for a long day.

 

In short, once the client takes the witness stand, the client is on his own and the lawyer cannot coach him by improperly phrasing questions.  What makes this situation potentially dangerous, is that if the client, through lack of preparation or because of stage fright, forgets to mention critical facts or continuously fails to answer his lawyer’s questions, the lawyer may get distracted and inadvertently fail to introduce or establish certain facts that are critical to his client’s case.  This can be costly and spell the difference between success and failure.

 

As a consequence of the rule against leading questions, and because what your lawyer says is not evidence, it is crucial that you know the case and that you can put it in your own words without any coaching from your lawyer.  Moreover, you must do so with as many specifics regarding the time and sequence of events as possible.  The point here is that preparation and knowledge of the precise facts that your lawyer is trying to get into evidence will help you testify more effectively.

 

Credibility.

 

When lawyers speak of credibility, they are talking about whether a witness or, in particular, the client will impress the judge and/or the jury as being trustworthy and believable.  Credibility is important because a large number of cases boil down to one person’s word against another’s.  Under such circumstances, judges and juries must, and do, decide who to believe.  Even in complex cases with many witnesses, the outcome will often turn upon testimony concerning some single event to which there are only one or two witnesses.  Under these circumstances, the outcome of the entire case will depend on whom, if anyone, the jury believes.  Thus, in cases where several witnesses testify regarding an event, the credibility of the witnesses is of paramount importance because jurors are usually instructed by the judge that they can choose to believe one credible witness instead of several less credible ones.  Consequently, the credibility of the evidence introduced on a client’s behalf is usually much more important than the quantity of it.

 

 

 

 

The Taint of Incredible Evidence.

 

Credibility is thus the most important quality that any witness can have.  It is even more important for a client who is a party to a lawsuit.  Any client who is a party to a lawsuit who takes the witness stand and is found to be unbelievable or untrustworthy has a greatly reduced chance of winning.  This is true even in cases where the other facts are favorable because judges and juries have little sympathy for a party who is not trustworthy.  In fact, when reaching a decision in the case they will often look for reasons to disbelieve or discount other seemingly favorable evidence that an incredible party has introduced.

 

War Story:  Bill, a Sunday school teacher, was charged with the rape of Mawd.  Bill, however, had an alibi.  His alibi was that he was on his way home from a party in a different part of town when the rape occurred.  His defense, therefore, was that he could not have been present at the scene of the crime when the rape occurred.

 

Bill hired Claude, an attorney, to represent him.  Claude thought, based on Bill’s version of the facts, that Bill had a pretty good defense.  Bill, however, told Claude to call George, Pete and Andrea as defense witnesses to testify as to the time Bill left the party.  Claude did so and subpoenaed George, Pete and Andrea to testify at trial.

 

Unfortunately, during the prosecution’s cross-examination, George, Pete and Andrea each testified differently as to the manner in which Bill was dressed at the party.  Moreover, George and Andrea had prior felony criminal records and all of these defense witnesses were close personal friends of Bill.  In short, during cross-examination, the prosecution effectively made Bill’s witnesses look as if they were ex-convicts and friends who were merely covering for Bill.

 

Fortunately for Bill, other independent evidence of his innocence was also introduced.  Nevertheless, the testimony of George, Pete and Andrea had been impeached.  This tainted the other evidence that Bill had of his innocence.  Thus, after many hours of deliberation, the jury became and remained deadlocked.  The judge was then forced to declare a mistrial.  The prosecution, however, decided to re-try the case.

 

At the second trial (which, of course, was conducted before a different jury), Claude decided to try the case without calling George, Pete and Andrea to testify.  He did this despite the fact that he had little other evidence as to the time that Bill left the party.  Claude, as a matter of defense strategy, decided to rely solely on the other independent evidence that he had of Bill’s innocence.  This other independent evidence related to other aspects of the case.  Fortunately for Bill, the second jury acquitted him.

 

As the foregoing war story illustrates, a party can lose credibility by putting on any kind of evidence that is untrustworthy.  Once a party’s credibility begins to slip on any issue it begins to slip on all issues.  Therefore, clients and lawyers must be mindful of the credibility of all of the witnesses and evidence that they introduce during the course of a trial.

 

How to Enhance Your Credibility.

 

Given the vast importance of credibility, it is important to determine how to go about establishing credibility.

 

The Oath and Perjury.

 

The most important formal legal device used to make testimony credible is the oath that a witness takes to tell the truth.  All witnesses take an oath that they will testify truthfully.  Witnesses who knowingly testify in a false manner can be prosecuted and imprisoned for perjury.

 

The oath is not, however, always effective in ensuring that people will testify in an accurate or truthful manner.  People sometimes forget facts or misinterpret events.  Even worse, some witnesses think that they can lie and not get caught.  Moreover, every witness takes the oath.  Thus, as a practical matter, the oath makes no witness seem more credible than any other witness.  Most jurors and all judges realize these things and thus rely on other factors to determine who is telling the truth.

 

Consequently, there are far more important ways to establish credibility than by merely taking the oath.  Below are ways that clients can improve, and hopefully firmly establish, their credibility.  All clients who have their cases taken to trial should firmly grasp these concepts because they are likely to have a significant effect on whether they win or lose their cases.

 

Attitude and Demeanor.

 

Credibility is often dependent upon the attitude and demeanor of the witness.  Clients who appear not to respect the court or the jurors are less likely to have credibility.  Witnesses who smirk, have a superiority attitude, act like everything is a waste of their time or who act as if they are outraged at being put on the stand will have a negative impact.

 

Most courts do not permit gum chewing or the wearing of hats on the witness stand, but even if they were permitted these things shouldn’t be done.  In short, your actions, attitude and demeanor in court should demonstrate that you have respect for the court and for the jury.  One way to do this, is for you to address the judge as “your honor” if he speaks to you or asks you a question.   Some people also call the judge, “judge”, and this is usually acceptable (but the author prefers “your honor”).  In any event, a good rule of thumb is that you should address the judge in a manner which is the same as the way that your lawyer addresses the judge in open court.

 

Have Respect for Others; Appear Rational and Reasonable.

 

There is always an advantage in appearing to be the reasonable and rational person in any litigation.  The client should remember that the judge and the jury know nothing about the case.  They know nothing about the prior history of the parties or the prior dealings or relationships that the parties have had with one another or with the opposing lawyer.  Having too much animosity towards the opposition, especially if it appears to be unprovoked, can backfire.

 

For example, in criminal cases, regardless of how a client feels about the arresting police officer, the client should act respectfully towards him.  This is true both at the time of the arrest and when the case is tried in court.  Regardless of whether the officer used Gestapo tactics, has misspoken or is lying, it rarely, if ever, does any good to question police officer’s integrity or to call him a “liar”.  In the vast majority of cases, the client is much better served by simply stating that the officer is “well intended” but “mistaken”.  Consequently, the best rule of thumb is to always appear to be respectful to the police officer.

 

War Story:  John, a lawyer, once represented a young lady from another state who was charged with reckless driving because she was exceeding the speed limit on an interstate highway by more than 20 miles per hour.  John had a pleasant telephone conversation with the client during their initial telephone conversation and told her that he thought that he could get the charge reduced to simple speeding.  Nothing in his conversation with her, however, prepared him for what happened later at trial.

 

During the course of the police officer’s testimony at trial, the client became visibly upset because she felt that the officer’s testimony was not truthful.  When it was her turn to testify, she exercised some restraint and avoided calling the officer a liar.  However, she kept referring to the officer as the “fuzz” or “this guy” in a disparaging tone.  The predictable result, of course, was that she was convicted of reckless driving in a case where she may have been able to obtain a better result.

 

What has been said above with respect to the police is equally true with respect to the opposing lawyer and the opposing witnesses.  In this regard, clients should make a strong attempt to treat opposing counsel with respect.  This can be especially important during cross-examination when it is very important for the client to carefully listen to all of the questions that are asked so that careful and well-considered answers can be given.  In this regard, clients who are angry, disrespectful or in a state of emotional frenzy are more likely to be “goaded” or tricked into making exaggerated claims or misstatements than clients who are not.

 

Consequently, if is often desirable for a client to refer to the opposing lawyer as “sir” or “ma’am” when responding to their questions.  (For example,”yes sir”, “no sir”, “yes ma’am”, “no ma’am”.)   This may at least help a client maintain some sense of composure, decorum and control.  Usually, it will also create a better impression for the judge or the jury.

 

This is not to suggest that clients should “cave-in” or be overly deferential to the opposing party or his lawyer.  Obviously serious differences exist and there are times when circumstances make the showing of a certain amount of “displeasure” or “indignation” appropriate and even effective.  There is a difference, however, between disagreeing in a civilized and rational manner that is likely to create a positive impression, and disagreeing in a hostile, disrespectful way that will create a negative impression on the judge or the jury.

 

Never Exaggerate – Even the Favorable Evidence.

 

Never exaggerate or attempt to blow the facts out of proportion.  This is true even if those facts are favorable to your case.  Any exaggeration that is discovered on cross-examination will be used to impeach your credibility and can even cause you to lose your case.

 

War Story:  A plaintiff was involved in a personal injury case arising from an automobile accident.  The case involved minor back and neck pain sustained by the plaintiff when he was rear-ended by the defendant.  There were no broken bones, cuts or other physical manifestations of any injury.  The resulting damage to the vehicles consisted of one small dent in the hood of the defendant’s car and one scrape mark to the plaintiff’s rear bumper.  On the issue of who was at fault, the plaintiff’s case was very strong.  The larger issue, however, was the question of the amount of the plaintiff’s damages.

 

Before the trial began, the plaintiff’s attorney asked the plaintiff to try to remember any details that would show that there was a sufficiently hard impact so that they could convince the jury that the plaintiff was genuinely injured.  On direct examination, however, the plaintiff  went a little overboard and unexpectedly testified that the collision was “violent”.  The defense attorney, seeing his chance, then rose to cross-examine the plaintiff.  The following then occurred:

 

Defense Attorney:  “You said this was a violent collision?”

Plaintiff:  “Yes, it was a violent collision.”

Defense Attorney:  “On a scale of 1 to 10 and assuming that 10 is extremely violent, how violent

was it?”

Plaintiff:   “Oh it was very violent, probably a 9.”

 

At that point, the defendant’s attorney had gotten the plaintiff to exaggerate the situation.  He knew that when the jury saw the pictures of the damage done to each vehicle they would be convinced that the plaintiff was prone to exaggeration and should not be believed regarding the amount of back and neck pain that he was alleged to have suffered.

 

Answer the Question That’s Asked.

 

When testifying, clients should always answer the question that is being asked.   They should not provide an answer to a different or related question that they “think” was asked but was not.  This seems obvious, but amazingly enough, in many situations people do not do this.

 

There are several reasons why it is important to answer the question that is asked. One reason is that, on cross-examination by the opposing lawyer, the client doesn’t want to appear to be evasive because this reduces his credibility.   Secondly, on direct examination, the client’s lawyer must get certain evidence into the record in order for the client’s case to be successful.  This is because certain evidence establishes the facts that are critical to the client’s case and if those facts are not introduced into the record, the client will lose.  Also, if an appeal is necessary, facts not in the record are not considered.

 

For example, in a breach of contract case it is necessary for the plaintiff to first establish that a legally binding promise or obligation has been created.  Once this is established then facts relating to the breach or the failure to perform the promise can be introduced through a response to a later question.  At trial, however, it is not uncommon for the following to occur:

 

Lawyer:   “Did John promise to paint your house?”

Client:   “He didn’t paint my house.”

 

In the above example, the client assumed that everyone understood that John promised to paint the house.  Instead of answering the question that was asked, the client chose to answer a different question, namely the question of whether John failed to fulfill his promise to paint the house.  For purposes of the record, however, no contractual promise to paint the house has been established and therefore, there is, at least at this point in the testimony, no grounds to establish a basis for a recovery.   This is an easy mistake for clients to make because they fail to remember that neither the judge nor the jury has any idea about what happened prior to trial.  Moreover, in everyday conversation, many people often fail to respond directly to each other’s questions.  Unfortunately, in the heat of a trial, lawyers and clients often gloss over such critical points.  The problem is that this oversight can cause a lawyer and client to lose the case, especially if the client consistently fails to answer the actual questions that are being asked.  From a lawyer’s perspective, having a client on the stand who does not answer the question being asked can be a draining and even a dangerous experience.

 

Look at the Judge and the Jury When Testifying.

 

It is important for a witness to look at the judge and the jury as often as possible during his testimony for several reasons.  First, people who do not look at the person to whom they are talking are less likely to be believed.  Also, looking at the judge and the jury forces them to pay attention to the testimony.  This is particularly important because cases sometimes become dull.  If this happens, the judge and jury can become distracted.  Consequently, they may miss critical testimony.  Moreover, looking at the judge and the jury also helps them to hear the testimony.  This is because an amazing amount of listening is done by reading lips and observing body language.

 

Once again, while this is an easy principle to understand, it is often difficult to implement in practice.  Sometimes, this is because the layout of the courtroom is such that the witness is required to physically turn in different directions in order to look in the direction of the jurors, the judge and the questioning lawyer.  This can be awkward.  Moreover, it is not natural for a person to be asked a question by one person (the attorney) and then have to turn in order to give an answer to the judge or the jury.  Nevertheless, it is best to speak directly to the judge or jury as often as possible.  This is especially true during critical portions of your testimony.

 

Speak Loudly and Clearly.

 

Speaking loudly and clearly is particularly difficult for shy people to do.  However, judges and jurors become bored with witnesses to whom they have to strain to listen.  Once again, if this happens bored or tired judges and juries may miss critical testimony.   In addition, another potential problem is also created by not speaking up.  If the court reporter or a recording device cannot understand or pick up the voice of a witness then critical evidence may not get into the record.  This is true despite the existence of microphones in many courtrooms.  Remember, if evidence does not get into the record of a Court of Record, critical evidence that may be the basis for an appeal can be lost.

 

Don’t Just ShakeYour Head; Answer Verbally.

 

By the same token, shaking your head yes or no in response to a question during trial may not be adequately noted or picked up by the court reporter or a trial recording device.  Again, this may mean that critical evidence will not get into the record.   Always orally state your answers in a loud and clear speaking voice.

 

Dress.

 

Judges and jurors are people.   Perhaps no one should judge a person based on the way that he or she dresses.  Nevertheless many people do.  Perhaps some or most judges and jurors are able to overcome this, but there is nothing to be gained by assuming that they will.  Moreover, how a party dresses in court can also reveal how seriously a person takes the judge and the jury.  Even more importantly, dress may convey more direct information regarding credibility.

 

War Story:  Don once had a client from another state who was charged with misdemeanor possession of marijuana.  The case was to be tried in a distant rural county in a “Bible-belt” region.  The judges in this particular county were known to be rather strict and conservative.  The client had a prior drug record.  He also wore dreadlocks.  If it were a serious felony case, Don would have probably suggested that his client cut his hair.  This was because, regardless of whether it was fair or unfair, Don knew that the client’s hair would be a negative factor as far as the judge was concerned.  Moreover, Don felt that many people, rightly or wrongly, associated this particular hairstyle with the use of marijuana.  Don did, however, tell his client to dress “nicely” (which, to Don at least, meant that he wanted his client to dress conservatively or to wear a coat and a tie).

 

In any event, when trial date arrived, Don met his client at the courthouse.  The client, however, had chosen to wear a new tropical shirt, new shorts and flip flops.  In addition, he had on a very attractive necklace, complete with a medallion containing a replica of … a marijuana leaf!  He even smelled like marijuana.

 

On seeing this, Don, in horror, turned to his client and said:  “You’re not thinking about wearing that necklace in court are you?

 

“Oh,” replied the client in a sheepish yet sincere tone, “ I’m glad you mentioned that.  I guess I’d better put it in my pocket.”

 

The client was convicted.

 

The moral of the story is that, a client should always dress in a manner that shows that he takes the court and the jurors seriously and that he is honest and trustworthy.  Perhaps even more importantly, he should dress in a fashion that won’t offend the sensibilities or prejudices of anyone.  In any event, absent unique circumstances, when a party goes to court he should be clean and dressed as if he was going to his church, temple, mosque or other place of worship (or alternatively, to a job interview for an office job).  Tank tops, T-shirts, shorts, cut-off jeans, mini-skirts, clothing with obscene or vulgar wording or pictures should be avoided.  In addition, it must be observed that any client who wears any clothing, tattoos, jewelry or a hair-style that is not seen on or worn by most members of the general public runs at least some risk of alienating either the judge or some member of the jury.  There may be exceptions to the principles stated above, but if there are they should be discussed with the lawyer before the case.

 

Having said this, there are instances when being too well dressed can backfire because a client’s dress may convey other clues about the client’s credibility.

 

War Story:  Kent once represented Liz who claimed that she sustained back injuries in a minor fender bender.  Liz had sought medical treatment immediately after the accident at a local hospital.  At the hospital, she was given a back brace.  She did not, however, suffer any broken bones.  Nor did she suffer any cuts or bruises.  All x-rays were negative.  In other words, this was what most lawyers call a “soft-tissue” personal injury case where no clear medical evidence could be introduced regarding how severe Liz’s injuries actually were.

 

The nature and extent of Liz’s injuries were a key issue at trial.  In fact, the defendant admitted that he was at fault in the accident.  The defense, however, questioned the necessity of the $5,000 in medical bills that Liz had incurred in seeking medical treatment.  The defense also disputed Liz’s claim that she continued to have back pain.  The law was such, however, that Liz did not have to produce supporting expert medical testimony as to the fact that she had or was experiencing any pain.

 

On the day of trial, Liz showed up in a designer dress wearing spiked high heels.  Liz was the only person who testified as to what her injuries were and how badly she was hurt.  She marched smartly to and from the witness stand when she was called to testify.

 

At the conclusion of the evidence, the jury returned a verdict in Liz’s favor but they only gave her a judgment against the defendant in the amount of  $10.

 

While leaving the courtroom Liz expressed her displeasure at the jury’s verdict.

Kent responded by saying, “Yeah, but I wish you hadn’t worn those spiked heels.”  “Why?”, responded Liz.  “Because, you don’t look like you’re in pain when you wear them,” replied Kent.

 

Knowledge of the Facts of the Case; the Ability to Recall Facts.

 

Even if a client displays a good attitude, dresses appropriately, and otherwise appears to be a truthful person, it is still possible for him to lose credibility if he cannot adequately recall specific facts about the case.  Credibility has a lot to do with the perceived ability of the witness to recall events accurately.  Clients have a tendency to be much more credible and believable if they remember detailed and specific facts relating to those events.  In this regard, in order for a client to convince the judge or the jury that he is telling the truth the client must be able to clearly state what happened and when it happened.  Moreover, the client must be able to do this in a manner that is understandable to the judge and to the jury.

 

War Story:  Bill, an attorney, once represented a client who was the seller in a transaction involving the sale of a truck to the buyer.   The client was an elderly woman who had recently suffered a stroke.  As payment for the truck, she was given cash and a promissory note, the payment for which was secured by a lien on the same truck.

 

Later, the buyer defaulted on his payments.  The client repossessed the truck.  In order to collect on the delinquent debt the client/seller then resold the truck but for less than the unpaid balance on the note.  She then attempted to sue the buyer for the remaining balance on the note.

 

The problem was that the client sold the truck several years after the transaction and subsequent default.  A key issue in the case was whether the sale was conducted in a “commercially reasonable manner”.  The date on which the marketing efforts to resell the truck commenced after the note went into default was critical to the success of the client’s case.

 

During the course of testimony, the client testified that she could not remember the date that she began her marketing efforts. (This was despite the fact that this issue had been discussed prior to trial.)  She also testified that she started marketing efforts “a few months after” she repossessed the truck.  When pressed for a specific month and date by the opposing lawyer, however, she stated, “I can’t remember.”

 

The client in question was elderly and feeble.  Thus, some memory lapse was understandable.   Nevertheless, given the facts of the case it was difficult for the judge to feel comfortable believing that sufficient marketing efforts were started early enough to award the client a favorable judgment.  Thus, despite the fact that the judge probably believed that the client was an honest person, the client had no credibility as to the factual specifics of the case.

 

Even though the case above dealt with an elderly person, everyone has problems recalling facts, particularly if the facts and circumstances surrounding them are a few years old or if the incident in question is complex.   In this regard, it must be remembered that it is not unusual, especially in larger civil cases, for a case to go to trial two or more years after the fact!  Over that period of time memories fade and critical details become fuzzy.  Cases can be won or lost based on these details.  This is yet another reason why trial preparation and review is important.  It is also another reason why clients should maintain their own working file of the pleadings, photographs and other papers in the case so that they have something to periodically review before trial.

 

The Sequence of Events.

 

Many clients and witnesses are naturally excited at trial.  There is sometimes a tendency to want to rush things and to get them over with.  Moreover, clients and witnesses have a tendency to want to render opinions or state their conclusions about the case or about one of the parties.   The opinions and conclusions of the witnesses are, however, usually irrelevant and inadmissible and, for this reason, useless.  Instead, as has been pointed out, clients and witnesses must stick to the facts when testifying.  Moreover, they must state those facts in the most understandable and logical manner possible.

 

In many cases the question of the order in which things happened is vitally important.  In this context, the date and the time when the events occurred can determine the outcome of a case.  In other words, it is often necessary to know what happened first, what event happened second, what happened third and so on.  The reason for this is that actions create legal rights and responsibilities.  Thus, if the order in which those actions occur changes then the rights and responsibilities of the parties may also change.

 

This is also true regarding events that happen in a split-second.  For example, in car accident cases all of the relevant events can occur in an instant.  In these situations, it is most helpful if the witness testifies as if he was dissecting the situation and recalling each event in slow motion paying close attention to the order in which each small factual detail of the accident occurred.  For example, a party might be asked: When did you first see the other car?  Was it before or after he hit you?  Did you hear brakes before or after you saw him?

 

Similarly, the amount of time between each event can be important.  This is because the law often changes the rights and responsibilities of the parties if one side or the other is put on sufficient notice or is made sufficiently aware of something in order to give that party time to react.  It can also be important in criminal cases, especially if the defendant is raising an alibi defense.

 

It should be noted that a chronological recitation of the time and sequence of events by a witness often shortens the time it takes to testify.  It also makes the case more understandable from the judge’s and jury’s perspective.  In this regard, if the judge or jury understands the testimony they are much more likely to pay close attention to it.  Reciting facts out of time order may tend to confuse the jury.

 

As a consequence of the foregoing, it is often helpful for a client, prior to trial, to have written down or developed a “time line” showing the sequence of events beginning with the earliest and going through until the last event.  The client may or may not be able to take this to the witness stand, but if it has been studied before trial the client will be in a better position to know where his testimony is headed and how to present it.

 

The Scene of the Incident.

 

There are many times when a particularized explanation of the physical layout of the place where the incident occurred is crucial in order for the judge or the jury to be able to understand the case.   This is particularly true in personal injury cases, automobile-related cases and in many traffic and criminal cases.  In these situations, it is usually very beneficial, immediately prior to trial, for the client to visit the scene and re-familiarize himself with it.  In doing so, the client should take special note of distances, sizes of objects, whether certain objects or places are visible from other places and the like.  Revisiting the scene can be an invaluable aid to trial preparation because it can refresh the memory and provide details that may be helpful in winning the case.  It is often also helpful for the client, prior to trial, to draw a diagram that designates the location of landmarks and other relevant objects.

 

Distances, especially in cases involving automobiles, can be very important.  Witnesses are notorious for misstating reaction times and distances on the witness stand.  This can be disastrous.  Therefore, clients should carefully review their recollection of distances as well as their estimation of reaction times before a case.  This is because many people can’t visualize and do not know how long 10, 50, 100 or 1,000 feet is.  Clients should consider actually going to the accident scene and watching traffic.  In doing this they should observe the speed of the vehicles and get a sense of the notion of “car-lengths” and distances between cars at various speeds and then determine how they can accurately state the facts of their cases so that it is understandable to the judge and the jury.  Clients should also note where various signs and traffic signals are located.  If the incident occurred in the evening, special note should be made as to the location of any sources of light.  With respect to traffic signals, careful note should be taken of the sequence of the lights from green to yellow to red for each lane at an intersection.  Clients should also note in these cases whether there is a “green arrow” at the intersection.  In traffic cases it is also helpful to note which direction is north, south, east and west with regard to the direction of traffic for the various traffic lanes.  Again, diagrams are usually very helpful.

 

Moreover, many times it is a good idea, prior to the trial, to take photographs of the scene of any incident.  Pictures should be taken from several angels and should be shot so that they give a good idea of the relative sizes of objects and the various distances between them.

 

The Conditions at the Time of the Incident.

 

Clients should also take care to review prior to trial what the general conditions of the scene were at the time of the incident.  What time did it occur?  What were the weather conditions?  What was visibility like?  Was it light or dark?   In automobile-related cases, special attention should be paid to what the road conditions were.  Were conditions slippery or wet?  All of these issues can have an effect on the ability of the parties to see what was happening.  They can all have an effect on the determination of whether one party or the other was exercising reasonable care or whether he was acting negligently.

 

Damages:  Medical Bills, Repair Bills, Lost Wages and the Like.

 

In civil cases where the plaintiff is seeking money damages from the defendant damages become a crucial element of the plaintiff’s case.  A plaintiff who cannot prove his damages in such a case may receive a smaller judgment than he might like.  In some instances, he may even lose the case.  In fact defendants will often call into question the necessity and/or reasonableness of any bills or damages that the plaintiff seeks.  Sometimes issues arise as to whether the damages were caused by the defendant’s conduct or whether the damages were incurred for reasons other than those for which the defendant is responsible.  This is particularly true if there is some question as to whether the plaintiff had an injury or an illness prior to the incident in question.   The same can be said any time that property damage is claimed for an old or used vehicle or property.

 

Proving damages sometimes raises the need for expert testimony.   Sometimes hearsay issues are also involved.  Plaintiffs, however, must take it upon themselves to fully know all of the details of the facts and circumstances surrounding their damages claims because, in most instances, they are the ones who will be the most responsible for testifying on this issue.  Not only should the plaintiff review all of the appropriate bills and other documents that support his damages claim but he should also be as familiar as he can with the underlying facts concerning those bills.  This is so that he can take the witness stand and orally describe what happened.

 

Thus, plaintiffs in particular should review, prior to trial, any repair bills, medical bills, tax returns, evidence of lost wages or other statements that they intend to introduce at trial to support their claims for damages.  In this regard, in personal injury cases, the plaintiff should know the types of medical treatments that were given, the number of times medical treatments were received, when they were received and what medication and medical aids were prescribed. (The medical reports themselves are also useful for this purpose.)

 

The same principle holds true for repair bills and for bills incurred to complete or cure any problem caused by the defendant.  Many times, in breach of contract cases, the issue of what has been paid will be important.  Therefore, the records of past payment should also be reviewed.

 

If lost wages are an issue, plaintiff’s should review and firmly understand what their salary and rate of pay were and be mindful of when any salary increases or any changes in their rate of pay took place.  In breach of contract cases, the plaintiff should be familiar with all substitute contracts and bills related to the completion of the contract or to the correction, replacement or repair of the defective work.  He should also know what was previously paid on the contract by the defendant.

 

Pain and Suffering; Plaintiff’s Personal Injury Cases.

 

Typically, in a personal injury case, an element of the plaintiff’s damages is his pain, suffering and mental anguish.  (By contrast, damages for pain, suffering and mental anguish are usually not recoverable in a breach of contract case.)  If the plaintiff is unable, however, to prove pain, suffering and mental anguish, he may not receive a recovery for these damages (although he may, of course, be able to recover any other damages that he is able to prove).  This is true even if it is absolutely clear that the defendant acted wrongfully or negligently.   In other words, damages for pain, suffering and mental anguish will not automatically be awarded in a case even if it is proven that the defendant was negligent or at fault.

 

How can plaintiffs prove pain, suffering and mental anguish?  Pain and suffering cannot be seen or objectively felt by other people.   While there are times when people suffer broken bones, lacerations, bruises or other forms of disfigurement, many times pain and suffering cannot be seen or objectively observed by the judge or the jury.  (In fact, no one can really see pain, suffering or mental anguish.)   Thus, proving pain, suffering and mental anguish can sometimes present a challenge.

 

In any event, in proving pain, suffering and mental anguish, plaintiffs may want to consider how they would testify in response to questions such as:  (1.)  How their injuries affected their ability to sleep;  (2.) how their injuries affected their ability to perform everyday household chores, such as cooking, cleaning, yard-work, doing the laundry, shopping, etc.;  (3.) how their injuries affected their ability to engage in their regular social activities with their spouse and their loved ones;  (4.) how their injuries affected their ability to engage in sports, hobbies or the other leisure activities in which they engaged prior to the incident;  (5.) how their injuries affected their ability to perform their jobs;  (6.) how long their injuries impeded their ability to work and to engage in other leisure and domestic activities; and (7.) how severe the pain or mental anguish was.  The more specific that plaintiffs are at clearly describing the answers to these questions, the more likely it is that they will be awarded a significant recovery for pain, suffering and/or mental anguish.  In this regard, it is often desirable to have an independent witness who has considerable first hand knowledge of the plaintiff and his living habits to also testify regarding how an injury affected these activities.

 

Address the Weak Points of Your Case.

 

Most people make the mistake of failing to consider the weak points of their own case.  When going into any type of contest, whether it is a sporting event, a battle or a trial, you must know your strengths and be aware of your weaknesses so that you can devise an appropriate game plan.  If you are a plaintiff in a civil case, you must remember that you not only have to prove the elements of your case, but you must also be prepared to address the issues or points that your opponent will attempt to make.  Again, criminal defendants do not have to prove anything and can rely on the defense that the prosecution’s evidence fails to prove guilt beyond a reasonable doubt.  Civil defendants can also choose not to put on any evidence and rely on the defense that the plaintiff’s evidence is insufficient.  Nevertheless, if defendants intend to raise affirmative defenses, counterclaims or to put on evidence refuting the prosecution’s or the plaintiff’s side of the case they must address the facts, issues or points that the prosecution or the plaintiff intends to prove.

 

In any event, you cannot be myopic.  You must look at the situation from your opponent’s perspective.  You should ask yourself:  How can my opponent hurt my case?  What will his evidence and testimony be?  What documents will he introduce?  It’s easy to be self-righteous.  It’s more difficult, but many times much more productive, to step back and look at things from a worst-case perspective.  Clearly, the opposing lawyer will raise facts relating to the weak or embarrassing aspects of your case.  You must be prepared and have convincing evidence to explain them.  Once again, pretrial preparation is the best way to develop this explanation and to bring to bear the evidence to support it.  Remember, the explanation for your weak points must usually be supported by admissible evidence.  This means that your explanation must be supported by your testimony, the testimony of witnesses who have first hand knowledge of the facts about which they are testifying or by other admissible documents.  It cannot be supported by hearsay testimony or anyone’s opinion (including your own) unless, of course, that opinion is rendered by a qualified expert.

 

Naturally, you cannot commit perjury or fabricate evidence in order to cure the weaknesses in your case.  In fact, if the weak points of your case cannot be explained or eliminated then it is probably necessary to make a sincere attempt to settle the case and hope that the opposing side will agree.  If you are a plaintiff in a civil case and your case is weak enough, this may even mean agreeing to dismiss the case.  For defendants in a civil case, this probably means agreeing to pay the plaintiff a sum of money, hopefully on affordable terms.  For defendants in a criminal case, this probably means agreeing to a plea bargain.  Alternatively, it may be necessary for a criminal defendant to enter a guilty plea in hopes of some leniency in sentencing.

 

In any event, in order to overcome the weak points of your case, it is always helpful to review and consider the following questions:

 

(1.)  Is your expected testimony likely to be consistent with the every statement that you’ve made to any person at any time in the past?  Anything that you’ve said to anyone prior to trial that is different from what you say on the witness stand may very well come back to haunt you.  If you’ve made any prior inconsistent statements, admissions and confessions to anyone, you’d better let your lawyer know about them in advance and be able to give an extremely convincing reason why such statements were made.   The people to whom prior inconsistent statements, admissions and confessions are typically made include:

 

*  Doctors, nurses, physical therapists, chiropractors and other medical personnel

(these statements often show up in medical records);

*  The emergency room personnel at a hospital;

*  Ambulance personnel;

*  A friend, a family member or a business associate;

*  The police (people often forget, or conveniently overlook, what they told

an investigating police officer);

*  People at the scene of the crime or the accident;

*  In criminal cases, other inmates in lock-up or in jail;

*  Insurance adjusters, claims representatives and private investigators.

*  Don’t forget any prior written or taped statements, confessions or reports that

you submitted to any of the forgoing.

 

(2.)  What unfavorable physical or tangible evidence exists?  Where is it?  What is it?  This includes weapons or any evidence of a crime or the fruits of it.  It also may include DNA, blood or breath test results.  It can also include pictures, recordings or videotapes taken of any property damage, personal injuries or police interrogations.   It may include photographs taken at a police lineup.  Sometimes videotapes are also made of the alleged crime itself.   In any event, you should ask yourself:  Is your expected testimony consistent with the physical evidence?  You should then ask yourself questions such as:

 

*  Is the location of the injury consistent with your version of the facts?

*  Is the location of any property damage consistent with your version of the facts?

*  Is the amount of physical damage to an object consistent with your version of the facts?

* What is the physical layout of the scene of the crime or the accident?  Given the scene

and the physical evidence, could this event have happened as described?

*  Are the sizes and distances of objects consistent with your version of the story?

*  Is the speed of the vehicles consistent with your version of the story?

*  Could you possibly have seen what you claim you saw given the time of day, light and

physical layout of the scene?

 

In other words, will your testimony make sense in light of the physical and objective evidence?  If it doesn’t, once again, you’d better have a very good explanation and be prepared to give it to the judge or jury.

 

(3.)  Is there anything in the documents or records that you’ve produced in response to a request for production of documents or which has been subpoenaed that could be embarrassing or inconsistent with your version of what happened in the case?   In this regard, records that have been subpoenaed by the opposing side often provide information that can be detrimental to your case.  These records include, but are not limited to:  Medical records from your doctor or hospital; employment records; and sometimes your bank statements and financial records.

 

Many times, especially if a large number of documents are involved, lawyers are at the mercy of their clients to have the foresight to point out potential problem areas or points of embarrassment that can be found in these documents.  Reviewing documents can be particularly overwhelming in many commercial cases and in products liability cases where the lawyer may be given thousands of documents to review.  This makes it all the more important for you to understand the elements of the case.  If you understand the elements of the case, you are far more likely to alert your lawyer to the existence of both favorable and unfavorable evidence that he may miss amongst the multitude of other documents.  By pointing this information out prior to trial, you are much more likely to obtain a favorable result.

 

(4.)  In civil cases, you must review and consider the answers that you’ve given to any written interrogatories as well as any testimony that you have given in depositions taken earlier in your case.  It is absolutely imperative that you do this before trial.  Lawyers will use the answers that you gave to earlier questioning against you if your testimony at trial is not consistent with your prior answers. (Interrogatories and depositions are discussed in the chapter dealing with civil procedure.)

 

(5.)  You should also consider and discuss with your lawyer any prior criminal record that you have. This is true even in civil cases, because your prior record may be used to impeach your credibility.   In criminal cases, it is also extremely important for determining whether a criminal defendant should testify.   It is also important for plea bargaining, bond determination and sentencing purposes.

 

(6.)  You should also consider whether you have any relationship, whether personal or financial, with any of the witnesses who will testify on your behalf.  If so, the opposition will try to show some element of bias to reduce the credibility of that witness.  In this regard, if a friend or relative is to give important testimony relating to certain facts, the lawyer and the client should consider whether those same facts can be established by another more independent witness or document.  If so, it is probably more desirable for the independent witness to testify.

 

Weak Points:  The Opposing Witnesses and Documents.

 

In considering the weak points of your case, it is necessary to know who all of the adverse party’s witnesses are and what their likely testimony will be.  You should also be prepared to respond to any documents that are likely to be introduced by your opponent to support his version of the case.  Again, this boils down to preparing for the worst before trial and advising your lawyer of all the unfavorable evidence beforehand.

 

War Story:  Mark once represented a client who was 19 years of age and charged with statutory rape of a 14 year old.  Under the law of the state in question, statutory rape was a felony and was defined as sex between an adult and a minor under the age of 16.  Moreover, under the law of that state, it was not necessary to show that any force was involved when the sex occurred.  Thus, an adult could be found to be guilty of statutory rape even if the victim consented to the sex.  The case in question involved consensual sex that allegedly occurred while the client and the victim were dating.

 

Prior to trial, Mark’s client was offered a plea bargain by the prosecution.  Under the terms of the proposed plea agreement, the prosecution would allow the client to plead guilty to the lesser misdemeanor offense of contributing to the delinquency of a minor.  In return for the guilty plea to the lesser charge, the prosecution would agree to dismiss the more serious statutory rape charge.  The client, however, unexpectedly refused the plea bargain despite the fact that under the terms of the proposed plea bargain the client would not be required to serve any jail time beyond that which he had already served while awaiting trial.  Mark’s client, however, steadfastly maintained that he did not have sex with the alleged victim.

 

At trial, the first prosecution witness was a friend of the victim.  The friend testified on the witness stand that she had walked in on Mark’s client and the victim while they were having sex.  She testified that both parties were lying on the bed and that she was standing two or three feet from the couple.  She said that as soon as she saw that they were having sex that she immediately turned and left the room.

 

At counsel’s table Mark quickly  whispered to his client:  “Is that true?”

 

The client responded: “No, we were just lying there.”

 

Mark:  “Were your clothes off?  Why would she be lying?  How am I going to

convince the court that she’s not telling the truth?”

 

The client:  “I don’t know.”

 

In the above case, Mark knows his client is sunk because his client neither forewarned him of the testimony nor gave him any clue as to how to impeach or refute the testimony of an eyewitness.

 

This situation was made possible, in part, because the defendant steadfastly maintained that he “never” had sex with the victim.  Also he told his lawyer prior to trial that he no recollection whatsoever of the events that led to the charges.  In discussing a possible plea bargain prior to trial, the prosecutor had merely told Mark that he had a witness but he didn’t tell Mark who the witness was or what the witness would say.  Mark merely assumed that his client would accept the plea bargain and was shocked when he didn’t.

 

Perhaps Mark should have done a better job of investigating the case.  In any event, this type of situation can happen, especially if a lawyer (particularly a criminal lawyer) has several cases in one day (which is not that unusual).  The point here, however, is that the client failed to inform Mark of who the prosecution’s possible witnesses could be.  The result was disaster for the client.

 

One reason that you should inform your lawyer of who the possible adverse witnesses are is so that you can explore whether you can prove that they have some motive to lie or to misstate the facts.  What type of relationship does that witness have with the parties in the case?  Are they angry for some reason?  Do they have any bias against you or in favor of the other party?  Was the adverse witness really in a position to see what was happening?  Are there any other witnesses or persons who can refute or impeach the adverse witnesses’ testimony?  What would they say?  Naturally, any witness or document needed to impeach the credibility of an adverse witness must be subpoenaed in a timely manner well in advance of trial.  This, of course, again illustrates the need for full disclosure of all-important information pertaining to the case by the client.  It also points out the need for pretrial preparation.

 

Alcohol, Drugs and Other Conditions of Impairment.

 

Naturally, the lawyer and client should review, prior to trial, whether the client, the opposing party and/or any witnesses were somehow impaired in recalling events.  Was anyone under the influence of alcohol or drugs at the time of the incident?  If so, what and how much had been taken?  When were the alcohol or drugs consumed?  Were any of the parties being treated for any medical condition?   In this regard, prescription and over-the-counter medications should be considered.  So should illegal narcotics.  Were any of the parties or witnesses required to wear glasses or contact lenses?  Were they wearing them at the time of the incident?  Were any of the parties or witnesses somehow otherwise medically impaired or unable to recall, see or hear all of the relevant events?

 

Cross-Examination.

 

In any case that goes to trial the lawyer representing your opponent will have the opportunity to cross-examine you if you take the witness stand.  Criminal defendants, however, who exercise their right not to testify cannot be examined or cross-examined by the prosecution.

 

The opposing lawyer’s questioning on cross-examination is usually designed to point out weaknesses in your case and to attack your credibility.  In doing this, the opposing lawyer may attempt to put you on the defensive and make you lose your temper or composure.  Many times this is so that you will get confused or make exaggerated statements.  The other lawyer may also try to show that your recollection of the facts is faulty.  In this regard, the other lawyer may try to confuse you about the facts in order to get you to admit that you have forgotten certain details or to point out that you were not in a position to adequately observe what was happening.  During the course of cross-examination, the other lawyer may also ask you whether you have had any prior felony convictions or any misdemeanor convictions involving lying, cheating or stealing.  This is true even in civil cases, such as divorce and personal injury cases.  Again, this is done to attack your credibility.  Also, the opposing lawyer may ask you and your supporting witnesses about your relationship with one another.  In doing this the opposing lawyer will be trying to show bias or a financial interest in the outcome of the case.

 

One aspect of cross-examination by the opposing attorney that differs dramatically from direct examination by your own lawyer is that, unlike direct examination, the other lawyer is allowed to ask leading questions.   As noted above, leading questions are questions that suggest certain answers and, in many instances, call for a yes or no answer.  Many times these questions will contain factual assumptions that can be quite damaging to your case.  This is another reason why it is very important to listen carefully to the question that is being asked.

 

Consider for example, the question: “ Isn’t it true, that you arrived home late on Wednesday?”  The question suggests the answer that you arrived home late on Wednesday.  This question may be permissible on cross-examination, but if you were asked such a question you should probably ask the opposing lawyer to clarify what he means by “late”.   In other words, you should be careful when being cross-examined to dispel any incorrect assumptions contained in any question that you are asked.

 

Answering Questions on Cross-Examination.

 

As is the case with direct examination by your attorney, you should always answer the question that is asked by the opposing lawyer.  You do not want to appear to be evading the question because the judge and/or the jury will think that you are hiding something.  It is also annoying because it unnecessarily consumes time.

 

Assuming that you do, in fact, answer the question that is asked by the opposing lawyer, the next question is:  Should you provide information or details not directly called for by the question?  This is a difficult issue for lawyers and clients to deal with and the answer depends on how familiar you are with the law and the facts of the case and how good of a witness you are.  Sometimes the safest answer, and the advice that many lawyers give to their clients is– just answer the question that the other lawyer asks and then “shut up”.  Keep your answers short and do not provide any information other than that which is absolutely necessary in order to answer the question in a manner that is not misleading.  It will then be up to your lawyer (when he gets a chance to ask you additional questions on “redirect examination”) to get you to provide more favorable details and to clear up any confusion that the other side has created during its cross-examination of you.  This is because many clients, especially clients who are angry, excited, overly self-confident or who are less sophisticated, make the mistake of saying too much in answering cross-examination questions.  They then end up putting their foot in their mouth.

 

War Story:  A defendant took the witness stand in his own defense in a criminal case.

 

Prosecutor:  “Did you go to the victim’s home at midnight?”

Defendant:    “No, I went bowling with Bill.”

 

Upon hearing this, the arresting policemen whispered to the prosecutor that the defendant, during the police investigation, told him that he was with his girlfriend at midnight.

 

In the above example, all that the defendant had to say was “no”.  Instead, he provided unnecessary additional information (that is, that he was with Bill).  This can potentially allow the prosecutor to put the policemen on the witness stand to rebut the defendant’s testimony and destroy his credibility.  It is possible, of course, that if the defendant had simply said “no”, the prosecutor would have asked where he did, in fact, go.  On the other hand, perhaps the prosecutor wouldn’t have asked this question.  The point here, however, is that it is often dangerous for any party on cross-examination to provide any information other than what is called for in the question, unless he is absolutely certain about the elements and the weak points of his case.  Moreover, he must be disciplined enough to resist any temptation to embellish or exaggerate the truth.

 

It may be argued that the defendant in the above example was probably guilty and that it is in the interests of justice that guilty people be put in awkward situations.  Unfortunately, innocent people who lose their composure also sometimes make critical mistakes that are similar to that referenced above.

 

If You Don’t Know the Answer, Say So.

 

There may come a time in a case where you really don’t know the answer to the question.   If you don’t know the answer, then simply tell the judge or the jury that you don’t know the answer.  This seems to be simple and obvious advice.  Once again, however, witnesses often violate this very simple principle.  Usually, they violate this principle because they are embarrassed to admit that they don’t know the answer.   Alternatively, they mistakenly feel that if they don’t know the answer that they will lose.  The point here, however, is that if you answer a question and you are later proven to be mistaken or wrong, it will have a negative effect on your credibility.  This is true even if you were trying to be honest and your mistake was purely innocent.

 

Even worse are situations where witnesses think they are knowledgeable and then go on to elaborate on facts that they know nothing about.  They then typically make statements that are later shown to be incorrect or which tend to prove the opposition’s case.  They then end up losing.

 

War Story:  Bill, an attorney, had a case involving the issue of the fraudulent transfer of various parcels of real estate and other assets from Corporation A to a related company, Corporation B in an attempt to avoid creditors.  The case also involved issues relating to whether Corporation B should be held liable for all of Corporation A’s debts.  The assets in question were real estate, equipment and funds held in checking accounts in Bank Y.  The case was fairly complex and involved a myriad of issues, but because his client was financially struggling, Bill did not undertake to incur the legal expense of utilizing extensive pretrial discovery.  Bill also felt fortunate because, aside from requests for production of documents that had been served on him, the opposing party had not demanded to depose Bill’s client before trial.  During the trial, however, things took a dramatic turn for the worse when the following occurred.

 

Bill’s client was on the witness stand and was shown two bank statements by the opposing lawyer.  One was a closing account balance of Corporation A in Bank X.  The other was the opening account balance of Corporation B in Bank Y.  The closing balance in Bank X and the opening balance in Bank Y differed by only a small amount.  The statements also showed that the opening and closing of these accounts occurred at about the same time.  The opening and closing account balances in Bank X and Bank Y, however, had not been discussed by Bill and the opposing attorney prior to trial.  Moreover, Bill and his client had not discussed the bank statements prior to trial either.  On cross-examination the opposing lawyer asked the following question to Bill’s client:

 

Opposing lawyer:   “Are the opening balances in Bank Y the same funds as the funds shown in the closing balance in Bank X?”

 

Client (looking at the statements and hesitating):   “Er yes, I think so…yes they are.”

 

Unfortunately, if the client’s testimony was true the client would have committed a fraudulent transfer.

 

After the trial was over and Bill’s client lost the case it was, in fact, discovered that the client was mistaken.  They weren’t the same funds.  In other words, the client didn’t know what he was talking about.  The client was the President of both Corporation A and Corporation B.  They were both very small companies.  The client was just too embarrassed to admit that he did not know the answer to the opposing lawyer’s question.  Unfortunately, the judge believed the client’s erroneous answer and rendered an adverse decision based, in part, upon it.

 

Don’t Get Taken Down the Garden Path on Cross-Examination.

 

The preceding war story also illustrates that testimony, which may seem favorable, can be turned against you.  If you are unprepared and unwary, the opposing lawyer can lead you into making statements that seriously compromise your credibility and your case.

 

A common scenario is that the opposing lawyer will ask a series of leading questions that usually require simple yes or no answers.  Usually, the first two or three questions will evoke a response that will seem to be favorable to your case.  In many instances, there is really no problem with this because the testimony given is consistent with what was said on direct examination.  What happens in too many instances, however, is that the opposing lawyer will get you on a roll.  He will continue to ask questions that seem to support your claims, hoping that you will get excited, confused or prone to exaggeration.  The rug is then pulled out by one or two final questions that refer to some earlier testimony or statement that you’ve made that is totally inconsistent with your current testimony or your theory of the case.  This has a devastating effect because, once again, it can destroy your credibility.

 

War Story:  Archie injured his back in a car accident and sued the driver of the other car.  He sued for damages related to medical treatment for his back.  He also sought recovery for pain and suffering.  Archie told Ben, his lawyer, during their very first consultation that prior to the accident “his back was fine” but that he had seen a doctor “a while back” for back pain.

 

This was a fairly small case.  Consequently, Ben did not take any depositions because he wanted to keep his time and costs to a minimum.  Prior to trial, however, the defense issued a request for production of Archie’s medical records.  Ben also got a copy of the records and reviewed them several months before trial.  The medical records indicated that Archie had undergone a year-long treatment for back pain by his family physician prior to the accident.  In fact, Archie’s last treatment was 11 months before the accident.

 

In the weeks prior to trial, Ben was busy with several cases.  Consequently, he failed to review Ben’s medical records again before trial.  The trial date arrived quickly and time was short.   Ben told Archie immediately before the trial that he wanted to make sure that when Archie testified that he would tell the jury that his back “was fine” before the accident.

 

At trial, Archie testified on direct examination that he injured his back as a result of the accident.  On cross-examination by the defense attorney, however, the following occurred:

 

Defense Attorney:  “You say that you injured your back as a result of this accident?”

Archie:   “Yes.”

Defense Attorney:  “Did you have a back problem prior to the accident?”

Archie:    “No.”

Defense Attorney:  “You didn’t have a back problem before this accident?”

Archie:    “No.”

Defense Attorney:  “So it’s your testimony that you never had a back problem prior to this accident?”

Archie:   “No, my back was fine before the accident.”

 

At this point, the defendant’s lawyer asked Archie who his family doctor was.  The lawyer then showed Archie the medical records that indicated that he had prior treatments for back pain.

 

Defense Attorney:  “So, contrary to your earlier testimony, it’s true that you did have problems with your back prior to the accident?”

Archie:  “Yes, but … I didn’t know how long prior to the accident that you were talking

about.”

 

In the above case, because of lack of trial preparation, and because Archie did not listen to and carefully consider the ramifications of the questions being asked he may have allowed the defense lawyer to make him look like a liar.  This may have hurt Archie’s chances of winning.  Archie may have thought that he was doing exactly what Ben wanted him to do by reinforcing the notion that he was not having back problems immediately before the accident.  He was, however, being asked a slightly different question that brought into question his entire medical history.  That question had more far reaching implications.  The defense attorney successfully fed off of the fact that he knew that Archie was emphasizing that his back felt fine at the time of the accident and used it to get him to emphasize a point that was not true, thereby bringing into question Archie’s credibility.  Archie was led down the garden path by the defense attorney’s crafty use of a point that he knew that Archie wanted to make.

 

Perhaps Archie’s lawyer should have objected or gotten the defense to clarify some of his questions before Archie got himself too far out on a limb.  Ben may have even objected to the phrase in the last question “contrary to your earlier testimony.”  All of this, however, is beside the point.  Archie and his lawyer should have better prepared for trial and they should have anticipated the questions about the prior back problems.

 

Consider how much more effective Archie’s testimony would have been if he had been instructed by Ben that if asked a question about the condition of his back prior to the accident, that he should respond truthfully by saying:  “My back felt fine right before the accident and I was receiving no treatment or medication for it.  I did, however, receive prior treatments for my back from my family doctor about a year before the accident.  At the time of the accident, however, my back was fine.”  If Archie had been prepared, he would have used this answer in response to the defense lawyer’s second question and his credibility would have been better preserved.

 

A simple rule to remember on cross-examination is that you must always listen to the question that’s been asked extremely carefully.  Do not allow yourself to be taken down the garden path to the slaughterhouse by the other lawyer.  Be careful and be wary of answering a question with just a yes or no response when the yes or no needs to be qualified with an additional explanation.  If you need to qualify a yes or no answer, you should do so only if the additional information that you provide is consistent with the facts and the entire history of your case, including the investigations, discovery and any statements made prior to trial.  Normally, only clients who have done their homework and who are thoroughly knowledgeable of the elements and the weak points of their cases can adequately and safely undertake to provide detailed explanations to the questions that are propounded by the opposing lawyer on cross-examination.  Clients who are less prepared and less knowledgeable must depend on their lawyers on redirect examination to bring out matters that provide an adequate explanation as to the points made by opposing counsel on cross-examination.  While having a lawyer rehabilitate or “bail out” his client on redirect can be an acceptable cure for poor responses given during cross-examination, it is usually much more effective if the client is able to adequately field and handle the opposing counsel’s questions himself.  Again, client preparation is the key.

 

The Need to Have Witnesses and Docuements Subpoenaed.

 

In considering the procedural aspects of a case, it is important to remember that it does the client no good to have potential witnesses who have not been subpoenaed not present at court on the day of trial.  This is true regardless of how valuable or important those witnesses may be to winning the case or refuting the other side’s testimony.  This is because the court will not grant a recess or a continuance to allow the parties to bring those witnesses to court if they have not been subpoenaed.  For all intents and purposes, the information those uncalled and unsubpoenaed witnesses possess is forever lost.  This is particularly likely to happen if a party merely trusts a friend or a relative to appear and testify but fails to subpoena him.  Sometimes, despite the best of intentions, the favorable witness may unexpectedly become sick or get delayed.  If, however, the favorable witness has not been subpoenaed a court may not grant a continuance to allow him to testify.  Naturally, this could adversely affect the outcome of a case.

 

For example, suppose that during the course of a trial the plaintiff’s lawyer rests his client’s case.  (This means that he has announced to the court that he does not intend to put on any other evidence.)  Assume that the weather conditions and visibility are important aspects of the case and that the plaintiff’s evidence indicates that the weather was cloudy.  Assume further that during the course of the defendant’s testimony that the defendant testifies that the sky was “clear”.  Assume yet further, that upon hearing the defendant’s testimony, the plaintiff whispers to his lawyer,  “but he [the defendant] told John the sky was cloudy.”  In this situation, if John was not present at trial and if he had not been subpoenaed, there would be no way for the plaintiff’s attorney, on rebuttal, to call John to the witness stand to testify that the defendant told him that the sky was cloudy.  Moreover, the plaintiff could not testify as to what the defendant told John because this type of testimony would be inadmissible hearsay.  Sadly, John’s potential testimony would be lost forever and would have no impact on the outcome of the case.  This would be true regardless of how relevant or important John’s testimony or evidence was.

 

The moral of the story is that clients must, several weeks before trial, make sure that they’ve reviewed with their lawyer the list of witnesses that will be necessary to establish the elements of their claims or defenses.  The lawyer must also have the addresses of these parties.  The same is true for all persons who have possession of important letters and documents.  This is so that the lawyer has time to issue appropriate subpoenas so that all necessary witnesses and documents are in the courtroom on the day of trial.

 

Summary.

 

Nothing in this chapter or in this book is intended to imply that you should not tell the truth on the witness stand.  You have a legal obligation to do so and are subject to criminal penalties if you don’t.  Nevertheless, you are entitled to have your case presented in a manner that is, from a factual perspective, understandable, forceful and persuasive.  In this regard, you must be able to recite the facts of your case in a coherent and understandable manner so that the judge and all of the jurors will remain interested enough to listen to you.  Listen to the questions that both lawyers ask you very carefully.  Take each question one at a time.  Answer the question that is asked!  Don’t answer the question that you think has been asked.

 

Remember, your lawyer cannot testify for you or coach you on the stand by asking you leading questions.  You are on your own.  You must have a clear idea of what the elements of your case are so that when your lawyer asks open-ended questions you can direct your testimony to the important elements of your case.  To the extent that you do not do this, your testimony will be less effective.

 

You must show the judge, the jury and all of the parties including the opposition the appropriate amount of respect.  Dress in a manner that is respectful to the court and to the jury.   Do not do anything that will potentially alienate the judge or the jury.  Remember, jury verdicts must usually be unanimous and juries consist of multiple personalities with different types of likes and dislikes.  In order to be effective, it is helpful to look at the judge or the jury while testifying because this increases the chances that they will listen to, and hopefully, believe you.

 

Be prepared for cross-examination.  Think about and review the weak points of your case prior to trial.   Think about what the opposition is trying to do.  Don’t allow yourself to be duped into making exaggerated or ridiculous statements that aren’t supported by the other objective evidence in the case or that are inconsistent with other statements that you’ve made before or during the trial.  Again, do not provide any unnecessary information in response to a question asked by the opposing side unless you are very prepared and absolutely sure that you are right.

 

In other words, do your homework.  Several weeks before trial make sure that your lawyer has subpoenaed all necessary witnesses and documents.  Ask your lawyer what the elements of your case are.  Ask him what you and your opponent have to prove?

 

Prior to trial, review your file.  Review all potential exhibits, pictures and documents.  Read any depositions that you’ve given and all interrogatory answers that you’ve signed prior to trial.  Visit the scene of the incident.  Ask your lawyer to identify the questions that the opposing lawyer is likely ask you on cross-examination.  In short, if you are prepared you will be a more effective witness.

 

In the final analysis, of course, no amount of trial preparation will allow you to win the case if the facts, the law and the evidence in the case are against you.  Assuming, however, that your case involves issues, points of fact and points of law that are genuinely in dispute, being prepared and making a credible, logical and persuasive presentation of your case will greatly enhance your chances of success at trial.

 

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DISCLAIMER

The article above is an excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination.” (LLYC)  Published by the Graduate Group in 2003.   The publisher is now out of business and the book is now out of print.

 

The article above is to provide the reader with only a very general legal framework or reference point—a mere “starting point” to permit the reader to engage in further analysis.  It is not the “final word” so to speak and is not designed to give anyone legal advice.  As such, the foregoing article MAY NOT be relied upon by anyone to resolve his/her/its legal matter. Readers must consult their own lawyer and/or take responsibility for doing their own independent legal research/representation beyond merely reviewing this article.

 

Please keep in mind that laws do change over time and that laws differ amongst the various states, territories, nations and locations. So the rules and laws stated herein may not apply to the reader.

 

Any similarities in names, descriptions or accounts of persons, entities or events is purely accidental and all person/characters, entities and events herein are fictional and not intended to depict or describe any actual person, event or circumstance.

 

Despite the passing of many years most of this book is still relevant today.  It is still helps very useful in terms of explaining the how legal problems get handled, the attorney-client relationship, trial and testifying and very importantly the general manner in which the legal system and the courts operate. Important concepts like discovery, summary judgment and a host of other terms are explained and defined.  Civil, criminal, family law, personal injury and a host of other types of cases are discussed in remarkable detail.

 

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.

 

Dollar amounts for costs, expenses, attorney’s fees, damages etc etc are probably very different because this book was published in 2003 and costs and dollar figures can vary widely depending on the location of the legal matter.   This naturally would also include changes and new jurisdictional dollar limits for most cases before any given court.

 

There have been extensive changes to the Bankruptcy Code since LLYC was first published.  As such, any references to bankruptcy rules, laws and/or legal requirements could be out of date and/or incorrect.

 

Since the LLYC was written there have been changes in the way third party costs and expenses (such as for experts and court reporters etc) may be funded and/or paid for—often making it somewhat easier for the client and his/her lawyer to carry a plaintiff’s personal injury/product’s liability case.

 

If a client has been damaged or lost money because of the ethical violations of his/her lawyer (for example, if the lawyer has stolen or misappropriated funds from the client or the client’s escrow account) many state bar associations have established separate trust funds to reimburse clients for the wrongs of their lawyers.

 

With regard to “property law” matters, this book has been written largely from the perspective of someone living in a state with English “common law” origins (which is most of the United States).  However, folks who live in “community property” or “civil law” jurisdictions my have different rules regarding discussions pertaining to divorce property settlements, real estate law, inheritance and/or other property law matters.