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Helping Your Witness Look Mahvelous

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One of the characters Billy Crystal created when he was on Saturday Night Live was Fernando[1].  Fernando’s catch phrase was, Darling, I got to tell you something. And I don’t say this to everybody. You look mahvelous. Absolutely mahvelous. You know, my dear, my father used to say to me, Nando, don’t be a schnook. It’s not how you feel, its how you look. It is better to look good than to feel good[2].

Except for some professional witnesses such as police officers, child protection workers, others who regularly appear in court, and experts, most people who take the stand are anxious and, often, uncomfortable.  As trial lawyers one of our most important tasks is to help our witnesses be successful. So how do we make our witnesses look “mahvelous”?

One way is through the use of exhibits. Steve Lubet tells us in Modern Trial Advocacy, “[Y]ou can enhance the effectiveness of almost any witness by illustrating the testimony with charts, photographs, maps, models, drawings, computer simulations, and other visual aids[3]. As a society we are accustomed to receiving a substantial amount of information visually. By utilizing visual images and physical objects we enhance the memorability of the information attached to those images and things.

Making the information more memorable is one benefit of using exhibits. Another benefit is changing the focus from all eyes on the witness to the exhibit–it helps the witness relax. And, by transforming the witness into a teacher with props and aids, you alter his or her perception of being “on stage.” The witness now has something to do with their hands and has the ability to stand and move around in the courtroom.

Take a look at our selected vignette from Frank Rothschild’s NITA video program, 31 Ways to Winning Advocacy: the scene shows a direct examination where the lawyer asks the witness to use an exhibit. Things rapidly go south the moment the witness stands up. What do we learn from this examination that we can use to prevent problems the next time our witness is testifying and using an exhibit?

The first lesson actually comes before your witness ever takes the stand. Witness preparation, even if it only comes from a few minutes in the hallway before a trial starts, is critical to successful direct examinations.  This is especially true when it comes to working with exhibits. Practicing with exhibits or demonstrative aids is key to a great exam. Explain the purpose of the exhibit, why it is important to the case, how the witness can use the exhibit to help tell the story, and where in the examination you will introduce and use the exhibit. Begin with a rehearsal of the foundation. Let the witness know the importance of answering these questions. Because the persuasive foundation (relevance) portion is as important as the legal foundation, you should also practice those questions and provide an explanation of why you are asking them – even if the exhibit is stipulated into evidence. Next come the questions where you actually use the exhibit. Remember, even though the exhibit is in evidence, it only becomes important if the fact finder thinks it is important. Practice with the witness until he or she is comfortable with the process.

In the next step you become a traffic cop – it is your job to direct the witness’ movement. The video shows what happens when you fail to tell the witness where to stand. Your job is to determine the best line of sight so the fact finder is able to see the exhibit and the witness. Tell the witness exactly where to stand. Be polite and respectful. The witness and fact finder will appreciate your control. Except when writing, make sure the witness does not turn his or her back to the fact finder when speaking, pointing, or demonstrating. In this way the witness becomes a teacher. Witnesses who speak while facing the exhibit have their voice get lost in the same way your elementary school teacher’s voice was lost when they talked while writing on the blackboard.

Step Three continues in your direction. When you ask the witness to place marks on a map, photo, or diagram, be specific. Unlike our friend in the video, give explicit directions on what you want the witness to do, e.g. Please put a two inch black X at the place you were standing at the time of the accident. The witness will appreciate your instructions and the fact finder will find the exhibit more compelling.

The final reminder for lawyers in most jurisdictions and in most courtrooms is, once the exhibit is received into evidence it is no longer your exhibit. It now belongs to the court and is part of the record. You cannot alter evidence once it is received. Therefore, consider using a copy or an overlay for your alterations that you then admit as a second exhibit once the testimony is complete.

Using firm but respectful and polite methods of witness control will help your witness feel empowered. More importantly, in the eyes of the jury, to use Billy Crystal’s words, they will look “mahvelous.”

 


[1] Billy Crystal as Fernando interviews New York Yankees owner George Steinbrenner in a skit from “A Comedy Salute To Baseball” — part of NBC’s All-Star Game programming in 1985. https://www.youtube.com/watch?v=ygs-4GfqPcM&feature=related

 

[2] Paul Shafer and Billy Crystal, You Look Marvelous, December 14, 1999.  Universal Special Products. © 2000 Universal Records.

[3] Lubet, Modern Trial Advocacy (4th Ed. NITA 2009), at 72.

About Mark S. Caldwell

Mark S. Caldwell is NITA's Director for Specialty Programs. In this role Mr. Caldwell designs, administers and serves as an instructor for programs in bankruptcy litigation, child advocacy, and tax litigation. Other programs included under the Specialty Programs banner include NITA's work with other organizations for co-sponsored programs and many of NITA's pro bono courses. His role in NITA's pro bono efforts includes serving as Program Director for many of NITA's courses for lawyers and advocates who represent under-served communities, including Native American lay advocates, legal services lawyers, lawyers and advocates who represent those living with disabilities and the elderly, lawyers and advocates who appear in cases involving children, and lawyers who work in public service positions. In addition to his involvement in these courses, Mr. Caldwell also serves as NITA's Program Director for the Basic Trial Skills and Deposition Programs in Colorado. He is also an instructor at many of NITA's Teacher Training Programs.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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