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Monthly Theme: Examinations Part One

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Using Smaller Questions to Make Points Bigger in Direct and Cross Examination

(First of Two-Part Series)

Written by NITA guest blogger, Michael R. Fontham

A common failing of lawyers in trial is the tendency to cede control to witnesses, whether on direct or cross-examination.  Lawyers give up control by asking general rather than specific questions.  It may seem paradoxical, but the best method to make big points in examining witnesses is through small questions, strung together to create mini-themes.  The techniques are different in direct versus cross, but the aims should be the same:  to emphasize the strongest points forming the central message of the attorney’s case.  Many lawyers fail to understand that controlling the testimony is essential to presenting a case theory in the most powerful way, which requires the use of specific questions.  This article will discuss techniques for using this approach in direct and cross-examination.

Part I: DIRECT EXAMINATION

The bugaboo of lawyers on direct examination is the fear of leading.  Because they often have only a vague understanding of what constitutes a leading question, attorneys shy from the specific and resort to the general:  “Tell us what happened that day.”  The problem with this approach is that it places all the responsibility on the witness to provide an understandable portrayal, while emphasizing the points that the constitute the central massage of the case theory.  Most witnesses, even with extensive preparation, have difficulty remembering all the important points, placing them in the proper order, and describing them with the most effective detail.  Usually the witness forgets or jumbles the main points, misstates them altogether, or develops unimportant material.  A good direct examination requires that the attorney assume control of the examination, “leading” the witness through it in a manner that selects the important points for emphasis and directs the witness to develop the related facts.

To deal with the fear of leading, you must first place it in context.  Leading is not a mortal sin.  The objection to a “leading” question is simply an objection to form; the most that the judge can require you to do is restate the question in a non-leading manner.  Leading on direct happens often in every courtroom in America and often produces no objection at all.  So it is not a big deal, and certainly not big enough to drive you to give up control of your case presentation.  That said, it is much better not to lead, because leading shifts the focus from witness to lawyer and reduces the credibility and spontaneity of the factual descriptions.  Thus, the solution is to maintain control and yet avoid leading.

This “leads” to the question:  How do you avoid leading?  First, understand that a leading question is one in which the lawyer, rather than the witness, provides the pertinent information to the record.  Any question that can be answered with a “yes” is a leading question, because it simply asks the witness to affirm what the lawyer just said.  This is true despite the fact that the witness could answer “no”; the objection addresses the question, not the answer.  Conversely, a question that forces the witness to provide the pertinent information is non-leading.  A sure way to avoid leading is to start questions with “the five W’s or H”—”who, what, where, when, why, how.”  If you begin your questions with one of these words, the witness must provide pertinent information beyond what is contained in the question.  It thus is by definition non-leading.  Another form that is generally non-leading, which can be used to introduce a topic, begins with “To what extent….”

Even using the non-leading form, you can be quite specific in your questions.  When you want to emphasize facts, you should use closed-end questions that direct the witness to the specific parts of topics.  Limiting the scope of each individual question provides the best direction to the witness, allowing him or her to understand the exact point to be made in response, and permits the lawyer to direct the examination for the maximum persuasive impact.  The lawyer can control the ordering of points, which ensures that the listeners understand the context in which facts occurred.  Further, the attorney can determine what to emphasize through the development of facts.  Emphasis is generally achieved through development; the lawyer presents the entire “story,” but selects the most compelling points and emphasizes them by providing detail through more questions.  As the witness describes more detail about an important point, it seems to take on greater significance to listeners.  More open-ended questions can be used for unimportant material.

Examples of general versus specific questions:

OPEN-ENDED CLOSE-ENDED
Describe the man’s appearance. How tall was the man?

Describe his build.

What clothes was he wearing?

What color was his hair?

What color were his eyes?

Where was he standing?

[Assume the witness described a man running with a knife.]

What happened next?

In what direction did he run?

How was he holding the knife?

What did he do with the knife as he ran?

What, if anything, did he say as he ran with the knife?

The best way to conceive specific, closed‑end questions is to take your points and break them down.  Ask yourself:  If this happened, what are its necessary parts?  Create questions to ask for the necessary parts.  For example, assume a case in which a franchisee claims he was defrauded when induced to sign a franchise agreement for a computer products store.  A key attribute of the plaintiff’s case would be the representations made to induce the agreement (which were later not honored).  Many lawyers might be inclined to place the burden on the witness to describe the representations, with a question like the following:

Q. What representations did Mr. Jones make at the meeting?

To respond, the witness has to remember each representation, place them in the proper order, and describe their importance.  It is far better to do the work in advance for the witness, by breaking down the representations as follows:

  • What do they represent about training support for your salesmen?
  • What training did they promise for your computer repair person?
  • What did they represent about advertising support?
  • What representations did they make about account software?
  • How promptly did they say they would deliver inventory?

For each of these topics, the lawyer should create additional questions that permit the witness to develop the importance of the representation.   For instance, regarding the last point – delivery of inventory, the lawyer might ask:

Q.                How promptly did they say they would deliver inventory?
A.                They said it would be overnight or faster.
Q.                How did you expect the prompt delivery to affect your own need for a large inventory?
A.                We would not have to have a large inventory.  We could order for same or next day delivery.
Q.                How did you expect the prompt delivery to affect your profitability?
A.                We would avoid a big capital investment and could put money into attracting customers.
Q.                What impact would prompt delivery have on customer satisfaction?
A.                Customers want products right away.  If we didn’t have something in the store, we could get it quickly.

 

There are additional means of achieving emphasis:  showing the jury items from the factual picture, using demonstrative exhibits, and so on.  Using specific questions enhances these methods because the attorney can control exactly when and how they are presented.  They appear at the proper time and enhance the witness’s account.

[Michael R. Fontham is a member of the New Orleans law firm of Stone Pigman Walther Wittman L.L.C., engaging in a litigation practice. Mr. Fontham authored “Trial Technique and Evidence”, a text on trial advocacy and evidence published by NITA. He is also the author (with Michael Vitiello) of “Written and Oral Advocacy in Trial and Appellate Courts”, a treatise on brief writing, oral argument and legal research. He teaches evidence as an adjunct professor at the LSU Law Center and Tulane Law School.]

Winning on Appeal: Better Briefs and Oral Argument, Third Edition

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Don’t forget to catch up on NITA’s February Featured Publication, Winning on Appeal: Better Briefs and Oral Argument, Third Edition. Authors Tessa L. Dysart and Leslie H. Southwick carry on the late Ruggero J. Aldisert’s tradition of revealing the “nuts and bolts” on how to prepare an effective brief with the nuanced art of delivering a persuasive appeal to the court.

Retail Price: $75

Available in: Print, Epub, and Mobi

NITA Remembers Faculty Jim McElhaney

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James “Jim” W. McElhaney, Professor at SMU and Case Western and NITA Faculty member in our early days, passed away in New Mexico, late October. Jim taught with NITA from the beginning and is remembered and loved by many who taught alongside him. NITA Faculty Robin Weaver stated that Jim is a part of NITA history, and many agree.

According to NITA Faculty Tom Geraghty, Jim was a stalwart NITA teacher in the early days. In the early 2000’s Jim struck out on his own and began writing, lecturing, and consulting. However, his early years at NITA made a big impact on many.

NITA Faculty Jamie Carey stated, “I met Jim at the Midwest Regional program in the early 1970’s, where I was a faculty member and Tom [Geraghty] was program director. Jim gave lectures on evidence, essentially following in Irving Younger’s footsteps… Jim who was already at the time famous for his witty, erudite articles on trial advocacy in the ABA Journal, was a worthy peer of Younger’s. He had the gift of all great teachers: to simplify, to interweave apt anecdote, and infuse the dry stuff with humor.”

Likewise, NITA Faculty Patricia Bobb fondly remembers teaching with Jim. “To say that Jim was a stalwart of NITA is an understatement. Jim was one of the core members of the NITA family and gave his heart and soul to the organization for many years as one of its’ most talented and passionate teachers. He leaves a legacy of having made thousands of trial lawyers the better for his commitment to excellence in trial advocacy. He will be missed by all.”

Similarly, NITA Faculty Judge Ann Williams stated that Jim was a magnificent teacher and an even better mentor. “Funny, creative, witty and knowledgeable are four words that describe him. His lectures were spellbinding and the articles he penned during his many years as editor of chief of the ABA Litigation magazines were legendary. I was his Assistant Team Leader for at least four regional and national programs and had the extraordinary opportunity to see him interact with participants and faculty. He was thoughtful and kind and knew how to bring out the best in people. An added plus and key part of Jim was his love of music. He was a great piano player and we all loved singing with him. He often brought to NITA sessions his double bell euphonium! I am the teacher I am today because of Jim.”

So many of NITA’s longtime faculty members felt their lives impacted by Jim’s gift as a teacher, writer, and speaker. We are so thankful to have had Jim as an integral part of NITA. Please click here to read the memorial page.

NITA Board Member and Faculty – Judge Ann Williams Joins Jones Day

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Congratulations to Judge Ann Williams who will be joining the global law firm of Jones Day in the Chicago office. Judge Williams is a longtime NITA faculty and board member who has taught at over 100 NITA programs over the years. Not only has she taught programs across the United States, but she has also dedicated much of her time to teaching at various international programs in places such as Tanzania, Kenya, Nigeria, and more. We thank Judge Williams for her constant dedication to NITA and wish her luck!

Below is the official press release by Jones Day:

Judge Ann Claire Williams joins Jones Day to lead Firm’s efforts in advancing the rule of law in Africa

January 2018

The global law firm Jones Day has announced that retired Seventh Circuit Judge Ann Claire Williams will join the Firm to lead its efforts in advancing the rule of law in Africa and will add to the Firm’s leading trial and appellate practices. Judge Williams will be resident in Jones Day’s Chicago Office.

Judge Williams was nominated by President Ronald Reagan in 1985 to the United States District Court for the Northern District of Illinois, making her the first woman of color to serve on a district court in the three-state Seventh Circuit. In 1999, President William Clinton nominated Judge Williams to the United States Court of Appeals for the Seventh Circuit, making her the first judge of color on that court and the third woman of color to serve on any United States Court of Appeals. Judge Williams retired from the bench earlier this year.

“As the foundation of any society, the rule of law is key to the operation of free markets and commercial transactions,” said Jones Day Managing Partner Stephen J. Brogan. “If globalization is to be a force for human development, the rule of law must be at its center. Jones Day has long been devoted to advancing the rule of law around the world. There is no better person to lead Jones Day’s work in this regard in Africa than Ann.”

Throughout her years of federal service, Judge Williams devoted countless hours to judicial, local, national, and international communities. In addition to training new federal district court judges for many years at the Federal Judicial Center, she was the first woman of color appointed to three significant positions in the federal judiciary by Chief Justices of the United States Supreme Court. Two appointments related to the Judicial Conference of the United States, the national policy-making body for the federal courts: Chair of the Court Administration and Case Management Committee and member of the Judicial Branch Committee. She was also appointed to the Supreme Court Fellows Program Commission. Serving as Treasurer and President of the Federal Judges’ Association, she was the first judge of color to become an officer of that organization which represents more than 1,100 federal judges and works to preserve the independence of the federal judiciary.

Internationally, Judge Williams has devoted herself to training judges and lawyers worldwide, particularly in Africa. Over the last 17 years, Judge Williams has led a number of international delegations, teaching trial and appellate advocacy at the International Criminal Tribunals for Rwanda and the former Yugoslavia, and travelling to Kenya, Ghana, Indonesia, Liberia, Nigeria, Rwanda, Tanzania, and Uganda where she trained judges and lawyers on such topics as domestic and gender violence, human and wildlife trafficking, judicial ethics and opinion writing, civil and criminal case management, alternative dispute resolution, and trial and appellate advocacy in collaboration with Lawyers Without Borders, the U.S. Departments of Justice and State, the Virtue Foundation, National Institute of Trial Advocacy (NITA), Fordham Law School, and the Avon Global Center for Women and Justice at Cornell Law School.

“Strengthening the rule of law is a key global priority. Jones Day has presented me with the extraordinary and unique opportunity to continue my work in partnering with African legal communities by enhancing court systems that promote effective delivery of justice and by promoting the rule of law through the development of educational and training programs,” Judge Williams said.

“Judge Williams is without question one of the most highly regarded members of our community,” said Tina Tabacchi, Partner-in-Charge of Jones Day’s Chicago Office. “She has an incredibly impressive record of success throughout her legal career. Not only are we looking forward to working with her in advancing the rule of law in Africa, but Judge Williams will be a valuable resource for our clients facing complex litigation and appellate issues.”

“Jones Day has a long history of providing our clients with legal assistance on matters in Africa and working on rule of law projects in Africa. For example, we recently advised the 17-state Organization for the Harmonization of Business Law in Africa on its historic initiative to reform its arbitration act and create a uniform mediation act,” said Javade Chaudhri, Partner-in-Charge of Jones Day’s Middle East/Africa Region. “Judge Williams’ knowledge of and enthusiasm for advancing the rule of law in Africa will significantly contribute to this important and valuable work.”

A lifelong educator and public servant, Judge Williams taught in the Detroit Public Schools before attending the University of Notre Dame Law School. After law school, Judge Williams clerked for the Hon.  Robert A. Sprecher of the Seventh Circuit, the same court to which she was ultimately appointed. Following her clerkship, Judge Williams became an Assistant United States Attorney (AUSA) and the first woman of color to serve as a Deputy Chief and Chief of a Criminal Division in the Chicago Office. While working as an AUSA, she taught trial advocacy as an adjunct professor and lecturer at Northwestern University School of Law and John Marshall Law School. Later, as a judge, she continued teaching trial advocacy at Chicago area law schools and Harvard Law School. Throughout her career, she has taught in more than 100 trial advocacy and deposition programs with NITA in the United States and Europe.

Committed to public interest work, Judge Williams led a number of local and national efforts to expand the pipeline for minorities and women. These efforts include being the founder of Just the Beginning – A Pipeline Organization, which creates programs for students of color and other underrepresented groups from middle school through law school to inspire and equip them to pursue legal and judicial careers. She also co-founded the Black Women Lawyers’ Association of Chicago and Minority Legal Education Resources, Inc., an organization that has helped approximately 4,000 lawyers pass the Illinois bar. She will continue her work in these important areas while at Jones Day.

Judge Williams serves on the Board of Directors of the Carnegie Foundation, the University of Notre Dame, Equal Justice Works, NITA, and Chicago’s Museum of Science and Industry. Judge Williams has received numerous awards for her contributions. She is the only woman judge of color who has received the American Judicature Society’s Edward J. Devitt Distinguished Service to Justice Award for making a substantial contribution to the administration of justice. She has also received the American Bar Association’s Margaret Brent Women Lawyers of Achievement Award and the Commission on Racial and Ethnic Diversity in the Profession’s Spirit of Excellence Award, the National Bar Association’s Gertrude E. Rush Award, the National Association of Women Lawyer’s Arabella Babb Mansfield Award, the Association of Corporate Counsel Chicago Chapter’s Thurgood Marshall Award, the Black Women Lawyers’ Association of Greater Chicago’s Pioneer Award, the Chicago Bar Association’s John Paul Stevens and Earl Burrus Dickerson Awards, and Chicago Inn of Court’s Joel M. Flaum Award. She has also been named as one of Newsweek Daily Beast’s 150 Fearless Women in the World, the Chicago Lawyer Person of the Year, listed as one of Chicago’s 100 Most Influential and Powerful Women by both Crain’s magazine and the Chicago Sun-Times, and inducted into the Cook County Bar Association Hall of Fame.

Jones Day is a global law firm with more than 2,500 lawyers in 43 offices across five continents. The Firm is distinguished by: a singular tradition of client service; the mutual commitment to, and the seamless collaboration of, a true partnership; formidable legal talent across multiple disciplines and jurisdictions; and shared professional values that focus on client needs.

 

Winning On Appeal: Better Briefs and Oral Argument

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When the late Ruggero J. Aldisert wrote Winning on Appeal in 1992, it became an instant classic in law school classrooms and appellate law practices across the country. To celebrate the 25th anniversary of the book’s release, authors Tessa L. Dysart and Leslie H. Southwick carry on the Aldisert tradition of revealing the “nuts and bolts” of how to prepare an effective brief with the nuanced art of delivering a persuasive appeal to the court.

Winning on Appeal conveys the perfect blueprint for any lawyer who wants to win on appeal through this meticulously rendered update, replete with dozens of interviews with leading appeal judges and practitioners.

Retail Price: $75

Order Here in: Print, Epub, or Mobi

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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