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Monthly Theme: Examinations Part Two

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

(Second 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 II: CROSS-EXAMINATION

Just as in direct examination, lawyers often tend to be too general in cross-examination.  This fault probably results from excessive enthusiasm for the “rightness” the attorney’s points.  This zeal results in questions that are often too conclusory or convoluted.  A well-prepared witness is not likely to answer a conclusory question like “You were the one at fault, weren’t you?” with a “yes,” and more important, may respond with all the reasons the lawyer’s client was really the one at fault.  Again, it is far more effective to use specific, closed-end questions, phrased with the leading form, in which the lawyer DOES provide the pertinent information.

To understand the value of specific questions, consider the witness’s perspective.  The witness has been called and examined by your opponent.  Generally, that means the witness is loyal, to some extent, to the opposing side and wants to help that side win the case.  The degree of loyalty will differ, as a party witness has a much stronger desire to win than a third party recruited to testify, but most of the time the witness feels some responsibility to do a good job for the opposing party.  What does that require? — making points for the opposing party.  As an expert once told me, in cross-examination, “I am looking for a chance to make a speech.”  In that “speech,” the witness reiterates points from the direct examination.

The primary difficulty with conclusory or complex questions is that they invite conclusory and complex responses, embroidered with points for the other side.  In the psychology of cross-examination, and before an audience, a witness is likely to feel uncomfortable introducing a gratuitous speech in response to a specific, closed-end question.  A general question, on the other hand, fairly calls for a general response.  Additionally, questions that border on argumentative — “You said X, so Y must be true too, right?” — invite the witness to explain that the reasons why Y is most certainly not true.  Since the scope of answers are likely to match the scope of questions, the attorney controls the examination much more effectively with specific questions.

Using specific questions on cross-examination is also a great way to achieve emphasis.  More questions about a point make the points seem bigger, and on cross-examination seem to build momentum in the courtroom.  A leading treatise on trial technique opines that “[t]he successful trial lawyer takes [a] fact [and] builds up that fact until it assumes unusual importance through the medium of a series of questions….”  3 Fred Lane, Lane’s Goldstein Trial Technique 19:36 (3d Ed. 2011).  In this “mountain out of a molehill” approach, points that are important are built up through a series of questions that the attorney creates by breaking the point into its necessary components.  If the witness knows the fact is true, and would have to agree it is a fact, then the witness has to agree that the components are true as well.

One of the primary means of preparing cross-examination is to consider the prior testimony or statements of the witness.  A witness is not likely to diverge from facts described in prior testimony, and if the witness does, the lawyer can impeach with the prior (now inconsistent) statement.  Thus, for an important factual point, the attorney can achieve emphasis by breaking up the point:  if what the witness said is true, what must necessarily be true as well?  Usually the “necessarily true” points are within the scope of the statement, not outside it.

Staying within the scope of the prior statement is essential to effective cross-examination.  The lawyer should not take it for more than it is worth, but focus on the parts.  Examples of poor, better, and even better technique follow:

POOR TECHNIQUE

  • Statement:  “I had about five beers in the bar.”
  • Question:  “You were drunk that night, correct?
  • Witness is likely to deny:
    “I wasn’t even tight.  I had food and was spacing
    out the beers.”

BETTER TECHNIQUE

  • Statement:  “I had about five beers in the bar.”
  • Question:  You had five beers that night in the bar, right?

STILL BETTER

Break it into necessary parts:

  • Statement:  “I had about five beers in the bar.”
  • Questions:
    • You were in a bar that night.
    • You were drinking.
    • You were in the bar for some time, drinking.
    • You had multiple beers over some time in the bar.
    • You had five beers in that bar.

The prior statement cannot be used effectively to impeach the response to the first question, because the lawyer tried to make too much of the prior statement.  The second question should produce a “yes,” or permit effective impeachment, but it does not develop the point.  In the third approach, the attorney achieves emphasis and retains the ability to impeach effectively.  The prior statement backs up each of the questions.  If the witness denies any of the first five questions, the lawyer can fall back to the sixth, then impeach if the witness denies the question.

Small questions allow the lawyer to retain control in cross-examination.  The lawyer should have a plan and needs control to properly execute it.  The best method to maintain that control is to use smaller rather than bigger questions.

[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.]

Brooklyn Legal Services Corporation A – NITA Public Service Program

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On February 14 – 16, NITA teamed up with Brooklyn Legal Services Corporation A, whose mission is to advance social and economic justice by empowering communities through innovative, collaborative, neighborhood-based legal representation and advocacy, for a public service trial skills program. This 3-day program took place in Brooklyn, New York and was led by NITA Program Director, Barbara Barron. Barron, who has taught at over 100 NITA programs, worked with Deputy Unit Director at Brooklyn Legal Services, Lina Lee, in order to develop this public service program for their 15 attorneys.

After the program concluded, Lee stated that, “NITA has provided Brooklyn Legal Services Corp A with an invaluable training and tool kit to effectively advocate and litigate on behalf of our clients. We are grateful for the rare and tremendous opportunity to learn from leading trial experts to better serve the most vulnerable and marginalized communities in our efforts to preserve affordable housing in Brooklyn.”

Similarly, one attendee stated, “[The training was] excellent and informative. The trainers were outstanding, and a great resource.” During the training, some of the skills that were covered included: direct and cross examination, impeachment, and evidentiary foundations.

Another attendee stated, “This course was excellent! [The training had] very straightforward guidance with a lot of good opportunities for practice. The lecturers really knew their stuff and were very effective teachers.” NITA is grateful to have worked with Brooklyn Legal Services Corporation A for this training program through our public service mission.

You Can’t Handle the Ruth

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Today is International Women’s Day, and who better to help us reflect on the role of women in society and the law than the iconic Ruth Bader Ginsburg, a woman who seemingly has done it all?

Throughout her trailblazing life, Justice Ginsburg has been a judge, a wife, a mother, a law professor, an author, a cancer survivor, a pop icon, a lace jabot collector 😉—and on May 4, she’ll add “movie star” to the list, when the documentary RBG opens in theaters in the U.S.

On being a woman
“My mother told me two things constantly. One was to be a lady and the other was to be independent, and the law was something most unusual for those times because for most girls growing up in the ‘40s, the most important degree was not your B.A. but your M.R.S.”

“At Columbia Law School, my professor of constitutional law and federal courts, Gerald Gunther, was determined to place me in a federal court clerkship, despite what was then viewed as a grave impediment: On graduation, I was the mother of a 4-year-old child.”

“When I graduated from law school in 1959, there wasn’t a single woman on any federal bench. It wouldn’t be a realistic ambition for a woman to want to become a federal judge. It wasn’t realistic until Jimmy Carter became our president.”

On courts and the law
“We have the oldest written constitution still in force in the world, and it starts out with three words, ‘We, the people.’”

“One aspect of appellate judging is we have to give reasons for all of our decisions. And when you sit down and try to write it out, sometimes you find that your first judgment wasn’t the right one.”

“A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

On being a pop icon
“At my advanced age—I’m now an octogenarian—I’m constantly amazed by the number of people who want to take my picture.”

“I think a law clerk told me about this tumblr and also explained to me what Notorious RBG was a parody on. And now my grandchildren love it, and I try to keep abreast of the latest that’s on the tumblr.”

“I do a variety of weightlifting, elliptical glider, stretching exercises, pushups.” (Try her workout here.)

“In 2015, an opera opened about me and Justice Antonin Scalia. It’s called Scalia/Ginsburg. The composer, Derrick Wang, has degrees in music from Harvard and Yale. Enrolled in law school, he was reading dueling opinions by me and Justice Scalia and decided he could compose an appealing comic opera from them.”

“If I had any talent that God could give me, I would be a great diva.”

On life
“You can disagree without being disagreeable.”

“I am fearful, or suspicious, of generalizations. . . . They cannot guide me reliably in making decisions about particular individuals.”

“Reacting in anger or annoyance will not advance one’s ability to persuade.”

“Fight for the things that you care about, but do it in a way that will lead others to join you.”

“I really concentrate on what’s on my plate at the moment and do the very best I can.”

“The label ‘liberal’ or ‘conservative,’ every time I hear that, I think of the great Gilbert and Sullivan song from Iolanthe. It goes, ‘Every gal and every boy that’s born alive is either a little liberal or else a little conservative.’ What do those labels mean? It depends on whose ox is being gored.”

“When a thoughtless or unkind word is spoken, best tune out.”

“You can’t have it all all at once. Over my lifespan, I think I have had it all, but in given periods in time, things were rough. And if you have a caring life partner, you help the other person when that person needs it.”

Florence Immigrant & Refugee Rights Project – NITA Public Service Program

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Kicking off 2018, NITA joined forces with Florence Immigrant & Refugee Rights Project, a nonprofit legal service organization, for a public service trial skills program. The program took place in Phoenix, Arizona, February 6 – 9. It was led by NITA Program Director, Judge Christopher T. Whitten, who worked closely with Managing Attorney at the Florence Project, Laura Belous, to put together a program that would suit the needs of the attorneys.

Judge Whitten felt inspired by the end of the program and stated, “In case you haven’t noticed, immigration is an issue that has received a whole lot of attention in the press recently. Even before a bright spotlight hit the topic, however, since 1989, there have been a group of amazing lawyers at the Florence Immigration and Refugee Rights Project working hard to make sure that children and adults in Arizona’s immigration system were treated fairly. No small task. Today, the Florence Project is dedicated to providing free legal services to more than 3,000 people detained on any given day in remote detention facilities in Arizona. It was a real pleasure to spend a week with these selfless hero-lawyers working on honing the persuasive skills they already possessed and developing some new tools. Even in areas that were outside their normal practice, well outside their comfort zone, the Florence Project lawyers were eager and willing to try new things. [NITA Faculty] M.J. Barr, Ashley Willcott and I left the week feeling inspired by their bravery, talent and dedication.”

Furthermore, Executive Director at the Florence Project, Lauren Dasse, stated, “The Florence Immigrant & Refugee Rights Project is grateful to NITA for conducting an on-site, comprehensive trial skills seminar, tailored to immigration law and our realities here in Arizona. The talented NITA instructors pushed our attorneys to think creatively, push us outside of our comfort zone, and try new strategies — and remember those we learned in law school. In addition, the seminar brought us together as a team, allowing us to brainstorm and think strategically across offices and programs. It is truly an honor to partner with NITA. We thank NITA for your partnership, and for all you do for our legal community.”

This four-day trial program covered skills such as storytelling, closing arguments, witness preparation and more using NITA’s learning-by-doing method. Ms. Belous stated at the conclusion of the four-day program that they had a truly awesome experience.

Likewise, many of the attendees also had a very positive experience during the training. “This was a great opportunity to refresh my litigation know-how and apply it in a learning environment specified to my area of practice. NITA offers a great program with stellar trainers,” stated one attendee.

NITA is grateful to have had the opportunity to work with such an engaging group of attorneys and we thank our amazing faculty for another job well done.

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.]

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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