The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Category Archives: NITA Notes

July 2014 Executive Director’s Letter. What “Real People” Activities Are You Planning in August?

Posted On , , By

Lockwood_Karen

Here are some terms popular now in legal blogs, the legal press, and other purveyors of lawyers’ tools to understand the business of our profession better. (No judgment here – my greatest obsession is to achieve such wisdom.)

  • Teaching Legal Theory / Thinking / Writing
  • Graduate Employment Rates
  • Big-Law / Public service/ Agency
  • Experiential
  • Partner / Senior Associate / Associate / Contract Attorney / Staff Attorney
  • Lead / Empower / Network
  • Mentor / Marketing / Connect
  • Manage / Schedule / Balance
  • Client Development / Promotion / Advancement
  • Goal / Measurement / Assessment

Pause!! Let August recharge your individuality with “real person” activities. Here are some to consider:

  • Swimming laps
  • Community softball (outside the law firm leagues)
  • Jogging groups that include strangers
  • Two weeks with tent, Coleman stove, and a roadmap
  • Practicing with a community choir
  • Walking with the purpose of meeting neighbors

OK, these are not too exciting. That’s why I am starting a contest to share good and better ideas. What are your best “do-able” ways to see different ways of life. To spend time with people who are simply not thinking of topics that keep your attention. To replenish the human in you. To hear and consider how other people are thinking, what they are worrying about, what news headlines are important to them, what they think about these times and their troubles.

In short, how will you use August to deepen your humanity? To broaden your capacity to know how people think who are not at all like you.

In this, you also find your greatest capacity to excel as a trial lawyer. We lawyers need to be real. We need to know how the jury’s gut and heart inform their judgment. What they fear. How they reason. We need to be in their world. Happily, these qualities of a great trial lawyer are acquired by knowing and grooming your own humanity.

So, every week in August include a bit of reality training! Share with us what you are going to do. You might win!

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

Witness Control, Part Five: Impeachment

Posted On By

hathaway_nancywritten by guest blogger and NITA faculty member Nancy Hathaway 

New lawyers want to know how to prevent surprises. My answer is:  you cannot prepare away surprises at trial and you must prepare away surprises at trial. Nothing can stop a witness from suddenly forgetting or “forgetting.” But a comfort with the record makes those surprises manageable, even fun.

Once, I was litigating a temporary custody hearing in which a mother hid her children in an attic, sat on the inside steps armed with two kitchen knives, and refused to let the DCF worker and eight police officers into her home to remove her children. My theory of the case was that the mother never threatened her children with harm and overreacted to the police out of panic and fear. As I cross-examined the DCF worker, he went for it. He testified that the mother, from those inside steps, yelled, “If you come inside, I’m going to kill my children.”

Time stood still.

I knew he was freestyling with the truth. I knew it because I had a DCF investigation report, an assessment report, a police report, and the DCF worker’s dictation, none of which mentioned this rather dramatic allegation. I knew it because I was prepared. It was time for Commit, Credit, Confront.

First, the Commit: “It’s your testimony that Ms. X yelled, ‘If you come inside, I’m going to kill my children’?” He answered yes, and looked a little nervous.

Second, the Credit. I started with the DCF investigation report. I took my sweet time.  “You’re required to make a report of the results of your investigation. Required by law.  Required as part of your job. You’re an investigator. You make these reports all the time.  In a way, this is your whole job, investigating and making investigation reports.  It’s important that those reports are accurate. That they contain all of the important information. Your supervisor relies on them. The District Attorney relies on them.  They’re not reports about store inventory or mileage.  They’re reports about the safety of children.  Decisions are made about whether children remain with their families, based on your investigation reports. Decisions are made about whether children are safe.  You investigate allegations that children are being abused or neglected. If there is an important piece of information about whether children are safe, you include it in your investigation reports.  If a parent threatened to kill her children, that is the sort of information that would be important to include in a DCF investigation report.”  Well, yes, yes, yes.

By the time I was done getting a series of yeses out of the witness, that document was the Holy Grail. Or, as I said when training public defenders in my home state of New Jersey, I had Bedazzled that report until it glittered. That report was now important, reliable, accurate—and flatly contradicted the witness’s lying testimony. But I’m getting ahead of myself.

Last, the Confrontation: I showed the investigation report to all counsel, asked to approach, and showed it to the witness. I asked the witness to identify the document. I then asked the witness to read through the document, and show me where it said that the mother had yelled, “If you come inside, I’m going to kill my children.” I told him to take his time. And I stepped back to wait. It wasn’t there. He had to testify that it wasn’t there.

I then went through this process with each of the remaining documents the witness had authored. By the end, I felt like Perry Mason and the witness looked like a liar.

When an adverse witness lies, you may not see it coming. But if you are prepared—you know your record and your impeachment choreography—you will know how to dismantle that witness’s credibility, and have fun doing so.

Witness Control, Part Three: Control During Cross-Examination—Stopping the Runaway Witness

Posted On , , , , By

rubinowitz_benre-posted with permission and originally written for the New York Law Journal by Evan Torgan and NITA Board Member Ben Rubinowitz

While witness control is important when cross-examining a lay witness, it is essential when cross-examining an expert witness. One of the best methods to control a witness on cross is to pose short, “one fact at a time” questions designed to slowly but surely make your point for summation. While this is easier said than done, there is a straightforward method to accomplishing this goal. To reach it, however, a firm understanding of different questioning techniques must be understood.

There are three basic methods to questioning a witness: The first is to ask open-ended questions. The second is to ask what most lawyers refer to as leading questions. The third is to tell the witness the answers and merely seek confirmation from the witness. No doubt exists that the third method will, if done properly, put the attorney in the position of maintaining maximum control of the witness while, at the same time, educating the jury.

FORM OF QUESTION

By asking open-ended question on cross, the attorney is relinquishing control of the witness. Such questioning turns the courtroom over to the witness to answer the question any way he sees fit. Questions that begin with the following words call for a narrative response and are clearly open ended: Who, What, When, Where, How, Describe, Explain, Tell us, and Why. These are the questions most often used on direct examination. Because these questions allow the witness to narrate, it is the witness who becomes the center of attention. This, in turn, allows the witness to develop a rapport with the jury, establish his credibility, and teach and explain his position. While there are times when “low-risk,” open-ended questions might be an effective way to score points on cross, for the most part, open-ended questions are, simply put, dangerous.

Consider the following example to illustrate this point. Imagine the scenario in which a patient who had been hospitalized for one week had his temperature taken only one time during the hospital stay. On cross, the attorney for the plaintiff believes he can score by asking a question designed to elicit this fact by using the open-ended form:

Q: How many times did you take the patient’s temperature during his hospital stay?
A: We took the patient’s temperature as many times as was necessary. Since the patient was afebrile when we took his temperature, there was no reason to take it again. Our goal is not to perform needless tests on a patient. It is to follow up on those issues that matter.

In this example, the attorney lost control of the witness. Because the attorney posed an open-ended question, he allowed the witness to offer far more in his answer than the attorney sought.

While the attorney might seek help from the court by moving to strike the nonresponsive part of the answer, he may or may not win. Either way, unfortunately, the jury has heard the response and even if counsel is successful in his application to the court, it is difficult to “unring” the bell.

To avoid the potential for long-winded answers, many attorneys believe it best to ask leading questions on cross-examination. A leading question is one which suggests the answer or severely limits the universe of potential answers. By changing the form of the question, the attorney instantly enhances his ability to control the witness. Questions that begin with the following words hurt the potential for a narrative response: Did, Were, Have, Had, CouldShould, Are, and So. Indeed, the opposites of these questions also serve the same goal: Didn’tWeren’t, Haven’t, Couldn’t, etc. If the witness is responsive, this form will work. The witness may give the attorney the desired “yes” or “no” response. If, however, the attorney is dealing with a savvy expert, the expert still may find wiggle room to avoid answering the question. Take the same scenario as above:

Q: Did you only take the patient’s temperature one time?
A: We took the patient’s temperature as often as was necessary.

Once again, the attorney could make an application to the court to strike the non-responsive part (in this case, the whole answer); however, there are no guarantees with such an application.

The third approach to controlling and questioning the witness is to more forcefully ask a leading question. It is, in effect, pure leading. The method is to tell the witness the answer and at the same time tell the jury the answer. Here, all the attorney seeks is confirmation of the statement he made to the witness:

Q: You took the patient’s temperature one time, correct?
Q: You never took his temperature again, true?
Q: You never instructed anyone to take his temperature again, am I right?

The beauty of this type of questioning is that it limits the witness’s ability to wiggle out of
the desired answer. Of course, there are no guarantees that a witness (especially a professional witness) will not volunteer a longer answer or try and be “cute” by responding “Is that a question?” There are methods to deal with such a witness.

CONTROL TECHNIQUES

One of the easiest ways to deal with a “runaway” witness who refuses to comply with the desired one-word answer (“yes” or “no”) is to repeat the question and change the tone of your voice:

Q: You never took his temperature again, true?
A: It wasn’t necessary.
Q: My question is specific. [In a louder, firmer tone.] You NEVER took his temperature again, true?
A: True.

This technique serves two goals: First, it shows the jury you are in control and that you do not have to rely on the whim of the court—by making an application to strike—which may or may not work. Second, it shows the witness that you, as the questioner, mean business and that you will not tolerate anything but the desired answer.

Another technique to force the witness to answer the question in the desired manner is to use “reverse repetition.” In this technique, the attorney merely reverses the question, seeking the exact same answer to the one originally posed:

Q: You never took his temperature again, true?
A: It wasn’t necessary.
Q: My question is slightly different than the one you answered. You NEVER took his temperature again, true?
A: I said it wasn’t necessary.

Now, reverse the questioning and change the tone with which the question is asked:

Q: Are you telling this jury right now that you took his temperature MORE THAN
ONCE?
A: No.
Q: You NEVER took his temperature again, true?
A: True.

Quite often, a true “runaway” witness will volunteer far more than the question ever called for. For example, you ask the witness for the time and the witness tells you how the watch was made. A straightforward solution to this problem is to take a lesson from the old school-crossing guard who puts her hand up to stop traffic. For some reason, a hand in the air mimicking a school-crossing guard elicits a Pavlovian response. Everything stops. By taking advantage of this technique, as soon as the witness goes off-track, the attorney should immediately raise her hand signaling to the witness to stop talking. As soon as the witness stops talking, a firm fully leading question should be put to the witness.

Other techniques may, at times, be equally effective in controlling the witness. One way is to tell the witness as soon as he gives a non-responsive answer that “All I’m asking for is a ‘yes’ or ‘no’ response. Can you do that?” Another way is the “Let’s make a Deal Technique.” In this method, the attorney says directly to the witness, “I’ll tell you what. First you answer my questions, and then I’ll let you explain.” Needless to say, the problem with this method is that it eventually turns control over to the witness. However, if the followup questions are penetrating and effective, they may have the desired effect of making meaningless any supposed explanation.

In the event the witness insists on “running away” with every question asked of him, the attorney can make her point by simply asking the witness:

Q: Are you done yet? or
Q: Have you finished?
A: Yes.
Q: Good, now we can get back to the facts. My question was, you never instructed anyone else to take his temperature again, true?
A: True.

Another effective way to control the runaway witness is to remind that witness that his attorney will have another chance to question when you are finished but that for now he needs to answer the questions put to him. By being patient and reasonable, you will impart your message to the jury that the witness is anything but forthcoming. In this instance, your patience may well be rewarded in that the jury may despise the non-responsive runaway witness.


_______________________________
Ben Rubinowitz is on NITA’s Board of Directors as well as the program director for our upcoming National Session in Boulder this July. He is also the managing partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz.

Evan Torgan is a member of the firm Torgan & Cooper, P.C.

June 2014 Executive Director’s Letter. Spring in Japan: NITA Continues Our Global Impact

Posted On By

Lockwood_Karen

I bring you fresh greetings from our friends in Japan! Yesterday, I returned from NITA’s 2014 trip, where Mike Ginsberg, NITA’s Board Chairperson, and I taught a demonstration program on storytelling. Our schedule encompassed case analysis and storytelling, and direct and cross-examination.

NITA has visited Japan at the invitation of our exchange partner, PSIM, each year since at least 2008 to meet with law professors and to teach a NITA program. NITA shares a close friendship with our hosts and other legal education leaders of Japan. In this June 20 posting, I not only narrate NITA’s global impact in Japan, but also give a “shout out” to our marvelous hosts. Yoshiharu Matsuura Sensei, and Ikuo Sugawara Sensei, founded PSIM, and serve as professors of law at Nagoya University (Nagoya is the third largest city in Japan, lying just southwest of Tokyo). Akira Fujimoto Sensei, who succeeded Professor Suguwara as director of PSIM in 2014, is focused closely on experiential learning. Yoshiko Ohashi, PSIM’s very experienced staff professional, keeps all the trains (and planes) running on time, and exemplifies Japanese hospitality at its highest level. Our thanks go to each of you, and to your marvelous PSIM colleagues.

This year, our NITA-PSIM program involved twelve young lawyers in our intense trial training. A few of these fine advocates are recent graduates working in their apprenticeships for the bar requirements, and a number are already in practice. Working through interpreters, they with their dual familiarity with English, and we with embarrassingly no knowledge of Japanese, accomplished much in one day. They melded a courtesy and reserve appropriate to Japanese meetings with the kind of enthusiasm and explosive brilliance that rockets a NITA participant to new highs in advocacy. At the post-program party, several inquired about how to take a full program in the U.S. (we eagerly await their registration!), and all stayed to enjoy the team camaraderie that commands the room when the group completes a NITA program. We express our thanks for the hospitality of Ehime University’s Shikoku Law School, in Matsuyama.

The day before, I presented a lecture to PSIM member professors from around the country, gathered for this annual seminar. My topic was “Gaining Experience in Teaching Experientially: How Can Professors Connect Law School to Legal Practice?” Largely lecture-based to date, Japanese law schools are addressing issues similar to those seen by U.S. law schools – but the bar passage rate in Japan is about 25%. There seems not enough time to teach all of the substance needed for the bar, yet at the same time a need to move gradually from lectures as the norm to a more student-involving instructional method. Our two nation’s law school cultures are very distinct, reflecting our general cultures and practice. Yet we join our Japanese colleagues in asking, each for our own culture, what is the proper role of experiential education and how can we squeeze it into the course of study? My speech advocated that “applied” learning amid the doctrinal class syllabus allows the students to immediately apply a set of concepts known best by the theoretical professor. I argued that, as an adjunct professor, I have wanted to see the students “apply” the principles I teach right there, in class, while they are learning and while I still have them under my control. What better way could there be to guide them on what they have to absorb from the lectures and class discussions? What better way to convey the subtleties of the legal theory than when it becomes central to an issue that they must solve in a class “practice” lab? What better way to ask them to think in ways such that they come to own the legal principles, and to keep them interested in the area of practice? Applied learning in the doctrinal class, while the students still have the professor to guide them on substance of the law, is an optimal use of time.

The day after, leaders of the Japan Bar Federation were gracious in hosting me for a condensed and valuable discussion of their work in advancing advocacy. Thank you too, for your hospitality.

NITA’s global impact continues elsewhere this year. We will return to teach solicitor-advocates in Northern Ireland as a part of the Law Society’s support of court reform to allow such advocates to represent clients in cases of higher jurisdiction. We will return to Kenya to continue our multi-year Rule of Law program teaching prosecutors, defense lawyers, and judges. Kenyan faculty who teach alongside us have themselves taken the NITA program over the years. Other programs are in the works. NITA is exceedingly proud of our global impact, where we seek to help advance justice in ways that resound with the culture and maturity of the legal systems of selected countries.

And yes, spring in Japan is glorious, given the native Japanese cherry trees everywhere!

Thank you, and please come visit NITA! The National Program (at Boulder) starts on July 23 and is shaping up to be a large and exciting group! Alert your colleagues to enroll soon –

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

Witness Control, Part Two: Witness Control and Cross-Examination

Posted On By

NITA Faculty James Gailey talks about Witness Control and Cross-Examination.

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 Goal is 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.
Feature Products
Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: