On November 19th my wife suffered a hemorrhagic stroke when a vessel in her brain ripped open. She was rushed by ambulance and then helicopter to the city’s best trauma center and has been in the Intensive Care Unit ever since. I have spent each of the past twenty-four days at her side.
At first I tried to listen and understand as the medical professionals described what was happening. I tried to use my best direct examination techniques to find out the processes they were using to care for my wife. Gradually, I found myself, like Ibn Fadlan, the protagonist in Michael Crichton’s novel, Eaters of the Dead (later turned into the movie The 13th Warrior) learning the language of the ICU through listening. I found I could speak in their language, using acronyms and technical terms that I picked up through conversations and from overhearing the discussions between the doctors on my wife’s care team.
At the end of each day I would try to explain what I had learned and the nature of the care being provided to others interested in my wife’s health. Much to my consternation I found I had to stop and translate the terms that had been used during the day. Then, it hit me like a “cosmic whack on the side of the head.” I had fallen into the same trap that we talk to lawyers about examining expert witnesses. Instead of being clear and using terms and concepts all could understand I had reverted to the technical speak of the medical staff.
Learn from my mistake for the next time you examine an expert. You will have spent hours with the expert learning the language, discussing the nuances of her report, debating the opinions of the other side’s expert, and living with the science of the expert’s field. Like me, you will have mastered the language of the expertise.
Federal Rule of Evidence 702 provides the basis and reason for expert testimony.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The operant words in this portion of the rule are will help the trier of fact to understand the evidence or to determine a fact at issue. If you and your expert are speaking in tongues you cannot possibly help the judge or jury understand a piece of evidence or determine a fact. You may know the acronym or term being used by your witness but do not presume everyone else has any idea of the meaning.
Make your expert a teacher. While there is no need to make each person as authoritative as the witness, you do want to help them appreciate the evidence. When a unique term is used, ask the witness to help everyone understand the meaning. When using charts, diagrams or other visual representations ask for clarification and specifics. Inquire what something suggests in interpretation. Make use of that wonderful question “Why?”. Most of all, do not flood the judge and jury with information that does not directly lead to a better understanding of the story of your case. Ask your witness to make comparisons to everyday occurrences that anyone may have experienced.
By being a thoughtful inquisitor you can truly help the trier of fact better understand the evidence or determine a fact. Having learned this lesson in a most memorable way, I can assure you it is worth the time to think through the translation of terms and concepts so people relate to the information you and your expert are sharing.
One of the characters Billy Crystal created when he was on Saturday Night Live was Fernando. 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.
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. 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.”
 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
 Paul Shafer and Billy Crystal, You Look Marvelous, December 14, 1999. Universal Special Products. © 2000 Universal Records.
 Lubet, Modern Trial Advocacy (4th Ed. NITA 2009), at 72.
Post written by guest blogger: Mark Caldwell
In his book Rewired: Understanding the iGeneration and the Way They Learn¹, Larry Rosen begins by quoting a twelve year old:
I absolutely hate school. They make me sit and listen as some old, stuffy teacher drones on and on about stuff from a book written like in the dark ages. We have to read pages of facts and then barf them up on tests that will make or break whether we get into a good college or not. Oh sure, they have pretty pictures on all the pages, but the book is so one-dimensional. Geesz, pictures? Don’t they know anything about video and what kids like to do?
How does a quote from a twelve year old affect us as trial lawyers? Despite the shrinking number of jury trials, we must recognize that in the very near future people from the iGeneration will be sitting as jurors in our cases. There are already cases where mistrials have been declared as a result of serving jurors doing online research (See In re Kaminsky, 2012 N.J. Super. Unpub. LEXIS 539 (Ch. Div. Mar. 12, 2012)). Likewise, a juror in an Orange County murder trial was dismissed after posting comments about the accused killer on Facebook, saying she’d like to get in contact with him after the case and making disparaging remarks about her colleagues on the panel (Link). When jury panels contain members of the iGeneration we will be forced to come to grips with a group who receives information and learns in ways differently than we are accustomed to.
Judges are now regularly instructing jurors against doing independent research or using social media to comment on trials. As trial lawyers, some of the responsibility lies with us. If we consider that the bulk of information presented at trial is aural, it is not hard to see how any juror could become bored with the presentation of evidence.
How can we overcome the issue of keeping jurors engaged in the presentation of evidence? There are a number of things we can do throughout the trial. Here are some ideas on ways to make your case more interesting to those in the jury panel.
1. Tell your client’s story. While not a new concept, the idea of storytelling is important to making a case memorable and engaging. Humans are literally “hard wired” to respond to stories. Preeminent authorities, such as Prof. James McElhaney², regularly counsel lawyers to tell the story of what happened to their client and show the wrong done to the client. This all begins in both jury selection, as you try to determine who does not relate to your client’s cause, and in opening statement. People are more engaged with a story than if you simply throw facts at them.
2. Make your direct more interesting. Jurors want to hear what facts witnesses have to say about the case. Our job is to make what they say something the jury wants to learn. This begins with letting the witness do “the heavy lifting” of presenting the facts – no leading questions. We need to break up testimony into digestible chunks of information by using Headnotes, or Transitional Introductions. Provide “souvenirs” of the testimony in the form of exhibits that support the story. Once we admit the exhibit (jurors have no interest in foundations) we must make it memorable and interesting by having the witness talk about it. We should try to get the witness out of the chair to become a teacher, through the use of demonstrative exhibits and demonstrations. In short, we need to do everything we can to create movement and interest during the examination.
3. Ensure your cross is surgical and focused. Judge Robert McGahey, Jr., of the Denver District Court, compares cross examination to the work of Zorro – “Get in, make your Z, and get out!” Your cross examinations should highlight where their witness agrees with your client’s story and then offer a few points that illustrate how the witness is either mistaken, biased, or wrong about the facts. Lengthy examinations that attempt to “beat the pulp” out of the witness do not necessarily do anything more than show you know the techniques of cross examination. The jury gets the point early in the process and you have no need to “show off.”
4. Make expert testimony count. Experts are there to help the trier of fact understand the evidence or determine a fact in issue (FRE 702). Often, both sides offer expert testimony to support their side of the case. Make your expert a teacher and star. Work with your witness to ensure the testimony is clear and persuasive. An expert’s opinion and basis often offer the temptation for jurors to investigate online. This means spending sufficient time building up both the reasons why the witness chose the methods used in reaching the opinion and why it is best. Likewise, make sure you close any openings of things the expert did not do in reaching an opinion and why.
5. Closing to make an impact. Too often, closing arguments are simply a repetition of the facts of the case. Do not insult the jury by telling them what they already know – highlight issues and argue why your client should win. This means you must make use of important exhibits, including “highlighting” important portions and quotes. Be interactive with the jury and explain important portions of the jury instructions. Show them how to complete the verdict form in favor of your client. Be their guide to righting the wrong done to your client (even if you are the defendant).
By recognizing the learning needs of your jury you can keep them engaged and avoid a one-dimensional process of presenting facts at trial.
 Larry D. Rosen, Rewired: Understanding the iGeneration and the Way they Learn, Palgrave Macmillan (2010) ISBN-10 – 0230614787.
 McElhaney, Trial Notebook, 4th Ed. (2005) ISBN – 978-1-59031-503-3.
You are taking the deposition of an important party witness. At the beginning of your deposition you and the witness discussed all of the commitments traditionally presented and made, including when you would take breaks and speaking with her attorney. The witness agreed with you about taking a break every hour. She agreed that if she needed a break before that point she would tell you. You discussed when she could speak with her lawyer. Finally, she agreed that if you have a question pending she would answer the question before taking the break. You have just asked a question and the defending lawyer announces they are taking a break. He and the witness get up and leave the room. What should you do?
In their brand new 4th edition of The Effective Deposition, Peter Hoffman and David Malone discuss the importance of Set-Up and Commitments so the witness understands the deposition process and his rights and obligations. In Chapter 6.2, Malone and Hoffman suggest talking with the witness about breaks to “show the jury that this deposition was not a ‘third-degree’ interrogation.” They also suggest an instruction about talking to your attorney as a means of generating leverage so the witness will not attempt to speak with counsel before answering the tough question.
Hoffman and Malone then offer the caveat that a witness is going to take a break whether or not the deposing attorney gives the break instruction or not. The witness and opposing counsel will decide when the witness is too tired to go on, no matter what instruction you give. Like wise, the instruction regarding talking with counsel is trumped when it may be a matter of privilege. Although there is conflicting case law on even this matter points out NITA’s Executive Director John Baker citing a ruling in the tobacco class action cases where even matters of privilege were deemed waived for discussions while a question was pending.
Professor Louis Natalli, of Temple law school, says he does not give an instruction regarding breaks for the reasons discussed above. He prefers to follow the directions given by the court in the 1993 Pennsylvania case, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa 1993). In that decision Judge Gawthrop provided guidelines for deposition conduct in the Eastern District of Pennsylvania, including a prohibition of any off the record conferences between the attorney and the witness during breaks or recesses, except to decide whether to assert a privilege.
Texas lawyer Mark Shoffner, of Andrews Kurth, LLP, in his article Be Careful On Break: Privilege and the Deposition Recess (http://www.dallasbar.org/content/be-careful-break-privilege-and-the-deposition-recess), talks about how other jurisdictions have dealt with conferring on breaks. In New Jersey, a federal court held the examining attorney was entitled to explore whether discussions during a break interfered with the fact-finding goal of the deposition process, see Chassen v. Fidelity Nat’l Title Ins. Co., 2010 WL 5865977 (D.N.J. July 21, 2010) aff’d 2011 WL 723128 (D.N.J. Jan. 13, 2011).
Other Federal Courts address conferring with the client through local rule. South Carolina’s rule prohibits conferences between counsel and deponents during breaks or recesses. The exception to the rule is to assert a privilege, make an objection or move for a protective order. The rule further requires that the lawyer who confers with the deponent then report the results of the conference on the record. The rule also permits the inquiring lawyer to ask questions about the conferences. D.S.C. L.R. 30.04.
Delaware’s local rule provides: “From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.” D. Del. L.R. 30.6.
These out-of-state decisions and local rules are anathema to the principle that attorney-client communications for the purpose of seeking, obtaining, or providing legal advice are sacrosanct. However, the attorney-client privilege, like all privileges, is not absolute, and these jurisdictions have determined that excluding these conversations from the privilege altogether assists in the truth-finding mission of discovery.
In his blog, Drug and Device Law, Jim Beck comments in a post entitled Depositions – When Can You Talk To Your Own Witness? Beck offers five suggestions.
Even if the reason for conferring with the witness is not a matter of privilege there are reasons for speaking with the witness during the deposition – confusion over a question, correcting mistakes, or instances of false or misleading answers. Certainly, matters of ethical responsibility should allow for a discussion with the client and be permissible. It still raises questions of witness credibility in the eyes of the deposing lawyer.
Commentators and some courts comment that the pendulum has swung too far in one direction with these limitations. Dennis Suplee and Diana Donaldson in their book, The Deposition Handbook (5th Ed. Aspen Publishers 2011) suggest the Hall decision may go too far in prohibiting conferences during normal breaks, lunch breaks, and overnight breaks (§6.11). In Colorado, Federal Magistrate Boyd Boland seems to have thought so, when he wrote in McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D.Colo.2001):
I agree with the reasoning of In re Stratosphere and our local rule 30.1C that the truth finding function is adequately protected if deponents are prohibited from conferring with their counsel while a question is pending; other consultations, during periodic deposition breaks, luncheon and overnight recesses, and more prolonged recesses ordinarily are appropriate. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at 650.
Judge Boland reasoned further that to follow the Hall blanket order of all attorney deponent conferences once the deposition starts would lead to absurd results as follows:
The relief requested by the plaintiffs here is particularly inappropriate. It would have the effect of barring Mr. Zdeb from conferring with his counsel for the entire period between the sessions of his deposition, in this case several weeks. Taken to its logical extreme, the plaintiffs’ argument would bar consultation between a party and his lawyer from the time of his deposition through trial, because there might be “coaching” which would cause a party-witness to alter his deposition testimony at trial. That result is absurd. McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. at .650.
What should happen if counsel and the witness take a break when a question is pending? Make a record of the conference while a question is pending. When lawyer and deponent return, inquire about the subject of the conference. Ask if the deponent received coaching of any type during the meeting. Confirm that the question did not involve a matter of privilege. Ask the question again. If this occurs more than once, make sure you have made a good record and raise the issue with the judge or magistrate.
Few lawyers can successfully try a case without the benefit of some form of notes. Notes can either be a crutch that robs the trial lawyer of spontaneity and persuasiveness or a tool that provides guidance and assurance.
The most common problem with the use of notes is a lawyer’s over-reliance on what he or she has written. This robs the examination, opening statement, jury questioning, or argument of spontaneity and persuasiveness. Worse, reading the written word aloud sounds unnatural and stilted because our brains process aural information in a different location than written information. Except for direct quotes that use specific language for a purpose or evidentiary foundations, the use of written questions should never occur at trial.
The best notes may be compared to refreshing recollection. They are there as triggers that spark our memory on specific topics. Notes are the checklist to ensure that all of the elements are covered.
Notes are as individual as finger prints – no two lawyers’ notes will look the same as we all have different memory triggers. Therefore there is no single model for the best type of notes to use at trial. Following are a list of generalized formats for your experimentation:
1. Initially write out your questions/statement to help organize your thinking and get a visual picture of what you are doing. With your presentation laid out as you want it to flow use your questions to create an outline. Use topics or phrases in place of the written questions;
2. Begin with an outline that organizes your thoughts in chronologic, topical, or relational format;
3. Write out the answers you hope a witness will give. You may even consider writing out the specific story your witness will tell once on the stand. In either case, follow up by distilling the information to outline topics.;
4. Use story boards or pictures that trigger your memory for each topic.;
5. Use the most comfortable of the above mentioned forms to craft an initial outline. Once you have organized the presentation create a chronologic list of headnotes/transitional phrases that divide the presentation into digestible pieces. The headnotes give you guidance but leave you free to craft language on the fly.
The bottom line is that you must find a system that best fits your own comfort zone and then consistently employ that system in everything you do at trial.
Notes should always be large enough that you can read them from several feet away. Consider using type that is large enough to read from two paces away from the lectern. Remember the graphic designer’s mantra, “white space is your friend” and don’t try to crowd too much information on a page. Consider separate pages for each topic. Use a typeface that you can easily read, for example Times Roman or Tahoma.
To make your notes even less of a crutch consider a process that has a headnote or transition for every five to eight questions. Everyone can ask that number of questions without the need of looking at notes for guidance. You can maintain eye contact and appear interested in the answers. It will aid in staying focused on the witness and make the examination appear to be conversational.
The most important part of the process is to experiment before you get to trial. Find out what works for you before you walk into court.