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.
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.