BULLETPROOFING YOUR WITNESSES

August 9, 2011 § 5 Comments

If you have never had a witness implode on the stand, this post is not for you.

If, on the other hand, you have struggled inwardly to maintain your composure as your witness apparently has forgotten everything he ever knew about the case, or he has abandoned all common sense, or she blurts out all manner of facts she never revealed to you before and is laying waste to her own case as effectively as if she were her own opposing counsel, then this post may help.

An important part of trial preparation — you do prepare for trial, I hope — is preparing your witnesses. Uh — you do prepare your witnesses, I hope.

It’s pretty clear when a witness is prepared. The witness and the lawyer work almost in tandem. The witness seems to understand where the lawyer is going with the questions and goes along easily, without a lot of leading and prodding. The witness’s testimony is clear.  The witness knows how to say what needs to be said, and handles himself well on cross examination.

In other words, the witness is coated in teflon and swathed in kevlar. Non-stick and bullet-proof.

It doesn’t take a lot of time and effort to prep your witness if you focus in on what needs to be addressed. Here are a few helpful tips. Take them as a starting point and fill in with as many others as you can come up with.

  • Take a few mintues to explain to your client what it is you have to prove to have a successful day in court. For instance, if modification of child custody is in issue, explain material change, adverse effect and best interest.
  • Go over some questions and elicit your client’s answers. Suggest more effective ways to say what the witness is going to testify to. It is entirely ethical to suggest more effective ways to state the facts; of course it is unethical to change the facts or tell the witness to testify to something the witness did not perceive. You can tell the witness how to say it, but you can not tell the witness what to say.
  • Remind the witness to testify about facts, and not impressions. Tell what you saw with your own two eyes without using labels. “The windows were all broken out of the car, the side mirrors were broken off and hanging down, the headlights were smashed, and the tires were all flat” is a lot more powerful than “The car was busted up.”
  • Tell the witness about courtroom etiquette. Don’t chew gum or chewing tobacco, speak up loud and clear, be respectful of the court and other attorney, wait until the question is finished before answering, don’t interrupt any other speaker, dress conservatively, and avoid confrontation with the other party. If you want to bring something to your lawyer’s attention, write it down and pass a note; the lawyer has enough on her plate without having to deal with interruptions.
  • If an 8.05 statement will be used, go over it with the witness. Test memory about figures and identify any trouble spots. Tips for more effective financial statements and financial testimony are here and here.
  • Prepare the witness for cross examination. Explain how it works and confront the witness with the most obvious weak points. Suggest ways for the witness to deal with it. Caution the witness about the other lawyer’s typical bag of tricks on cross and offer some strategies to deal with them.
  • Explain to the witness that he will be nervous when he takes the stand, but so is everyone else who has to get up there.
  • Explain how hearsay works, and that just about every answer that begins, “He said …,” or “I heard her say …” or “The teacher told me that …”, etc. will elicit a reflexive objection. Recommend ways around hearsay.

A few pointers for more effective chancery trials are here.

There are two kinds of witnesses: the kinds who help your case; and the kinds who hurt it. You want every witness called by you to be in the former category. Witness prep will go a long way toward that end.

A FEW POINTERS FOR MORE EFFECTIVE CHANCERY TRIALS

December 14, 2010 § 8 Comments

A few thoughts that might help:

Facts, not impressions.  Okay, you’re the judge and you have to decide whether the defendant assaulted the plaintiff.  Here are two different versions in response to the question “Please tell the court what you observed when you entered the room.”

Version One:  “The defendant was going crazy. I mean he went mental.  Kaflooey!  And I couldn’t believe it. Never saw anything like it.  Mmm, Mmm, Mmm; I mean to tell you.  Crazy.  And, Lordy, such language.  I didn’t know which way to turn.  Didn’t really scare me, though — I was in Viet Nam.  But it might have scared the others.”

Version Two:  “The defendant picked up a recliner chair and threw it through the window.  Then he grabbed a beer bottle and rared back like he was going to hit the plaintiff in the head, but instead he slapped her in the face and screamed that he liked to kill her.  She was all balled up on the floor crying and begging, yelling out “please don’t break my arm like you done the last time!” and then he turned and glared at me and I thought he was going to kill me.”

Version one doesn’t convey a single thought about what the defendant actually did to assault anyone.  It is ineffective because it is full of impressions and adjectives.  Where are the specifics? 

Version two, on the other hand paints a vivid picture chock full of verbs that unmistakably conveys the violence and anger.  All the details are there. 

When you’re prepping your witnesses for trial (Uh — you do prep your witnesses, I hope), train them to paint a word picture of what happened instead of just babbling a bunch of labels. 

Eliminate pronouns from your questions.  Keep in mind that you are doing two important things while you are questioning the witness:  You are telling the judge your client’s story as persuasively as you can; and you are making a record for the appellate court to use if necessary.  So how does the following help your client?

Q.  So when they entered the room, what did he say?

A.  They was all talking loud, but he said he was going to kill her for messin’ around with him.

Q.  Who else was in the room?

A.  Just all them and me.

Q.  What if anything did you see him do? 

A.  Well, he left the room and then he came with guns and then they both had guns.

Q.  What did he do?

A.  He started to shooting.  That’s when he shot her by mistake, I guess.

Huh?  Who’s on first? What’s on second?  I dunno’s on third?  How in the world can anybody follow that?  Let’s go back and eliminate the pronouns: 

Q.  So when Robert, Travis and Bo entered the room, what did Bo say?

A.  Robert, Travis and Bo was all talking loud, but Bo said he was going to kill Charlene for messin’ around with Billy Joe.

Q.  Who else was in the room?

A.  Just Rita and Charlene and me.

Q.  What if anything did you see Bo do? 

A.  Well, Travis left the room and then Caleb came with guns and then Travis and Bo both had guns.

Q.  What did Bo do?

A.  Bo started to shooting.  That’s when Bo shot Rita by mistake, I guess.

Clearer?  It is to me. 

Focus on the points you need to prove.  If, for example, you are trying to modify child support, it makes no sense to take your client early in her testimony through a long, meandering history of the marriage and divorce, and then how the children are doing in school, and then get several pictures into evidence that one of the children finger-painted in kindergarten, and then a narration of the soccer tournament in Brandon, and then ad nauseam.  Get into the Adams factors for child support modification, sit down and hush.  Just hush.  Sometimes I have the impression that an attorney has no clue about what he or she is supposed to prove because the witnesses and exhibits are all talking about something entirely different from what is at issue.  

It’s your job to establish jurisdiction.  Yes, it’s your job.  Nevertheless, I have had to do it on more than one occasion for the attorney.  Here’s the deal: 

If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue, and of course a marriage;

if you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and

ditto for a contempt action;

if you are trying a property dispute, where on this green earth is the property located? 

The pleadings are not evidence in chancery court.  Don’t think just because it’s in the pleadings that it is proven.  The pleadings are your template for what must be proven through competent evidence at trial.  If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.

No corroboration = no divorce.  Unless the parties lived in near-total isolation and were incommunicado, which is almost unheard of in this internet-connected, smart-phone world, corroboration is a prerequisite to a divorce.  What constitutes adequate corroboration is beyond the scope of this post, but you can find what you need to know in Professor Bell’s or Professor Hand’s treatise.  In uncontested cases, I will sometimes “recess” the hearing to allow a lawyer time to recoup some of his or her dignity by scrounging up some corroboration, but in a contested case, I can not do that without prejudicing the opponent, and the result is an unfortunate denial of the divorce.              

Spend some time on your 8.05.  A post with ten tips for more effective financial statements is here.  I have seen cases turn on the 8.05’s, and the one that is clear and better-presented prevails every time.

Oh, and here’s something to keep in mind:  If you’re in a modification of child support case, the most crucial thing to prove is that there has been a CHANGE in circumstances.  Use your brain here.  If you are trying to prove a change, and it involves money, what is the best tool to use to show that change?  Yes! It’s the 8.05! Of course! Add a column to your current 8.05 showing the expenses and income from back in 2003 when the divorce was granted.  You can ask your client to dig around and find the 8.05 from back then to base your figures on, or ask her to reconstruct those figures for you.  If she does have the 2003 8.05, you could offer that into evidence to prove the expenses and income back then.

Finally, do yourself, the witnesses, opposing counsel and above all the court a favor and simply number the pages and items of your financial statement.  Imagine how mind-numbing this unfortunately typical exchange is for the judge (and everyone else within earshot):

Q:  So you spend $200 a month on clothes?

A:  Yes.  No.  I’m not sure I know what you’re talking about.

Q:  It’s on page 3.

A:  (Flipping pages of the 8.05)  No. I think that’s the equity in my house.  Or maybe that’s my life insurance.  Or pet expense. I’m not sure.

Q:  No, look at the third page, the third page. 1-2-3.

A. Do you mean the GMAC here? That must be my church donation — Greater Meridian Adventist Church?  Hmm, I don’t even go to that church.

Q:  You’re looking at your car payment.  Turn to the page that looks like this (Showing the witness the document).    

A:  I don’t see where it says that I spend money on clothes.

Q:  Well, you have the figure $200 down there where it says “clothing.”  What is it for?

A:  Oh, clothing.  I see it on line 11, but that’s the fourth page.

Q:  No, it isn’t, it’s the third. 

A:  You’re right, it’s the third.  Now what was the question?

Wouldn’t it have been more effective to direct the witness to the numbered page and to a particular line number?  It certainly would save wear and tear on the judge, if nothing else.  And the less wear and tear you inflict on the judge, the better your case turns out.  Every time.

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