Kentucky and Indiana Mechanic's Liens

Article 9 of Uniform Commercial Code

“Tips, Tricks & Traps”
The Legal Collection Process

Witness Preparation

SECTION D

DIRECT VERSUS CROSS-EXAMINATION

Shon Leverett

As previously mentioned, direct examination is defined as when a witness is called by the attorney who represents him, or alternatively, by the attorney who believes the witness’ testimony will assist such offering attorney in the proof of his case. It is during direct examination where the attorney typically will bring out that testimony which has previously been reviewed, rehearsed, and developed prior to the day of trial. Conversely, cross-examination is when the opposing attorney has the opportunity to question, impeach, and attempt to distinguish or outright destroy the testimony which was put forth on direct examination. In preparing a witness for trial, attorneys not only take different approaches, but must also rely on the witness’ abilities to provide effective testimony during both facets-direct and cross.

D1.00 DIRECT EXAMINATION

Until now emphasis has been placed on the notion that preparation is the key to success in the courtroom. As many attorneys have stated, “in large measure, cases are won or lost before the trial ever begins... You cannot win your case on direct examination, only lose it.” Recognizing this fact to be true and the additional fact that an unprepared witness is a loose cannon, it is imperative witnesses be properly prepared for direct examination.

D1.01 DEVELOPING A THEORY

At some point in time in the pre-trial process after analyzing the evidence, considering the positive and negative facts, a lawyer can build a theory, that is his or her interpretation explaining how things happened. The vast majority of attorneys prepare a primary theory in the case and some an alternate theory. The theory serves as a general overarching roadmap where the attorney wants to proceed in the case and ultimately is the element that he is constantly looking toward in questioning whether his evidence and witness testimony are achieving the persuasion of such theory to the trier of fact.

D1.02 UTILIZING OUTLINES OR SUMMARIES IN PREPARATION

Whereas a case theory as described in 4A.01 above is very general in its scope, the lawyer will begin to narrow such scope as witness preparation is initiated. In the process of witness preparation, the outline is a necessary tool as it insures the lawyer no important issue will be overlooked. Outlines have been defined as the “roadmaps that trial lawyers must use on their journey from the first meeting with the client to the closing argument to the jury.” See Aron Page 12-20 As far as witness preparation, it is helpful to develop an outline of the areas to be explored with each witness. As the preparation process goes on the outline will continuously be refined to reflect better what actual information will be presented through the particular witnesses. Although there are no specific rules for developing an outline, some have suggested it is helpful to classify the questions to be asked or the areas to be covered by the witness in terms of significance to the case.

“Facts fall into four levels of importance according to this approach: (1) decisive-these are facts which can determine the outcome of the case; (2) important-these are relevant facts which by themselves could not determine the outcome of the case but together with other facts could have a cumulative effect; (3) second-rate importance-these are relevant but will not determine the outcome; (4) unimportant-these are facts that are not relevant or necessary to the account or the outcome of the case.

Another useful tool during trial preparation is the use of direct examination summaries in preparing the witness. As an outline assist the attorney, it is possible to give the witness a similar aid through the use of a summary of direct examination. “When explained and discussed with the witness, this summary will help the individual understand what questions counsel plans to ask, the role of his or her testimony in the case, and the order in which the questions will be posed in court. This knowledge will help the witness feel more at ease when taking the stand.” See Aron Page 12-23.

D1.03 AVOID CONTRADICTIONS

A lawyer being aware of all potential contradictions, he can point out actual and potential contradictions to the witness as part of his witness preparation process. Explaining to the witness the concept of contradictions and the dangers posed by them in terms of credibility with the jury and cross-examination by opposing counsel is very important. “There is a close relationship between contradiction and credibility. Once a witness is surprised in one internal contradiction, even if it was a misunderstanding or misrepresentation and not a lie, his or her credibility with the jury will be stigmatized with a large question mark.” See Aron Page 12-29.

In the process of witness preparation the lawyer must not only advise the witness to testify truthfully, but must also stress to the witness to avoid contradictions with his testimony. The lawyer should explain to the witness that one of the purposes of cross-examination is to illicit these contradictions. Should the lawyer succeed, the witness’ credibility would be in doubt and potentially could lead to impeachment. In explaining this to a witness it is necessary to alert the witness “to the fact that there are limits to the scope of cross-examination. The cross-examiner may ask questions related only to what the witness said during direct examination testimony or about statements made by the witness in previous circumstances, contradicting what the same person declared in direct examination. Id.

D1.04 DEVELOPING PERSUASIVE DIRECT

There are several factors in developing persuasive direct. When the efforts of the attorney combine with the effective testimony of the witness, persuasive direct testimony is possible if the following strategies can be implemented. In one of the leading authorities on witness preparation, the following elements have proven to be quite successful by all lawyers taking note:

“First, make the testimony clear. The purpose of direct examination is to persuade. A prerequisite for persuasion is understanding. Before asking any question, the lawyer must consider the clarity of the question as well as the clarity of the expected answer. The witness must also be instructed to be as clear and categorical in his or her answers as possible.

Second, on direct examination be direct. Short and clear questions in plain and simple English will obtain concise and precise answers from the witness.

Third, present the facts in their best light. Lawyers cannot create facts, but direct examination provides one of the opportunities for the lawyer to present the facts in a better light.

Fourth, make the case attractive and comprehensible to the jury. Besides the information that the jury receives from the opening statements, they know nothing about the case. In their verdict, they will consider only what they hear and see as evidence during the trial. Consequently, the advocate must develop through the witnesses a comprehensible and attractive presentation of the case. Most importantly, in order to be credible, the witness’ story must be based on common sense and normal, explicable facts.

Fifth, control anxiety. Anxiety and nervousness are contagious. A witness’ defenses against these afflictions are weak. It is therefore essential that the lawyer control his or own nervousness lest it spread to the witness being examined and those waiting to take the stand.

Sixth, never lose your temper. During the trial, the attorney can lose a Motion, lose an objection, and even lose an important document. One thing that a lawyer cannot lose is his or her temper. There is an adage that when two people are arguing, the first one to lose his or her temper also loses the case.” See Aron at 12-35, 36.

Next, before the witness testifies there are some hints that many lawyers have conveyed to their clients as being beneficial. It has been held that before you testify:

If you are going to testify concerning records, become familiar with them. You should know what the records contain and be able to refer to them easily if you must do so while you are on the witness stand. If you are not generally familiar with your company’s procedures for making and keeping these records, find out. You may be asked to authenticate them as records made and kept in the regular course of the company’s business.
If you are going to testify concerning some event that happened months, or even years before, try to refresh your recollection. Return at least once to the place where the event occurred. Close your eyes and try to picture the exact scene; Note the location of physical objects and approximate distances, for you may be asked about these things. If you have given a written statement, ask to see it. Talk with friends or co-workers where they may help to recall details that you had forgotten. But do not try to develop a common story. Remember, your testimony must state what you recall, not what somebody else told you.

D2.00 CROSS EXAMINATION

D2.01 PREPARING WITNESS FOR CROSS

“While jurors await cross-examination with anxious expectation, the witness awaits cross-examination with expected anxiety. Like the crowds in a Roman arena awaiting the confrontation between lion and gladiator, the jurors are waiting for the slaughter to begin. On the other hand, the witness, like the gladiator is filled with the tension of anticipated devastation. The jurors sit back to await the questions and answers while the witness stiffens with mounting tension awaiting the expected onslaught.” See Aron Page 13-2.

It is often thought the most effective weapon an attorney has in effectuating his cross-examination is the witness’ own anxiety, fear, and overwhelming tension. Therefore, the first step to prepare a witness for cross-examination is to set the witness’ mind at ease. To do this, the attorney must describe the process and purposes of cross-examination, assuring the witness that what has been portrayed on television and in motion pictures is not at all in accordance with reality and is really what an untrained and inexperienced lay person believes cross-examination should be like. See Aron at 13-2.

D2.02 SCOPE AND NATURE OF CROSS

The witness should be informed the main purpose of cross-examination by opposing counsel is to primarily discredit the witness’ testimony on direct examination and to establish the witness’ lack of credibility. The witness should also be informed that opposing counsel may go beyond the specific factual matters elicited in direct testimony to try and introduce evidence favorable to the other side from the witness on cross-examination.

One of the most important ways to demonstrate to a witness the nature of cross-examination is for the attorney to rehearse cross-examination type questions with his witness in a hypothetical format. To effectively prepare your witness for cross-examination, the attorney must attempt to formulate questions which may be asked by opposing counsel on cross-examination, and implement those questions in a less than friendly approach which may be similar to opposing counsel’s tactic. The attorney should prepare the witness by employing some leading questions in an insidious manner, demonstrating to the witness what he or she can reasonably expect during cross-examination. Such a demonstration will not only educate the witness to anticipate the form which cross-examination will take but also will likely make the witness a bit more comfortable by removing much of the mystery and terror of cross-examination. See Aron at 13-3. Attorneys that have developed strategies for witness preparation have also created a series of assumptions upon which witnesses should be instructed. Author Aron has set forth the following which he believes are important:

The attorney conducting cross-examination is very skilled;
The manner and style which the attorney utilizes during cross-examination should not lull the witness into a feeling of security and comfort;
Each question asked is not necessarily critical or one that the attorney wants answered but which may be a preliminary question in a chain of seemingly innocuous questions which are asked to paint the witness into a corner before asking the ultimate question;
The attorney conducting cross-examination is not necessarily desirous of obtaining the witness’ truthful and complete responses;
The cross-examining attorney is much smarter, much better prepared, and in a much better position than the witness to control the direction and the ebb and flow of cross-examination; and
Jurors will generally be sympathetic to a witness who is being subjected to a scathing and difficult cross-examination so long as the jurors believe the witness is trying to answer questions on cross-examination truthfully; so long as the jurors perceive the witness and not the cross-examination attorney is at a disadvantage; and so long as the jurors do not get the impression the witness is trying to compete with the attorney in any way. See Aron Page 13-5, 13-6.

D2.03 PREPARING WITNESS FOR THE TESTING OF DIRECT EXAMINATION

Witnesses should also be prepared to deal with customary means of testing the direct examination of a witness:

By establishing the witness’ inability to perceive what he or she has testified to on direct examination;
By establishing or suggesting the passage of time has dulled the witness’ ability to recall what he or she has perceived;
By evidencing or inferring the ability of the witness to recount and describe in such detail the events to which the witness testified on direct examination is suspect.

D2.04 CROSS EXAMINATION TO IMPEACH GENERALLY

“Every witness who is being prepared to take the stand and testify must understand that human perfection does not exist and that everyone has reasons for doing what they do that they may not even recognize or understand.” See Aron, Page 13-13. It is essential the attorney prepare the witness to acknowledge these ideas in certain circumstances. “The ability and willingness of a witness to acknowledge publicly imperfection and personal motivation is the key to taking the sting out of cross-examination to impeach general credibility.” Id.

D2.05 CROSS EXAMINATION BY INCONSISTENT STATEMENTS OR STATEMENT OF OTHERS

If properly utilized by a skilled attorney, a prior inconsistent statement of the witness can be most devastating cross-examination to which a witness can be subjected. Therefore in preparing the witness to be cross-examined, the attorney should obtain any and all prior statements of the witness that in any way relate to the events of which the witness is being prepared for direct examination. The statement should be reviewed with the witness by the attorney to determine if there are discrepancies as to what was recorded and to what the witness wants to testify. Further, if such discrepancies and/or contradictions are found, the witness should be able to plausibly give explanations for those differences even if the explanation is that simply between the making of the prior statement and preparation for appearance, the witness has refreshed his or her recollection by reading, observing, or hearing something which had escaped his or her attention. Be aware that prior inconsistent statements are always likely to be a subject of cross-examination.

D2.06 OBJECTIONS MADE DURING CROSS EXAMINATION

A witness must be instructed about legal objections which may be voiced by opposing counsel during the witness’ direct examination by either opposing counsel or the attorney calling the witness during cross-examination.

In preparing the witness to react to objections, the witness should be advised some attorneys utilize these objections during direct examination of an adverse witness for the specific purpose of unnerving the witness and to see how the witness will react. Those attorneys may also employ the same tactic on cross-examination by objecting to certain answers of the witness on cross. If an objection takes place the witness should be instructed to pause and not answer the last question. Specifically, the witness should be advised that an objection being made by the attorney who called the witness on direct examination may be one means of protecting the witness against unfair and improper tactics on cross-examination. Therefore in conclusion, the attorney should suggest that when any attorney in the courtroom stands up and says “objection,” the witness should just sit back and relax and wait for the Court to sustain or overrule the objection. If an objection is “sustained” the witness should not answer the question, but if the witness hears the Court say “overruled” then the witness should answer the questions appropriately.