GETTING STARTED GETTING STARTED WITH YOUR TRIALWITH YOUR TRIAL

Opening statements should be compelling and concise. They set the context in which exhibits and testimony will be understood. Long opening statements are counterproductive to this purpose. Your opening statement should also take into account your audience. In a trial court, you will be addressing either a judge or jury, or just a judge. In short, your guiding principle in delivering your opening statement is to present the theory of your case, an overview of the evidence and the witnesses you plan to introduce, and what the evidence and witnesses will demonstrate.

Opening statements should be compelling and concise. They set the context in which exhibits and testimony will be understood. Long opening statements are counterproductive to this purpose. Your opening statement should also take into account your audience. In a trial court, you will be addressing either a judge or jury, or just a judge. In short, your guiding principle in delivering your opening statement is to present the theory of your case, an overview of the evidence and the witnesses you plan to introduce, and what the evidence and witnesses will demonstrate.

OPENING OPENING STATEMENTS: STATEMENTS:

OPENING STATEMENTS:

Start with a persuasive story based on a theory.

Preview the evidence you will present.

Outline the order of credible witnesses.

Your theory should be a compelling counter-story to rebut points that you expect opposing counsel will make.

Presenting your opening statement:

OPENING STATEMENT

Stand and begin your opening statement with the words:

“may it please the court . ”Wait for the presiding judge to

acknowledge you before continuing with you opening statement. The say:

“your Honour(s)…” (depending on the number of judges presiding)

Or “ladies and gentlemen of the jury…”

(if there is a jury presiding)And proceed with your opening

statement.

Tips for Delivering an opening Statement Delivery and

technique(eye contact, voice, volume, pacing):

Tailor the statement to the audience. For a jury trial, begin with the story and outline the legal issues.

Summarize the indictment. What are the key legal issues?

Outline the order of witnesses. What do you anticipate they will testify?

Indicate what the evidence will be and-more important-explain what the evidence will show.

OPENING STATEMENT

In previewing your evidence, try to deal with what you anticipate will be opposing counsel’s theory. For example, “It is anticipated that you will hear…” or “My client disputes the following issues…..”

Connect the facts and supporting details to the relevant issues in the case.

Organize the facts in a persuasive and logical sequence.

OPENING STATEMENT

Build your case. Prioritize the evidence. Demonstrate continuity of evidence. Demonstrate how evidence will be corroborated or confirmed.

Ask for the verdict you seek Thank the judge and or jury for

listening.

THINGS TO AVOID

Do not try to advance an argument. You may have a theory, but nothing has been proven yet. At this stage of the trial you are theorizing, giving an overview of what you intend or hope to prove through the evidence. Save your arguments for the closing.

Do not outline opposing counsel’s theory of the case. Do not repeat the indictment verbatim. Do not object to statements by opposing counsel in their opening

statement. Avoid repeating the same point in slightly different language Avoid using loaded, biased or controversial language. Do not mock, sneer at, or make fun of others. Do not chew gum. Do not tell the judge how you feel about the case. Evidence only.

KNOW YOUR PURPOSE AND HOW TO BE EFFECTIVE

DIRECT EXAMINATIONDIRECT EXAMINATION

Direct examination (also known as examination –in-chief) is your opportunity to call witnesses to prove the facts on which your theory of the case rests. Since the most important facts in the case will probably be those that are in dispute, your task is to persuade the judge and/or jury, through the testimony of credible witnesses, of the accuracy of the facts.

Basic Rules for Direct Examination

• During the direct examination, you may not lead the witness. A leading question contains or suggests the answer sought. Allow the witness to tell his or her story in the witness’s own words.

• Carefully design and sequence your questions. Know your purpose. What do you have to prove?

• Prioritize the legal issues you need to cover with each witness.

• Encourage the witness no to be overly wordy. Keep him or her focused on the question and the evidence that will be revealed by the answer.

• Do not interrupt the witness. Allow him or her to give a full answer.

• Ask the witness to clarify or confirm important testimony in order to reinforce your point.

EXAMPLE

Q. “So , Ms. Clark, your evidence is that … Correct?”A. “Yes” or “No” with an explanation.Witnesses, other than expert witnesses, are not allowed to offer opinions (see “Expert Witnesses” later in this chapter).Avoid cluttering your witnesses' testimony by asking unnecessary or irrelevant questions. Get to the point. Be Precise. What will the witness help you prove? Explain where the testimony is headed, then go there by using headline or transitional statements.

Example

Q. “Now, Mr. yates, let’s talk about the morning after the prom. What injuries did you sustain?”

•End with a “clincher” – a single fact that supports your theory of the case.

•Example

Q. “Ms. Verkerk, did you know that the drugs were in the pool table pocket?”

A.“No”

Q. Thank you. No more questions.”

•Start strong and end strong

Questioning Techniques for Direct Examination

Use short , open-ended questions. Let the witness tell his or her story.

Use directive or transitional phrases to direct the witness’s attention to a topic you want to examine.

Use headline questions to alert the judge and/ or jury that you’re “shifting gears.”

Use questions to focus the attention of the judge and/or jury on your key points.

Ask a series of questions to breakdown the whole testimony into digestible and logical chunks.

Use reflective questioning to create a verbal image.

Use visual aids such as drawing, models, or photographs.

Review and re-evaluate your sequence of questions to ensure that you have not missed an important point.

Thing to Avoid During Direct Examination.

Do not ask confusing questions.ExampleQ. “ Did you see the defendant, not when you entered

the lunchroom at lunchtime when you were with your debate group friends, but when you entered the library when you were alone when classes had ended?

Do not ask double questions.ExampleQ. “ Is it true that you skipped class yesterday and stole

$20.00?” Do not interrupt the witness.

A Typical Direct Examination

Q. “ What happened on March 2, 2005?” A. “I was attacked by a dog.” Q. “What kind of dog was it?” (Instead of: “Was

it a pit bull?”) A. “A pit bull.” Q. “How big was the dog?” Instead of: “was it a

big dog?”) A. “It was very large.” “What happened next?”In this way, you are getting the witness to say what you want, but

you are not leading the witness.

In cross-examination, you ask questions of your opponent’s witnesses. Cross-examination can pose a challenge for even the most experienced advocate. Your opponent’s witnesses may not cooperate with you and may resist your line of questioning. Their attitudes can range from uncooperative to hostile.

One of your goals in cross-examination is to minimize the damage caused by a hostile or argumentative witness. The challenge will be to decide how brief or extensive your questioning should be. Consider the purpose of cross-examination and then review some tips on how to be effective.

CROSS-EXAMINATIONCROSS-EXAMINATION

“If [direct examination] is your

best opportunity to win your

case, cross-examination may

provide you with the chance to

lose it.”

The purpose of Cross-Examination

To repair or minimize damage that the witness did to your theory of the case during your opponent’s direct examination.

To enhance your case. Are there points that will advance your theory of the case?

To expose the weakness in your opponent’s case by revealing contradictory evidence or inconsistencies in the witness’s testimony.

To discredit the witness by suggesting that he or she is not reliable or credible.

To expose inaccuracies or lack of certainty in the evidence.

Example

Q. “ You say you saw the driver of the car, yet you also say you were in the basement when you heard the car drive by. How could you have seen the driver?”

To raise doubt about the plausibility or logic of the witness’s testimony. If the testimony doesn’t make sense, it’s not believable. To demonstrate where the witness’s testimony conflicts with the testimony of other, more credible witnesses. To raise doubt about the witness generally. Is the witness biased? Untruthful? Not credible?

Three Considerations to Guide Your Cross-Examination

1. Know what you want to cover during cross-examination.

2. Know the order in which you want to cover it.

3. Design the questions to get the answers you want.

General Guidelines to Govern Cross-Examination

Carefully design and sequence your questions. Know your purpose.

Prioritize the legal issues you need to cover with each witness. Take control of the witness through a well prepared,

sequenced set of questions. Don’t allow the witness to take you hostage!

Every question should be a leading question.- Start by asking the witness friendly, non-threatening

questions. These will put the witness in a cooperative frame of mind.

-With each subsequent question, lead the witness down a narrowing path, to the point where the witness is compelled to give the answer you seek.

EXAMPLE

Q. “ You would agree with me, Ms. Moniz, that you own a pit bull, yes?”A. “Yes.”Q. “You would agree with me that a pit bull is a large dog?”A. “Well, I guess so.”Q. “You would agree with me that a person might be frightened of a pit bull?”A. “Maybe.”You have the right to insist on an answer to your question.

Example

Q. “Mr. Harman, you haven’t answered my question. Can you please answer yes or no?”

Q. “Perhaps the question wasn’t clear, Mr. Harman. Allow me to rephrase it.”

You have the right to ask for clarification of the witness’s testimony to reinforce your point.

Example

Q. “So your evidence is that ….. Correct?”

A. “yes” or “No” with an explanation.

Things to avoid during cross-examination

During cross-examination of a stubborn or clever witness, you may get answers that you don’t want. When this happens, it may be in your best interest to concede the point and move on to another topic. By doing this you will regain control of the questioning.

Never ask a witness to explain anything during cross-examination. You risk being taken hostage by a verbose witness.

You may not physically intimidate a witness.

You may not shout, make threatening gestures, bully, or badger the witness.

Things to avoid during cross-examination continued…

You may not mislead the witness or use trick questions.

Do not ask open-ended questions.

- Do not ask, “Do you have an opinion about this or that?”

- Do not ask, “What do you think about….?”

Avoid long questions that give the witness more opportunity to disagree.

Do not interrupt the witness. You will appear rude. Allow the witness to give a full answer.

Do not argue with the witness. Rephrase the question or move on to your next point.

Unlike the opening statement, the closing summation is an argument. Remember the cardinal rule: less is more!

CLOSING ARGUMENTS

Tips for preparing a persuasive closing argument

1. Tell a persuasive story.Review facts. What happened?Why did it happen?Who is credible? Who should be believed?How can we know for sure what is true?Does the evidence make sense?Is the theory compelling?

2. Tie up the loose ends from cross-examination

Leave space in your closing argument to make inferences and assert claims that were implied during cross-examination.

Highlight inconsistencies, contradictions, and gaps in the logic of opposing counsel’s theory of the case.

3. Deliver on your promises

During your opening statements, you told the judge and/or jury what you intended to show, demonstrate, or prove. Now, during your closing argument, you should comment on the promise that were kept.

4. DEAL WITH YOUR WEAKNESSES

During cross-examination of your witnesses, opposing counsel may have exposed inconsistencies, contradictions, or weaknesses in the logic of your theory of the case. Confront these problems and resolve them.

5. Ask for your verdict or damages

In a criminal trial case, confidently ask the judge and/or jury for the verdict you seek.

In a civil case, after you have demonstrated liability, address the issue of damages.

Tips for Delivering a Persuasive Closing Argument

Do not read or try to memorize your argument word for word.

Use an outline to organize and plan your argument.

Deliver your argument with an air of spontaneity.

Be flexible with your closing argument. Allow space in your outline to include unexpected statements made during the trial.

Animate your delivery with body movements and gestures for emphasis and effect, or to contrast differences between your case and that of the opposing counsel.

Use verbal headlines and transitional phrases to signal where you are going next and to guide the judge and/or jury through your argument.

Use enumeration to summarize related points in your argument.

Example“There are three reasons….. One…..two…..three

Practice speaking. Locate your natural tone. Use the voice techniques of inflection, volume, and pace to get your message across effectively.

Use simple, persuasive language. Simple language is more compelling than elaborate and ponderous phrasing that strains the attention of your audience. Choose active nouns and verbs to convey emotion. Avoid inflammatory adjectives and adverbs.

Use visual aid as appropriate. You may use any exhibit entered into evidence-a document, a diagram, an item of clothing, a weapon- to illustrate a key point in your closing argument.

Things to avoid during your closing argument

Do not use a statement of your personal beliefs as a basis for the verdict of your case.

Do not appeal to emotion or sympathy as the basis for the verdict. The case must be judged on its legal merits and the evidence presented.

It is unethical to use inflammatory arguments based on prejudice or bigotry to persuade or appeal to the judge and/or jury.

Do not misstate the facts or deliberately employ logical fallacies to jump to conclusions or make inferences that the evidence does not support.

When enumerating items, do not number more than six items. Most people’s attention starts wandering after seven items of information.

AVOID!

If you are playing a witness and enjoy acting, you can have a lot of fun brining your witness to life by wearing a distinctive item of clothing, adding an accent, or developing a personal mannerism. You can also use your voice to evoke emotion and enhance your credibility.

However, dramatic techniques that heighten the impact of your portrayal should be secondary to your main purpose: advancing the case for which you are testifying. As a witness, you are expected to testify truthfully according to the facts. Witnesses who make up evidence or perjure their testimony risk being impeached by a clever lawyer.

WITNESS ROLE

Tips for Witness Portrayal

Practice. Know your testimony thoroughly, inside and out. You are not allowed to use notes on the stand, so you need to know your stuff. Through telling and retelling the story, you will gain confidence.

Strive to stay in character for your entire testimony (direct examination and cross-examination). For example, adopting an accent and then losing it midway through your testimony lessens your credibility. Strive to be convincing. Acting too big or over the top can be counterproductive and lessen your credibility.

Whatever persona you decide to adopt, it should always complement your witness’s character and advance your side’s theory of the case.

Speak slowly, loudly, and clearly to convey confidence.

Pause before answering a question. Give yourself time to think, especially during direct examination. You don’t want your testimony to sound canned or too rehearsed. Use a natural conversational tone. Avoid being sugary or insincere.

Remember to breathe. Especially during cross-examination, when your adrenalin is pumping in your showdown with opposing counsel, it is important to remain physically grounded. Deep breathing help you do this, and also keeps you from speaking too quickly.

Know your own weaknesses. From your analysis of the case, anticipate and prepare for questions that target your credibility.

Don’t allow yourself to be bullied or rushed into giving an answer.

Don’t argue with examining counsel or try to be evasive if you suspect your answer will damage your testimony. Answer the questions to the best of your ability. If you're not sure of an answer, say, “I don’t recall.”

Remember your audience. The judge, the trier of fact, and the jury, if there is one, must be able to hear your testimony. Make eye contact with them as you answer.

Address your answers to the judge, even though you’re responding to examining counsel’s questions. The lawyer should position himself or herself and stand in a spot that allows for a triangular flow.

Tips for testifying During Cross-Examination

Listen carefully to the question being asked of you. If you don’t understand it, or if the question is long and complex, ask examining counsel to clarify or simplify the question.

Think before you speak. Don’t deliberately delay and offer a nonresponsive answer, but don’t feel pressured.

If you’re questioned about a fact of the case that is unfavorable or damaging to your side, concede the point and act as if it has no significance. If you delay or appear shifty or reluctant tot answer, you will only reinforce the damage.

If you’re presented with a document, take time to read it. If something in the document damages your credibility or contradicts your testimony, diminish the significance by responding as briefly as possible.

If you’re challenged with strong evidence that contradicts your testimony, apologize for having been inattentive at the time and concede the point o minimize the impact on your credibility.

• If you don’t know the answer to a question – even if you’re an expert witness- say so. You’re not expected to know absolutely everything.

Always try to give a full uninterrupted response to a question. If examining counsel harries or badgers you, your own counsel should object.

If you are asked to affirm a claim that you believe to be untrue, politely respond that you don’t think it’s true and clarify where examining counsel made an error. Expert witnesses often do this during cross-examination.

If a leading question is well crafted and absolutely clear-cut, you must respond accordingly – usually “Yes” or “ No”. However, if you believe that you can’t answer a question properly or fully with a simple yes-or-no response, indicate as much and let the judge rule on it.

The outcome of a trial may depend on the testimony of an expert witness. An expert witness is someone who is recognized and qualified in a particular field. Such a witness can enhance the theory of the case that Crown or defence counsel is seeking to advance. In order to qualify such a witness, counsel needs to demonstrate that the expert has some special knowledge or expertise gained through education and/or experience and that the witness can apply this expertise to the relevant issues in the case and give his or her “expert opinion.”

If you are playing an expert, your lawyer must lay the foundation for your expertise by asking a series of questions about your education, training, experience, scholarly work, and/or publications.

Expert Witnesses

Example

Q. “Dr. Scallen, please tell us about your education.”

A. “Certainly. I have an undergraduate degree from McGill and a PhD in economics from the University of British Columbia.

Q. “What work have you done since receiving your doctorate?”

A. “I was a professor in the economics department at Dalhousie university for six years. Then I left to start my own consulting firm, which is called Scallen & Associate.”

Q. Do you have a specialty within the field of economic?”

A. “yes, my specialty is business valuation.”

Q. “What is the field of business valuation?”

A. “It is the study of all components that contribute to the fair value of a business, including anticipated future profits, assets, receivables, goodwill, and investment potential.

This example outlines and confirms the expert qualifications substantiated by the witnesses' education and experience. Dr. Scallen should now be able to give his expert opinion as to the projected profits of a business involved in the case.

If there are no objections from opposing counsel, the lawyer asks the court’s permission to have you qualified as an expert. This step is significant, because only an expert witness may off an opinion in his or her testimony to the court.

Refreshing a Witness's Memory

Human memory is fallible and full of gaps. Most of us can’t remember, minute for minute, where we were last week or what happened earlier in the day. A witness may honestly have a memory lapse or unintentionally change his or her testimony. It may be necessary for the lawyer to help refresh the witness’s recollection.

Example

Q. “You testified during the direct examination that you went directly from the scene of the accident to the hospital.”

A. “Yes, that’s right.”

Q. “In fact, you went to the telephone and called your office first.”

A. “I’m not sure that I did.”

Q. “Let me refresh your memory.” (Refer to prior statement.) “you were asked this question and you gave this answer.” (Read word for word)

A. “I see.”

Q. “ Does that refresh your collection as to whether you did anything before going to the hospital?”

A. “ yes it does.”

Q. “in fact, you went to the telephone and called your office first, didn’t you?”

A. “yes, I did”

Avoid being a jack-in-the-box, popping up every time opposing counsel asks a question. A timely and appropriate objection will make a better impression with the judge and jury. Only object if doing so advances your case.

OBJECTIONS

Five Simple Rules About objections

RULE #1Objections are permitted during the examination of witnesses but not during opening statements or closing arguments.

RULE #2Only one lawyer for each side may object during the questioning or testimony of a witness. This lawyer is the one conducting the direct examination or the cross-examination of the witness.

RULE #3Both the Crown and the defence may object to questions or to the admissibility of an exhibit. The judge may either sustain (agree with) or overrule (disagree with) an objection.

RULE #4A lawyer makes an objection by standing and stating, “Objection, Your Honour,” and then specifying the grounds for the objection

RULE #5 Before the trial begins, the Crown must disclose to opposing counsel all evidence and exhibits that will be introduced during the trial. If the crown attempts to introduce evidence or an exhibit that was not previously disclosed, defence counsel may object.

Variety of Objection

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