In-House Counsel, Litigators, Trials

2 Outlines Of Witness Examinations: Learning From Mistakes

It's harder than you realize to draft witness examinations and many lawyers don't realize the depth of their ignorance in this area, according to veteran litigator Mark Herrmann.

By  
on

During the course of 25 years working as a litigator in private practice, I often received unusable outlines that were meant to guide me through the examinations of witnesses at trial. Two of those situations stand out in my mind and, like all work that contains errors, those situations are instructive.

A relatively junior associate (not necessarily at the joint where I worked; we often worked with co-counsel) handed me the first outline. This person had been at his (or her, but I’ll use the masculine) firm for a little while, after having completed a federal appellate clerkship. I asked this person to prepare an outline that I could use to conduct the direct examination of an expert witness. He returned an outline that went like this:

Q: Let me see if I understand this. I think what you told me was this . . . . Do I have that right?
Q: I see. And, if that’s true, it would also be true that . . . . Did I get that right?

And so on.

This basically proved that three years of law school and a year as an appellate clerk can’t substitute for ten minutes in a trial court. (It might also make you mighty suspicious of appellate decisions that decide questions involving rules of evidence.)

I explained to the associate that the rules of evidence don’t let you ask leading questions of your own witness. For good reason: If you were allowed to ask leading questions of your own witness, then the witness would become irrelevant. We could put any bobblehead doll in the witness box and conduct a successful direct examination:

Q: That was on October 3?
A: [Bobs head up and down.]
Q: It was 6 at night?
A: [Bobs heads up and down.]
Q: The light was green?
A: [Bobs head up and down.]
Q: You looked carefully in both directions before you stepped off the sidewalk?
A: [Bobs head up and down.]

Sponsored

In that examination, the witness isn’t telling a story at all. The lawyer is telling a story, and the witness is saying “yes.” Because the witness is friendly to the lawyer, it’s easy to do the examination this way: The lawyer could tell the witness not to bother doing anything to prepare for trial. The witness should just say “yes” in response to every question the lawyer asks, and the direct examination will be just fine.

The law intelligently forbids this. The rules of evidence prohibit lawyers (generally) from asking leading questions of their own witnesses.

After we had that conversation, the associate went back to his office and actually created a pretty good direct examination outline. This was a smart guy.

On reflection, maybe the fault was mine: Maybe I should have asked this person if he had any clue what a witness examination looked like before I asked him to help with one. But I’m not sure that, if I’d asked, the associate would have said he needed help.

Hey! I’ve just ginned up a riddle:

Sponsored

Q: What’s the similarity between a new associate at a law firm and Donald Rumsfeld?
A: They’re both threatened by the unknown unknowns.

So much for my associate story (and my riddle).

On another occasion, a junior partner at a relatively well-respected shop (again, not necessarily mine) handed me an outline that I was supposed to use to cross-examine an adverse expert. This outline (appropriately) consisted entirely of leading questions:

Q: So your primary opinion is this?
Q: And your secondary opinion is this?
Q: And those two opinions contradict each other?
Q: And therefore you made a mistake?

This outline consisted entirely of questions. It didn’t contain any answers (or citations to the record, or anything else). The outline implied that the witness would respond affirmatively to every question; I would disembowel the witness on the stand; the witness would ultimately break down and cry; and the jury would erupt in spontaneous applause when I announced, “No more questions, Your Honor.”

I asked the junior partner: “These are pretty good questions. What should I do if the witness ever says ‘no’?”

“Huh?”

“This outline works great if the witness agrees with everything that I say. But what if the witness disagrees with anything?”

“Well, he really shouldn’t. The honest answer to all of the questions is ‘yes.'”

“I understand. What do I do if he says ‘no’?”

The junior partner then went back to re-work the examination outline. And it turned out that she (or he, but I’ll use the feminine) couldn’t re-create as strong an outline once she was required to provide cites to impeachment materials in case the witness wiggled. For example, although the witness had in fact implied several erroneous things during his deposition, the transcript wasn’t clean. If the witness fixed his mistakes on the witness stand, we really didn’t have the clean, cold Q and A needed to impeach a hostile expert in front of a jury.

Or the document that was supposed to prove a key point was actually ambiguous. If we used the document for impeachment, the witness could argue the second interpretation and turn the cross-examination into mush.

Cross-examinations are very different from directs. On cross-examination, you should generally ask leading questions, and arm yourself with material so that you can impeach the hostile witness who refuses to agree with everything you say.

I have some good news for you here: My second story has not prompted me to gin up a riddle.

What lessons do today’s stories teach?

For junior lawyers: You generally cannot ask leading questions of your own witnesses on direct examination. And you generally should ask only leading questions of adverse witnesses on cross-examination, and arm yourself with the impeachment materials needed to control an adverse witness in case he refuses to obediently say “yes” in response to all of your leading questions.

For senior lawyers: It’s harder than you realize to draft witness examinations, and many less experienced lawyers (and even some more experienced ones) don’t realize the depth of their ignorance in this area. Don’t make the mistake I did: Don’t assume that junior lawyers can prepare examination outlines without close supervision.

And the universal lesson of today’s column for everyone: If Herrmann ever writes that he “just ginned up a riddle,” stop reading.

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Topics

, , , , , , , , , , ,