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The California lawyer’s trusted source for fast, relevant, and practical legal guidance.

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    According to at least one judge, most lawyers do a good job in their opening statements, direct examinations, and closing argument, but never learn the art of cross-examination. To master that art, lawyers need to give cross-examination the same attention they do other phases of trial. Judge William F. Rylaarsdam offers the following tips to highlight […]

    Julie Brookcrossexamine_57277981Julie Brookcrossexamine_57277981

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  • 06/26/13--08:01: Evasive Witness
  • Every trial has at least one evasive witness. Either control an evasive witness, or you’ll find that success in the case will evade you as well. Always start witness control efforts courteously, only moving to more insistent questions (and eventually, motions to strike) if the witness has lost the jury’s sympathy by refusing to give […]

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  • 05/05/14--07:52: Know Trial Objections Cold
  • Making objections is a key skill for every trial attorney. The more you try cases, the more rote they become. But if you’re relatively new to the courtroom, or it’s been a while since you’ve been there, here’s a system for memorizing possible objections and having them at the tip of your tongue at trial. […]

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    If you’ve devoted years to a case and have prepared intensively for trial, you’ve probably memorized all the relevant data so you won’t need to refer to notes for your opening statement and closing arguments. At least you hope so! Going off notes is key to capturing and holding the jury’s attention. If you can […]

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    Not surprisingly, California’s legal ethics rules have a lot to say about how attorneys relate to jurors. Here are 5 do’s and don’ts when it comes to attorney-juror interaction. Don’t communicate with the jury panel before trial. Before trial, attorneys can’t communicate directly or indirectly with anyone known to be a member of the panel […]

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    Should you hire multiple experts on the same topic? There are some very good reasons to use this strategy. If the case justifies the expense, retaining multiple consultants in the same field has a variety of advantages. You can: Have the consultants “compete” and then designate the stronger as a witness to testify at trial; […]

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    Your client lost in the trial court. Should you appeal? A key basis for appeal is that the trial court’s ruling on a question of fact was erroneous. Here’s how to go about identifying a factual determination that might form the basis of an appeal. A question of fact is generally one that can be […]

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    Need to get business records into evidence? There’s a hearsay exception for that! The business records exception to the hearsay rule makes it easier for businesses to provide records during litigation without undue disruption. Here’s how to use it. First off, think broadly. The term “business records” applies to records of every kind of business […]

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  • 12/03/14--09:00: Make a Plan for Each Witness
  • Before you prepare a witness for trial, you should know precisely what you expect to accomplish through that witness. In other words, have a plan. Your trial notebook should have a section for each witness that includes your examination plan for that witness, which covers direct, cross, and anticipated rebuttal. That plan should note the […]

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    A successful evangelist once said about his sermons: “Nobody ever got religion after the first twenty minutes.” His time estimate may be wrong, but every evangelist and trial attorney has wrestled with the short attention span of their audiences. At trial, counsel and client are fascinated by everything that goes on and are almost never […]

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    An episode of This American Life described the failed effort to get a Tic-tac-toe-playing chicken into evidence in the death penalty case of a mentally ill man with a very low IQ. Defense counsel was trying to rebut a psychiatrist’s testimony that the defendant was aware he was going to be executed based on his […]

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    Few attorneys have the time or budget to do detailed preparation for cross-examination of every witness. And even if the budget makes it possible, time spent on other aspects of trial preparation will force counsel to take shortcuts. When time is short, these 12 tasks are the bare minimum necessary for cross-examination preparation. Read the […]

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    Almost every case has problems—sometimes they are analogous to bombs waiting to drop on your case. The key is whether you show them to the jury and simultaneously defuse them, or whether the opposition drops them with glee. One of the hardest lessons for many attorneys is the importance of acknowledging weak spots in your […]

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    Both the opening statement and the closing argument should be used to persuade. (No, it’s not all about direct and cross.) The adages about the importance of first impressions and last words are worth heeding. Persuasion is the act or process of advising or urging a course of action. Here are four keys to being […]

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    By the time you prepare your opening statement, you’ll know specifically what the legal theories of your case are and generally what the jury instructions will be. By the time of your closing argument, the instructions will have been settled. Make sure to plan your opening and closing with the jury instructions in mind. In […]

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    One of the cornerstones in trying a good case is pacing. The attorney who proves everything proves nothing. It’s imperative that your case be pared down to its essential elements and presented concisely. Here (concisely) are some ideas for improving your trial pacing: 1. Use summaries of writings. As a general rule of thumb, any […]

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  • 03/30/16--07:50: Don’t Bore the Jury!
  • Much to the chagrin of trial attorneys, jurors don’t always give their full attention to the trial. It’s trial counsel’s job to keep things interesting. Depending on the case, this can be a tall order. Here are some tips for making your questioning of a witness as compelling as possible. To help the jurors listen […]

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  • 07/22/16--07:36: What’s a Timely Objection?
  • Objections to evidence at trial must be “timely made.” Evid C §353(a). But what does that actually mean? To be timely, an objection to inadmissible evidence must be made at the earliest opportunity. 3 Witkin, California Evidence, Presentation at Trial §384 (5th ed). When it comes to tangible evidence, the earliest opportunity means at the […]

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    You rarely want to attack an opposing expert witness directly. Your best bet during cross-examination is to use peripheral or tangential ways of assailing the expert’s views. To understand how peripheral cross-examination works, consider this example: You’re questioning the medical doctor who performed an independent medical examination of your client (the plaintiff) on behalf of […]

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    Once the jury panel has been sworn, prospective jurors are selected at random, seated in the jury box, and questioned. Counsel may conduct a “liberal and probing examination” that’s calculated to discover juror bias or prejudice related to the circumstances of the case. CCP §222.5. But if opposing counsel’s questions go out-of-bounds, you need to […]

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