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 the special purposes of cross-examination and to be a guide for mastering the art of cross-examination.

• Don’t confuse cross-examination with a deposition. The purposes of each are completely distinct: the purpose of a deposition is to find out what information the witness has and nail the witness down to a particular version of the facts, and the purpose of cross-examination is to ascertain the truth of alleged facts.
• Consider whether to cross-examine at all. The answer to this depends on whether the witness has testified to anything that injures your case.
• Control your own demeanor during cross-examination. When counsel speaks pleasantly and frankly, shows confidence, refrains from acting surprised, and stays focused on the real issues, he or she projects credibility and adds to the credibility of his or her case.
• Keep it simple. Always keep cross-examination questions short and simple. Convoluted questions will lead the jury to conclude that you are trying to confuse witnesses rather than to get to the true facts.
• Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’ testimony must be of particular significance.
• Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.
• Avoid open-ended questions. Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness who will then look toward the jury in a very professorial manner and explain the matter yet again to the dummy lawyer who didn’t get it the first time.
• Know when to quit. Always quit while you are ahead. When a cross-examination question elicits a helpful answer, don’t elaborate by asking a further question on the same subject because the witness will likely use those further questions to try to explain away the earlier answer.
• Make good use of deposition answers. Having the witnesses’ sworn answer to a question means that you can safely ask that question during cross-examination as long as it advances your position. If the answer is the same as that given during the deposition, then favorable information is before the jury, and if it differs, then you can impeach the witness with the deposition testimony.
• Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.

Cross-examination has been called the ultimate test of the litigator’s skill. The key to mastering the art of cross-examination is understanding its purpose, deciding carefully whether it’s necessary, and conducting it sensibly and carefully.

For more practical advice on conducting cross-examination, go to CEB’s Effective Direct & Cross-Examination. You may also be interested in my prior blog post 10 Cross-Examination Tips from a Master.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 direct answers to direct questions.

In fact, polite repetition can be an effective tool against an evasive witness: simply repeat the question over and over again until you get a straight answer. If the witness continues to evade, the jury will become increasingly disenchanted as long as the question is simple enough to demand a simple answer.

If a witness stubbornly persists in evasion by answering the wrong question, move to strike the answer as nonresponsive.

Here’s an example of how follow-up questions can be asked in an increasing order of aggressiveness to deal with evasive answers:

Q. [Politely] You must have misunderstood my question. Did you see the light change?

Q. You’re answering a different question than the one I asked. Did you see the light change?

Q. Yes or no, please. Did you see the light change?

Q. You answered the question when you said “yes.”

Q. I take it your long answer means “yes, you did see the light change”?

Q. In fairness to my client, please listen carefully to my question, and answer that question, and not another. Did you see the light change?

Q. [To reporter] Please read the answer back. What question were you answering?

Q. I didn’t ask you if it was raining. I asked if you saw the light change. Are you willing to answer the question?

Q. Mr. Jones, you give the impression that you are deliberately avoiding giving a straight answer to a simple question. Please tell the jury, yes or no, did you see the light change?

Q. Your Honor, I move to strike the last answer in its entirety as nonresponsive and ask you to instruct the jury to disregard it.

Q. Your Honor, please strike the last answer as nonresponsive, instruct the jury to disregard it, and admonish the witness to answer my question directly.

An evasive witness will sometimes ask you questions. In response, you can simply state that you’re not permitted by the Rules of Court to answer questions, but must ask them. The witness must answer questions, not ask them. Or, if the witness richly deserves it, and the court seems to agree, take the golden opportunity to give a full answer to the question, throwing in a preview of your closing argument.

Handling evasive witnesses is just one of the many recurring trial problems covered in CEB’s Effective Direct and Cross-Examination Book, chapter 8, which includes sample examinations for each type of problem. For the basics on taking witness testimony, check out CEB’s program The Basics: Live Testimony and Declarations, available On Demand.

Related CEB blog posts:

• Mastering the Art of Cross-Examination: Tips from a Judge
• 10 Cross-Examination Tips from a Master
• (Almost) Never Ask Why

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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.

This system breaks down the common objections into easy-to-remember words and phrases that you should be able to easily recall during the heat of battle:

1. Incompetent. Is the witness competent to testify at all? Is the witness competent to testify on a particular issue? For example, does the question ask a lay witness for expert testimony, or does the witness lack personal knowledge of the facts?

2. Irrelevant. Does the question call for irrelevant evidence? Evidence must be relevant to be admissible.

3. Hearsay. Does the question ask for hearsay?

4. No foundation. Is the foundation incomplete or missing? The most common foundational issues involve authenticating writings, establishing identity, showing personal knowledge, the various requirements for introducing opinion evidence, and relevance.

5. Privileged. Does the question ask for privileged information?

6. Form of question incorrect. Is the form of the question incorrect? The question may, e.g., be compound, call for a narrative answer, or call for speculation.

7. Evid C §352. Does the question call for evidence that should be excluded under the broad exclusionary rules of Evid C §352, i.e., will its probative value be substantially outweighed by the probability that its admission will take too much time or create “substantial danger of undue prejudice, of confusing the issues, or of misleading the jury”?

8. Other objections. Is there some other reason for objecting that does not fall in the categories above, e.g., improper impeachment, improper rehabilitation?

Every objection must be stated to clearly specify its ground. Evid C §353(a). Don’t limit objections to one ground if several grounds are warranted, but be sure they are all warranted and distinctly specified—nobody likes to hear everything but the kitchen sink thrown in!

Also, clearly identify the specific evidence being challenged. This gives opposing counsel an opportunity to meet the objection, and it frames the issue on which the trial judge will make a ruling. For example, in People v Nugent (1971) 18 CA3d 911, 917, the defendant objected at trial only that the question called for a narrative answer and depended on the witness’s ability to remember the victim’s testimony. Consequently, counsel couldn’t argue on appeal that the question called for a conclusion.

Each of these objections is covered in detail in CEB’s California Trial Objections, an invaluable companion for every trial attorney.

Related CEB blog posts:

• To Object or Not to Object
• 3 Alternatives to Objecting
• 7 Ways to Respond to an Evidence Objection

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 memorize what you want to say, the jury will more likely remember what you did say.

Some people are just better able to memorize data than others. And it’s not uncommon for attorneys who are new to opening statements and closing arguments to suffer memory lapses due to the stress of talking to the jury.

Try these four techniques to make it easier for you to memorize your opening statement and closing argument:

1. Use chronological order. Because the opening statement is primarily a narrative of events, their chronological order largely governs the sequence of materials presented. Chronological order also serves as an excellent memory guide. But despite its advantages, don’t be a slave to strict chronological order; sometimes it should be interrupted to emphasize or make a special point.
2. Label digressions. When you “digress” within a narrative, label in alphabetical order—A, B, C, etc.—each major event in its order of occurrence that you cover in the digression. It’s then useful to frame a truncated declarative statement summarizing the event so that it starts with a word whose first letter matches the order of the alphabet.
3. Number your points. Closing arguments are much less dependent on narrative order, but plaintiff’s counsel should make sure to argue all the evidence from which the jury can infer the existence of ultimate facts. Numbering all the evidence points and then listing the numbers for the jury is an aid to memory. Similarly, if the defense is based on offering rival facts to those asserted by plaintiff, or a different interpretation of those facts, defense counsel may also want to number points.
4. Use concept associations. Memorization techniques are based on the principle of associating the unfamiliar with the familiar in an organized way. For example, orators in Greece and lawyers in Rome who memorized entire speeches aided their memories by attaching a mental image to each thought, usually a striking and unusual image, and placing each image in an imaginary structure, e.g., each in a particular room in a house. Build your own “house” and take advantage of the striking image technique to impress your story on the jurors’ memory.

The presentation of openings and closings requires all the tools of the actor’s art, including mastering memorization techniques. Experience before juries can help an attorney acquire these skills, and lack of such experience leaves many novice trial attorneys at a considerable disadvantage. It may be worthwhile for the aspiring trial attorney to invest in acting lessons, as well as advocacy seminars.

If you are a poor memorizor who worries that you’ll go blank under pressure, consider using visual aids—they can assists the jurors’ comprehension and memory, as well as give you a memory boost if you need one.

For more practical tips for developing and presenting opening statements and closing arguments, including samples to learn from, turn to CEB’s Persuasive Opening Statements and Closing Arguments, chapter 2. Also check out CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Related CEB blog posts:

• The Key to a Persuasive Opening Statement: A Strong Outline
• Don’t Go There in Your Closing
• Telling the Jury a Compelling Story
• Be a Strong Closer: 3 Tips for Your Closing Argument

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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.

1. 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 from which the jury will be selected. Cal Rules of Prof Cond 5-320(A). And this includes communication through social media, which may include searching a juror on LinkedIn.
2. Don’t do pretrial investigations of the jury panel. Although the California Rules of Professional Conduct don’t expressly prohibit out-of-court background investigations of the prospective panel, they do say that an attorney may not investigate a juror or a prospective juror in a way that’s likely to influence that person in present or future jury service. Cal Rules of Prof Cond 5-320(E). Investigation includes searching through social media, such as LinkedIn. And this rules applies to investigations of a juror’s or prospective juror’s family members. Cal Rules of Prof Cond 5-320(B).
3. Don’t be overly solicitous to jurors during trial. It’s improper for a trial attorney to curry favor with jurors by undue solicitude for their comfort. For example, during trial it can be improper to discuss in the jury’s presence the length of each trial session or the time or place of the jury’s retiring. An attorney who has questions about the length of a trial session or the jury’s comfort should discuss the matter out of the jurors’ presence, e.g., in the judge’s chambers.
4. Don’t get too familiar with the jurors. Courts have held that giving the jurors candy and cigars when the attorney’s wife gave birth and addressing individual jurors by name during argument crossed the line.
5. Do communicate with jurors after trial. After the trial is over, you may (and often should) communicate with members of the jury. These post-verdict chats are very useful and may even be crucial. But there are some caveats here:

• Keep these discussions professional; don’t ask questions or make comments intended to harass or embarrass jurors or to influence their actions in future jury service. Cal Rules of Prof Cond 5-320(D).
• Avoid any adverse comments on the jury’s reasoning or results.
• Don’t give the jurors information that they were prevented from knowing during the trial.

If you know of improper conduct by another person toward a prospective juror, a juror, or a member of the juror’s family, promptly bring it to the trial judge’s attention, with a court reporter present to make a record. See Cal Rules of Prof Cond 5-320(G). Not doing so may constitute a waiver of any claimed error on appeal.

Learn what constitutes misconduct when it comes to jurors and how to steer clear of it by reviewing CEB’s California Trial Practice: Civil Procedure During Trial, chapter 16. Also check out information on jury management and misconduct in §§25.22-25.71 of that book. On post-verdict juror interviewing, check out CEB’s California Criminal Law Procedure and Practice §29.59.

Related CEB blog posts:

• Navigating a Potentially Polluted Jury Pool
• Do You Know When to Use Jury Questionnaires?
• Charting the Jury

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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;
• Place primary reliance on the stronger consultant, but designate both as trial witnesses, keeping the other in reserve in case a particular issue needs corroboration;
• Designate one as the eventual expert witness, keeping the other purely as a consultant in whom you can confide fully and use as a “guinea pig” for testing untried theories; or
• Have the different witnesses pursue entirely different theories and approaches and wait until the formal CCP §§2034.010-2034.730 disclosure time to choose the expert who will make the stronger, more persuasive witness.

If you use multiple experts in the same field, keep them apart as much as possible. Ideally, each expert shouldn’t even know that any others are on the case. If this is impossible, tell each to avoid contact with the others about the case. Only by maintaining such separateness can you ensure that one expert won’t “contaminate” the other.

When the number of qualified experts is extremely limited (or at least the number available locally is extremely limited), some attorneys contact and retain every available expert, not with the intent of using them all, but to keep them from working for the opposition.

Be mindful that, although the number of experts a party can retain is unlimited, the court does have the power to limit the number of experts that a party can call at trial. Evid C §723. To date, no reported case has dealt with exercise of this power before trial, but several cases have affirmed the court’s limitation of the number of experts a party may call at trial when testimony on a subject has become cumulative. See, e.g., South Bay Chevrolet v General Motors Acceptance Corp. (1999) 72 CA4th 861, 85 CR2d 301.

Need advice on locating and retaining the best experts? Turn to CEB’s California Expert Witness Guide, chapter 7.

Related CEB blog posts:

• Choosing an Expert Witness: Insider or Outsider?
• Checklist for When You’re Late for the Important Expert Witness Disclosure Date
• 10 Tips for Choosing the Best Expert Witness

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 resolved only by considering conflicting evidence—if the issue requires the judge or jury to weigh one party’s proof against another’s, or consider the credibility of witnesses or other evidence, you’ve got a question of fact.

You’ve also got a question of fact when conflicting inferences can reasonably be drawn from undisputed evidence. An inference is a deduction of fact drawn from another fact or group of facts. Evid C §600.

Here’s a suggested way to identify a factual determination that might form the basis of an appeal:

1. define the material factual issues that the trial judge or jury had to resolve to make the challenged ruling or decision, and then
2. analyze all the evidence introduced on each of those factual issues to reach a conclusion about whether the evidence supported the ruling or decision.

Keep in mind that questions of fact can arise throughout a trial court proceeding. Although opinions usually discuss the concept of questions of fact in the context of reviewing evidence in support of the final judgment, many preliminary rulings can require a determination of fact. See, e.g., Smith v Adventist Health Sys./W. (2010) 182 CA4th 729, 738.

To identify key factual determinations made by the trial court

1. Request a statement of decision under CCP §632. The trial court’s statement of decision should show how it resolved all the material questions of fact, which its final judgment depends on. If the parties don’t request a statement of decision, the appellate court will assume that the trial court made whatever findings were necessary to sustain the judgment unless the trial court expressly refuses on the record to make a particular factual finding.
2. Seek trial court clarification of any omissions or ambiguities in a proposed statement of decision. Failure to do this risks waiver of your right to complain about such errors on appeal. CCP §634. See Marriage of Arceneaux (1990) 51 C3d 1130.

For help with analyzing the prospects for success on appeal, turn to CEB’s California Civil Appellate Practice, chapter 2A. To learn more about trial courts’ statements of decision, go to CEB’s California Trial Practice: Civil Procedure During Trial §§24.34-24.50. And anyone filing an appeal should check out CEB’s program Myron Moskovitz on Winning Appeals and Writs, available On Demand.

Other CEBblog™ posts you may find useful:

• What Are My Prospects on Appeal?
• Keep an Eye Toward an Appeal
• A Petition for Rehearing May Be a Necessary Longshot

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 enterprise, profession, occupation, calling, institutional operation, or governmental activity, whether profit or nonprofit. Evid C §1270.

To admit business records, you’ll have to establish an exception to the hearsay rule (see Evid C §1271) and authenticity of the records (see Evid C §§1271, 1561-1562) by showing that:

• Writing was made in regular course of business (Evid C §1271(a));
• Writing was made at or near the time of the act, condition, or event (Evid C §1271(b));
• Custodian or other qualified witness identifies the document and how it was prepared (Evid C §1271(c));
• Writing appears trustworthy based on the source of information and method of preparation (Evid C §1271(d)); and
• Copy produced in court is a true copy of the records as kept at the place of business (Evid C §1561(a)(2)).

Now you know what the rules require, but it’s even better to see how it might play out in the courtroom.

Here’s a sample record showing you how to lay the foundation for introducing a business record into evidence through the live testimony of the person who wrote the report:

Q: I am handing you a document now marked as Defendant’s Exhibit E for purposes of identification. Would you please read the document and tell us whether or not you recognize it?

A: Yes, I do.

Q: Could you tell us what it is?

A: It’s the accident report I prepared as a result of this accident. [Identifies document and who prepared it.]

Q: Why did you prepare this?

A: It’s the procedure at our company that an accident report will be prepared any time an employee is injured on the job. [Shows writing was made in course of business.]

Q: Who has the responsibility for preparing those reports?

A: I do.

Q: Was that also true at the time of the accident involving Mr. Gray?

A: Yes.

Q: Is there a procedure you follow in preparing a report such as Exhibit E?

A: Yes.

Q: Could you describe for us what that procedure is?

A: As soon as I learn of an accident, I immediately go to the accident site to talk to the injured employee, if that’s possible, and to any witnesses to the accident. I then record in my report what each of these people tells me. I also take a camera with me to photograph anything that might be helpful in recording what happened. [Shows ordinary course of business.]

Q: Did you follow that procedure in preparing this Exhibit E?

A: Yes, I did. [Shows that writing made as a record of an event and mode of preparation.]

Q: How long was it after the accident that you arrived at the accident site?

A: Within the hour.

Q: How much later was it that you had prepared this report?

A: I did the entire report on the same day. [Shows that writing made near time of event.]

Q: How accurate is this record with respect to recording what you observed and heard at the accident site?

A: Very accurate. [Shows trustworthiness.]

Q: After this accident report, Exhibit E, was prepared, what did you do with it?

A: The original went into the file that I maintain on all accident reports. A copy of it went to my boss.

Q: Has this report, Exhibit E, been altered or modified in any way since the day you prepared it?

A: No.

You don’t have to use the live testimony of the person who made the report; the business-record exception to the hearsay rule also allows records to be authenticated through an affidavit (or declaration).

For a step-by-step approach to the laying a foundation for all types of evidence, turn to CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial). Introduction of business records is also covered in CEB’s Effective Introduction of Evidence in California.

Other CEBblog™ posts you may find useful:

• Logging Your Exhibits Without Getting Logjammed
• Introducing Evidence? Make an Offer of Proof!
• 7 Ways to Respond to an Evidence Objection

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 following:

• Questions to ask. Note each question, either in substance by key words or verbatim, along with the expected response. If you write out questions verbatim you won’t have to extemporize, but you’ll have to resist the temptation to simply read the questions at trial. If you don’t write out questions, then at a minimum prepare an outline or a checklist of important points to cover and make sure you’re thoroughly familiar with the expected testimony. Never “wing it.”
• Expected testimony. Note the testimony expected from the witness to prove or disprove an issue in the case. For anticipated rebuttal, make notes from the deposition and other documents that may help rehabilitate the witness or refute evidence that the opposing parties may offer.
• Potential objections. Anticipate objections to questions that must be overcome to make that testimony admissible, and note the applicable statutes and case law on potential evidentiary problems so that they’ll be easily accessible to make any necessary arguments to the court.
• Exhibits. Note the exhibits that you’ll offer through the witness’s testimony, including the point in the examination at which the exhibit should be introduced. When required, prepare questions necessary to lay a proper foundation for the introduction of evidence, e.g., for demonstrative or documentary evidence. Make sure you review specific questions with the witness to avoid the embarrassment of having a witness answer a foundational question incorrectly.

Once you’ve prepared your witness examination plan, you’ll be able to examine each witness armed only with the appropriate section of the trial notebook, the witness’s deposition (if any), the exhibits pertaining to that witness, and the subpoena or notice to appear for that witness. You’ll look and feel very organized and efficient—leading you to a successful examination!

For much more on preparing witnesses for trial, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 5.

Other CEBblog™ posts you may find useful:

• Questioning at Trial Versus at Depositions
• Effective Questioning
• 12 Tips for Direct Examination in Depo or at Trial

© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 bored. In contrast, most jurors will nod off from time to time (or wish they could) during a trial.

Because you want to take advantage of the jury’s most attentive moments, your cross-examination has to be designed to keep the jurors alert and awake at key moments. Usually that leads to

• planning shorter examinations,
• emphasizing important points, and
• not mentioning (or touching only briefly on) less important points.

A jury will resent it if you belabor the obvious. In the 1984 trial of ex-automaker James DeLorean on drug smuggling charges, DeLorean, on videotape, referred to a suitcase of cocaine as “good as gold.” The prosecutor used that statement in opening and closing statements, and also presented it to the jury at least five times during testimony. Several jurors later said they were offended by this overkill.

And don’t get bogged down in nonessential details or waste time impeaching a witness on petty or collateral matters.

But there still will be many occasions when lengthy cross-examination is necessary. The most obvious instance is when vast ground must be covered on cross. Less obvious examples are the following:

• To let witness wear out welcome. Cross-examination of the witness who makes a good first impression, but wears out that impression once the jury gets to know him or her better. Many witnesses are impostors on the stand, pretending to be someone they aren’t, e.g., the mean, venal, and pompous businessperson masquerading as First Citizen of the Community.
• To demonstrate complication. If one of the main points to make to the jury is that things were complicated (knowledge of regulations, confusion versus fraud, difficult medical decisions), you may deliberately provide the jury with so many difficult-to-understand facts and documents that they become as bewildered as the client claims to be.
• To use repetition to underscore point. People tend to believe statements that are constantly repeated. Ask a witness to repeat strong points more than once. The judge may find this technique objectionable, but you should at least be able to ask one repetitive sum-up question “to clarify things for the jury.”

For more time-honored rules of cross-examination—and when to break them—check out CEB’s newly-updated classic Effective Direct and Cross-Examination, chap 4.

Other CEBblog™ posts on witness examination:

• Mastering the Art of Cross-Examination: Tips from a Judge
• How to Use Technology for Effective Cross-Examination
• Do’s and Don’ts on Direct

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 beating her in a game of Tic-tac-toe. We’ll never know who would have won the game; the court refused to admit the chicken because it “would degrade the dignity of the court.” Although the chicken didn’t work out, demonstrative evidence can be a very powerful courtroom tool.

Demonstrative evidence such as enlargements of “smoking gun” documents or physical demonstrations can be very helpful at trial. People remember what they see longer than what they hear. And when the two senses are combined, learning and retention improve even more.

Think creatively about which audio and visual aids will help the jury be more interested and better understand and remember your case. You can use demonstrations, such as Robin Thicke playing piano during his testimony to show that his song didn’t infringe on an earlier Marvin Gaye tune, or bring real life into the courtroom (maybe except chickens).

Photographs, videos, diagrams, maps, models, clothing, documents, and charts are common forms of demonstrative evidence. Computer-generated graphics and animations are also becoming more common.

Going the computer-generated route has many advantages: During witness examinations, the exhibit can be simultaneously presented to the witness and the jury, facilitating the jurors’ understanding of the witness’ testimony; in argument, you can outline your major points while you creatively weave various important pieces of the evidence into a presentation that is persuasive and holds the jurors’ attention.

But don’t get tripped up by your fancy presentation: Work out logistical problems in advance by

• having familiarity with the program to operate it effectively;
• making sure the courtroom has the power outlets necessary for your computer and projector;
• deciding where to set up the equipment and screen in the courtroom;
• assessing whether a technician is needed to set up the equipment;
• making sure the equipment gets to the courtroom; and
• creating a fallback plan if there’s an equipment/operator glitch or failure.

Learn about the foundation necessary for admitting demonstrative evidence in civil cases in CEB’s Effective Introduction of Evidence in California, chap 39 and California Trial Practice: Civil Procedure During Trial, chap 13. On presenting a criminal case using demonstrative evidence, turn to CEB’s California Criminal Law Procedure and Practice, chap 30.

Other CEBblog™ posts on using evidence at trial:

• 10 Questions to Ask Yourself Before Presenting Evidence at Trial
• Getting Edited Video into Evidence
• Introducing Evidence? Make an Offer of Proof!

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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.

1. Read the deposition of the witness to be examined. Skim over disputes between counsel and routine background material, but read line-for-line all substantive sections of the deposition. Place in the witness file the three or four pages of deposition that are central to the proposed examination.
2. Place in the witness file the documents that must be discussed with the witness. There have been few cases tried that had more than ten documents critical to the jury’s decision. Pick those ten (or fewer) and let the opponent concentrate on the other ten thousand documents.
3. Make notes of your thoughts during document review. During review and coding of the depositions, exhibits, and other documents, many valuable ideas will occur to you. Jot them down to insert later in the trial or witness file.
4. Develop a simplified chronology of the case. To control the case, it’s vital to master the chronology. If there are numbers, names, technical points, or dates that are difficult to remember, make a memory aid list and use it as a prompter during trial.
5. If possible, personally prepare the chronology and issue coding. Nothing helps memory more than doing the detail work yourself.
6. Get familiar with cross-examination references. If the cross-examination will refer to a locality, object, or document, become familiar with it (e.g., visit the suite of rooms where a contract was drafted, look at the counterfeit bills seized by the agent to be examined).
7. Forget about interrogatory answers and responses to admissions. It’s hard to use these discovery responses smoothly during an examination. The witness will usually testify consistently with his or her earlier interrogatory answers or admissions, making the discovery material superfluous.
8. Block out the proposed examination by topic only. For each topic, keep in mind the two or three major themes to make with the witness. If you’re unable to master the details, don’t forget to keep coming back to those main themes.
9. Give the jury the documents. Make sure that the jury can see the two or three documents that you reviewed in detail with the witness, while the witness is testifying about them. The jury will get restless if it can’t see the document that’s being discussed.
10. Mentally review the main evidentiary points (including objections). Refer to the Evidence Code as necessary. Psychologically prepare for surprise answers and hostile rulings from the trial judge.
11. Review for riskiness. Be sure that the proposed examination doesn’t require taking undue risks with the witness, but consider whether some risk-taking is necessary to win a difficult case.
12. Prepare your witness folders. Put the witness’s deposition transcript, your blocked-out areas of examination, and the key exhibits into a folder labeled with the witness’s name.

When trial is not imminent and you have the time to spare, do yourself a favor and review all the practical tips and suggestions on preparing to cross-examine in CEB’s newly updated Effective Direct and Cross-Examination, chap 3.

Other CEBblog™ posts on cross-examination:

• Keep Cross-Examination Short (Unless You Shouldn’t)
• How to Use Technology for Effective Cross-Examination
• Mastering the Art of Cross-Examination: Tips from a Judge

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 case. These weak spots, if they’re known to the opposition, should generally be put right out there, in the best light possible of course, during your opening statement.

Here’s an example of how this works:

Assume that the plaintiff’s case is strong:

• the plaintiff was crossing the street in a crosswalk and the light was green;
• the defendant was driving a fuel tanker truck too fast on the way to filling up a gas station tank;
• without slowing down, the defendant ran his red light and hit the plaintiff;
• the plaintiff lived but was rendered a quadriplegic.

Plaintiff’s counsel recites all of these facts to the jury in the opening statement. At that point, the jury’s frame of mind is pro-plaintiff, as it awaits the defendant’s opening.

Then comes the bombshell: defense counsel tells the jury that the plaintiff was a stumbling, crashing, mumbling drunk, and it was only 10:30 in the morning! No wonder he got himself in an accident—he was weaving so badly he could hardly stay between the white lines of the crosswalk.

Plaintiff’s counsel could have avoided the sting of defense counsel’s argument by anticipating the issue. Plaintiff’s counsel could have explained that the plaintiff was under the influence, having just returned from an all-night wake for a beloved friend; that he was walking home so as to avoid the danger which would be presented should he drive; and that he was proceeding carefully in the confines of a crosswalk so that he could be sure he was safe.

Normally, the most devastating fact in your case can be better described by you in context than by your adversary in triumph.

Although you don’t want to dwell on weak spots in your case, at least don’t let the jury be taken by surprise by them.

Learn proven techniques for compelling and effective opening statements and closing arguments from trial veterans Joseph Cotchett and Nancy Fineman in CEB’s newly-updated Persuasive Opening Statements and Closing Arguments. Also check out CEB’s program Effective Opening Statements and Closing Arguments As Taught By California’s Top Trial Attorneys, available On Demand.

Other CEBblog™ posts on trial strategy:

• The Key to a Persuasive Opening Statement: A Strong Outline
• Keep Cross-Examination Short (Unless You Shouldn’t)
• Demonstrative Evidence: When You Want to Show and Tell
• Direct Examination Crisis Control

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 persuasive in your opening and closing:

1. Show no fear. The most basic prerequisite of a persuasive opening or closing is that the attorney appear to have confidence both in the facts of the case and in his or her ability to present them. Fear of addressing a jury or judge can generally be overcome by work and preparation. If such fear can’t be overcome, the trier of fact won’t be persuaded.
2. Make a play for emotions. Many words have been used to describe the emotional “chemistry” needed to persuade a group of people. Experienced trial lawyers use opening statements and closing arguments as instruments of rational persuasion on the evidence and the law. They also seek to affect the jurors’ emotions and prejudices because subjective impressions and beliefs are essential elements in obtaining jurors’ assent.
3. Give a reason to do the right thing. Persuading jurors to agree with a particular view of a case requires building a successful relationship with them, and successful relationships depend on mutual exchange. Before jurors will give you something in return, like a verdict or judgment, they must receive something from you: a reason or basis to find for your position. The jury must have the feeling that it’s doing something right.
4. Understand your jurors. Gaining an understanding of those you’re seeking to persuade is critical. The responses of jurors to the facts presented at trial are shaped by what has happened to them in the real world. You should view jurors as reasonable decision makers but know that their verdicts will be affected by likes, dislikes, and prejudices. If you’ve done your job during voir dire, you’ll begin a trial with jurors whom you have some sense of and whom you believe you can personally persuade to adopt your position.

Get proven techniques for compelling and effective opening statements and closing arguments from trial veterans in CEB’s newly-updated Persuasive Opening Statements and Closing Arguments. For advice on examining your jurors, turn to CEB’s Effective Direct and Cross Examination, chap 10.

Other CEBblog™ posts you may find useful:

• 5 Things to Do to Prepare for Voir Dire
• Don’t Dodge—Defuse: Use Your Opening Statement to Handle Problem Areas
• Make Your Opening and Closing Memorable: 4 Memorizing Tips

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 your opening statement: Your phrasing and the structure of your fact patterns should anticipate the jury instructions, although direct reference to them this early in the trial would probably attract objection. But without direct reference, you should identify the legal theory that most closely fits the facts in your case and develop a factual theme that summarizes and supports this theory. This theme, once stated—and repeated several times—in your opening, will be the touchstone throughout your presentation of evidence and should be highlighted during your closing argument.

In your closing argument: You’ll know—indeed, the law provides that you’re entitled to know on request (see CCP §607a)—precisely which instructions the court will read to the jury. At this point, it becomes crucial that you incorporate the most favorable instructions in your closing argument and defuse the least favorable. By doing so, you’ll alert the jury to what the judge will read, and you’ll have a greater opportunity to create a sense of alliance between yourself and the judge. You’ll also break up the monotony of the instruction-reading process by giving the jury something to look forward to. This can be done by using overheads, blowups, or simply reading to the jury.

For example, assume that in a wrongful employment termination case the plaintiff’s burden includes establishing the element of “bad faith.” Defense counsel will obviously want to argue this instruction over and over, matching each element of plaintiff’s case against it and making it crystal clear that this element is essential to plaintiff’s case. Even if the events surrounding the plaintiff’s termination were unfair or unkind, it may be difficult for plaintiff to establish the malice or other characteristic required to reach “bad faith.” Defense counsel will argue, through the instructions, that this critical element is simply missing, and thus, under the law as the court explains it, the jury must conclude that there was no bad faith.

Similarly, you should anticipate and defuse unfavorable instructions. If you’ve survived a motion for a nonsuit or directed verdict, then you have something that can arguably get you around each instruction given. Thus, if there is any single particularly troublesome instruction, talk about it and try to anticipate your opponent’s claims about it.

When arguing instructions, you need to say at least once, expressly or in substance, that “only the judge instructs the jury on what the law is.” Once you’ve said that, you have the right to use the instructions freely in argument. See, e.g., Neumann v Bishop (1976) 59 CA3d 451.

As a practical matter, when arguing instructions, it’s always helpful to have the instruction, verbatim as the judge will read it, enlarged and projected or posted for the jury to see. Allowing the jury to read as they hear it from you will enhance their retention.

Get many more practical tips from veteran trial attorneys on presenting your statements and arguments in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2, and in CEB’s CLE program Persuasive Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts on this topic:

• Don’t Dodge—Defuse: Use Your Opening Statement to Handle Problem Areas
• The Key to a Persuasive Opening Statement: A Strong Outline
• Be a Strong Closer: 3 Tips for Your Closing Argument

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 element of proof that requires more than ten documents to prove should be summarized. See Fed R of Evid §§1006, 1523(d) (authorizing use of summaries).

All you need to do is to make the underlying documents available to your opponent (they don’t even need to be put into evidence). You can:

• Have a witness (usually your paralegal) provide an oral summary; and
• Prepare summary charts and admit them into evidence.

The state rule, Evidence Code §1523(d), permits summaries of numerous accounts, but also less-than-numerous other writings that would cause a great loss of time if they were required to be produced and examined in court.

The use of §1523(d) is only limited by the imagination of counsel. Generally, if you find in discovery and trial rehearsal that any of your case bogs down because there are too many documents, figure out a way to summarize them for the jury. Keep in mind that your written summaries are admissible into evidence and can go into the jury room.

2. Limit what you prove. Paring down your case has two good effects:

• The jury will be grateful; and
• If your ancillary causes of action were weaker than your main cause of action, you may avoid losing credibility with the jury by coupling a strong claim with weaker claims.

Some attorneys believe you should never waste time proving weak claims, using weak proof to buttress your claims, or anticipating opposing counsel’s case by disproving it in advance. Although this can be taken too far, it’s worth thinking about.

3. Organize your documents. The longest five minutes in the world is the five minutes you spend looking for a hard-to-find document in the jury’s presence. The solution is hardly unique: Get yourself organized in advance of the trial. Make sure you have a well-organized trial notebook.

Organization boils down to one cardinal rule: In advance of trial, list in writing all your proposed exhibits (premark them if the court permits) and arrange them chronologically. Have an original and four copies in court with easy-to-list tabs, and keep one copy back in the office.

Get more practical advice on mastering various trial skills in CEB’s Effective Direct and Cross-Examination, chap 13.

Other CEBblog™ posts you may find useful:

• Key to Conducting an Effective Trial: Organization
• Your Trial Notebook Starts with Your Files
• Logging Your Exhibits Without Getting Logjammed

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 to you and see you as occupying center stage, try to incorporate the following tips into your questions:

• Vary your tone of voice. Watch the jurors to see whether they’re paying attention. If they’re not, try to regain their attention by changing how you speak (or don’t speak).
  • Modulate the volume so that you speak softly sometimes and more loudly at other times.
  • Use silence, e.g., in the form of pauses.
  • If you have a particular accent that may affect jurors—either bring it out during voir dire to accustom jurors to your accent or try to modify it during trial.

• Ask your questions in an inherently interesting order. You don’t always have to ask for information in chronological order.
  • Begin with a question that’s dramatic or calls for a dramatic answer.
  • Consider whether it might be effective to start in the middle or at the end rather than the beginning.

• Intersperse questions with demonstrative evidence. (But first make sure that you’ve cleared your demonstrative evidence with the court and counsel.)
  • Write important information on paper (or ask the witness to do so) to highlight testimony. You can use this paper again during closing argument.
  • If feasible, bring the actual equipment or other technical apparatus being discussed into the courtroom.
  • Use photographs, models, maps, diagrams, videos, computer simulations, and other demonstrative evidence whenever possible to illustrate testimony.

• Avoid repetition unless you use it for dramatic effect. You don’t want the jurors to think they’ve heard it all before, but consider using repetition to underscore a key point. People tend to believe statements that are constantly repeated, so ask a witness to repeat strong points more than once.

• Be brief on collateral subjects. Jurors become bored by endless questioning on insignificant points. So, don’t get bogged down in nonessential details or waste time impeaching a witness on petty or collateral matters.

For more practical guidance on how to ask questions more effectively, turn to CEB’s Effective Introduction of Evidence in California, chap 1. Also get expert advice on witness examination in CEB’s Effective Direct & Cross-Examination.

Other CEBblog™ posts you may find useful:

• Keep Cross-Examination Short (Unless You Shouldn’t)
• Gear Your Oral Presentations to All Types of Learners
• Expert Tip: Use Jury Instructions in Your Opening and Closing

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 time it’s first offered into evidence.

When an objection is to testimony, it usually must be raised before the improper question is answered. You can’t speculate on getting a favorable answer to an improper question and then object if the answer proves unfavorable. Similarly, you can’t sit through voir dire examination of the jury without objecting and complain only after receiving an unfavorable verdict.

But you don’t need to be clairvoyant. That is, you’re not expected to object to a question before it’s answered if it’s not apparent until the answer that the evidence is inadmissible. But in that situation, once you hear the answer, you have to move to strike the evidence immediately. Evid C §353(a).

Nor do you need to speak at lightening speed. Sometimes, a witness will answer before you can interpose an objection. To avoid waiving the error in this situation, you must immediately object to the question and move to strike the answer. Evid C §353(a). If your motion to strike is granted, request that the judge admonish the jury to disregard the answer. If the witness (perhaps wrongfully coached to do so) persists in giving rapid-fire replies, ask the judge to direct the witness to pause before answering to allow for possible objections.

Another way to stop the witness from answering too quickly is to attract the witness’s attention by raising a hand and then rising to state the objection. It may even be appropriate under some circumstances to say something like “Wait, please” to stop the witness before the answer is stated.

Of course, you must also react quickly if the witness, in responding to a proper question, injects damaging inadmissible matter in the answer. If the answer is nonresponsive, move to strike the nonresponsive parts of the answer. Evid C §766. You should also specify the ground that makes the answer improper and request that the jury be admonished to disregard that part of the answer that is stricken.

For everything you need to know about making objections to evidence at trial, turn to CEB’s California Trial Objections, chap 4. And get expert advice on the rules and common-sense strategies for objecting in CEB’s Objections: Best Practices for Objecting to Evidence at Trial, available On Demand.

Check out these other CEBblog™ posts on evidence topics.

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 the defense. The doctor testifies that your client’s back problems resulted from preexisting arthritic changes rather than from the automobile accident, as you allege.

If you go with direct questions about the doctor’s opinion (e.g., “Doctor, are you sure that the present problems are the result of preexisting arthritic changes?”), this will likely result in the doctor’s merely reiterating the damaging opinion. Similarly, the near-suicidal inquiry, “Doctor, why are you so sure that my client’s present problems are the result of preexisting arthritic changes?” is likely to evoke an otherwise inadmissible dissertation on, e.g., the inevitability of arthritic deterioration and the number of other Americans afflicted with arthritic problems, or a subjective and unsupported opinion that your client is misrepresenting his condition.

By contrast, peripheral cross-examination is more effective because it focuses on

• matters that the witness can’t deny
• work that the witness hasn’t performed
• work that the witness has performed and must acknowledge to cast doubt on the expert’s qualifications, objectivity, and thoroughness.

Here’s how a peripheral cross-examination of the defense doctor could go:

Doctor, you have seen my client only once in his life, correct?

That’s right.

That one-time visit occurred approximately 8 months ago, correct?

That’s correct.

That one-time visit lasted only 20 minutes, correct?

Approximately, yes.

The views that you have expressed here today are all based on that one-time, 20-minute examination that took place 8 months ago, correct?

Yes.

Doctor, you have patients of your own, do you not, as well as injury victims like my client who are referred to you by law firms?

Yes.

In treating your own patients, you try to avoid making an irrevocable medical decision based on a single examination whenever possible, right?

That is correct.

Now, Doctor, you are aware that my client had not missed a single day of work, other than for an occasional cold, for more than 5 years before the day of the accident in question?

That’s what I am informed.

Doctor, you are further aware that my client has not worked a single day since his car was rear-ended by the defendant, correct?

That’s correct.

Doctor, this is the eleventh time in the past 10 years that you’ve testified on behalf of _ _[name of counsel for the defendant]_ _ in a personal injury suit, isn’t that correct?

I think that’s about right.

In each of those ten other cases you testified, as you have testified here today, that you believed the plaintiff’s disability was the result of something other than the fault of _ _[name of defense counsel’s client]_ _, isn’t that correct?

That’s correct, and I still feel that way.

Thank you very much, Doctor.

Nowhere in this sequence does the cross-examiner directly attack the witness’s central opinion that the plaintiff’s present problems are due to arthritis instead of the accident. In fact, that opinion is never even mentioned. Instead, the cross-examiner has undermined the credibility of the doctor’s central opinion.

Want more tips on cross-examining opposing experts at trial? Turn to CEB’s California Expert Witness Guide, chap 15. And check out CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions, and Cross-Examination, available On Demand.

Other CEBblog™ posts you may find useful:

• 9 Tips for Cross-Examining Survey Experts
• 4 Ways to Attack Expert Testimony
• How to Use Technology for Effective Cross-Examination

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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 be ready to object.

Here are seven types of questions that give rise to an objection during voir dire:

1. Question attempts to indoctrinate jurors on the law. In exercising discretion, a trial judge may restrict voir dire examination from being used to preindoctrinate the jurors on one attorney’s view of the law to ensure that such questioning doesn’t mislead the jurors. A question may be objectionable if it includes a correct statement of the law but is taken out of context.
2. Question based on incorrect statement of law. Voir dire questions on propositions of law are often vulnerable to the objection that the proposition stated isn’t legally correct. Serious misstatement of the law may be grounds for a new trial or reversal on appeal if it’s not remedied at the time of questioning.
3. Question asks jurors to prejudge evidence. Voir dire questions are improper if they call for a promise that’s inconsistent with a juror’s duty to hear the evidence with an open mind and to refrain from forming or expressing an opinion until the case is submitted for a verdict. Prospective jurors can’t be asked to state their reactions to particular evidence or to promise to give weight to the testimony of a particular witness.
4. Question introduces prejudicial matter. Asking a prospective juror a question containing or suggesting inadmissible and prejudicial matter is not only improper but also constitutes misconduct. It’s misconduct to introduce during jury voir dire the kinds of improper matters that give rise to misconduct when introduced in the opening statement, examination of witnesses, or closing argument, such as religious beliefs and insurance.
5. Question unrelated to challenge for cause (special rule for criminal cases). In criminal cases, the examination of prospective jurors “shall be conducted only in aid of the exercise of challenges for cause.” CCP §223.
6. Question prohibited by judicial administrative standards. Certain types of voir dire questions are prohibited by the Standards of Judicial Administration in both civil and criminal cases. For example, counsel may not ask questions that precondition the prospective jurors to a particular result or comment on the personal lives and families of the parties or their attorneys. See Cal Rules of Ct, Standards of J Admin 3.25(f) (civil cases); Cal Rules of Ct, Standards of J Admin 4.30(c)(criminal cases).
7. Question in improper form. Most objections to the form of questions to witnesses (e.g., that the question is ambiguous, compound, or argumentative) can also be made to the form of questions asked of prospective jurors during voir dire examination. The trial judge has discretion to permit leading questions and hypothetical questions.

For more detail on each of these objections as well as guidance on how to make your objections to voir dire, turn to CEB’s California Trial Objections, chap 6. For practical pointers on conducting voir dire, check out CEB’s program Tips to Implement in Your Next Set of Jury Voir Dire Questions, available On Demand.

Other CEBblog™ posts you may find useful:

• Voir Dire: Your First Chance to Make a Good Impression
• Mini Opening for Voir Dire
• Know Trial Objections Cold

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.