Jurors have been bombarded with information about “body language.” This information is joined by common folklore about tell-tale signs of falsehood. Here are five things to practice with your witnesses to keep their body language consistent with their truthful testimony.

It’s not only about what the witness says, it’s also about how the witness says it and how he or she looks when it’s said.

Work with your witness to develop the following behaviors so they don’t conform to juror stereotypes about liars:

1. Make eye contact. The witness should make eye-contact while testifying. Use a second person (or a hat rack) when the witness is rehearsed. Make the witness look at that second person or object as though looking at the jury. Instruct and rehearse the witness to turn and look at the judge whenever the court asks questions.
2. Appear like an open book. The witness should keep arms apart, not crossed.
3. Take the middle road between glib and labored. Immediate, polished answers sound rehearsed and artificial. On the other hand, dramatic hesitations and knitted brows are also artificial.
4. Speak clearly. The witness shouldn’t lower his or her voice, swallow words, or mumble during important testimony.
5. Stay animated. The witness should lean forward, toward the jury, and use hand gestures.

If you plan to use visual aids with a witness, make sure to practice them with the witness in advance. Few things are as nerve-wracking as a witness who can’t make heads or tails of a critical diagram, hasn’t previously read the blow-up of a letter, or is unfamiliar with photographs being shown in court.

Want more practical tips from the masters on witness preparation and direct examination? Turn to CEB’s Effective Direct and Cross-Examination, chap 2. Also check out CEB’s On Demand program Evidence: Tips for Effective Direct and Cross Examination.

Other CEBblog™ posts on direct examination:

• Direct Examination Crisis Control
• 12 Tips for Direct Examination in Depo or at Trial
• Do’s and Don’ts on Direct

© 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.

Business records aren’t just text documents—they often include videos and other images that are digitally stored. Getting printouts of these images into evidence is just like any other business record evidence, but showing authenticity may require some tech knowledge.

The good news is that a printout of a video or digital image is presumed to be an accurate representation of the images it purports to represent. Evid C §1553(a). In fact, foundational testimony to show the reliability of computer-generated photographs isn’t required to admit them under the  business record hearsay exception. People v Peyton (2014) 229 CA4th 1063, 1076.

But the bad news is that this presumption only holds if the other side doesn’t present evidence of the printout’s inaccuracy or unreliability. If that happens, you’ll have to prove by a preponderance of the evidence that it’s an accurate representation of the existence and content of the images it purports to represent. Evid C §1553(a).

As many of us know from our use of Photoshop and other software to tweak digital images, technology has made it increasingly difficult to determine authentic from modified images. And only an authentic image may be considered a business record.

To be considered an authentic image, the proponent must show that

1. the stored image is an authentic representation of the document or photograph it purports to be and, if necessary, that a printout of it accurately reflects the digitally stored information; and
2. the proffered image satisfies the requirements of a business record.

Certain aspects of making these showings are likely to overlap. Here’s an example:

A plaintiff proffers an image purporting to be a printed copy of an electronic memorandum of a telephone call from a defendant who ordered 100 widgets at $20 each.

The plaintiff’s employee can testify that he or she customarily receives telephone orders and, although the employee doesn’t recall that particular order, the employee knows that he or she customarily keys orders into the company’s computer while speaking to the customer, and thus believes that is how this particular electronic memorandum was generated.

If the defendant denies ever making that order, the evidentiary problems are numerous. Case law is just beginning to address these issues in our era of digital storage coupled with the ease of modifying digital material. See People v Goldsmith (2014) 59 C4th 258.

If you find yourself facing this situation, you’ll need to get up to speed on the technology. Specifically, you’ll need to

• know the particular data storage system in question and the capability of that system to enable modifications, and
• understand how those modifications may be later detected to determine the authenticity of a particular document.

Introducing printouts of digitized business records doesn’t require learning new law, but it does require learning about the technology involved. Luddites beware!

For guidance on all aspects of introducing business records into evidence, turn to CEB’s Effective Introduction of Evidence in California, chap 13. On admissibility of electronic and social media evidence, check out chap 54.

Other CEBblog™ posts you may find useful:

• 9 Steps to Getting Business Records into Evidence
• From Website into Evidence
• How Do You Get Text Messages into Evidence: Authenticate, Authenticate, Authenticate

© 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.

“[T]he dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Cal Rules of Ct 3.1332(a). But things come up, and attorneys sometimes need to request a continuance of the trial date. Here’s how it’s done.

A party seeking a continuance of a trial date must make a noticed motion or an ex parte application under Cal Rules of Ct 3.1200–3.1207, whether or not the continuance is contested or stipulated to by the parties. Cal Rules of Ct 3.1332(b). Because the need for a continuance is usually due to last-minute developments, there’s often not enough time for a noticed motion; that’s when you need to make an ex parte application.

Where do you make your motion or application? Normally, a trial continuance motion is made in the master calendar department. When cases are assigned to one judge for all purposes under the Trial Court Delay Reduction Act of 1990 (Govt C §§68600–68620), all motions are heard before the assigned judge.

When should you make your motion or application? Make your motion or ex parte application “as soon as reasonably practical” after you discover the need for a continuance. Cal Rules of Ct 3.1332(b).

What should you include in your motion or application? Include in the moving papers (1) a notice of motion, (2) declarations setting out facts showing due diligence and good cause for the motion (see Cal Rules of Ct 3.1332(b)), (3) a supporting memorandum, and (4) a proposed order that includes the reasons for the continuance.
Make sure to include a specific time to which the court should continue the trial; that time must be reasonably related to the ground that’s the basis for the request.

What showing do you have to make?

• Good cause. The primary emphasis should be on the good cause for the continuance, preferably a ground listed in Cal Rules of Ct 3.1332(c). Be specific and detailed in arguing good cause. For example, if a witness is suddenly not available, show why the witness is unavailable, why the witness’ testimony is crucial for a fair trial, and when the witness will be available. Support your position with the best evidence available. For example, when illness is the good cause, obtain a physician’s declaration; don’t rely on a hearsay declaration by an attorney, or even the ill person, that the person is ill.
• Due diligence. The court will examine whether you gave notice and made the motion or application as soon as reasonably practical. If the ground for continuance has unforeseeably arisen at the last-minute, you can probably get a continuance, but if you could have acted sooner but waited, the court is more likely to deny it. Be specific and detailed in showing due diligence: Show both why you couldn’t anticipate the ground for continuance and how you were diligent in bringing the matter to court as soon as you discovered the need.
• Lack of prejudice to opposing party. Anticipate the opposing party’s argument that it will be prejudiced; either anticipatorily refute such claims if possible or consider alternatives to alleviate the prejudice.

For more on motions to continue the trial—and how to oppose such motions—turn to CEB’s California Trial Practice: Civil Procedure During Trial §§6.6-6.25.

Other CEBblog™ posts you may find useful:

• Cautionary Tale: When a Stipulated Continuance Won’t Save You from Untimeliness
• 2 Reasons to Go for Defendant’s Default
• Prepare for Case Management Conferences in 4 Steps

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

The most important concept to remember in organizing your statements to the jury, whether during opening statement or closing argument, is the “rule of primacy”: Jurors tend to believe what they hear first and most frequently.

What someone believes first is hard to change or dislodge. That’s why going first gives the prosecution in a criminal case or the plaintiff in a civil case a distinct advantage.

But regardless of whether you speak first to the jury, you can use these “rule of primacy” techniques to get them on your side:

Take advantage of your opening. The opening statement is made when jurors usually are the most attentive. Using a clear theme and reinforcing it with strong language chosen to produce a specific perception in the minds of jurors can help you persuade jurors even before presentation of the evidence. If a plaintiff gives a compelling opening statement, it’s absolutely imperative that the defense’s opening statement eliminate or minimize the effect of the rule of primacy. The task is made somewhat easier by the fact that jurors tend to forget much of what’s said to them. The defense opening should take advantage of the fact that what people do remember is what they hear at the beginning and end of a presentation.

Tell them what you are going to tell them; tell them; and then tell them what you’ve told them. This presentation organization is used by teachers with students and preachers with congregations. The trial format itself echoes these principles. The opening statement provides the first opportunity to “tell them what you are going to tell them.” Then, when you present the evidence, you do “tell them.” Finally, in closing argument, you “tell them what you’ve told them.”

Use opportunities for repetition when you get them. The opening statement and the closing argument should be used as vehicles for repetition. The use of repetition, along with strong, confident language selected for its most favorable emotional appeal, can be an extremely effective way to reinforce a party’s perspective in the eyes of the jurors. This is especially true when the same theories, facts, and phrases are used in the opening statement and closing argument. Jurors tend to remember and believe what they hear most often.

For many more expert tips on preparing and presenting statement and arguments, turn to CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. And check out the expert authors of this book in CEB’s program Persuasive Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts on opening statements and closing arguments:

• Make Your Opening and Closing Memorable: 4 Memorizing Tips
• Outlining a Defense Opening Statement
• Expert Tip: Use Jury Instructions in Your Opening and Closing

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

There are some questions that are virtually always safe to ask during cross-examination and often elicit pleasantly surprising answers. Consider asking these questions on your next cross—they could make all the difference.

1. Have you talked about this case with the lawyer for Mr. Jones? How many times?
2. Didn’t Mr. Jones’s lawyer remind you of some of the facts you had forgotten?
3. Did you give any statements to anyone about the facts of this case?
4. Have you talked with other witnesses about what their testimony has been? Or is going to be?
5. Did you ever make any notes about the facts of this case?
6. Do you have any social or blood relationship with Mr. Jones, or any of the witnesses called by him? Or with any of his lawyers?
7. Have you prepared for testimony with videotaping equipment? Why? How many repetitions of your testimony did you shoot?
8. Did you read the deposition you gave earlier in this case?
9. Have you helped any other witnesses refresh their recollection about what happened?
10. Have you talked to other witnesses to be sure that your stories are consistent?
11. Are you being paid anything to reimburse you for your testimony? For time you have had to take off from work? For time spent preparing your testimony?
12. Will you be any better off financially if Mr. Jones wins this case?
13. Has the lawyer for Mr. Jones showed you any writing or diagrams to help you prepare for your testimony?

Listen carefully to the witness’s answers, and be flexible if they take you in a direction you hadn’t planned.

For expert guidance on planning for and conducting cross-examination, including many model cross-examinations, turn to CEB’s Effective Direct and Cross-Examination, chaps 3, 5.  Also check out CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog™ posts on cross-examination:

• 8 Tips for Every Cross-Examination You Do
• Cross-Examining the Unimpeachable Witness
• 12 Must-Do Tasks Before Cross-Examination

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Whether and how you discuss damages in your opening statement and closing argument is a strategic consideration. A plaintiff discussing damages in the opening may turn jurors off, but not doing so can be a tactical mistake. Defendants usually want to steer clear of damages in the opening if possible. And both sides should discuss damages in the closing, but maybe in a different order.

The considerations on whether to discuss damages in the opening statement are determined by whether you represent the plaintiff or the defendant.

Plaintiff’s opening statement. From the plaintiff’s perspective, the opening is generally spent convincing the jury that there’s liability. A discussion of a claim for substantial damages at this early stage, before the jury is convinced that the plaintiff is right, could be dangerous and might turn the jurors off. On the other hand, if the plaintiff is seeking a large award, the plaintiff may want to sensitize the jurors to that subject by mentioning, at least in passing, that they have a multimillion dollar case before them. Tactically, the plaintiff should make at least some brief argument of damages, discussing some numbers, in the first argument. This will preserve for rebuttal the right to make a fuller argument on the topic.

Defendant’s opening statement. If the plaintiff mentions a large dollar figure in his or her opening, defense counsel may want to do likewise and ridicule the plaintiff’s demands in light of “this miserably wanting case of liability.” But the competing factor for defendant is the psychological axiom that the more often something is repeated, the more believable it is. Repeating the million-dollar figure recited by plaintiff risks having the jury think of the case in those terms.

When it comes to the closing argument, the rules are less conflicting. By the time the case has been presented, both sides likely will know how sympathetic the liability case has been. At this point, an argument of damages is critical. The only difference between sides might be the order in which damages and liability is discussed.

Plaintiff’s closing argument. Most plaintiffs’ counsel believe that plaintiffs should begin their arguments with a discussion of liability and conclude with an analysis of damages. This order will leave the jury discussing not whether, but how much.

Defendant’s closing argument. In general, defendant should start the closing argument with damages and spend the rest of the time on liability. This sequence lets the jury know that the defendant hasn’t conceded the amount of damages and that the primary point is that there’s no liability in the case.

Like all general rules, these are subject to alteration depending on the circumstances. If the liability facts are particularly weak and the plaintiff’s “sympathy quotient” particularly good, then defense counsel may only annoy the jury by lengthy discussion of liability. In such circumstances, a detailed argument on damages is warranted. If, on the other hand, plaintiff is not a sympathetic figure, it may not behoove plaintiff’s counsel to belabor damages.

Want more practical tips on the legal aspects of preparing and presenting statements and arguments? Turn to the expert advice in CEB’s Persuasive Opening Statements and Closing Arguments, chap 2. And check out the authors of this book in CEB’s program Persuasive Opening Statements & Closing Arguments, available On Demand.

Other CEBblog™ posts on opening and closing:

• Outlining a Defense Opening Statement
• Expert Tip: Use Jury Instructions in Your Opening and Closing
• 4 Keys to Using Your Opening and Closing to Persuade

© The Regents of the University of California, 2017. 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 proponent of evidence can counter anticipated objections with a motion in limine before trial starts, but usually counsel counters objections to evidence after the opponent objects at trial. Here are eight ways to do it.

1. Submit a previously prepared memorandum briefing the admissibility issue. Have a memo ready to go when the objection is made. Make sure to keep written evidence memos short and to the point. Don’t argue with opposing counsel; address your points to the judge.
2. Contest objections orally with the appropriate evidence rule permitting admissibility. Here’s a tip: As you prepare your examination outline, anticipate objections and write the Evidence Code section and case citations supporting admissibility in the margins.
3. Propose “conditional admissibility” to the judge—subject to Evid C §§403, 405. The evidence rules permit conditional admissibility subject to proof of facts, or subject to showing their relevance later in the trial.
   
4. Make an offer of proof. Either summarize the testimony that this witness (and other witnesses) will provide or have the witness testify outside the jury’s presence so that the court can “preview” the evidence and determine its admissibility. Be sure to explain the relevance of the evidence.
5. Propose alternative theories of admissibility. For example, if the evidence isn’t admissible in its entirety, part of it may be admissible, or the entire piece of evidence may be admissible for a limited purpose under Evid C §355.
6. Ask to be allowed to pursue further questioning. If the relevance of a line of questioning will become apparent in a few minutes, ask the court to permit you to proceed. But be careful that you don’t make promises you can’t keep.
7. Request an opportunity to brief the issue. You should have already prepared a brief or memorandum of law if the issue is novel or otherwise requires such attention. But if the objection comes as a surprise and is of sufficient complexity to warrant it, request the opportunity to brief the issue overnight. Before making this request, consider the impact of any delay on the jury.
8. If all else fails, move on. If your opponent’s objection is well taken, it’s best to proceed without skipping a beat so you don’t accentuate the matter before the jury.

For much more on combating objections, turn to CEB’s Effective Introduction of Evidence in California, chap 3. Also check out CEB’s California Trial Objections.

Other CEBblog™ posts you may find useful:

• Know Trial Objections Cold
• Be Ready to Pounce on Objections in a Deposition
• In Limine Motion Might Be the Perfect Tool for Trump

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

When it comes to testifying, the first and most fundamental rule is to tell the truth. In addition to the obvious reasons, it’s hard to trick or trap someone who’s telling the truth about everything. But sometimes witnesses are afraid to admit to mistakes or biases and inadvertently appear less than honest. 

Witnesses may think that their testimony is like a test in which they must have all the “right” answers, true or not, or they fail. Or they may feel that once they’ve said something in error they have to stick with it for consistency’s sake. It’s your job to disabuse them of these beliefs and help them to keep the jury on their side.

A jury will almost always forgive a witness who has erred in the past and who gives answers that are inconsistent with her litigation claims, as long as the witness admits to the error on the stand. You should impress on your client and witnesses to do the following:

1. Admit bias. For example, a plaintiff in a multi-million-dollar lawsuit shouldn’t tell the jury that the outcome of the case means nothing to her.

2. Admit deposition errors, without embarrassment. We all make mistakes and jurors will relate to that.

3. Admit mistaken testimony as soon as it’s pointed out. This is simple to do: “I’m a bit nervous, and I got confused a moment ago. The truth is …..”

4. Don’t cling to peripheral details. It may matter very much whether the light was red; it rarely matters whether or not a bystander’s tie was red. Many witnesses assert as incontrovertible truth minor facts that are contradicted by other reliable evidence. Advise them not to do that. The witness should stick to the truth as she recalls it, but she must admit the possibility of error, or qualify an answer that conflicts with other reliable testimony or physical evidence.

Get expert advice for preparing favorable witnesses for cross-examination in CEB’s Effective Direct and Cross-Examination, chap 6. And check out CEB’s program Preparing Witnesses for Deposition and Trial, available On Demand.

Other CEBblog™ posts on preparing witnesses to testify:

• Checklist for Preparing Your Witness for Trial
• Prepare Your Expert to Testify: A Checklist
• 10 Things to Cover with Your Witness Before Trial

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

The key to a successful cross-examination is to start strong. The beginning of your cross is the time to go for the jugular. Here’s an example of how it’s done.

Question by defense counsel: Agent Wooster, the United States government spent over $1 million on this case, from the time of investigation until now, correct?

Answer by witness: How would I know that?

Question by defense counsel: You might know it because you were told so by your supervisor; you might know it because you filled out expense reports; you might know it because you reviewed the expenses log kept during the investigation. So I will ask you the question again: The United States government spent over $1 million on this case, from the start of investigation until today, didn’t it?

At this point, the prosecutor will likely object, saying: “Objection. What the government spent or did not spend has nothing to do with the crime charged in this case.”

That’s when defense counsel goes on with force: “It certainly does, Your Honor. If the prosecution has spent hundreds of thousands of dollars in investigating this case, they may be tempted to cut corners to get a conviction, creating bias.”

To which the judge will hopefully say, “Objection overruled.”

This examination starts strongly. The examiner opens with a topic that interests the ordinary juror, i.e., possible squandering of government money. The objection gives the cross-examiner a chance to preview his closing argument in part.

Note that the cross-examiner didn’t complain when the witness asked him a question. Don’t dilute the impact of your point with quibbling over details and collateral matters. The witness’ question actually gave the examiner an excellent chance to make a point before repeating the original question.

Always keep in mind that, on cross-examination it’s the attorney, not the witness, who should be the focal point.

Get many more sample examinations and practical advice from experts in CEB’s Effective Direct and Cross-Examination, chap 5.

Other CEBblog™ posts you may find useful:

• 13 Routinely Helpful Cross-Examination Questions
• 8 Tips for Every Cross-Examination You Do
• Mastering the Art of Cross-Examination: Tips from a Judge

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

There are times you want to offer former testimony against a party to a former proceeding or against a party at the current trial who wasn’t a party to the former proceeding. There’s a hearsay exception for that, and here’s how you use it.

The hearsay exception for former testimony deals primarily with statements that were made under oath and admitted into evidence in a prior hearing or trial. See Evid C §1290. This exception also covers deposition testimony taken in another action. (The rules governing admissibility of a deposition taken in the same action are in CCP §2025.620.)

Although the Evidence Code doesn’t indicate how to prove former testimony at the current trial, these are the three ways it’s done:

1. Reporter’s transcript of testimony. Using the reporter’s transcript is the customary manner of proof. A reporter’s transcript is itself a hearsay statement of the reporter. See Evid C §1200. An official reporter’s transcript is admissible under the hearsay exception for official records. See Evid C §1280. This exception is then used to prove the declarant’s previously given testimony, admissible under the former-testimony hearsay exception of Evid C §§1291–1292.
2. Witness recollection of testimony. Although less reliable than a reporter’s transcript, a person who heard the declarant testify in the previous action may be called as a witness to testify from recollection on the declarant’s testimony in the former trial. People v Downs (1952) 114 CA2d 758, 761. Interestingly, adoption of the Evidence Code didn’t change the rule of the older cases that a reporter’s transcript isn’t essential. See Meyer v Foster (1905) 147 C 166, 169 (fact that unavailable declarant’s testimony at former trial was taken down by official reporter doesn’t exclude oral evidence by persons testifying from memory alone).
3. Recorded testimony. It’s also permissible to use a recording of former testimony to prove the content of former testimony. See People v Moran (1974) 39 CA3d 398, 406 (use of videotaped testimony).

For more on offering former testimony, as well as a discussion of the objections available to use against it, turn to CEB’s classic resource on evidence, Jefferson’s California Evidence Benchbook, chap 8.

Other CEBblog™ posts on evidence issues:

• Ever Heard of Implied Hearsay?
• Getting Printouts of Digital Images into Evidence
• 9 Steps to Getting Business Records into Evidence

© The Regents of the University of California, 2017. 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. An essential part of the persuasion process is establishing your credibility with the jury by nurturing its perception of your sincerity, trustworthiness, and knowledge of facts. Here are four ways to increase your credibility.

• Use of simple language. Make every effort to reduce a complex topic to its essential elements, or, if that’s not possible, through description and explanation using common words. You can attain simplicity by attributing human qualities to animals or inanimate nature for purposes of analogy, or by using references to children or personal memories.
• Give the impression of modesty. You can achieve this by implying your own limited powers or failings or by making proper attribution to others: “I would like to say that I will be conducting the great bulk of the trial. Mr. Mills may examine some of the witnesses. I don’t want you to think, however, that he has not contributed much to this case during the last four and one-half years that we have been working on it. He has done a lot of legal research and worked diligently…” You can also invoke your modest role by comparing yourself to the average person or insisting that you didn’t want to file suit but was forced to by the enormity of defendant’s conduct.
• Appear spontaneous. Language expressing amazement at what the opposition has done or the fact that counsel is angry creates this effect: “I get a little upset when I realize that Trustee Title tried to prevent Mr. and Mrs. Pearce from getting what they had coming under the insurance policy. That’s what it amounted to. So when testimony is presented that is either conflicting or false, it’s an attempt by the insurance company to deny a payment to Mr. and Mrs. Pearce that they have coming. And that’s why it angers me.” Seeming to say something on the spur of the moment creates a natural, spontaneous style that connotes sincerity, as does the abrupt halt to an animated sentence.
• Use moral indignation. Moral indignation can be a mark of sincerity that serves to strengthen credibility: “I feel that the law has been mocked, and I think Mr. and Mrs. Pearce have been mocked, and I think to stop what we’ve seen in this case, your verdict is required in an amount that hurts.”

This is just some of the expert advice on the practical aspects of preparing and presenting statements and arguments you’ll find in CEB’s book Persuasive Opening Statements and Closing Arguments, chap 2 and CLE program of the same name.

Other CEBblog™ posts you may find useful:

• The Key to a Persuasive Opening Statement: A Strong Outline
• Expert Tip: Use Jury Instructions in Your Opening and Closing
• 2 Ways to Lose Credibility in Court

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

In addition to the file materials used in preparing for deposition—and that should be reviewed again for trial—there are at least four types of written materials that every expert witness should carefully read and analyze before testifying at trial.

1. The expert’s own deposition. Forward the transcript of the expert’s deposition to him or her as soon as you get it, with instructions to read it carefully word for word, note any additions or changes that appear warranted, and discuss the matter with counsel before asking the court reporter to make any revisions. You should assemble a list of portions that might be used during cross-examination by the opponent and discuss them with the expert, formulating appropriate responses.
2. Depositions of opposing experts. The expert must read and be intimately familiar with the deposition testimony of opposing experts so that he or she can assist you in preparing for cross-examination of them, and can respond to questions on direct examination on portions of the opposing experts’ depositions.
3. Other key depositions. Experts usually don’t need to read the depositions of all witnesses in a case in their entirety, and in many cases this won’t even be possible, but in most cases there will be several key depositions that the expert should read, either in whole or in part. In Shiffer v CBS Corp. (2015) 240 CA4th 246, plaintiff learned a hard lesson about providing experts with necessary deposition testimony to review. Despite its importance, plaintiff didn’t provide his experts with his own deposition testimony, resulting in the experts not analyzing the complete set of facts and thus not providing evidence of plaintiff’s asbestos exposure.
4. Key reports, materials, and documents. Although it’s seldom necessary and sometimes impossible for the expert to read every document in a case personally, there are almost always key documents, e.g., the police report in a traffic accident collision, a change order in a construction case, or correspondence in a contract dispute, that the expert must read and with which he or she must be thoroughly conversant.
   

Always warn your expert not to decide unilaterally what to review for trial, because of the danger that opposing counsel may therefore be entitled to information that he or she might otherwise not discover. See Evidence Code §771. Similarly, warn your expert against writing down his or her thoughts—any time the expert makes a written record of his or her thoughts or opinions, the opposition gets a “paper trail” of potential impeachment material.

For more of this type of guidance for preparing your expert for deposition and trial, turn to CEB’s California Expert Witness Guide, chap 12.

Check out these other CEBblog™ posts on expert witnesses.

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

In a personal injury case, plaintiff’s counsel should approach the opening statement to the jury with one primary goal: establishing credibility. If the jury believes you, it will be much more likely to rule for your client. Here’s a sample opening statement that shows how you can get right out of the gate with credibility.

May it please the court, counsel, and may it please you, ladies and gentlemen of the jury:

As you know, if you haven’t forgotten since last Friday morning, and to repeat, my name is Judith—Judy they usually call me—Cartwright, and I represent, together with Mr. Michael Mills, Norman Ames, the plaintiff in this case. At this time, under the law, it is my privilege as well as my duty to tell you what our case is about and what we will prove. And I can assure you, with reference to everything that I tell you, that we will have substantial evidence for each issue or each point that I mention to you. To save time, I probably will not reiterate or repeat before each sentence the words “we will prove” or “the evidence will show.” Suffice it to say that we will have substantial evidence concerning every point.

Notice how the statement opens with a concise introduction of counsel and co-counsel. The informality and establishment of rapport go a long way to building trust. This part of the statement also sets the tone that evidence supports every point she will make, thus it’s all believable.

Now, before I get into the discussion, I would like to say that I will be conducting the great bulk of the trial. Mr. Mills may examine some of the witnesses. I don’t want you to think, however, that he has not contributed much to this case during the last four and one-half years that we have been working on it. You can see the boxes. He has done a lot of legal research as well as visiting the owners’ campgrounds at issue in this case. He has worked religiously in the preparation and investigation of the case.

This next part of the statement further establishes the credibility and sincerity of counsel by referencing the extensive work of co-counsel as illustrated by the mention of the boxes of material that the jurors can see. Use of the word religiously in characterizing the work of co-counsel is likely to be more effective in validating the credibility of the lawyers than other synonyms, such as diligently.

Get more of these types of tips and sample dialogue from trial veterans Joe Cotchett and Nancy Fineman in CEB’s Persuasive Opening Statements and Closing Arguments. And take the opportunity to hear from them directly by viewing CEB’s program Persuasive Opening Statements & Closing Arguments.

Check out these other CEBblog™ posts on opening statements.

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Some trial exhibits can be quite interesting and the jurors may want a close look at them. But is it a good idea to pass your exhibits to the jurors?

As trial counsel, you definitely can ask that your exhibit be passed to the jury after it’s been received and marked in evidence. You can say something like this:

Your Honor, may I _ _[request that the clerk]_ _ hand that exhibit to the jury and request that they pass it down each row so that each juror can _ _[read it/look at it more closely]_ _?

But before you decide to make that request, consider the following drawbacks to giving jurors a pass at exhibits:

• Distracting. Jurors may be distracted from the testimony that’s being presented while they’re passing and examining an exhibit.
• Misleading. If the exhibit is detailed or lengthy, jurors will gain little from the brief look they can get while it’s passed, and the look they do get may be more misleading than helpful.
• Damaging. An exhibit of several parts can get shuffled, and a delicate exhibit may be damaged.
• Minimizing. If too many exhibits are passed, the impact of crucial exhibits is often minimized.

If you are going to pass an exhibit to jurors, first explain exactly what it shows: If an exhibit is simply passed, the jurors may overlook or misinterpret what you want them to see. Most exhibits should be explained/interpreted by a witness. The explanation can be brief (e.g., “this photograph shows the left front door, and here at the bottom you can see that the lower hinge was broken”), or it can be detailed and extensive.

Whether or not the jurors handled the exhibit during trial, they may want to take it into the jury deliberation room as they decide the case. Under CCP §612, jurors may take “all papers which have been received as evidence … except depositions” and “any exhibits which the court may deem proper.” The trial judge will usually permit all exhibits that have been received and marked in evidence to be sent to the jury room, except when there’s a danger of misinterpretation, as with hospital records and X-ray films.

Counsel may ask the judge to send particular exhibits with the jury into their deliberation room. If you want to send an exhibit that wasn’t formally received in evidence, such as a diagram or model used by a witness as an aid in testifying that would also help jurors to understand the evidence, argue that this is permitted by §612 when it states that the jury may take with them “any exhibits which the court may deem proper.”

For more on handling exhibits during trial, turn to CEB’s California Personal Injury Proof, chap 8 and California Trial Practice: Civil Procedure During Trial, chap 13. And get an overview of personal injury trial practice—including handling exhibits and witnesses—in CEB’s program The Personal Injury Basics: Trial, available On Demand.

Other CEBblog™ posts you may find useful:

• 11 Steps to Introducing Exhibits at Trial
• The When and How of Marking Exhibits
• What I Learned from Jury Duty About Introducing Exhibits

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Juries usually base their verdicts on a small number of crucial points. But lawyers tend to offer as much evidence as possible, believing this will make their case more convincing or fearing they’ll leave something out. Finding the fine line between making sure the point isn’t lost and losing the point by insulting jurors with repetition requires thought and preparation. Here are six methods for streamlining the evidence in your next trial.

1. Narrow the issues. The best way to shorten a trial is to reduce the number of issues to be tried. Partial summary judgment motions and various discovery methods can result in narrowing the issues to be tried. Almost any measure that encourages pretrial preparation (e.g., mandatory exchanges of exhibits, stipulations to the admission of exhibits, witness lists, jury instructions, and verdict forms) will help narrow the issues and reduce the areas of disagreement and argument among counsel.
2. Summarize depositions. Even the most conscientious juror finds it difficult to extract information from reading a deposition transcript. Don’t read transcripts to a jury unless there’s no alternative, such as a live witness or video recording of the deposition. And if you have to read excerpts of the transcript, keep it to an absolute minimum.
3. Make in limine motions and request chambers conferences. In limine motions and pretrial chambers conferences are invaluable trial management tools that help focus the issues and expedite the trial. Motions in limine may resolve issues about the propriety of questionable evidence and minimize the risk of delay during trial. Pretrial chambers conferences provide an opportunity to confirm that premarked exhibits, witness lists, deposition testimony, and proposed jury instructions have been exchanged. Any disputes about graphics or other visual aids, particularly those that may be used during opening statements, can also be resolved during a pretrial conference.
4. Enter into stipulations. An effective way to shorten a trial and to focus the jurors’ attention on the real issues of the case is for the parties to enter into stipulations that reduce the number of factual or legal issues requiring resolution. Also consider evidentiary stipulations for records, exhibits, and testimony about which there’s no real controversy.
5. Request judicial notice. An often overlooked efficiency measure is judicial notice. See Evid C §§451–456. If the court takes judicial notice of a matter, counsel doesn’t need to take the time to present evidence proving it. The court will instruct the jurors that they must accept the judicially noticed matter as indisputably true. See Evid C §457.
6. Efficiently present trial exhibits. Premarking exhibits is an easy step counsel can take to make sure the trial proceeds efficiently. It wastes time during trial if counsel, the clerk, and the court reporter are fumbling with marking exhibits. Preparing copies of documents before trial is also helpful. For example, opposing counsel will have their own copies of depositions, but the document that has been marked will be the one shown to the witness; thus, the court won’t have a copy unless counsel provides it. And using visual aids, models, and simulations can be an important tool in making trials more efficient and in simplifying the witnesses’ duty to explain and describe events.

Jurors appreciate counsel treating them as intelligent observers and tend to have greater confidence in the side that provides them with the information they need to make a decision without wasting their time. Streamlining your evidence can mean the difference between winning and losing your case. Get more guidance on how to handle trials efficiently in CEB’s California Trial Practice: Civil Procedure During Trial, chap 1.

Check out these other CEBblog™ on trial strategy.

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

When examining a witness, counsel should ask questions that are intelligently phrased, concise, and clear in meaning. No one should have to guess at what the question means. If opposing counsel asks a question that can’t be understood or may be misunderstood by the witness, object on the ground that it’s ambiguous or unintelligible.

Ambiguous and unintelligible questions present two major dangers:

• The witness (and therefore the jury) will be confused or misled. This could result in the witness inadvertently giving incorrect, erroneous, or uncalled-for testimony.
• The record won’t accurately reflect the witness’s testimony. For example, counsel may be examining a witness about one document, hand the witness a second document, and ask the witness to identify the date on which it was signed. Although the question itself isn’t ambiguous, the witness’s reply may appear to refer to the first document.

When you hear such a question, object to it under the authority of Evid C §765(a):

(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.

Even if the witness understands the question, you should nonetheless object to it if you don’t understand it. Counsel may object to a question on the ground that it’s ambiguous “to me,” regardless of whether the witness understands the question. Keep in mind that, if you don’t understand the question, the trial of fact may be similarly confused.

The “ambiguous/unintelligible” objection is often overlooked, resulting in a witness unknowingly giving mistaken testimony in response to a poorly worded question. But on the flip side, it can be abused by counsel. For example, it may be used as a way to alert the witness to a danger presented by the examination or to present what’s in effect a brief argument to the jury. Although it’s difficult to prevent isolated abuses, bring persistent abuse to the court’s attention with a request that such “speaking objections” cease.

Here’s a tip to look better at trial: Don’t object to a question as being “vague and ambiguous.” There’s no difference between these two criteria; the objection should be that the question is ambiguous.

Get specific guidance on objections to use at trial and in depositions in CEB’s California Trial Objections.

Other CEBblog™ posts  you may find useful:

• Know Trial Objections Cold
• Avoid Using Trial Objections When Defending a Deposition
• I Object! Know What Objections to Make at a Deposition

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

“The toughest part of being a trial attorney, whether criminal or civil, is pulling off an excellent cross,” says Toni Messina in her article for Above the Law. So, if you’re a new trial attorney, or it’s been a while, it’s natural to be nervous about an upcoming cross-examination. An excellent way to calm your nerves and set yourself up for success is to write down virtually all of your questions and related information in advance. Here’s what to write.

A page of cross-examination questions for each witness should include

• A heading for each issue with the questions below (if the questions are arranged by issue, you’ll be able to change the order of examination by simply shifting around issue pages);
• Detailed questions;
• Anticipated answers (in brackets underneath proposed questions);
• Cross-references to exhibits that relate to the questions and deposition extracts that impeach or support (placed to the right of the proposed questions);
• References to Evidence Code sections that relate to admissibility of answers sought; and
• Questions that are optional, risky, or to be dropped (placed to the left of the proposed questions).

Organizational tip: Use lined sheets in a three-ring binder and make the first page for each witness a list of the “props” needed for the witness, including depositions, demonstrative evidence, interrogatory extracts. The second page lists the main points to be made with the witness, including important exhibits that can be introduced only through the witness. Use the list of main points to check against the final examination questions; in trial, before you complete examination, glance through the list to make sure you haven’t missed anything crucial. Then comes your page(s) of cross-examination questions.

Begin your examination strong and finish strong. Arrange the written-out questions so that there’s a strong beginning sequence that will grab the jury’s attention and a closing sequence that will allow you to exit on a strong conclusion.

With experience, you may find that writing out detailed questions constricts flexibility and dampens spontaneity. Many experienced trial attorneys write down only general topics of examination. If this works best for you, you should still write down references to key exhibits and impeaching deposition testimony.

Before your next opportunity to cross-examine a witness, review the expert tips in CEB’s Effective Direct and Cross-Examination, chap 3. And get specific and helpful knowledge for cross-examining an expert witness in CEB’s program Strategic Tips for Cross Examining Expert Witnesses, available On Demand.

Other CEBblog™ posts on cross-examination:

• The Best Way to Start a Cross-Examination
• 13 Routinely Helpful Cross-Examination Questions
• Keep Cross-Examination Short (Unless You Shouldn’t)

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Retaining an expert witness is expensive and may not be necessary in every case. Don’t try to keep up with the Jones & Jones firm: Just because the other side has an expert or because experts have traditionally been used in similar cases doesn’t mean you need one. And if you decide you do need an expert, make sure it’s the best type for your case.

A handy way to help decide whether an expert is needed is to analyze the pertinent jury instructions. Try to determine the respective burdens of proof as required by CACI 200—once the elements of each party’s burden are succinctly stated, it’s generally apparent whether one or more of those elements “is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Evid C §801(a).

Campbell v General Motors Corp. (1982) 32 C3d 112, 124 provides a helpful example: The appellate court held that the jury, without expert testimony, was capable of deciding whether a bus was defectively designed because it lacked any grip within reach of the plaintiff’s seat, from which she fell when the bus turned. In so holding, the appellate court reversed a nonsuit that had been entered in the bus manufacturer’s favor because of plaintiff’s failure to call a design expert. Campbell teaches a twofold lesson:

1. Counsel shouldn’t automatically hire an expert just because technical matters are involved; and
2. In borderline situations, the savings produced by not calling an expert are often offset by the expense and delay of a protracted appeal.

When there are matters beyond common experience and you decide to bring an expert on board, make sure to give serious consideration to the exact kind of expert or type of expertise that you need.

Here’s an example: You represent a plaintiff who has suffered greater injuries than are usually encountered in a relatively low-speed, rear-end car accident when the seat back or head restraint fails. You need to find an expert who can account for the enhanced injuries. At first it might seem that using a doctor who specializes in the particular injury suffered would be enough. But to bring a products liability case against the car manufacturer, you’ll need expertise not just in the diagnosis and treatment of back and neck injuries, but also in the causative mechanisms that can produce more extensive injuries. Most orthopedists and neurologists won’t have the engineering background to offer expert testimony on that causative link, just as most engineers lack medical training. To bridge this interdisciplinary gap, consider retaining a biomechanic, who has the requisite skills and training to offer expert opinion on the effects of various physical forces on the human anatomy.

A few hours spent in case analysis, discussion with practitioners experienced in the area, and background reading to pinpoint the exact kind of expertise required, can save countless dollars, wasted hours, and untold grief later in the proceedings. And on the flip side, failure to retain the right kind of expert creates the risk of a nonsuit for not establishing a prima facie case at trial, and possibly even a legal malpractice action for breach of duty to retain a particular type of expert.

Before you choose an expert, review the types of experts and where to locate them in CEB’s California Expert Witness Guide, chaps 6-7.

Other CEBblog posts you may find useful:

• Choosing an Expert Witness: Insider or Outsider?
• 10 Tips for Choosing the Best Expert Witness
• Expert Advice: An Expert’s Tips on What to Look for in an Expert Witness

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A witness on the stand has made a statement that’s inconsistent with his or her earlier deposition testimony and has committed to the inconsistency. As the cross-examining attorney, how should you handle it?

Start by calling it out: Confront the witness with the inconsistency so that you convey it to the jury. Some attorneys like to confront the witness with an inconsistent deposition statement by first showing the witness the transcript and then reading from it, like this:

Q: Now I’m showing you the original transcript of your deposition. [If signed, ask whether it is the witness’s signature.] Will you now please read to yourself lines 6 through 9 on page 12? [Hands deposition to witness.] Were you asked “How did Ms. Jones appear to you at the scene of the accident?”

A: Yes.

Q: And did you answer: “Well, she looked drunk to me.”

A: Yes.

But you don’t need to show the deposition transcript to the witness (Evid C §768(a)) or give the witness any information on it (Evid C §769). You can simply ask the witness whether a specific statement was made at the deposition. The impeaching testimony can then be read directly without asking the witness whether he or she so testified. For example, you might confront the witness with the inconsistent deposition statement as follows:

Q: You stated under oath before this trial that Ms. Jones looked drunk. Is that right?

A: I did not.

Q: I will read to you from the transcript of your testimony in your deposition at page 12, lines 6 through 9. Question: “How did Ms. Jones appear to you at the scene of the accident?” Answer: “Well, she looked drunk to me.” That was your testimony at your deposition. Is that correct?

A: Yes, it was.

The witness may answer that he or she doesn’t remember giving that testimony, didn’t give that testimony, or the answers must have been inaccurately reported. One way to counter such an explanation is to establish that the witness signed or corrected the deposition transcript.

But if the deposition wasn’t corrected or signed, or the witness claims to have overlooked that particular response when signing the deposition or the deposition testimony was inaccurately reported, you may need to call the deposition reporter as a witness to testify. Or, because the judge has explained the deposition process to the jury and the jury will understand that you’re reading testimony previously given by the witness, you can simply read the transcript and then proceed with cross-examination.

If the witness denies reading and correcting the deposition shortly after it was taken, ask whether the witness has read the deposition in preparation for the trial. Almost all witnesses will testify that they read the deposition in preparation for trial. You’ll force the witness to admit that he or she

• Overlooked the error (implying that it’s actually not an error);
• Recognized it but didn’t call it to anyone’s attention (implying either that it’s not an error or that the witness intentionally wanted to hide it); or
• Called it to the attention of opposing counsel, who failed to notify other parties or the court.

Learn how to effectively use discovery at trial in CEB’s California Trial Practice: Civil Procedure During Trial, chap 12. And get examination tips from the experts in CEB’s Effective Direct and Cross-Examination and CLE program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog posts you may find useful:

• 10 Steps to Impeaching a Witness with Prior Depo Testimony  
• Questioning at Trial Versus at Depositions
• Cross-Examining the Unimpeachable Witness

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

How the attorney and witness appear to the jury can be as important as the words that are spoken. Here are four tips from expert trial attorneys that will make your direct examination more effective regardless of what you ask the witness.

1. Be the master. Assume a demeanor during direct examination that reflects mastery of the facts. Appear calm and speak distinctly. Don’t show reactions of anger, elation, or the like to any answers.
2. Put the witness at center stage. Generally, your primary role will be that of facilitator for the witness. Stay in the background and permit the witness to testify as fully on his or her own as possible. Use short questions to control the flow of testimony. Ideally, the witness will be sufficiently prepared so you won’t need to assist much. But if the witness forgets a point, you may refresh the witness’ recollection.
3. Help the witness connect with the jury. Minimize eye contact with the witness after you’ve asked the question; this will encourage the witness to look at the jury, not you.
4. Be sensitive to the jury. While conducting the direct examination, be aware of the jury to evaluate their reaction. If the witness uses a technical term, ask a follow-up question to explain the term. Supplemental questions may deviate from the outline to clarify the witness’ testimony. Some attorneys feel it’s condescending to ask the witness to “please explain to the jury” a certain term, as if the jury lacked the necessary understanding. A better approach is to ask the witness to “please tell us what that term means.”

Before you do your next direct examination, review the expert advice in CEB’s California Trial Practice: Civil Procedure During Trial, chap 11 and Effective Direct and Cross-Examination, chap 2. And check out CEB’s program Evidence: Tips for Effective Direct and Cross Examination, available On Demand.

Other CEBblog posts you may find useful:

• 12 Tips for Direct Examination in Depo or at Trial
• Direct Examination Crisis Control
• When It’s OK to Lead on Direct

© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.