(Note: While this is not strictly on trial techniques, I think this may be of interest. From my other blog Vincula. Some points have been changed to suit the tenor of this particular blog)
"While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and security in the first petition for a writ of amparo filed before this Court."
Chief Justice Reynato Puno starts his Decision in Secretary of National Defense v. Manalo, G.R. No. 180906 in this way. Read the decision here.
It's a petition that was first filed as a prohibition suit which later, after the Rule on the Writ of Amparo was passed, became an amparo petition--the very first in the Supreme Court and the very first in the Court of Appeals.
This case is significant for human rights protection. The Court, through the Chief Justice, came up with an expanded and expansive reading of the right to security, which bodes well for the protection of rights.
I'm proud to have been part of the team that litigated this. Kudos to Bombi Sunga, FLAG Deputy Coordinator for Metro Manila for first taking this case on, when the Manalo Brothers disappeared and litigating this issue before the CA as a habeas corpus case and to Jose Manuel Diokno, FLAG National Chair, for shepherding us through this case. Also to Cookie Diokno, FLAG Secretary General, for the great staff support.
08 October 2008
29 September 2008
Passing the Bar and Winning Cases
Many lawyers still remember where they were and what they were doing when they heard the results of their bar examinations, pass or fail. Many bar takers still remember with eerie detail every single thing they did (or were doing) at a particular Sunday of the bar examinations. That is how big a deal the bar exam is to a lawyer--it can, forever, change your life--literally.
It is four (for some five or six) years of studying law, five (for some its more) months of intense review (for some, learning for the first time)--cramming as much information about a given subject, all the possible permutations of questions, all the relevant case law, all the challenges that could possibly arise--into one day. When that day is done, the process repeats itself again for a second week, a third and then the fourth.
Reflecting on this, these questions inevitably arise--why do I go through this (other than that I have to pass the bar to become a lawyer) and what do i get out of this?
The obvious answer, of course, is you have to pass the bar to become a lawyer and to practice law. But on deeper reflection, preparing to take the bar and actually taking the bar prepares you also for lawyering, particularly trial lawyering in many ways.
1. Preparation is everything. Native intelligence can only get you so far. For many, the preparations for the bar start from the very first day of law school--adjusting to a new environment, acquiring or adjusting study habits, keeping personal order and managing time well. All these complement native intelligence to ensure a successful bar exam, and also a successful trial practice.
Many trial lawyers prepare for a case weeks and months on end. The good ones make it look so easy and effortless, but that is only because they have already spent a good deal of time preparing. You can always spot those who are unprepared (note: there is no such thing as "not completely prepared", one is either prepared or not)--they will ramble on and on, use technical language to hide lack of meaning in their words; on the other hand, the prepared trial lawyers are those who can communicate easily, using comfortable words to convey exactly what they want to say--and, to do this, preparation is key.
In the same way that you cannot hope to cram for the bar and hope to pass; you can also not cram for a trial and hope to win.
2. Anticipating challenges is key. How many bar candidates have walked down taft avenue, clutching mountains of tips and reviewers, reached the gate and discovered that their building was at the other end and that it would have been much easier to go through the other side? How many have walked up to the gate only to realize that their permit or identification card or fountain/sign pens were left behind? Or that the first day of the Bar (at least in the Philippines) is always a circus and that lead time is always at least one hour ahead?
Many of these things lead to stress and tension which are avoidable if challenges are anticipated early enough. One obstacle to successfully taking the bar is anticipating what might possibly arise (of course a good balance must be struck between anticipating what may reasonably arise and worrying needlessly about a far too remote contingency) and, sounding like a defective cd, preparing for it ahead of time.
Like the bar, anticipating challenges is key in a successful trial. Is it the first time you're appearing before this court? Do you even know where it is? Do you know how far the parking area is? Do you know how long it takes to get there? What's the judge like? Does s/he start on time? Do you know where the rest room is?
Many a trial has been won (or lost) simply on a favorable first impression created by a counsel who is ready for anything the judge throws his way. And, while it may seem trivial, knowing where the parking area is or even where the rest room is, spells the difference between a less stress hearing/trial and one where you are rushing around, trying vainly to find a place to park your car or, in the event of stomach upset, your butt.
3. You can't do it alone. The first thing a bar candidate realizes when he takes the bar is the enormity of the entire task. No one, no matter how good, will ever be able to take on the bar completely by him/herself. There will always be a need for support, in whatever form that will be.
Schools now have fully-functional, well-organized (and for some law schools, well-funded) bar operations; an annual exercise in school spirit that is intended to make the bar exam experience as easy as possible on the one taking it. The essence of bar operations is simply to help the examinee get through the examinations by eliminating or minimizing some of the things s/he needs to do so that s/he can have more time to prepare to take the exam. So, you will have gophers (the human, not the animal kind; for those unfamiliar, it is slang for one who is asked to "go-pher this" and "go-pher that") running around getting breakfast and lunch for the examinees, getting "tips", organizing religious services (A Jesuit priest never tires of reminding people that during the bar, there are no atheists) or simply being present.
4. Put everything into it. You can't take the bar half-heartedly as this will only assure that you will fail it wholeheartedly. Whether or not you feel you are confident, you have to summon the heart, the will to take it.
The same thing with trying a case. You've got to put everything into it--all the preparations, cramming, memorizing for one whole week into one day; and then do it all over again, and again, and again, over and over.
One word sums up what you need to be able to do that: Passion. You've got to be able to summon the passion to take the bar confidently and to try cases the same way. Stand up and say, passionately, "this is going to happen."
One last thing and this applies only to taking the bar. You don't want to go that way again. And that needs no explanation.
It is four (for some five or six) years of studying law, five (for some its more) months of intense review (for some, learning for the first time)--cramming as much information about a given subject, all the possible permutations of questions, all the relevant case law, all the challenges that could possibly arise--into one day. When that day is done, the process repeats itself again for a second week, a third and then the fourth.
Reflecting on this, these questions inevitably arise--why do I go through this (other than that I have to pass the bar to become a lawyer) and what do i get out of this?
The obvious answer, of course, is you have to pass the bar to become a lawyer and to practice law. But on deeper reflection, preparing to take the bar and actually taking the bar prepares you also for lawyering, particularly trial lawyering in many ways.
1. Preparation is everything. Native intelligence can only get you so far. For many, the preparations for the bar start from the very first day of law school--adjusting to a new environment, acquiring or adjusting study habits, keeping personal order and managing time well. All these complement native intelligence to ensure a successful bar exam, and also a successful trial practice.
Many trial lawyers prepare for a case weeks and months on end. The good ones make it look so easy and effortless, but that is only because they have already spent a good deal of time preparing. You can always spot those who are unprepared (note: there is no such thing as "not completely prepared", one is either prepared or not)--they will ramble on and on, use technical language to hide lack of meaning in their words; on the other hand, the prepared trial lawyers are those who can communicate easily, using comfortable words to convey exactly what they want to say--and, to do this, preparation is key.
In the same way that you cannot hope to cram for the bar and hope to pass; you can also not cram for a trial and hope to win.
2. Anticipating challenges is key. How many bar candidates have walked down taft avenue, clutching mountains of tips and reviewers, reached the gate and discovered that their building was at the other end and that it would have been much easier to go through the other side? How many have walked up to the gate only to realize that their permit or identification card or fountain/sign pens were left behind? Or that the first day of the Bar (at least in the Philippines) is always a circus and that lead time is always at least one hour ahead?
Many of these things lead to stress and tension which are avoidable if challenges are anticipated early enough. One obstacle to successfully taking the bar is anticipating what might possibly arise (of course a good balance must be struck between anticipating what may reasonably arise and worrying needlessly about a far too remote contingency) and, sounding like a defective cd, preparing for it ahead of time.
Like the bar, anticipating challenges is key in a successful trial. Is it the first time you're appearing before this court? Do you even know where it is? Do you know how far the parking area is? Do you know how long it takes to get there? What's the judge like? Does s/he start on time? Do you know where the rest room is?
Many a trial has been won (or lost) simply on a favorable first impression created by a counsel who is ready for anything the judge throws his way. And, while it may seem trivial, knowing where the parking area is or even where the rest room is, spells the difference between a less stress hearing/trial and one where you are rushing around, trying vainly to find a place to park your car or, in the event of stomach upset, your butt.
3. You can't do it alone. The first thing a bar candidate realizes when he takes the bar is the enormity of the entire task. No one, no matter how good, will ever be able to take on the bar completely by him/herself. There will always be a need for support, in whatever form that will be.
Schools now have fully-functional, well-organized (and for some law schools, well-funded) bar operations; an annual exercise in school spirit that is intended to make the bar exam experience as easy as possible on the one taking it. The essence of bar operations is simply to help the examinee get through the examinations by eliminating or minimizing some of the things s/he needs to do so that s/he can have more time to prepare to take the exam. So, you will have gophers (the human, not the animal kind; for those unfamiliar, it is slang for one who is asked to "go-pher this" and "go-pher that") running around getting breakfast and lunch for the examinees, getting "tips", organizing religious services (A Jesuit priest never tires of reminding people that during the bar, there are no atheists) or simply being present.
4. Put everything into it. You can't take the bar half-heartedly as this will only assure that you will fail it wholeheartedly. Whether or not you feel you are confident, you have to summon the heart, the will to take it.
The same thing with trying a case. You've got to put everything into it--all the preparations, cramming, memorizing for one whole week into one day; and then do it all over again, and again, and again, over and over.
One word sums up what you need to be able to do that: Passion. You've got to be able to summon the passion to take the bar confidently and to try cases the same way. Stand up and say, passionately, "this is going to happen."
One last thing and this applies only to taking the bar. You don't want to go that way again. And that needs no explanation.
14 August 2008
3/10
The title refers to 3 questions you need to ask yourself before cross examining and 10 commandments to follow on cross examination. Just following this simple formula will allow you to be able to conduct a good cross examination or simply say confidently, "no cross, your honor."
3 Questions to ask yourself before cross examining:
Q1. Do I want anything from this witness?
Q2. Can this witness say anything to help my case or client?
Q3. Has this witness said anything to hurt my case or client?
If your answer to Q1 and Q2 is a yes but your answer to Q3 is a no, sit down and shut up after saying "no cross, your honor."
One fundamental truth to remember on cross examination is that the witness is not your witness. Presume that the witness is prepared for your cross; presume that the witness will not be willing to help you; presume that the witness will not willingly admit to lying, especially lying under oath; presume finally that the witness believes that s/he is telling the truth.
Remembering all these things will put in perspective any cross--it is far too dangerous to go fishing for information from a witness whose answers you are not familiar with. So, if the witness has not said anything to hurt your case or client but you simply feel that the witness may help you with information, weigh the risk of the witness being anything but cooperative and take the better part of discretion by shutting up.
But if your answer to Q1 and Q2 is a no but your answer to Q3 is a yes, by all means, cross.
10 Commandments of Cross:
1. Know what you want from the witness.
Among the most painful things to watch in a court room is a counsel cross examining for the sake of cross examination. The questions are frequently 5Ws and 1H questions--yep, direct examination questions. And, of course, we know what the witness on cross will do when you ask for information--s/he will give it to you.
2. Never ask a question you do not know the answer to yourself.
3. Never ask anything but a leading question (well, hardly ever).
The second and third commandments are interrelated. You are allowed to lead on cross examination but you cannot hope to ask a leading question if you do not know the answer yourself. Remember that a leading question is one that contains or suggests the answer. Cross examination is not the time to ask for information from the witness. It is the time to put the answers you want in the mouth of the witness.
Note that the best leading questions are statements. Answers come in the form of statements and so lead the witness by simply putting the statement in the mouth of the witness; if your opponents asks, "is there a question there, your honor?", you may simply repeat the statement and end with a lilt at the end and perhaps a cocked eyebrow.
4. Be brief.
5. Use plain words.
The fourth and fifth commandments are also interrelated. Many a cross has floundered simply because the cross examiner is weighed down by the weight of the words s/he chooses and not by the answer s/he intends to suggest by it. There is no compelling reason to ask long questions nor use words that are complicated or complex. The best leading questions are those that are short and direct to the point. Use words that are one syllable long, two at the most, three on rare instances, four hardly ever. Anything longer and more complicated than this might confuse the witness as to what answer you are suggesting.
6. Listen to the answer.
While you may want to build up a pace or rhythm, it is essential that you listen to the witness. While you may be putting words in the mouth of the witness, you still need to listen to his/her answers. Failure to do this will mean the difference between the witness being led or you being objected to for being argumentative. For instance, "you were there at three pm?" (witness says, yes, which is what you expected) "and you were there with your friends?" (here you might be expecting a yes, but witness says no; but because you're not listening, you ask) "and you and your friends did nothing?" (the objection will be made at this point and it will most likely be sustained).
7. Do not quarrel with the witness.
8. Never answer the witness.
The one thing you want to have on cross examination is control of the witness and the situation simply because the witness is not yours. Many witnesses will engage you in arguments or be openly hostile; or the witness may ask you rhetorical questions. Engaging the witness will distract you and diminish your control of the witness and the situation.
When the witness quarrels with you or asks you questions, stop, take a breath and politely but firmly inform the witness that you are not there to quarrel with him/her or to answer his/her questions and that you would greatly appreciate it if your question could be answered. If the witness continues to quarrel with you or ask you questions, politely but firmly call the Judge's attention.
9. Never allow the witness to explain anything.
Again, remember that the witness is not yours. S/he will have information you do not want; s/he will give answers you do not know or want. So, lead the witness but do not make the witness your own.
10. Avoid unnecessary questions.
Many lawyers succeed in catching the witness in a lie or with inconsistent answers but because of excitement or just plain ignorance, allow the witness to escape by asking totally unnecessary questions. For instance:
"Mr. witness, you said earlier on direct examination that the car you saw was blue?" (yes)
"In your sworn statement, you said under oath that the car you saw was red?" (yes)
"You are referring to the same car?" (yes)
Note that the witness has now been caught with what appears to be a major inconsistency as the car cannot be both red and blue. This is a perfect time to stop but frequently cross examiners, probably in their excitement, proceed to ask the unnecessary question, thus:
"Now, Mr. witness, can you please explain to the court how this same car could be both red and blue?"
Believe me, he can. And, having asked that question, the Judge would allow him to.
3 Questions to ask yourself before cross examining:
Q1. Do I want anything from this witness?
Q2. Can this witness say anything to help my case or client?
Q3. Has this witness said anything to hurt my case or client?
If your answer to Q1 and Q2 is a yes but your answer to Q3 is a no, sit down and shut up after saying "no cross, your honor."
One fundamental truth to remember on cross examination is that the witness is not your witness. Presume that the witness is prepared for your cross; presume that the witness will not be willing to help you; presume that the witness will not willingly admit to lying, especially lying under oath; presume finally that the witness believes that s/he is telling the truth.
Remembering all these things will put in perspective any cross--it is far too dangerous to go fishing for information from a witness whose answers you are not familiar with. So, if the witness has not said anything to hurt your case or client but you simply feel that the witness may help you with information, weigh the risk of the witness being anything but cooperative and take the better part of discretion by shutting up.
But if your answer to Q1 and Q2 is a no but your answer to Q3 is a yes, by all means, cross.
10 Commandments of Cross:
1. Know what you want from the witness.
Among the most painful things to watch in a court room is a counsel cross examining for the sake of cross examination. The questions are frequently 5Ws and 1H questions--yep, direct examination questions. And, of course, we know what the witness on cross will do when you ask for information--s/he will give it to you.
2. Never ask a question you do not know the answer to yourself.
3. Never ask anything but a leading question (well, hardly ever).
The second and third commandments are interrelated. You are allowed to lead on cross examination but you cannot hope to ask a leading question if you do not know the answer yourself. Remember that a leading question is one that contains or suggests the answer. Cross examination is not the time to ask for information from the witness. It is the time to put the answers you want in the mouth of the witness.
Note that the best leading questions are statements. Answers come in the form of statements and so lead the witness by simply putting the statement in the mouth of the witness; if your opponents asks, "is there a question there, your honor?", you may simply repeat the statement and end with a lilt at the end and perhaps a cocked eyebrow.
4. Be brief.
5. Use plain words.
The fourth and fifth commandments are also interrelated. Many a cross has floundered simply because the cross examiner is weighed down by the weight of the words s/he chooses and not by the answer s/he intends to suggest by it. There is no compelling reason to ask long questions nor use words that are complicated or complex. The best leading questions are those that are short and direct to the point. Use words that are one syllable long, two at the most, three on rare instances, four hardly ever. Anything longer and more complicated than this might confuse the witness as to what answer you are suggesting.
6. Listen to the answer.
While you may want to build up a pace or rhythm, it is essential that you listen to the witness. While you may be putting words in the mouth of the witness, you still need to listen to his/her answers. Failure to do this will mean the difference between the witness being led or you being objected to for being argumentative. For instance, "you were there at three pm?" (witness says, yes, which is what you expected) "and you were there with your friends?" (here you might be expecting a yes, but witness says no; but because you're not listening, you ask) "and you and your friends did nothing?" (the objection will be made at this point and it will most likely be sustained).
7. Do not quarrel with the witness.
8. Never answer the witness.
The one thing you want to have on cross examination is control of the witness and the situation simply because the witness is not yours. Many witnesses will engage you in arguments or be openly hostile; or the witness may ask you rhetorical questions. Engaging the witness will distract you and diminish your control of the witness and the situation.
When the witness quarrels with you or asks you questions, stop, take a breath and politely but firmly inform the witness that you are not there to quarrel with him/her or to answer his/her questions and that you would greatly appreciate it if your question could be answered. If the witness continues to quarrel with you or ask you questions, politely but firmly call the Judge's attention.
9. Never allow the witness to explain anything.
Again, remember that the witness is not yours. S/he will have information you do not want; s/he will give answers you do not know or want. So, lead the witness but do not make the witness your own.
10. Avoid unnecessary questions.
Many lawyers succeed in catching the witness in a lie or with inconsistent answers but because of excitement or just plain ignorance, allow the witness to escape by asking totally unnecessary questions. For instance:
"Mr. witness, you said earlier on direct examination that the car you saw was blue?" (yes)
"In your sworn statement, you said under oath that the car you saw was red?" (yes)
"You are referring to the same car?" (yes)
Note that the witness has now been caught with what appears to be a major inconsistency as the car cannot be both red and blue. This is a perfect time to stop but frequently cross examiners, probably in their excitement, proceed to ask the unnecessary question, thus:
"Now, Mr. witness, can you please explain to the court how this same car could be both red and blue?"
Believe me, he can. And, having asked that question, the Judge would allow him to.
12 August 2008
Telling stories
Many lawyers consider direct examination boring; I used to, when I was starting out. Part of the reason was all those lawyer movies where the most exciting stuff happens during cross examination. When I started to really handle cases, I realized just how exciting--and important--direct examination is.
Direct examination is that part of trial where a story is told, particularly your client's. What spells the difference is how effective you are on direct examination.
A good story is one that holds the interest of the listener; and the most important listener in that court room is the Judge. The challenge is how to hold the judge's interest. Effective direct examination ensures that your client's story will be told and will be told well.
Here are 10 tips for effective--and, yes, exciting--direct examination.
1. Come up with a theory of your case. A theory is not necessarily the cause of action but it must incorporate your cause of action. Your theory is the most plausible explanation of what really happened and why the court should rule in your client's favor. (T. Mauet, Fundamentals of Trial Technique [1988]) A good theory takes into account all the facts--good and bad--and weaves these facts together into an explanation that the judge will find logical and plausible.
2. Present the judge with an image. A noted trial lawyer during his time, former Senator Jose W. Diokno, clearly well-ahead of his time, very wisely commented that "it is not enough as the law book tells you to have a theory of your case. You must also have an image of your case–something that appeals to the reason and sense of justice of the judge, something that would make him say, 'Indeed, this person is right and if the law isn’t that way, maybe I can interpret it so that it will be that way.'” (Jose Manuel I. Diokno, Jose W. Diokno on Trial: Techniques and Ideals of the Filipino Lawyer [2007])
Both your theory and image should be simple, logical, consistent with human experience, provable by the evidence you have and strong enough to withstand your opponent's own theory and image. Remember O.J. Simpson and the gloves and Johnnie Cochran's by-now classic rhyme, "if it don't fit, you must acquit"? That was theory and image coming together, powerfully. Of course, we all know what happened to that trial and to O.J.
3. Determine which witnesses will establish your theory and in what order you will present them. Knowing who to present during trial is almost as important as which questions to ask the witness during trial. Of course, if you are fortunate enough to have eyewitnesses or a complainant who can testify, this will not require much thought. But we don't always get these witnesses, as frequently, we get witnesses who can only testify to one, but not every, part of your theory. Starting with the best witnesses will determine how effectively the theory and image can be presented. One quick and simple rule of thumb in determining who to present: start strong, end strong.
4. Ask the best questions. The most effective direct examinations involve the lawyer asking all the best questions. The best questions are the simplest, shortest and most comfortable (at least to the lawyer) questions he is capable of asking. There are two parts to this: first, ask the best questions during your interview with the client or witness and second, based on that interview, ask the best questions during the trial.
5. Know what your witness will say and how s/he will say it. A traditional cross-examiner's tactic is to rattle the witness by asking, off the bat, if the witness talked to you, his/her counsel, before testifying. What this question seeks to instill in the witness is a sense of irregularity if s/he had, indeed, spoken with counsel. In truth, there is nothing unethical or wrong with speaking with your witness before the trial; on the contrary, it would be irresponsible for counsel to not speak with the witness before presenting the witness. What is unethical would be for counsel to tell the witness what to say. During the preparations for his/her testimony, you should ask the witnesses to answer your questions based on how they understand your questions--without commenting on or reacting to their answers at first. This will allow you to see what the witness will say and how s/he will say it.
6. Use the 5Ws,1H. Who. What. Where. When. Why. How. Not necessarily in this order, though. The advantage of using the 5Ws, 1H is that you will rarely be accused of asking leading questions on direct examination.
7. Learn to loop your questions. "Looping" is the practice of using the witness' previous answer as the premise for your next question. For instance, "You said that you were at (place and time), what were you doing there? Two advantages of "looping" your questions are: (1) you will hardly ever be objected to on the ground of "no basis" and (2) your witness' testimony and story will become very familiar to the judge because specific details will be repeated.
8. Use your voice and body well. What spells the difference between boring and exciting direct examination is frequently how you sound and how you look when asking your questions. Be conscious of how loud (or soft) your voice is, how comprehensible (or incomprehensible) your words are when speaking in public. Be conscious of body language--particularly yours. Rehearse your speaking voice, inflection, tone and even posture and body movements. Know when to move around a lot and when not to. For instance, standing perfectly still while a witness tears up on the stand will focus the attention on the witness, not on you.
9. Prepare any documents you need to present before the trial. Use an Exhibit Guide and an Exhibit List. If you are marking any documents, put small tabs or post its with the proposed marking on the documents; if you have many documents, make sure they are all separately stapled or clipped. Being aware of the Best Evidence Rule, make sure you have the originals and photocopies; if you do not have the originals, make sure you have legible copies and make a note to yourself to ask questions to lay the basis for secondary evidence. Make use of clear books or clear files to separate documents you will be presenting and those that will remain in your file.
10. End confidently and well. Before saying, "that's all, your honor", take about 10 seconds to quickly go over your outline or questions to make sure that you have covered everything you wanted. Check points you have covered and make sure to ask questions on the points that are not checked. After asking the last question, allow about 2 seconds from the witness' answer before nodding confidently and declaring, "that's all, your honor."
Direct examination is that part of trial where a story is told, particularly your client's. What spells the difference is how effective you are on direct examination.
A good story is one that holds the interest of the listener; and the most important listener in that court room is the Judge. The challenge is how to hold the judge's interest. Effective direct examination ensures that your client's story will be told and will be told well.
Here are 10 tips for effective--and, yes, exciting--direct examination.
1. Come up with a theory of your case. A theory is not necessarily the cause of action but it must incorporate your cause of action. Your theory is the most plausible explanation of what really happened and why the court should rule in your client's favor. (T. Mauet, Fundamentals of Trial Technique [1988]) A good theory takes into account all the facts--good and bad--and weaves these facts together into an explanation that the judge will find logical and plausible.
2. Present the judge with an image. A noted trial lawyer during his time, former Senator Jose W. Diokno, clearly well-ahead of his time, very wisely commented that "it is not enough as the law book tells you to have a theory of your case. You must also have an image of your case–something that appeals to the reason and sense of justice of the judge, something that would make him say, 'Indeed, this person is right and if the law isn’t that way, maybe I can interpret it so that it will be that way.'” (Jose Manuel I. Diokno, Jose W. Diokno on Trial: Techniques and Ideals of the Filipino Lawyer [2007])
Both your theory and image should be simple, logical, consistent with human experience, provable by the evidence you have and strong enough to withstand your opponent's own theory and image. Remember O.J. Simpson and the gloves and Johnnie Cochran's by-now classic rhyme, "if it don't fit, you must acquit"? That was theory and image coming together, powerfully. Of course, we all know what happened to that trial and to O.J.
3. Determine which witnesses will establish your theory and in what order you will present them. Knowing who to present during trial is almost as important as which questions to ask the witness during trial. Of course, if you are fortunate enough to have eyewitnesses or a complainant who can testify, this will not require much thought. But we don't always get these witnesses, as frequently, we get witnesses who can only testify to one, but not every, part of your theory. Starting with the best witnesses will determine how effectively the theory and image can be presented. One quick and simple rule of thumb in determining who to present: start strong, end strong.
4. Ask the best questions. The most effective direct examinations involve the lawyer asking all the best questions. The best questions are the simplest, shortest and most comfortable (at least to the lawyer) questions he is capable of asking. There are two parts to this: first, ask the best questions during your interview with the client or witness and second, based on that interview, ask the best questions during the trial.
5. Know what your witness will say and how s/he will say it. A traditional cross-examiner's tactic is to rattle the witness by asking, off the bat, if the witness talked to you, his/her counsel, before testifying. What this question seeks to instill in the witness is a sense of irregularity if s/he had, indeed, spoken with counsel. In truth, there is nothing unethical or wrong with speaking with your witness before the trial; on the contrary, it would be irresponsible for counsel to not speak with the witness before presenting the witness. What is unethical would be for counsel to tell the witness what to say. During the preparations for his/her testimony, you should ask the witnesses to answer your questions based on how they understand your questions--without commenting on or reacting to their answers at first. This will allow you to see what the witness will say and how s/he will say it.
6. Use the 5Ws,1H. Who. What. Where. When. Why. How. Not necessarily in this order, though. The advantage of using the 5Ws, 1H is that you will rarely be accused of asking leading questions on direct examination.
7. Learn to loop your questions. "Looping" is the practice of using the witness' previous answer as the premise for your next question. For instance, "You said that you were at (place and time), what were you doing there? Two advantages of "looping" your questions are: (1) you will hardly ever be objected to on the ground of "no basis" and (2) your witness' testimony and story will become very familiar to the judge because specific details will be repeated.
8. Use your voice and body well. What spells the difference between boring and exciting direct examination is frequently how you sound and how you look when asking your questions. Be conscious of how loud (or soft) your voice is, how comprehensible (or incomprehensible) your words are when speaking in public. Be conscious of body language--particularly yours. Rehearse your speaking voice, inflection, tone and even posture and body movements. Know when to move around a lot and when not to. For instance, standing perfectly still while a witness tears up on the stand will focus the attention on the witness, not on you.
9. Prepare any documents you need to present before the trial. Use an Exhibit Guide and an Exhibit List. If you are marking any documents, put small tabs or post its with the proposed marking on the documents; if you have many documents, make sure they are all separately stapled or clipped. Being aware of the Best Evidence Rule, make sure you have the originals and photocopies; if you do not have the originals, make sure you have legible copies and make a note to yourself to ask questions to lay the basis for secondary evidence. Make use of clear books or clear files to separate documents you will be presenting and those that will remain in your file.
10. End confidently and well. Before saying, "that's all, your honor", take about 10 seconds to quickly go over your outline or questions to make sure that you have covered everything you wanted. Check points you have covered and make sure to ask questions on the points that are not checked. After asking the last question, allow about 2 seconds from the witness' answer before nodding confidently and declaring, "that's all, your honor."
11 August 2008
Prologue
Another blog? Yes, another blog; but this time, a blog that will focus on two things I like to do--try cases and teach law.
For the civilians (read: non-lawyers) out there, don't worry. It won't be an exercise in figuring out the meaning of polysyllabic and archaic words. The intention is to make litigation more real and more practical by way of anecdotes, vignettes, practical tips and guidelines combined with appropriate cases, rules and law.
This will be an experiment in making litigation fun. Hope you'll come along for the ride and do feel free to pass the word.
For the civilians (read: non-lawyers) out there, don't worry. It won't be an exercise in figuring out the meaning of polysyllabic and archaic words. The intention is to make litigation more real and more practical by way of anecdotes, vignettes, practical tips and guidelines combined with appropriate cases, rules and law.
This will be an experiment in making litigation fun. Hope you'll come along for the ride and do feel free to pass the word.
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