This example is based on questions and answers used to prepare a company president to testify. The case was a contract action. The contract terms were on the plaintiff’s website. Acceptance by the defendant was based on a click-through.
By going through this review and preparation process, the witness becomes familiar with the questions that lay the foundation for introduction of each business record exhibit.
Questions for [Company President]
And Expected Answers
When going over the questions and answers with the witness, explain:
These are questions I expect to ask and the answers I expect you will give, based on our prior conversations. This is not a script. In every answer, tell the truth even if it varies from what I expect. Each time we go through this, please let me know if any expected answer is incorrect.
Q. What is your relationship to [plaintiff company]?
A. I am the owner and president.
Q. What business does [company] do?
A. We provide a web-based service of [describe the basic service offered]
Q. Please describe the website offer.
A. On our site, we offer [basic terms]
Q. How would a buyer review what to buy?
A. [Describe how the prospective buyer looks at what is offered]
Q. Please look at Exhibit 1 and identify it.
A. It is a printout of the home page of the company’s website.
Q. Is Exhibit 1 an accurate representation of the home page that defendant saw around December 200_ when first visiting your website?
Attorney: I move to admit Exhibit 1.
[The witness is examined about the relevant pages of the website, to get to the page where the click-through agreement is accepted by the defendant.]
Q. How does a buyer get in touch with the seller to buy an [object]?
A. The buyer clicks on “Contact Seller”, as shown on Exhibit 5.
Q. What happens then?
A. The Buyer’s Agreement is displayed, Exhibit 6. In the paragraph above the buttons, the agreement refers to the “Legal Notice”. The “Legal Notice” is an underlined hyperlink. The buyer must click on “I agree to all conditions” to proceed. When the buyer clicks on that button, the computer program displays an inquiry form, to gather information to be sent by e-mail to the seller. It is a fill-in the blanks form, for the buyer to identify itself. The website sends an email to the seller and to our company, including a copy to me.
Q. Please examine Exhibit 7. Is Exhibit 7 an accurate representation of the Legal Notice that was on the website when [defendant] agreed to your terms and conditions?
Q.Is Exhibit 7 the contract that the defendant entered into with your company?
Attorney: I move to admit Exhibit 7 into evidence.
The witness is similarly made familiar with the questions and expected answers for the other areas of his testimony. For example, performance of the contract by the plaintiff, the contract price, the lack of payment by the defendant, and the elements of a quantum meruit claim as a precaution.
After two or three times through this review, the witness will be organized and confident in his testimony.