Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Preparing for Trial – Direct Examination

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Once I heard a trial lawyer making a speech. He recalled a time when he had to testify in a civil action. This lawyer was experienced, intelligent and motivated to testify clearly, completely and truthfully. But while he was testifying on direct examination, answering questions asked by his own lawyer, he could not tell for sure what facts his own lawyer wanted. “I had no idea where we were going.”

If an attorney-witness cannot read the examining attorney’s mind, imagine the difficulty facing the average witness. More nervousness, less familiarity with the elements.

A colleague of mine once was trying a case. The adverse party was being examined by the adverse attorney. The adverse attorney became visibly exasperated with his own witness for failing to give the desired answers. Of course, the witness had a common shortcoming, that is, lack of mental telepathy.

Presenting a guessing game is the wrong way for a witness to testify. You may wish to consider the most effective way to prepare a witness for direct examination.

The best method I know of is to write out, for each witness, each question to ask, and each expected answer, in the order for trial testimony.

The expected answers come from prior interviews with the witness. Preparing the question and answer memorandum forces the trial attorney to organize. You will decide which facts to introduce from which witness and in what order.

Moreover, you should write into this question and answer memorandum the exhibits to be introduced, and at what point from what witness. In a State court case, with no pre-admission of exhibits, the foundational questions can be organized and written into the memorandum. Potential objections are eliminated.

Some attorneys believe that this is too much work. I hope that all my opponents think this.

A few days before trial, when meeting with a witness, you will use the question and answer memorandum to go over the testimony. Inevitably, you discover weak spots, confusion over what you are asking, and the need to improve. After revision, you go over it again.

No witness will testify completely in accordance with your expectation. But your presentation will be much smoother and complete. Your witness will be nervous, but much less so since every question on direct will be a question the witness has heard before.

Since examples are useful, another post will provide an excerpt from a memorandum as used in actual testimony, with names changed to preserve confidentiality. (We won the prayer for relief.)

Taking Video Depositions for Federal Cases

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In most depositions, the testimony is taken down by a stenographic court reporter. The court reporter then produces a transcript. Using the deposition transcript works well in support of a motion for summary judgment.

However, not all cases are resolved by summary judgment. For those cases not decided by motion, video depositions are better for settlement assessment and are much better for impeachment at trial.

Judges recognize why video depositions are better.

“… video depositions provide greater accuracy and trustworthiness than a stenographic deposition because the viewer can employ more of his senses in interpreting the information from the deposition.” Burlington City Board of Education v. U.S. Mineral Products Co., Inc., 115 F.R.D 188, 189 (Middle District of North Carolina 1987).

Independent videographers are available, but an independent videographer is not required. The attorney taking the deposition may also take the video. Juanita J. Ott v. The Stipe Law Firm, 169 F.R.D. 380 (Eastern District of Oklahoma 1996); Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, 114 F.R.D. 647 (Middle District of North Carolina 1987).

In my office, we make a video of all depositions we take. The legal assistant runs the camcorder, while the court reporter takes down the traditional transcript. Later, we make digital video clips.

Federal Rules

F.R.Civ.P. 30(b)(2) allows video taping. The notice of deposition must state that video will be used to record the testimony. Note that F.R.Civ.P. 30(b)(4) requires certain statements on the record to be done at the beginning of each tape, and a statement to be made at the end of the tape. In my office, we use a checklist during the deposition to ensure that the F.R.Civ.P. requirements are met.

Hardware

The equipment is inexpensive. In a lawyer’s office, the camcorder’s audio quality is important. For about $250.00 you can buy a mini-DV camcorder, for example the Canon ZR900. For $20 you can buy a short tripod to sit the camcorder on the conference room table. With the camera near the witness, the built-in microphone will clearly record the witness testimony.

To make the video in the first place, the legal assistant just sets up the camcorder, points it at the witness, and presses the Record button. I do not recommend that you try to use separate microphones or special lighting. Trying too hard in this way increases the chances of an equipment problem. Relax, and let the camcorder do the work. Have plenty of tapes, label them, and keep feeding the tapes to the camcorder every hour as needed.

Software

After the deposition, the digital video from the camcorder is edited on a computer. A Firewire cable connects the camcorder to the computer. For a Windows computer, Sony Vegas or the free Windows Moviemaker is adequate to make clips. On a Mac, iMovie is more than adequate and easy to use.

At Trial

To introduce video deposition excerpts at trial, you must be prepared in advance. This is similar to using a written deposition transcript: you must know in advance which excerpts you will present. The practical procedure is to have, for each topic to introduce by video testimony, a clip. For example:

  • Clip 1: Two minute excerpt: Defendant’s president admits liability.
  • Clip 2: One minute excerpt: Defendant’s vice-president admits the amount of damages.

Then, all you have to do is play the clip at the appropriate time from the notebook computer using a projector or big screen TV. (Remember to provide computer speakers, so the jury can hear the witness.) Before you play the tape, you will let the Judge and adverse counsel know what you plan to introduce. The Judge will be given a transcript of what is on the clip. The other side may or may not object. If an objection is sustained, re-editing may be needed.

Showing a video clip has much more impact than reading from the transcript. You are not trying to compete with a movie studio in production quality. You only have to be better than your opponent’s boring reading from a transcript.

Conclusion

There are three purposes for depositions: discovery, settlement assessment and impeachment. For settlement assessment and impeachment, video recording of depositions is better. Currently available camcorders and software make video depositions an inexpensive and simple part of the discovery process.

If you want to try taking a video deposition using your staff, let my office know. We will send you a copy of the video deposition checklist, including what statements the court reporter must make while the tapes are recorded.

– E. J. Simmons

Keeping Up with Law Blogs

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Law related blogs and websites provide a valuable advantage. Electronic advance sheets may be necessary to read the changing caselaw, but the commentary provided by lawyers can improve your assessment of developments in the law.

Once you find a website with pertinent information, you could try to remember to keep checking for updates. But that is an inefficient waste of your time.

If you want an efficient way to keep up with the information published by interesting blogs (like this one), then you will be happy to learn how simple it is to use RSS. The video below (not prepared by this office, but recommended) is under 4 minutes. It explains what you need to know.

If I may recommend: use Google’s Reader to read what you subscribe to. You should have a Google gmail account anyway, as a backup to your office email and for easy transfer and back-up of files. So, when you sign in to Google mail, you might as well look at Google Reader to keep up.

For this website, some like to subscribe to Trial Tactics, others like to get updates from the RSS feed. To try out the RSS feed, just look at the top right of any page on this site, and click on the “subscribe” word or the adjoining icon. On the page that comes up, click on the box to choose Google or Yahoo or Bloglines as your reader, and then click on “Subscribe Now”.

Cross Examination is Easy, Direct is Difficult

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Cross-examination is easy because it is a conflict between the lawyer and the witness. It is easy to hold the factfinder’s interest. It is easy to force the witness to concede some points. If the cross-examiner is skilled, the testimony will result in memorable answers that help the case.

Direct examination often results in lost ground because of wasted opportunities.

A United States District Court Judge was recently complaining about the lack of trial experience among attorneys. He had been surprised to observe a specific illustration of the problem, more than once, during trials before him in his Court. The Judge had sustained an objection of “leading”. The hapless attorney trying to carry out direct examination did not know what to do next. That is, the attorney did not know how to ask a non-leading question.

Why such a fundamental lack of ability? The Judge’s theory was that lots of depositions are taken. Depositions are almost all cross-examination. Objections are not much of an issue, since there is no Judge to sustain an objection. So an attorney can practice for a long time, but have witness examination experience mostly in depositions. Then, in trial, the attorney does not know how to examine a witness on direct without leading questions.

The Judge’s comments were about fundamental competence. It seems to me that a more difficult problem is boredom. Can there be a more boring experience than hearing “What happened next?” and the witness drones on.

In a business trial, the boredom problem is worse than in a personal injury trial. This is why I try to use as much visual stimulation as possible. This leads to my First Rule of Direct Examination: The only purpose of a witness on direct examination is for foundation of and comments about an exhibit.

In another post I will comment on the best practice to prepare for direct examination. This witness preparation should follow use of the best method I know to validate the themes of the presentation. Neither method is used as much as should be.