Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Example – Preparation for Direct Testimony

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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?
A. Yes.

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?
Yes.

Q.Is Exhibit 7 the contract that the defendant entered into with your company?
A. Yes.

Attorney: I move to admit Exhibit 7 into evidence.
…

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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.

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.)

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.