Don’t Make This Rookie Trial Lawyer Mistake!

Baby lawyerIt was Bill’s first trial.  Like many young lawyers, he was concerned about getting his exhibits introduced into evidence.  “I took a trial advocacy class in law school,” he said, “But I don’t want to make any mistakes that will stop me from introducing my exhibits.  What should I do?”

To help him get ready for trial, Bill’s trial partner encouraged him to look through a book on evidentiary predicates, write out his predicate questions word-for-word, and invest a few hours anticipating any objections that might arise.  Bill followed his advice, but he still felt a little nervous.

When it came time for trial, however, Bill was ready.  Each of his carefully worded questions were written in block print on a yellow legal pad that he held as if it were a winning lottery ticket.  He wiped away a light sheen of perspiration from his forehead, and started to ask questions.  As he questioned the witness, his eyes never left the legal pad, for fear of omitting a single word from his questions.  He visibly flinched each time his opponent moved her chair, fearing that she was rising to object.  Finally, however, he read the final question from his legal pad.  “At this time, we would ask that Exhibit A for Identification be introduced into evidence as Exhibit #1.”

The judge turned to his opponent and asked, “Any objections, counselor?”

His opponent had no objections, so the judge ruled, “Exhibit A for Identification is hereby moved into evidence as Exhibit #1.”

Bill exhaled a sigh of relief.  “No more questions, your honor,” he said, and sat down at his table.  He was visibly relieved, but you could also see the hint of a proud smile starting to bloom on his face.  He’d done it!  Despite all of his concerns, he’d actually gotten his first piece of evidence admitted.  There was only one problem…

He never showed the exhibit to the jury!

He had focused, almost obsessively, on getting his evidence admitted.  As a result, he’d lost track of the big picture.  Although he’d managed to ask the proper predicate questions, anticipate objections, and get his exhibit introduced into evidence, Bill had forgotten why he was asking those predicate questions.  We don’t ask questions because we want the jurors to hear the evidentiary foundations.  We don’t ask questions because we want to avoid objections.  And we don’t ask questions to get our evidence admitted into evidence.

The reason we ask predicate questions is so the jury can see our exhibits.

The next time you’re in trial, remember why you’re asking your questions.  Focus on the real reason why you’re asking those predicate questions.  Do you want the jurors to see an exhibit?  Do you want them to believe that a document is authentic?  Do you want them to believe your witness is qualified to render an expert opinion?  Keep in mind what you’re trying to accomplish, and you won’t lose sight of the forest for the trees.

Admitting Evidence – There’s Always a Way!

Burglar breaking into homeWorking in the criminal court system, I’ve gotten the chance to learn all sorts of “interesting” things. Over the years, I’ve discovered things that most people will never get the chance to learn. For example, I know the best place to hide cocaine from the police (it’s called “crack” for a reason), I know what an autopsy smells like (think “wet garbage”), and I know three ways to avoid a D.U.I. (the best one? Call a cab.)

But one of the most useful things I’ve learned is how to break into houses. Let me start off by saying that I am no professional and would suggest everyone to take the necessary precautions to prevent any kind of crime that could happen to them – be it burglary, theft or an attack!

Due to the high crime rate in recent years, individuals are increasingly encouraged to take responsibility for their safety and if necessary, to take preventative measures. Owning a firearm is one of the steps you can take, in addition to other safety precautions. People possess guns for a variety of reasons, but the most common reason for owning one is self-defense. Firearms are usually used for protection, hunting, or competition, and many people collect or inherit them. As self-defense weapons, guns are effective since they reduce the likelihood of being attacked by criminals. A gun can not only protect you and your loved ones, but it can also protect others. In your role as a gun carrier, you are responsible for protecting strangers, colleagues, family, and friends. Moreover, when you carry a concealed weapon, you become more aware of your surroundings, allowing you to avoid danger. In addition to understanding the laws and regulations governing gun use, one should also be knowledgeable about gun storage. Blogs such as could prove useful if you would be interested in learning more about it.

Nonetheless, let me now guide you through how I would get into a house, and by that I mean break in! Ideally, if you’re a house burglar, you want homeowners to leave the front door unlocked, so you can walk straight inside and take what you want. All things considered, this is the absolute best way to break into a house, because you can do it without arousing too much suspicion. But what happens when homeowners don’t cooperate by leaving the front door unlocked? Does that mean the burglar can’t break into the house? (“Dangit, the door’s locked! I guess I’ll have to go get an honest job.”) While some burglars might be dissuaded by a locked front door, good burglars know that there are lots of ways to get inside. If the front door is locked, they’ll try to get inside through the back door, through a side door, through the garage, through a window… there may even be a home camera system in place, not like that’s going to stop a real burglar. Some burglars have even climbed down chimneys!

However, do you realize what the example tried to convey? The important lesson you need to remember is this: It doesn’t matter to the burglars how they get inside the home — it only matters that they get inside.

You’re probably thinking, “Ok, that’s great, but how does that help me win my next trial?”

Here’s how that lesson helps you: The next time you attempt to admit exhibits into evidence, you need to think like a burglar.

“So I should break into my opponent’s office and steal his case file?”

No, nothing like that. Thinking like a burglar means that it doesn’t matter how you get your exhibit admitted into evidence — it only matters that it gets admitted.

Recently I was helping a friend who needed to get a store surveillance tape admitted into evidence. Unfortunately, there was a problem locating the convenience store clerk, and without her testimony, it looked like he wouldn’t be able to lay a proper predicate for the tape’s admissibility.

But just because the front door was locked didn’t mean there wasn’t another way to break into the house…

After a little bit of brainstorming, he came up with two additional ways to get the video admitted. The first idea was to call the convenience store manager as a records custodian (because every single sales transaction was contemporaneously captured on tape) and introduce the video as a business record. I’m pretty sure they had a great deal on their business electricity, its important to keep a tight operation. The second idea, which worked successfully, was to authenticate the tape through another witness, a woman who had walked out of the store before any of the events took place. Although she hadn’t ever watched the videotape or physically handled the tape, she was able to identify herself walking into the store and successfully authenticated the video.

How many different ways can you admit your evidence? Do you have a backup plan in case the judge excludes your evidence on one evidentiary ground? Let’s say that you’re trying to admit a witness’s oral statement into evidence. First, you try to argue that it fits into one of these hearsay exceptions:

  1. A spontaneous statement;
  2. An excited utterance;
  3. A statement describing a then existing mental, emotional, or physical condition;
  4. A statement for the purposes of medical diagnosis or treatment;
  5. A statement against interest; or
  6. A statement under belief of impending death.

If the judge doesn’t agree with any of those arguments, does that mean the jury won’t ever hear the statement? Maybe, maybe not. Think creatively, and you still might be able to get this statement before the jury.

Maybe the statement is independently admissible as the language of a contract? Maybe the statement was relied upon by an expert in developing her opinion? If your client heard the witness’s statement and acted accordingly, could you argue that the statement isn’t hearsay? (“Judge, the witness’s statement isn’t being offered for the truth of the matter asserted. It doesn’t matter whether or not the witness’s statement is true — it’s being offered to put my client’s actions in context and show why he did what he did.”) Or maybe you could argue that the statement be admitted for a limited purpose.

But let’s say that after all of your efforts, the judge still decides, “That statement is inadmissible.” Does that mean that the jury will never hear the statement? Not necessarily. If the witness testifies, maybe you could impeach the witness with the statement during cross-examination. You could argue that the statement is a prior inconsistent statement, or that it shows bias or prejudice.

The most important thing to remember is, it doesn’t matter why the jury gets to hear the statement, so long as they get to hear it. As Winston Churchill said, “Never give in. Never give in. Never, never, never, never — in nothing, great or small, large or petty — never give in, except to convictions of honor and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy.” Think creatively, and list every possible method you could use to make your exhibit admissible.

Most of the time, you probably won’t need to rely on more than a single argument to get your exhibit admitted. But for those rare occasions when you need to go through the back door, through a window, or even down a chimney to get your exhibit admitted, you’ll be glad that you were so tenacious.

The WORST Direct Examination Question

I’d done it again.  I’d asked the witness a stupid question, and now I was paying the price.  In fact, I’d asked him one of the worst questions we can ever ask during direct examination.  The question wasn’t going to lose the case for me, but it certainly wasn’t going to help my case, either.  So, what was this boneheaded question I asked?  Here it is: “What happened next?”

You’re probably thinking, “What’s wrong with that question?  I ask it all the time.”

Well, to be honest, I didn’t think it was a stupid question when I’d asked it, either.  After all, it’s one of the questions favored by trial lawyers around the world.  If there is a “Top Ten” list of questions asked by trial lawyers, “What happened next” is probably the #1 or #2 response.  It’s one of those reliable questions you can pull from your trial toolkit and ask when your brain goes blank and you can’t think of anything else to ask.  And it’s a powerful question, too.  Even though it’s only three words long, it’s guaranteed to get a response.  Yet, despite it’s popularity, “What happened next?” is one of the worst questions we can ask during direct examination.

“What happened next?” is a lousy question because it doesn’t give the witness any guidance on how to answer your question.  You may know where you’re headed with your questions, and you may know what you want him to say, but that doesn’t mean your witness knows what he’s supposed to say.  Even if you’ve spent hours and hours preparing, you can’t assume that the witness knows what he’s supposed to say next.

There are a few reasons why the witness probably doesn’t know where he’s supposed to go.  The first reason is because he’s nervous and has probably forgotten most of your pre-trial instructions.  You’re probably not nervous, because you work here in the courtroom everyday.  But your witness doesn’t.  The courtroom is a place that he tries to avoid, if possible.  Even if he testifies on a regular basis, sitting in the witness stand and answering questions before a judge and jury is still a nerve wracking experience.  That nervousness prevents him from thinking as clearly as possible, and improves the chances that he’ll misunderstand how he should respond to your question.

The second reason why he probably doesn’t know how he should respond is because, unlike you, he doesn’t have any notes to help guide him.  You’ve got a script (or at least an outline) that keeps you on track and allows you to easily move from topic to topic, but while your witness is in the witness stand, he’s not even allowed to use a rough outline.

The final reason why your witness isn’t responding as expected is because he can’t read your mind.  In your head, you know exactly where your questions are headed, and you know what answers you expect.  But since your witness can’t read your thoughts, there’s a good chance that he won’t know which “next” event you’re referring to.

If you want witnesses to give you the best possible answers, you need to give them some type of guidance.  That doesn’t mean you should ask them leading questions.  The witness doesn’t need to be told word-for-word what to say.  He just needs a little guidance about which direction his testimony should go.

That’s why “What happened next?” is such a terrible question.  It doesn’t give the witness any guidance at all.  When you ask the witness to tell you what happened next, you’re not doing anything to narrow his range of responses.  Technically, there may have been a million different things that happened “next.”  Which one do you want the witness to talk about?

Without guidance, your witness may be thinking, “What happened next?   Well, the earth spun on its axis and rotated around the sun; my heartbeat sped up; I took a breath; a white car passed by me in the left lane; a man wearing a red jacket stepped off the sidewalk; I turned to the southeast; the traffic light turned from green to yellow; two men walked out of the grocery store; a lady ten feet to my left ducked down and screamed; I unholstered my concealed firearm; my partner opened the trunk of the patrol car…  A lot of things happened ‘next.’  Which one did you want me to talk about?  Oh, the shots that were fired?  Yeah, I heard that too.”

“What happened next?” is simply too broad a question.  It allows for a whole world of possible responses.  If you want to help your witness tell his story more effectively, give him some idea of what he’s supposed to say by focusing his attention toward a narrower range of responses.  Instead of asking, “What happened next,” ask something like this:

  • “Where did you drive to next?”
  • “Who did you speak to after that?”
  • “What was the next test you performed on the substance?”
  • “How does the man in the white jacket react?”
  • “Let’s focus your attention on the operating nurse.  What does she do next?”

See how the questions direct the witness towards a limited area?  By narrowing your witness’s range of responses, you make it easier for him to answer.  Focusing him towards a limited area lets him know where you’re headed with your questions,  and allows him to give you much better answers.  Rather than asking “What happened next,” give your witness a little bit of guidance, and he’ll testify better than he ever has before.