You’ve got a problem. A big problem.

Your witness has some fantastic information that is going to put your case over the top. Unfortunately, he’s also going to bring some pretty significant baggage with him to the witness stand. It might be a conviction for perjury, perhaps a damning prior conviction, or maybe he’s even placed a $100,000 bet riding on the outcome of the case — whatever the baggage is, it’s bad.

So… what are you going to do?

Are you going to bury your head in the sand and hope that the problem fixes itself? Optimistically hope that your opponent incompetently forgets to cross-examine the witness about the baggage? Pray for a miracle (or for a continuance)?

Certainly, in some cases, the baggage may be so terrible that you decide not to call the witness. After all, if you’ve done a good job of case selection and preparation, you’ve got at least two forms of proof for every essential element, so you’ll still be able to successfully prove your case even if you don’t call the witness. But, just for sake of argument, let’s assume that your second form of proof carries even more baggage (or even worse, you don’t have a second form of proof). You’re stuck calling this guy — what are you going to do to minimize the inevitable damage that will erupt during cross-examination?

One way to exercise damage control is by eliciting the damaging information yourself during direct examination. It’s an essential element of spin control: timing the release of negative news to steal your opponent’s thunder, so that the problem can be addressed on your terms, rather than your opponent’s terms.

Here are three quick guidelines for exercising damage control during direct:

1. Timing is everything. Apply the principles of Primacy and Recency to the timing of your disclosure. If you start with the bad news, it negatively affects the way jurors look at the rest of your witness’s testimony. If you end with the bad news, that’s all they’ll remember. Instead, time the disclosure during the middle of your direct examination or during a low point in the testimony, so that it doesn’t resonate as loudly in the jury’s minds.

2. Confront the witness. If you want to minimize the sting of the impeachment material, consider subjecting your witness to a “mini cross-examination” during your direct. In my experience, disclosures aren’t as effective if you meekly ask the witness about the bad news. You need to actively confront him about it. You’ll have to determine how much confrontation is appropriate in your case, but chances are, at the very least you’ll switch to leading questions, raise your voice, and quicken the pace of your examination. (“After you were robbed, you didn’t immediately call the police, did you? No, you called your friend, instead, right? And you asked him to remove the bong and the drug scales from the house before you called the police, didn’t you?”) Often, your opponent won’t even object to your use of leading questions during this portion of your direct, because you’re covering exactly the same issues that they want to address. By asking the “big” questions, you should be able to prevent them from being re-asked during cross. Remember, “Asked and Answered” or “Repetitive” objections apply to the entire examination, not just one lawyer’s series of questions.

3. Ask “Why?” and accept the witness’s answer. This is the most important part if you’re hoping to draw the venom out of the wound. Once the witness has admitted he did the bad deed, you need to give him a chance to explain why he did it. At the end of your “cross-examination,” you’re going to ask him to tell the jurors his reasoning, motivation, or explanation for what happened. To ease into this section, consider pausing for a moment, shifting your body language to a less confrontational stance, lowering your voice, and then simply asking, “Why?”

Give him a chance to explain what happened. If he doesn’t fully explain his actions, or his explanation falls short of credulity, switch back to a more confrontational mode and hit him with more “Why?” questions until he gives you a reasonable explanation. It’s important that you don’t let him off the ropes until he’s given you a plausible explanation, but once he’s given you a plausible answer, you need to accept his response. Demonstrate your acceptance through both your body language (ex. nodding your head once in agreement, relaxing your shoulders as the tension disappears from the room, or turning towards the jury to make eye contact) and your tone of voice. It’s essential that you non-verbally communicate your acceptance to the jury, because if you don’t accept the answer, there’s no way the jurors are going to buy it.

[NOTE: I was a bit hesitant to include this last portion, because I'm afraid some lawyers will misconstrue my advice and make improper comments on the record indicating their acceptance of the witness's answer. Remember, it is improper for lawyers to state our belief in the justness of a cause, so you shouldn't ever make comments like “I believe you” or “I accept your answer.” However, I don't believe this precludes lawyers from demonstrating their belief in their case through changes in posture, stance, tone of voice, pitch, tempo, or non-verbal body language.]

Finally, remember to periodically check in with your jurors by making eye contact with them during this exchange, so that you can gauge how they’re reacting to the disclosure and calibrate accordingly. You won’t be able to completely eliminate the negative impact of the impeachment material, but hopefully, if you correctly apply these three techniques, you should be able to exercise a fair amount of damage control, and prevent your witness from imploding on the witness stand.

I was so proud of myself the first time I successfully introduced an exhibit into evidence. But, as you know, pride goes before a fall…

I’d only been out of law school for a week or two and was trying my first Driving Under the Influence (DUI) case. DUI cases often involve a variety of physical and documentary evidence, and this case was no exception. I had a mugshot showing how the defendant looked when he’d been booked into the jail, a videotape of his field sobriety tests, documents showing the reliability of the breath testing instrument, and, of course, a printout showing the results of the defendant’s breath tests.

Wanting to make sure that I didn’t miss anything, I’d handwritten all of my questions on a legal pad, and was in the process of dutifully reading each predicate question aloud to the witness:

Q: I’m now showing you what’s been marked as State’s Exhibit A for Identification. Do you recognize that photo?

A: Yes, I do.

Q: What is that photo of?

A: It’s a booking photo taken the night the defendant was arrested.

Q: Does that photo truly and accurately depict the way the defendant looked the night you arrested him for Driving Under the Influence?

A: Yes, it does.

Q: Your Honor, I ask that what has been marked as State’s Exhibit A for Identification be introduced into evidence as State’s Exhibit #1.

Judge: Any objections?

Defense attorney: No, your Honor.

Judge: State’s Exhibit A for Identification will be introduced into evidence as State’s Exhibit #1 without objection.

Q: Your Honor, may I have permission to publish the exhibit to the jury?

Judge: As soon as the clerk marks the exhibit, you may.

Silently breathing a sigh of relief while simultaneously trying to suppress a huge grin, I approached the witness box, retrieved the photo, and handed it to the clerk. While waiting for her to mark it, I thought to myself, “I did it!” Oh sure, there hadn’t been any objections, and the evidentiary predicate for photographs is the easiest one in the book, but still, I’d done it – I’d admitted my first piece of evidence! Having accomplished my goal, I approached the jury box and proudly handed the photo to the courtroom deputy, who then handed it to the first juror.

And that’s when I made the stupid mistake that thousands of other trial lawyers make in court every day…

As soon as the photo left my hands, I returned to the lectern, reviewed my notes, and immediately started asking my next series of questions. The first juror didn’t even have a chance to start looking at the photo before I was halfway into my second question. He hurriedly glanced at the photo and then handed it to the next juror, who barely looked at it before passing it along. None of the jurors spent more than a second or two looking at the photo before giving it to the next juror. As a result, something that should have been an important piece of evidence was completely ignored by the jurors because I’d forced them to divide their attention between the exhibit and the witness’s testimony.

Introducing exhibits into evidence isn’t always easy. Often, we can get so caught up in the act of admitting evidence that we forget to give the jurors a chance to pause and look at our exhibits. But if we don’t give them enough time to look at your exhibit, its evidentiary impact will be lost.

Here’s your practice tip for the week: The next time you publish an exhibit to the jury, don’t ask your witness another question until the jurors have finished looking at the exhibit. Don’t rush them. Give them as much time as necessary to examine it, because if you start asking questions while they’re still examining the exhibit, they’re either going to ignore your exhibit or ignore your witness’s testimony. Either way, they’re going to miss essential information. Wait until the jurors finish examining the item, retrieve it from the last juror, and then walk back to the lectern to resume asking questions. By making this small change in your presentation, you’ll make it much easier to direct your jurors’ focus towards the most important evidence in your case, and prevent them from missing the essential piece of evidence that proves your case!

 

 Are jurors ignoring your exhibits? [5:58m]: Play Now | Play in Popup | Download (1133)

Every day, in courtrooms across the country, young attorneys are conducting brilliant examinations.

During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events. During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.

Yet, all of these direct and cross-examinations suffer from a tragic flaw.

What’s the tragic flaw in all of their examinations? Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.

That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?” Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help. Even though these conversations almost always sound the same (“Did I miss anything?” “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.

But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination. Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination. (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.)

To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

 

 How to Ask for Help from Co-Counsel During Trial [4:47m]: Play Now | Play in Popup | Download (1075)

Learn how to frame your case theory so that jurors are more receptive to your story.

(This is the podcast of an article originally published here: Framing Your Story for Maximum Impact)

 

 Framing Your Story for Maximum Impact [7:54m]: Play Now | Play in Popup | Download (1178)

Just released a new quiz designed to help you evaluate your last opening statement and improve your opening statements for your next jury trial.

Check it out, and let me know what you think!

http://www.OpeningStatementTips.com/quiz.htm