It’s one of the worst feelings in the world…

You’ve finished your re-direct examination, and the witness is stepping down from the witness stand to walk out of the courtroom.  Then the judge turns to you and says, "Call your next witness." 

Your stomach tightens and your palms start to sweat as you realize: You don’t have anyone waiting in the hall.  Maybe your witness’s testimony went faster than expected, maybe your opponent did a lousy job of cross-examination, or maybe your next witness got caught in traffic.  But whatever the reason, it doesn’t matter.  You’re stuck without a witness, your judge is getting impatient, and you need a solution.  Like they said in the movie Speed: "Pop quiz, hot shot.  What do you do?  What do you do?"

1. Avoid the situation if you can.  First, and most importantly, let’s try to avoid the situation.  It begins by telling your witnesses to get to the courthouse early and ensuring that your witnesses are there well before they’re actually scheduled to testify. 

If you want your witnesses to get to the courthouse on time, you’ll need some help from your support staff.  Make sure that each witness receives written directions on how to get to the courthouse, where to park, and what they should (and shouldn’t) bring with them.  Get them to program your office’s phone number into their cell phones and make sure that you’ve got someone in your office who will answer the phone (no voicemail!) all day long.  Your office person needs to be able to give directions, so make sure that they know how to use Google Maps or whatever online mapping program you prefer, so they can give your witness accurate directions. 

This coordinator will also want to get cell phone numbers, text message numbers, office numbers, and email addresses for each witness, so they can reach everyone 24 hours a day during the length of your trial.  It may sound like overkill, but you can be assured that you’ll be kicking yourself if you don’t know how to reach a witness in the middle of your next trial.

2. Have a filler witness ready to go.  Maybe you only need 30 min to fill, so have someone on standby.  I’m not advocating having all of your witnesses sitting in the hallway throughout the length of your trial, because that’s a colossal waste of time.  However, it’s better to waste an hour of the witness’s time than even 10 seconds of the jury’s time, so plan to overlap your witnesses and tell them to come early and prepare to wait.  Even if it’s the CEO of the company, he should be prepared to get there early and wait to be called.  "But I’m the CEO and I’m too important to waste time here at the courthouse."  "Oh, I’m sorry, I thought you wanted us to win this case.  If so, then you’ll need to give me what I need.  In this case, that means I need you waiting outside the courtroom so that you can testify as soon as you’re called."

Early in my career, I tried to be nice and space out the witnesses to respect their time as much as possible and minimize how much time they wasted in the courthouse, but then I realized it’s safer to waste a little bit of their time than to face an empty chair in the courtroom.  I still try to respect their time as much as possible, but now I tell them to bring a book and be prepared to wait.  As a side tip, you might want to put a few crossword or Soduko books in your briefcase, or a non-descript book that includes tips for testifying ("Sit up straight; Look at the jury; Tell the truth, even if you think it hurts the case") to help minimize their pain of waiting.

3. Take the heat. Let’s assume that you didn’t follow steps 1 or 2 before the trial, and now you’re facing an empty chair.  What can you do?  Don’t try to dance around and shift the blame to your witness.  You’re in control of the trial, so if the witness isn’t there on time, it’s your fault, not the witness’s.  You need to fall on the sword and tell the judge why you’re not prepared.  Your judge probably doesn’t care why there’s no one in the witness stand, all she cares about is that you’re wasting her time and the jury’s time.  Rather than focusing on why the witness isn’t there, the important question you need to address is, "How long until the situation is fixed?"

Hopefully, you know how long it will take your witness to get to the courtroom (always remembering to factor in time for parking, metal detectors, and elevators), so you can candidly tell the judge how much longer it will be until you can put a witness in the witness stand.  If it’s only going to be 5 or 10 minutes, the judge may be accomodating.  If it’s going to be 30 or 40 minutes, you should be prepared for a tongue lashing.  Whatever the reason, accept responsibility and be prepared to take the heat.

4. Ask for a break.  Once you’ve accepted responsibility and told the judge how much more time you need, you need to figure out what to do in the meantime.  The easiest thing to do, especially if you only need 10-15 minutes, is to ask for a break.  If your jurors smoke or have weak bladders, they’ll appreciate the opportunity to stand up, stretch their legs, and go take care of their business, but don’t make a regular habit of asking for breaks.  Your jurors are taking time out of their lives to come decide your case, and they don’t want to waste it wandering around the courthouse while you try to get your case together. 

5. Work on the jury instructions.  Maybe the judge isn’t inclined to take a break merely for the sake of taking a break, so you’ll need to find a more valuable way to fill the time.  One good way to make use of the empty time is to finalize your jury instructions.  Jury instructions always need to be tweaked before they can be read to the jury, so use this time to finalize the instructions.  This still has the (huge) disadvantage of wasting the jury’s time, but at least you make use of the valuable court time.

6. Read stipulations.  One of the best ways you can use this downtime is by introducing stipulations into evidence.  Now is a great time to read the agreements that you’ve made with opposing counsel, or to introduce the photos that both parties have stipulated into evidence.  Ideally, you want to introduce those stipulations at their most opportune time, but since desperate times call for desperate measures, now might be the best time to introduce them into evidence.

7. Settle the case.  This is the last suggestion, because it’s the worst.  But let’s face it — you don’t have a witness, how good can your case be?  Now might be the time for you to strike a deal, before your case completely falls apart.

Obviously, you want to avoid having an empty witness stand, but sometimes, you simply can’t avoid it.  Hopefully these tips will help ensure that you always have a witness present, but in case you don’t, at least you’ll be able to minimize the damage.  Good luck in trial!

It was a serious DUI accident, and the issue was whether or not the jury would be allowed to hear the results of the defendant’s blood alcohol level test.  If the blood test results were deemed inadmissible, the plaintiff’s case would be significantly weakened, so both sides were extremely well prepared for the hearing.

The defense was the moving party, so they bore the initial burden of persuasion.  For their first witness, they called a toxicologist, and started with the routine questions about his background.  If you’ve ever called a witness to the stand, you’ve gone through a similar process.  You’ve asked witnesses where they went to school, what they majored in, when they graduated, etc.  In fact, if you’ve tried cases for any significant period of time, you’ve probably posed those types of questions to dozens, maybe even hundreds of different witnesses.

But let me ask you an important question: Do you listen to the answers?

Surprisingly, many lawyers don’t.  During direct examination, many lawyers are so busy thinking about their next question that they don’t bother listening to the witness.  After all, you already know what the answer is supposed to be, don’t you?

The problem with not listening to the witness is that you can ask stupid questions and appear foolish.  In this motion hearing, it was obvious that the attorney was prepared.  It was obvious that he’d spent a significant amount of time rehearsing with the expert witness.  It was obvious that he knew what the witness was expected to say.  But it was also obvious that he wasn’t listening to the witness.  And that’s what prompted this exchange:  

Q: Mr. Expert, what degree did you receive from the University of California – San Francisco?

Judge: He received a Master’s degree in Chemical Engineering from UC-SF in 1972, just as he said earlier.  Don’t waste our time by re-asking questions that the witness has already answered, counselor.  You have a limited amount of time to present your evidence and your arguments.  How you choose to use it is up to you, but in three hours, this hearing will be concluded, and you won’t get any additional time.

Ouch!  It stings to get called on the carpet like that, doesn’t it?  The worst thing about hearing those type of comments is knowing that the comments are true.  The only good thing about this exchange was that it didn’t happen while a jury was watching.  Luckily, these situations are easily avoidable.  Here are the two most common reasons why attorneys ask questions that have already been answered:

1. Relying too much on your notes.  When you write out every question word-for-word, it becomes difficult to escape from your “script.”  Here’s an example of what happens when you’re tied to your notes:

Q: Detective Steele, please introduce yourself to the jury by telling them your name and where you work.

A: Sure.  Hello, my name is Jack Steele, and I’ve worked as a Detective with the Capitol City Police Department for the past 16 years.  I’m currently assigned to the Celebrity Crimes division, which handles all of the cases that end up on TV or in the newspaper.  Whenever a celebrity is involved with a crime, it’s my job to conduct the investigation, get “doubles” of all the paparazzi photos, and handle all of the press conferences. 

Q: Could you please tell the jury what you do for a living?

A: Again?!?

Don’t get so attached to your notes that you can’t escape.  Rather than writing out questions word-for-word, use bullet points or an outline.  Yes, it requires thinking on your feet to formulate your questions, but it also forces you to listen to the witness, so you’ll ask better questions.

2. Not caring what the witness has to say.  When you work on a case for months or years, you’ll hear witnesses’ stories over and over and over again.  After a while, the novelty of their stories begins to wear off.  The problem with that arises when you get to court.  Since you knowexactly what your witnesses are going to say, you aren’t as fascinated by their stories as you were the first time you heard them.  As a result, you “hear” what the witnesses say, but you aren’t “listening” to what they say.

Here’s a clue: If you aren’t interested in what the witness has to say, what are the chances that your jury will care about what the witness has to say?

To avoid that problem, pretend that you’re hearing the witness testify for the very first time.  Demonstrate a genuine interest in what they’re saying.  Lean forward, make eye contact, and actively listen to what they say.  Don’t look at your notes or think about what question you’ll ask next.  Just focus on the witness, treating them as if they’re the most important person in the entire world. 

Why?  Because for that brief span of time while they’re on the witness stand, they are the most important person in your world.  Treat them like that, and you’ll never again get caught asking questions that have already been answered.

“You ignored the warning labels, didn’t you?”

“The posted speed limit was 35 MPH, wasn’t it?”

“You told him you would have the contract signed by Thursday, right?”

Leading questions.

When it comes to cross-examination, leading questions are the best types of questions to ask, because they suggest the desired answer to the witness.  Used effectively, leading questions reduce the witness’s responses to a mere “Yes” or “No.”  The real power of leading questions is that they allow you, the examiner, to control the witness using short, single-fact “questions” (statements, actually) to tell the jury your client’s story and show the jurors why your client deserves to win.

Used properly, leading questions can be very effective.  That may be why so many trial lawyers want to ask leading questions during direct examination, too.  Even though you’ve been told, “Don’t lead on direct,” if you’ve tried a fair number of cases, you’ve probably either seen other lawyers ask leading questions during direct examination, or asked them yourself.

Not that asking leading questions is always improper during direct examination.  It’s perfectly appropriate to ask leading questions on preliminary issues, or matters not in contention.  If we weren’t allowed to ask some leading questions, trials would drag on forever:

Attorney #1: “Sir, please introduce yourself to the jury by telling them your name and what you do for a living.”

Attorney #2: “Objection!  Leading!  By addressing the witness as ‘Sir,’ Counsel has suggested to the witness that the witness is a male.  Furthermore, counsel is suggesting that this witness has a name and evidently is supposed to work somewhere.  I request that this blatantly leading question be stricken from the record!”

Court: “Sustained.  Counsel is admonished to refrain from leading the witness.”

Without some amount of leading, you’d never get to try the case.  But the danger doesn’t arise from leading through those preliminary matters.  The danger arises when attorneys ask leading questions about the most important issues in the case.  Take a look at this example:

Attorney: “So, Mr. Hill, as you approached the intersection, you were looking at the traffic light, weren’t you?”

Witness: “Yes.”

Attorney: “You saw that the light for traffic heading in your direction of travel was green, wasn’t it?”

Witness: “Yes.”

Attorney: “You could see that the light for traffic on Kaley Avenue was red, correct?”

Witness: “Yes.”

Attorney: “But the garnet and gold Humvee traveling westbound on Kaley Avenue didn’t stop for the red light, did it?”

Witness: “No.”

Attorney: “It didn’t even slow down for the red light.  It darted right into the intersection, didn’t it?”

Witness: “Yes.”

Attorney: “Driving at more than twice the posted speed limit of 25 MPH in that school zone, right?”

Witness: “Yes.”

Attorney: “Plowing into the driver’s door of your Mini Cooper, sending glass everywhere, and pushing your car into a telephone pole on the northwest corner of the intersection, right?”

Witness: “Yes.”

At this point, you should have a pretty good image of what happened to the witness.  You can probably close your eyes and replay the entire scene.  That’s because the attorney did a very good job of telling the story through leading questions.  When he realized that his opponent wasn’t objecting to the leading nature of the questions, the attorney piled it on, and lead through the entire direct examination.

Here’s the problem with that.  The lawyer isn’t the one who’s supposed to be testifying.  He’s not the one who took the oath and promised to tell “the truth, the whole truth, and nothing but the truth.”  The jurors need to evaluate the testimony, demeanor, and character of the person who witnessed the events.  That person is supposed to be the “witness.”  But by leading through every important detail, the jurors never heard from the real witness.  The only testimony the jurors can really evaluate are those single word “Yes” and “No” responses.  How are they supposed to evaluate that?

The problem will be compounded during closing arguments, when the opposing attorney asks the jurors, “Didn’t the attorney trust the witness to tell us what happened?  Maybe it’s because the witness doesn’t knowwhat really happened.  After all, he had to be led by the nose and told what to say every step of the way.  Plaintiff’s counsel could have put a parrot or a bobble head doll in the witness stand and gotten the exact same testimony…”

What should have been a slam-dunk case and a five-minute liability verdict becomes a quagmire of extended deliberations, because the lawyer couldn’t resist the desire the lead.

Why?  Where does this desire to lead during direct examination come from?  It probably comes from every trial lawyer’s desire to exercise control over his or her surroundings.  Many trial lawyers are natural born leaders.  They’re convinced that they can testify better than their witnesses can, and so they (subconsciously, perhaps) switch to leading questions during the most important issues in their case.

Don’t make the same mistake during your next direct examination.  Remember, it’s the witness who’s under oath, not you.  If you want the jurors to believe that your witness really experienced what he’s testifying about, don’t succumb to the desire to lead.  Ask the witness questions that start with “Who,” “What,” “Where,” “How,” “When,” or “Why,”  and you’ll guarantee that your witness tells the story, not you.

During a jury trial, the last thing that you want to do is to offend your jurors or give them a reason to ignore your witness.  Yet that’s exactly what many lawyers do

One of the best ways you can quickly improve your trial advocacy skills is to watch yourself on video.  When you watch yourself presenting an opening statement or conducting a direct examination, you’ll see yourself the same way the jury sees you.  (That may be wonderful, or it may be horrifying).  But even better than watching the video by yourself is to watch it with a more experienced attorney who can critique your performance and point out what you’re doing well or identify areas for improvement.

This past weekend, I got the opportunity to sit down with nearly two dozen different trial lawyers and evaluate their trial advocacy videos.  After watching several hours of video, I observed that many of them were making the same mistake in their examinations: They were ignoring their witnesses.

“Surely you can’t be serious,” you say.  “These were experienced attorneys.  I can’t believe they would purposely ignore their witnesses. ”

Yes, I’m serious… and don’t call me Shirley.

Here’s what I saw on most of the videos: The attorney would look directly at the witness and ask a question.  But as soon as the witness started to answer the question, the lawyer would break eye contact and start looking someplace else.

Why would they do that?  Why would they ignore their witness’s answers?  The truth is, they really weren’t ignoring their witnesses answers.  They’d invested a lot of time preparing their cases, so they already knew what the witness was going to say.  Rather than fully focusing on the witness, they just listened to the witness, breaking eye contact to look down at their legal pads and start forming their next question.  Yes, they were paying attention to the witness, but the problem was it didn’t look like they were paying attention to the witness.

What type of message do you think that sends to the jury?  Some of the jurors probably think to themselves, “If the attorney doesn’t think the witness’s answers are important and isn’t paying attention, why should I?”

You may think that’s not fair, but just like “The customer is always right,” your jurors are always right, too.  If they don’t like what you’re doing, then they can discount or even ignore your evidence.  In the end, they’ll make the final decision about your client’s fate, so they’re always right.  (Even when they’re wrong, they’re still right.)

You can’t afford to let the jurors think you’re ignoring your witnesses.  You must pay attention to your witness’s answers, even though you already know what they’re going to say.  The easiest way to do that is follow this guideline: Whenever the witness is speaking, your eyes should be focused on 1) your witness 2) your jury, or 3) the exhibit your witness is talking about.  If you look anywhere else, the jurors may think you’re ignoring the witness.

The next time you participate in a mock trial or do a dry-run of your direct examination, make sure you videotape yourself.  Don’t just focus the camera on the witness — make sure that you’re in the frame, too.  Pay particular attention to where your eyes are focused.  Where are you looking when your witness is talking?  Is your gaze focused on the witness, or are you buried in your notes?  Force yourself to avoid looking at your notes until the witness has finished answering your questions, and your direct examinations will dramatically improve.

How many times have your witnesses found themselves at a loss for words while trying to explain what happened to them or trying to explain what they saw?  It happens more often than you’d like, doesn’t it?

Early in my career, I was defending a motion to suppress in a Driving Under the Influence (DUI) case.  The issue was whether or not the police officer had a valid reason to stop the defendant’s car.  When I asked the officer about the reason for the stop, he told us that the defendant had made a “wide turn.”

“Could you explain that for us a little better, so that we understand what you saw?”

“He made a ‘wide’ turn.  It was a lot wider than a normal turn — he went out of the normal pathway for a turn, way out of the way, almost driving off the roadway.  I’m not sure if I’m doing a good job of explaining what I saw, but when I saw him make the turn, I thought he was out of control and a danger to other drivers on the road.”

He was right — he wasn’t doing a very good job of describing what he’d seen.  Even though the picture in his mind was perfectly clear, neither the judge nor myself could ’see’ what the officer had seen.  If I didn’t help him paint a clear picture, we were going to lose the motion, and we would lose the case.

That’s when I had a bright idea.

I took a magic marker out of my trial toolbox, walked over to the flipchart, and drew a quick sketch of the intersection the officer had been describing.

“May the witness step down the witness stand, your Honor?”

Intrigued, the judge said, “Officer, you may step down.”

Taking a business card out of my wallet, I drew a large arrow on the back of my card and handed it to the officer.  “Officer, pretend that this is the defendant’s car, with the arrow pointing in his direction of travel.  Please show use exactly what you saw when the defendant made this ‘wide’ turn.”

In an instant, any doubts about the validity of the stop were removed.  Using a crude, hand-drawn exhibit, the officer was able to show everyone exactly what he’d seen and exactly why he’d stopped the defendant’s car.  My opponent tried to cross-examine the officer, but wasn’t able to cast any doubts on the officer’s version of events.  Thanks to poorly drawn artwork and a makeshift prop, we won the motion.

But if lousy artwork and a business card can save the day, just imagine what you can accomplish with a little time and effort.  Here’s a quick and easy to create inexpensive courtroom exhibits that will help your witnesses tell their stories and show the jury exactly what happened.

Start by printing a large (30″ x 40″ is a good starting size, bigger is probably better) image of your scene.  Maybe it’s an aerial photograph of the apartment complex, the layout of the emergency room, or a map showing the fatal roadway or intersection.

EXAMPLE OF AN INTERSECTION AERIAL VIEW

After you’ve printed out your image, you’ll want to give it a magnetic backing. You can either purchase magnetic backing (it’s easy to find, just do a Google search for “Magnetic Adhesive Sheeting” and you’ll find tons of suppliers) or you can temprarily attach your image to a magnetic board, such as a magnetic dry erase board.

Once your image has a magnetic back, you can use small magnetic figures to “show” the jurors exactly where the collision took place, where the doctors and nurses were positioned, or where everyone was standing when the fight broke out.

For your “actors,” you’ve got two different options.  The first option is to print photos of the cars, the doctors’ faces, etc., attach magnetic backing to the photos, and then let your witnesses play.

The second option is to use 3-D figurines.  You might be tempted to use your old Star Wars figures (“I’ll use Luke Skywalker for my client, and the role of my opponent will be played by Darth Vader!”), but it’s probably better to check your local hobby shop or shop online for a wide variety of scale size replicas.  A quick search in the Google Images library will turn up hundreds of figures in all shapes and sizes.  You’ll find office workers, cars, outdoor workers, trucks, teenagers, travelers, police officers, animals, fire fighters, nudists…  Whatever you need, they’ve got it!  Attach a small magnet to the bottom of each figurine, and you’ve got an instant exhibit that will help your witnesses tell their story.

A quick note about scale: There are plenty of different sizes available.  Hobby shops will have sizes running from 1:220 (Z scale), to 1:87 (HO scale, the most popular model train size), all the way up to 1:12 (dollhouse size).  Don’t worry about matching the scale exactly — after all, this is a demonstrative exhibit, so the evidentiary requirements aren’t as strict.  Find one that’s big enough for your jurors to see, and then use a consistent scale for all of your elements.  You can’t use a “Z” scale train to represent your poor defenseless client, and then use a 1:12 scale monster to represent your opponent.  It might be fun, but the judge won’t permit it.

By using these quick and easy exhibits, you’ll make it easier for your witnesses to tell their stories.  Not everyone can adequately describe the images in their heads or put thoughts into words.  But if you give them some tools to help them tell their story, they can show you (and your decision maker), exactly what they saw.