It 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.

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.

Earlier this week I was in court for a motion hearing.  Since I was early, I sat down and watched the hearing before mine.  As you’ve heard me say before, any time you get the chance, I recommend watching other lawyers in action.  If they’re better than you are, you’ll discover new skills or techniques you can apply to your practice.  If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat.  No matter what happens, you’re almost guaranteed to learn something.

This was one of the cases where I was being reminded about mistakes you shouldn’t repeat…

The attorney was questioning her client, and I quickly saw that things weren’t going very well.  Although she was an experienced criminal defense attorney and probably very accomplished in the art of cross-examination, her direct examination skills were awful. She was desperately trying to get her client to tell his story, but she couldn’t formulate a non-leading question to save her life.  Here’s a brief example of how things were going:

Defense: You were submitting to the authority of the police, weren’t you?

Prosecutor: Objection.  Leading.

Judge: Sustained.

Defense: The police surrounded you, right?

Prosecutor: Objection.  Leading.

Judge: Sustained.

Defense: You didn’t have any choice but to do what they said, did you?

Prosecutor: Objection.  Leading.

Judge: Sustained!

Defense: Didn’t you feel obligated to do what the police told you?

Prosecutor: Objection.  Leading.

Judge: Sustained.  Counselor, stop suggesting the answers to your witness and ask a non-leading question!

Her case was falling apart before our very eyes.  The witness was becoming disoriented, because he wasn’t allowed to answer any of the questions.  The prosecutor was successfully objecting to every question.  The judge was losing patience with the attorney’s inability (or unwillingness) to ask a proper question.   The attorney was getting exasperated because she simply didn’t know what else to do.  It was painful to watch.

If you ever find yourself trapped in the same spot, you’ll need to break out of the rut and start asking proper questions.  A question is “Leading” when it suggests the answer to the witness or contains the information that you’re looking for.  The best way to avoid asking leading questions during direct examination is ensure your questions start with one of Rudyard Kipling’s “honest serving men:”

I keep six honest serving men,
(they taught me all I knew)
Their names are What and Why and When,
and How and Where and Who.

- Rudyard Kipling
The Elephant’s Child, (1902)

(In addition to these six magic words, you can also use the words “Explain” or “Describe.”)

Remember, your goal on direct examination is to make the witness the star of the show.  Whenever you ask leading questions, you shift the focus away from the witness and towards yourself.  You aren’t the one testifying.  The jury doesn’t want to hear from you — they want to hear from the witness.  Make sure that you start each of your questions with any of these “magic” words, and you’ll avoid 99% of all “Leading” objections.

If I had to add it all up, I know that I’ve logged more than 10,000 hours in the courtroom.  Between jury trials, non-jury trials, motion hearings, docket soundings, conference meetings, status checks, plea hearings, and miscellaneous courtroom arguments, I have spent a lot of time in a lot of courtrooms.  I’ve been the lead trial lawyer on cases, sat second chair, been a witness, been called for jury duty, and even put on the robe to judge mock trials and teen court.

With all of that courtroom experience, you’d think that I would have been ready for what happened a few years ago when I was called to the witness stand…  But I wasn’t.  My experience as a witness was one of the most frustrating experiences I’ve ever had in a courtroom.  Here’s the story of what happened, and five guidelines to prevent your witnesses from turning against you.

1. Tell your witness EXACTLY where to go.  I normally try cases in our downtown courthouse, and I’ve been to all of the outlying courthouses for miscellaneous hearings.  But I’d never been to this courthouse before.  The courthouse was located at the jail complex, and I didn’t know which building I was supposed to go to.  I had to poke my way around a little bit before I was able to find the right building.  Once I finally found the right building, I had no idea which floor I was supposed to go to, and I had no idea which of the two courtrooms I was needed in.  Even when I found the right courtroom (which was behind bulletproof glass) I wasn’t sure if I was supposed to wait outside with everyone else or if I was expected to ask a guard to let me inside.

Even if you think your witness knows their way around the courthouse, don’t assume that they know where to go.  Tell them not only where to go, but where they should park.  If there is more than one building, tell them which one they’ll go to.  Tell them how to navigate through the metal detectors.  Once they’re inside the building, which floor do they need to find?  Which room?  Should they stay outside the courtroom, or should they walk inside?  Remove all doubt from their heads — tell them exactly where to go.

2. Tell them what to bring to court.  How much will it cost to park their car?  Will they need to bring cash, or does the garage accept charge cards?  Will they need to bring coins to feed a parking meter?  Should they bring something to occupy their time while they wait?  Should they bring a book or magazine to read?  Is it okay for them to bring a laptop and do some work while they wait?

3. Tell them what to leave behind.  As I mentioned, this courthouse was at the jail, so security was heavier than at a regular courthouse.  Luckily, I’ve been to jail before (always on the “Just Visiting” side of the board) so I knew to leave prohibited items (like my cell phone and the shiv I made by sharpening a spoon) outside in the car. 

If there are any items your witnesses shouldn’t bring to the courthouse, tell them specifically what they can’t bring.  And don’t limit your list to items you don’t want them getting caught with at the security lines, like drugs or weapons.  Tell them the other items that you don’t want coming into the courthouse.  For example, if someone brings attorney-client privileged documents with them to the witness stand, the opposing attorney may be entitled to review them.  If the item isn’t necessary to aid their testimony, tell them that they’re probably better off leaving it at home.

4. Lie to your witness about how long it will take.  That’s right — LIE to them.  Why?  Because it never goes as quickly as you hope it will.  If you lie to them about how long it will take, you’ll probably be telling them the truth.  Here’s what happened to me:

I was told to be in court at 1:30 PM for a 1:30 hearing, that I was the only witness, and that my testimony wasn’t going to take any longer than a few minutes.  Relying on that information, I blocked off 1:30 PM – 3:00 PM on my calendar, just to be safe, but left two important appointments on my calendar: An appointment at 4:00 PM, and a speech to the law school at 5:00 PM. 

I arrived on time and was ready to go at 1:30 PM, but they didn’t call the case.  “No problem,” I thought, “That’s why I scheduled some extra time.”  But then they didn’t call my case at 1:45 PM, either… 

2:00?  Nope. 

2:30?  3:00?  3:30?!?  Nope, nope, and nope.

As the clock ticked past 3:00 PM, I started getting antsy.  As 3:30 came and went, and I started realizing I wasn’t going to make my 4 o’clock appointment, I started getting upset.  And as the small hand spun past the 4 o’clock position, I moved from upset to angry. 

Things would have been more relaxing if someone had simply lied to me: “Don’t schedule anything this afternoon, because this is going to take all afternoon.  You might even need to stay past 5.”  If someone had lied to me, I would have rescheduled everything else and just planned to spend the entire day in court.  Not only that, but instead of being irate when I was finally released at 4:15 (more than two hours longer than I’d expected), I might  have actually been happy about it, thinking they’d gotten me out early.

5. Respect your witness’s time.  Finally, more than 2 ½ hours after I was told to be there, I was called to the witness stand.  I turned to the clerk, raised my right hand, and took the oath:

Q: “Do you swear to tell the truth, the whole truth, and nothing but the truth?”
A: “I do.”

Those were the only words I spoke in the entire hearing.  As I was being sworn in, the judge asked the lawyers to approach the bench.  They spoke for a few moments, and then announced that the case was being continued to a later date until a companion case could be resolved.  My entire afternoon was wasted, and they hadn’t even needed me for the hearing. 

How cooperative do you think I’ll be when they ask me to come to the next hearing?!?

Just because we can issue subpoenas and force people to sit in court doesn’t mean we should.  The easiest way to convert a friendly witness into a hostile witness is to disrespect them or waste their time.  If there’s a chance your witness won’t be needed, tell them up front.  As soon as you find out that the hearing is going to be cancelled or that you don’t need their testimony, tell them immediately and apologize for the inconvenience. 

In short, the best way to keep your witnesses from hating you (and possibly sabotaging your case) is to follow the Golden Rule.  Treat your witnesses like you want to be treated, and you won’t turn your witnesses into enemies.

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.