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If you cannot afford an attorney, below please find a guide for self representation in court:
The opening statement is the best opportunity you have to lay out the case without objection or argument from the other side.
*Create an outline. Working off an outline will keep the opening statement organized and inclusive of all the important themes of the case. Write down the major points that need to be addressed.
* A compelling opening statement will provide the opportunity to tell a story.
* Propose a theory. Explain what happened, what is going to be proven, and why no other explanation could possibly be credible.
* Summarize evidence and witnesses. Give a brief introduction of what the jury can expect in terms of witnesses, testimony and evidence. Explain how those witnesses and the evidence will support your theory of the case.
* Keep a relaxed style. An opening statement should be conversational and authoritative. Do not be argumentative or combative at this point.
* Conclude with a major point. The last thing you say should be memorable and important. Use a punch line repetitively, repeat the theme, and tell the court what you expect.
* Practice the opening statement. Run through the opening statement in front of colleagues or a mirror. Make adjustments to style and presentation
Good morning. My name is __________ and I am the __________(plaintiff or defendant). I am going to be asking you a series of questions. If you don’t understand my question, let me know and I will repeat it or rephrase it for you. If you don’t know the answer, I don’t know is a perfectly acceptable answer. I ask that you don’t guess. Also please make sure that all of your responses are verbal to preserve the record on appeal, as there is a court reporter here taking down everything you are saying.
What did you review, preparatory to your testimony today?
Has any of this recent information that you’ve received modified any of the allegations set forth in the Verified Complaint? (if so, you’ll need to Move in Limine to conform the pleadings to the proof).
What is your date of birth?
Where do you live?
For how long have you lived in ________?
What is your highest level of formal education?
INTRODUCTION OF DOCUMENTS INTO EVIDENCE:
Sometimes the parties wish to offer as evidence a letter, affidavit, contract or other document or even physical evidence such as murder weapons, broken consumer goods etc. Here is the procedure.
I wish to have this letter/ document/ item marked for Identification as Exhibit A
Clerk takes the item and marks it appropriately and attorney takes the item and gives it to the opposing counsel.
Do you recognize this item marked as Exhibit A?
Witness : Yes
Can you please identify this item?
Witness : This is a letter I wrote on March 5, 2015 (or witness gives other appropriate identification)
If the attorney wishes the judge to consider the document or item itself as part of the evidence and not just as testimony about it, the attorney must ask to move the item into evidence at the end of the witness examination. The Attorney/Self Rep proceeds as follows.
Your Honor, I offer this document into evidence as Plaintiffs Exhibit A/ Defendant’s Exhibit A and ask that the court so admit it.
Opposing Attorney: Objection/ No objection
Judge : Overruled/ Sustained.
A leading questions is one that suggests the answer desired by the questioner, usually by stating some facts not previously discussed and then asking the witness a yes or no answer. Leading questions may not be used on direct examination.
Example of leading question:
“So, Beyonce you took J-Zee to a movie that night, didn’t you?” Example of objection:
“Objection your honor, counsel is leading the witness” Example of response:
“I’ll rephrase the question”.
“Beyonce, where did you go that night?” “Who did you go with?”.
(This does not suggest the answer)
Questions and answers must relate to the subject matter of the case, this is called relevance. Questions or answers that do not relate to the case are irrelevant.
Example of irrelevant question (in a case for a car accident) “John, for how long did you date Jane” Example of Objection:
Your Honor, this question is irrelevant to this case” Example of Response:
Your Honor, this series of questions will show that John was in a rocky relationship at the time of the accident and that this reduced his focus on the road”.
Hearsay is something the witness has heard someone say outside the courtroom. Also, any written statement made outside the courtroom is hearsay. Exceptions are statements made to the witness directly by a party to the action.
Example of question as to hearsay: “John told me he was going to visit Jane” Example of Objection:
“Your Honor, that is hearsay”
Response: John is a defendant, the witness can testify to a statement he heard John make.
Cross examination is the ultimate challenge. It is frequently dramatic, often exciting, and in many ways it defines our adversarial system of justice. A poor cross examination can be truly disastrous as you constantly run the risk of adding weight or sympathy to the other side’s case. The essential technique of cross examination is witness control. Since the object of cross examination is to tell your client’s story, it is imperative that you set the agenda for the examination, that you determine the flow of information, and that you require the witness to answer your questions.
A useful cross examination should fulfill at least one of the following objectives:
Repair or Minimize Damage Done on Direct
Demonstrate the witness’s lack of certainty, confidence, or opportunity to observe, or highlight the internal inconsistencies or implausibility of his testimony, or show that his testimony conflicts with the testimony of other, more credible witnesses.
Discredit the Witness
You can also use cross examination to discredit the witness testifying by revealing his bias or interest in the outcome of the case, the reasons he has to stretch, misrepresent, or fabricate his testimony, and his past instances of untruthfulness.
THE RULES OF CROSS EXAMINATION:
A. Cross examination must stay “within the scope” of the direct examination preceding it. If you do face a “beyond the scope” objection in a mock trial, it is usually adequate to respond by saying, “Your Honor, due to the format of today’s trial, I will not have the opportunity to recall this witness to question him on this subject. Therefore I respectfully request the court’s permission to question him about it now.”
B. Ask only leading questions. Leading questions are those that contain or suggest their own answers. A non-leading question invites the witness to wander away from your story, taking your control away as well. For example, you can control a witness this way:
QUESTION: You were thirty feet away from plaintiff’s car when you applied your brakes, correct?
But you lose control when you ask:
QUESTION: How far from the plaintiff’s car were you when you applied your brakes?
How can you be sure to ask only leading questions? Read the witness affidavit, scour the police report, and read the other witness’s affidavits. Then, once you are certain that there is no plausible denial, tell the witness exactly what he did. Because your leading question is based on a verifiable fact, the witness will have no choice but to agree with you.
C. If you do not know how a witness will answer a question, do not ask it. The following scenario is not unrealistic:
QUESTION: Your parking garage was located three blocks from your office,
QUESTION: And the sidewalks are always very crowded between 8:00 and 8:30
in the morning?
ANSWER: That’s right.
QUESTION: You usually have to wait for one or more traffic lights between the
garage and your office, don’t you?
ANSWER: I do.
QUESTION: So you have to plan on at least ten minutes to get from your garage
to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
QUESTION: Please explain how you can travel that distance, under those circumstances, in only three to five minutes.
ANSWER: It’s simple. There is an express bus that travels that route in a bus lane. I get on in front of the garage and its next stop is right in front of the office. Even in heavy traffic, it never takes more than five minutes since the bus lane is always clear and the traffic lights are coordinated.
The bottom line is that you should never give a witness the opportunity to explain during cross examination. Suppose you do refrain from asking the witness to explain and instead he asks you if he may explain – if a witness is volunteering an explanation, there is no chance the answer will help your case. The best way to handle this awkward situation is to politely decline to respond to the witness’s question:
QUESTION: So you have to plan on at least ten minutes to get from your garage to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
Would you like me to explain how?
QUESTION: Your lawyer can ask you to explain that. I have other questions I’d like to ask you instead.
D. Ask questions in their smallest component parts. For example, you want to establish the distance from his parking garage to his office in order to show that he was in a hurry to get to his meeting that morning:
QUESTION: You have a monthly parking contract at the Garrick garage?
QUESTION: The Garrick garage is located at the northwest corner of Randolph and Dearborn?
QUESTION: Your office is located at 48 South Dearborn?
QUESTION: The shortest distance from the Garrick to your office is to go south
on Dearborn, right?
QUESTION: First you must cross Randolph?
QUESTION: Then you must cross Washington?
QUESTION: Then you must cross Madison?
QUESTION: And your office is further south on that block, isn’t it?
This technique cuts off the escape route for a witness who is inclined to argue or prevaricate.
E: Do not mischaracterize the witness testimony. Assume that you are cross examining the complaining witness in a robbery case. The witness testified on direct that the crime occurred at night on a seldom-traveled country road. Your defense is misidentification. Wishing to take advantage of the time and place of the events, you ask, “It was to dark to see very well, wasn’t it?” You have just asked the witness to agree with your characterization of the lighting conditions. The witness, being nobody’s fool, answers, “I could see just fine”. Instead, you should have asked the witness about the facts that led you to the characterization: the sun had gone down, the moon was not out, there were no street lamps, there were no house lights, and there were no illuminated signs. The characterization that it was too dark to see everything well should be saved for final argument – when the witness may no longer refute it.
F: Do not ask conclusory questions. It will often be tempting to confront an adverse witness with one last conclusory question: “So you just ignored the fire truck, didn’t you?” Resist this temptation. The classic approach to cross examination calls for the lawyer to elicit all of the facts that lead to the ultimate conclusion and to then stop. The final proposition is saved for final argument.
G: Insist on a Responsive Answer. There is more to controlling a witness on cross examination than asking the right questions. You must also make sure that you have gotten the correct answers.
1. Correct the problem yourself
You can often correct an unresponsive answer by simply re-asking your question. Consider the following scenario from the fire truck case:
QUESTION: Isn’t it true that all of the other traffic stopped for the fire truck?
ANSWER: How would they know to stop? There was no horn or bell.
QUESTION: You didn’t answer my question. All of the other cars did stop?
2. Enlist the judge’s help.
It is the judge’s obligation to ensure not only that the witness responds to your questions, but also to “strike” any answers that are unresponsive. Thus, the ultimate solution to the problem of the impermissibly uncooperative witness is to seek the judge’s intervention:
QUESTION: Your Honor, could you please instruct the witness to answer my
QUESTION: Your Honor, could you please direct the witness to answer my
question yes or no?
QUESTION: I move to strike that answer as non-responsive to my question
and I request that the court instruct the jury to disregard it.
H: Have a fail-safe zinger to end on? i. It must be absolutely admissible (Nothing smacks more of defeat than ending a cross examination on a sustained objection); ii. It must be undeniable (choose a documented fact – the best “gift” given to you in the witness’s statement and phrase your question using the exact language the witness used, making it impossible for the witness to deny you the simple answer you seek); iii. It must be stated with conviction (No matter what your closing question, you must be able to deliver it with an attitude of satisfied completion).
FORMAT FOR CROSS EXAMINATION:
a. Friendly information
Be friendly first. Begin by asking all questions that the witness will regard as nonthreatening. These will often be background questions. Most people, even defendants on trial, like to talk about their achievements.
b. Affirmative information
After exhausting the friendly information, ask questions that build up the value of your case rather than tear down the opposition’s. Much of this information will fill in gaps in the direct testimony.
c. Uncontrovertible information
You can now proceed to inquire about facts that damage the opposition’s case or detract from the witness’s testimony, so long as they are documented in the case file.
d. Challenging information
It is unlikely that a witness will cooperate with you once you begin challenging her memory, perception, accuracy, conduct, or other aspects of her testimony. Therefore, it is usually desirable to proceed through friendly, affirmative, and uncontroverted information first.
e. Hostile information
Hostile questions involve assaults on the witness’s honesty, probity, peacefulness, character, or background. “Didn’t you spend time in prison?” “You never intended to live up to the contract?” “That was a lie, wasn’t it?”
Always end with a zinger.
The cool thing about impeaching a witness is that it’s a tactic that we’ve been using since we were littlekids to win arguments. When someone accused you of doing something on the playground, you probably figured out the fastest way to defend your innocence was to attack the source of the accusation.
Tom : I saw Josh leave Olivia a love letter!
Josh : No you didn’t four-eyes, you can’t even see two feet in front of your face. How would you even know?
What you’ve done instead of attacking the factual basis of the accusation is attack the witnesses ability to make the statement against you. If Josh can’t see very well, he wouldn’t be able to determine if the love note was actually delivered to Olivia. In a nut shell, that’s impeachment.
HOW do we impeach a witness?
An effective way of impeaching a witness is using previous statements of the witness to demonstrate inconsistency. If a witness’ story has changed, the jury may interpret that he/she is lying or can’t clearly recall the events for which he/she is testifying.
1. Mr. Johnson, do you remember speaking before the court on March 5, 2015?
2. Do you remember having been sworn in to tell the truth?
3. Did you tell the truth on that date?
4. Do you remember having been asked the following question ___________ and giving the following answer_______?
5. On a previous date you said X, and today you are saying Y.
On cross-examination, an attorney wants to show that the witness should not be believed. This is best accomplished through a process called “impeachment,” which may use one of the following tactics:
Impeachment casts doubt on whether the witness is believable.
In order to impeach the witness by comparing information in the affidavit to the witness’ testimony, attorneys should use this procedure:
Step 1: Repeat the statement the witness made on direct or cross-examination that contradicts the affidavit.
Q: “Now John, on direct examination you testified that you were at the school on the evening in question, didn’t you?” A: “Yes.”
Step 2: Introduce a print out of his twitter feed for identification, using the procedure described last week.
Step 3: Ask the witness to read from his or her Twitter feed the part that contradicts the statement made on direct examination.
Q: “All right, John, will you read what you stated here on social media?”
A: “I am at my uncles wedding in New York”
Q: And what was the date of that tweet”
A: “March 5”.
Q: And what was the date of the incident in the State of Justice?
A: “March 5”
Step 4: Dramatize the conflict in the statements. (Remember, the point of this line of questioning is to demonstrate the contradiction in the statements, not to determine whether Madison was injured or not) Example:
Q:”So, John, you testified that you were in town on the afternoon in question”
Q: “Yet, in your tweets you said you were out of town?”
EXPERTS: An Expert helps the Judge and Jury understand medical scientific or technical issues as they relate to the case. An experts credentials can strengthen a client’s case in the eyes of a jury.
Only a witness who is qualified as an expert may give an opinion as to scientific, technical or other specialized knowledge in the area of his/her expertise.
1. Step One qualify the expert
Before an expert gives his/her expert opinion on a matter, the lawyer must first QUALIFY the expert. First the lawyer must lay a foundation that shows the expert is qualified to testify on issues related to that expert’s field of expertise. To lay a foundation, the lawyer asks the expert to describe factors such as schooling, professional training, work experience and books he/she has written that make a person
an expert regarding a particular field. Second, once the witness has testified about his/her qualifications, the lawyer asks the judge to qualify the witness as an expert in a particular field.
Example. The prosecuting attorney is trying to accuse Madison of murder as the knife wound got infected and subsequently killed the arresting officer. The prosecutor is examining the expert witness, Dr. Jones.
Q: What is your occupation?
A: I am a toxicologist. I am the Chief of Staff at the Justice State Medical Center.
Q: What Medical School did you attend? A: I graduated from Yale Medical school in 1988 Q: Where did you do your internship?
A: I did a two year internship at John Hopkins University from 1988-1990.
Q: Did you afterwards specialize in any particular field of medicine?
A: Yes. I have specialized in toxicology.
Q: Have you published any articles or books?
A: I wrote a chapter in a medical text on toxicology.
Q: Describe the chapter.
A: I set out steps identifying root causes for certain infections.
Q: What professional licenses do you have?
A: I am board certified to practice medicine in the State of Justice.
Attorney : Your Honor, I ask that Dr. Jones be qualified as an expert in the field of medicine.
Judge : Any objection?
Adverse Attorney : We object No foundation has been laid regarding Dr. Jones ability to render an opinion as to all field of medicine.
Judge : Objection sustained. Dr. Jones expertise seems to be limited to certain areas of medicine.
Attorney : Thank you your Honor. We ask that Dr. Jones be qualified as an expert in the field of toxicology.
Judge : Any objections?
Attorney #2 : No your Honor.
Judge : Let the record reflect that Dr. Jones is qualified to testify as an expert in the field of toxicology.
2. Step 2 –Elicit Testimony
Once qualified, an expert may give opinions relating only to the experts area of expertise. That is, an expert cannot give an opinion in an area outside his/her expertise. However, an expert CANNOT give an opinion as to the ultimate issue in the case.
Example (Dr. Jones has been qualified as an expert on toxicology)
Q : Dr. Jones, what is your opinion as to The Police
Officers cause of death.
A : Sepsis from the knife wound.
Q : Dr. Jones, in your opinion, is it true as to what the defense contends that the patient also suffer from a rare
lung disease transmitted through contact with the North
Objection : The witness is testifying outside of his area of expertise
Judge : Sustained. Please confine your opinions to matters related to toxicology
Q : Who was at fault in this matter?
A : Madison and the Hospital were both at fault
Objection : The witness is testifying to the ultimate issue of the case, which is whether Dr. Jones and General Hospital are liable for the accident. This is a question of fact for the judge and jury to decide
Judge : Sustained.
Good afternoon your Honor. In my opening statement, I mentioned that I would call 3 witnesses to testify as to _____________. Each witness testified as I explained and we have established the following facts : 1) __________ 2) _______, and 3) ___.
We would ask you to reject my opposing counsel’s theories of the case. [Address each argument you feel the defense will be asking the court to consider, and explain why you disagree. Argue why your witnesses are credible, how they have nothing to gain by lying, and were consistent with each other. Argue that the adverse party has a motive to lie, because he doesn’t want to be held accountable for his actions. Argue that the adverse witnesses lack credibility].
In conclusion, we would ask that you find __________.