Before you prepare a witness for trial, you should know precisely what you expect to accomplish through that witness. In other words, have a plan.
Your trial notebook should have a section for each witness that includes your examination plan for that witness, which covers direct, cross, and anticipated rebuttal.
That plan should note the following:
- Questions to ask. Note each question, either in substance by key words or verbatim, along with the expected response. If you write out questions verbatim you won’t have to extemporize, but you’ll have to resist the temptation to simply read the questions at trial. If you don’t write out questions, then at a minimum prepare an outline or a checklist of important points to cover and make sure you’re thoroughly familiar with the expected testimony. Never “wing it.”
- Expected testimony. Note the testimony expected from the witness to prove or disprove an issue in the case. For anticipated rebuttal, make notes from the deposition and other documents that may help rehabilitate the witness or refute evidence that the opposing parties may offer.
- Potential objections. Anticipate objections to questions that must be overcome to make that testimony admissible, and note the applicable statutes and case law on potential evidentiary problems so that they’ll be easily accessible to make any necessary arguments to the court.
- Exhibits. Note the exhibits that you’ll offer through the witness’s testimony, including the point in the examination at which the exhibit should be introduced. When required, prepare questions necessary to lay a proper foundation for the introduction of evidence, e.g., for demonstrative or documentary evidence. Make sure you review specific questions with the witness to avoid the embarrassment of having a witness answer a foundational question incorrectly.
Once you’ve prepared your witness examination plan, you’ll be able to examine each witness armed only with the appropriate section of the trial notebook, the witness’s deposition (if any), the exhibits pertaining to that witness, and the subpoena or notice to appear for that witness. You’ll look and feel very organized and efficient—leading you to a successful examination!
For much more on preparing witnesses for trial, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 5.
Other CEBblog™ posts you may find useful:
- Questioning at Trial Versus at Depositions
- Effective Questioning
- 12 Tips for Direct Examination in Depo or at Trial
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