- Early in the trial, call a witness who can authenticate an important exhibit. The exhibit could be a chart, map, diagram, photograph, or other visual aid. Leave the exhibit visible during the rest of the trial and use it with each witness.
- Early in the trial, call any witness you want present to observe the rest of the trial. This applies, for example, to a family member, or a knowledgeable participant, if the witness would otherwise be excluded before testifying.
- Intersperse boring witnesses with interesting ones. Keep the jury alert and interested by mixing it up.
- Choose when to have your stipulations and judicial notice orders read into the record. Choose a time that logically makes sense and minimizes boredom. Stipulations may be written agreements filed with the clerk or oral recitations read into the record. See CCP §283(1). Generally, counsel reads the stipulation to the jury, and the judge instructs the jury that it has the effect of conclusive proof. See CACI 106, 5002. Some judges prefer to read stipulations to the jury themselves.
- Slow down or speed up your examination of a witness. You may want to end the day or begin the next morning with the examination of a particular witness. This decision may require you to alter your pace of examination.
- Think about court recesses. Consider what testimony you want the jury to hear before the lunch break or end-of-day recess. The last thing they hear is more likely to stick with them.
- Key the jury to your scheduling plans. For example, let the jury know when the end of the day is coming, with comments such as, “One last area I would like to ask you about today, Mr. Jones, …” or “Our final witness this afternoon will be Mr. Smith.”
- Conclude questions abruptly. When used occasionally, ending your direct examination of a witness unexpectedly can be an effective tactic. When you tender a witness before your opponent is expecting to cross-examine, you may catch your opponent unprepared.
For more on setting up your order for presenting proof and witnesses, turn to CEB’s Effective Introduction of Evidence in California, chap 5.
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