Leading questions are the main tool of the cross-examiner—they tell a witness how to answer by suggesting an answer. See Evid C §764. But you should also know when using leading questions on cross-examination isn’t the best technique. Continue reading
Evidence
3 Things to Know about the Crime-Fraud Exception
Exceptions to the attorney-client privilege in California are set out in Evid C §§956–962. Of particular interest since the FBI’s raid on the office of President Trump’s personal attorney Michael Cohen has been the crime-fraud exception to the privilege. Under this exception, there’s no attorney-client privilege “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” Evid C §956. Let’s break that down into three keys points to know. Continue reading
Should You Use Voir Dire With Opponent’s Expert?
After opposing counsel attempts to qualify an expert witness, you can ask the court to let you conduct voir dire on the expert. But just because you can, doesn’t mean you should. Continue reading
Revisiting the Dying Declaration Exception
The “dying declaration” exception to the hearsay rule just jumped from law school textbooks onto California newspapers: A young woman who was stabbed and bleeding told officers about who had assaulted her shortly before she died, leading to the arrest of two suspects. It’s time to review what’s required to meet this hearsay exception. Continue reading
How to Put Partial Evidence in Complete Context
When evidence presented during direct examination is distorted by being taken out of context, you can counteract that distortion by invoking the rule of completeness. Continue reading
FAQs about Redirect Examination
After the other side has had a chance to cross-examine your witness, you get another bite at the apple—redirect examination. Knowing when and how to do redirect is key. Continue reading
Do You Need an Expert Witness, and If So, What Type?
Retaining an expert witness is expensive and may not be necessary in every case. Don’t try to keep up with the Jones & Jones firm: Just because the other side has an expert or because experts have traditionally been used in similar cases doesn’t mean you need one. And if you decide you do need an expert, make sure it’s the best type for your case. Continue reading
Can Opinion Come In Under the Business-Records Exception?
Here’s a common evidence question: Are opinions admissible when they’re in business records? The answer is generally “yes,” as long as the statement of opinion is in a writing that qualifies otherwise for the business-records exception to the hearsay rule. Continue reading
How to Cross-Examine on Reputation
Try this hypothetical: Opposing counsel has just finished direct examination of a witness who testifies that your adversary has the reputation of being scrupulously honest in all aspects of his life, including business transactions. How can you cross-examine on the nebulous concept of “reputation”? Continue reading
Before You Cross-Examine, Write This Down
“The toughest part of being a trial attorney, whether criminal or civil, is pulling off an excellent cross,” says Toni Messina in her article for Above the Law. So, if you’re a new trial attorney, or it’s been a while, it’s natural to be nervous about an upcoming cross-examination. An excellent way to calm your nerves and set yourself up for success is to write down virtually all of your questions and related information in advance. Here’s what to write. Continue reading
