Experience in Brain Injury
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A. Tips for Preparing for Direct Examination.
Trial preparation requires a close examination of what each witness can say and what each witness will be permitted to say to prove your case and preparing each witness to do so persuasively. Witness preparation involves preparing the witness’ testimony but also selecting what testimony the witness will address and which witnesses will address specific issues. Witness preparation is not something that can be delegated but must be addressed by the actual lawyer who will be trying the case and examining the witness.
Only then can the nuances of the witness’ testimony and his or her expressions be evaluated. To prepare the witness to testify, everything that the witness has previously said in depositions, sworn testimony, written statements, answers to interrogatories, accident reports or otherwise, must be closely examined and used to refresh the witness’ recollection and prepare the witness for any inconsistencies and impeachment on cross examination.
Any exhibits that will be introduced through the witness will need to be reviewed and the foundational requirements prepared with the witness. The witness’ probable testimony needs to be compared with other witnesses and documents to minimize any inconsistencies. Most importantly, the witness’ direct examination needs to be prepared in detail and repeatedly with the witness. The actual questions you intend to ask on direct examination should be presented and practiced so that the witness is completely familiar with and comfortable with the actual examination that will occur at trial.
Then the witness needs to be prepared for cross-examination, review the areas of likely cross examination and the specific cross-examination that the witness is likely to encounter. The witness also needs to be prepared for the general courtroom setup, appearance, how they should present themselves to the jury, their dress, their demeanor in front of a jury, how the courtroom is arranged, courtroom procedure, rulings on objections, where to sit, how to behave in the courtroom, to avoid expressions of frustration or anger or attempts to communicate with counsel or interrupt and be prepared for the procedural and evidentiary rules that apply and govern their testimony.
There are certain basic principles that each witness needs to be informed of. The witness needs to listen carefully to each question and answer only the question ask. Rambling responses or volunteering information is not answering the question and detracts from credibility. The witness must be told to speak loudly and clearly and address the jury. The witness must be warned not to answer any question that he or she does not understand or know the answer to, and that it is perfectly proper to indicate that he or she does not remember or does not recall.
The witness should review any previous statement or testimony. Where exact information cannot be given, only approximations of dates, times and distances should be given. Positive, clear and direct answer enhance credibility. The witness should be told to use his own vocabulary and plain and simple words and avoid intellectual or highly technical speech. Acknowledging the seriousness of the proceedings in a polite manner is essential.
The witness should be warned against any even slight exaggeration or understatement of the facts or being cute or clever. Arguing with the lawyer or judge is forbidden. Always maintain composure and resist temptations to argue or lose your temper. Testimony must be based on personal knowledge and what the witness saw, heard or did, and most witnesses will not be able to testify to opinions, conclusions or speculations.
The witness should be advised how to handle objections and what to do if they are sustained or overruled. The witness must be informed about the stages of examination, cross-examination and redirect examination and their respective functions. Most of all, the witness must be impressed that by telling the truth based on their best memory and knowledge of the facts and events, the credibility of the case can only be enhanced.
The objective of witness preparation is to prepare the witness to be as effective and persuasive as possible. The description of the events must be organized yet genuine and spontaneous and not appear to be merely a rote memorization.
The attorney must personally interview each potential witness and work with the witness to present the testimony in the most effective manner. The witness should be educated regarding the prior pleadings, discovery, and issues of the case. The witness’ memory may be refreshed and his testimony organized to be presented in the most credible and persuasive fashion.
Witness preparation should take place early. It begins with the first meeting with the witness. The initial meeting may be focused on preserving the testimony in some sort of written form so that it won’t be lost to poor memory. However, generally, the witness’ testimony would not be put in admissible testimonial form early on and before other discovery is completed.
As the trial nears, witness preparation and rehearsal becomes necessary. The formal witness preparation is devoted to fine tuning and polishing that testimony. Where documentary and other discovery material is necessary, generally this preparation should take place in the lawyer’s office. The lawyer should help explain to the witness why his particular testimony is important and the issues of the case, theories of recovery, or defenses. He must understand the overall theory of the case and the relationship of his testimony to that theory.
Further, the witness must be enlisted as an advocate by understanding the justness of your client’s position. He must believe in the correctness of his position and the position of the party whom you represent. At the first meeting, the attorney will obtain the witness’ narrative account of the events and assist in details of what the witness recollects. However, the witness’s narrative may overlook important details that are relevant to the issues or theories of the case. Specific questions must be directed to those areas. The witness’ position with respect to those areas must be confirmed so that there are no misunderstandings and the witness fully understands and appreciates the significance of his or her testimony.
The witness may have all sorts of observations or comments that are not directly relevant or helpful in the case. Therefore, the attorney must determine from everything the witness could say what the attorney actually wants to elicit from the witness. Further, the lawyer has to evaluate what portions, if any, of the witness’ testimony may not be admissible because of hearsay or other evidential restrictions. The lawyer must evaluate whether any potential evidential problems can be overridden. All immaterial or inadmissible data must be omitted from the witness’ testimony and there must be a focus on those points that are most relevant and the witness must be prepared to present those points with maximum clarity.
The preparation should concentrate on the specific testimony that the lawyer wants to elicit from the witness and the words that are used by the witness to prepare the witness for the questions that the attorney will ask. The witness must be schooled in the question-and-answer mode of eliciting information but educated about the inability to ask leading questions.
Leading questions are not only objectionable but detract from the witness’ spontaneity and credibility. In preparing the witness, the lawyer must be cognizant of his ethical obligations in weighing his duty as an advocate against a prohibition of presenting false or perjured testimony. The witness should not be “coached.” Moreover, the lawyer should decline a case and refuse to present testimony where he suspects the client may have fabricated facts to support a claim. Furthermore, if the witness’ story is implausible and incredible, it is unlikely to be believed and, for that reason alone, may suggest that the claim be rejected even if theoretically possible.
Although the lawyer is forbidden from coaching the witness, the lawyer as an advocate certainly can help the witness organize his testimony, help him/her express or articulate what the witness has observed. The primary purpose of direct examination is to elicit in a clear fashion testimony that is essential to establish either the elements of a claim or defense and to persuade the jury. Accordingly, many witnesses will need to be assisted in expressing themselves in specific and concrete terms rather than abstractions or inconclusory language.
Often areas of confusion or memory gaps concerning specific dates can be easily resolved to the witness’ satisfaction so that the witness’ testimony can be presented accurately and without qualification. The witness’ demeanor and manner of presenting his/her testimony are also important. The witness may engage in unconscious mannerisms or distractions, or may not articulate, or may mumble, all of which can be corrected with preparation.
The most important function of witness preparation is to remove the anxiety and uncertainty from the witness and to explain the process, the environment, why and how the witness’ testimony is important, to make the witness comfortable with the proceedings, and to dispel any misconceptions the witness may have. Of course, the witness should be advised with regard to any geographical or physical issues with the Courthouse, the exact location, forewarned about traffic or other possible causes of delay, and notified exactly where and when he/she is to appear.
There should be a frank discussion with the witness about what they should wear in Court. The witness should avoid inappropriately casual clothing. The witness needs to be forewarned not to be adorned with jewelry or other attire that could distract from his/her testimony. Generally speaking, comfortable and conservative clothes and business attire are appropriate.
Everyone from time to time will have memory lapses. It is obviously important to avoid memory lapses of the witness at trial. This begins with witness preparation. However, the witness should be educated about the means in which the lawyer may jog or refresh the witness’ recollection. The lawyer should explain how he/she will use leading questions to refresh the witness’s memory if it has been exhausted or may use a document to refresh memory.
B. Formulating Effective Questions That Get Results.
As trial lawyers, we need to frame questions right from the outset of the case when we first interview the client, through the preparation of the case, and interview of witnesses, through the discovery process by propounding written Interrogatories, during the course of depositions, during the course of negotiations, and finally during trial. Thus, the ability to frame questions is one of the trial lawyers most essential skills. The trial lawyer must have a command over the ability to ask leading and non-leading questions and the various degrees on the leading and non-leading questions spectrum.
There are some questions that are so leading that they are readily recognized as such. There are other questions that may be leading to a degree. The question may suggest an answer without being flagrantly suggestive. Questions are not necessarily leading or non-leading. The test whether or not it elicits a yes or no answer is really not accurate in detecting whether a question is leading or not.
Rather, questions tend to fall on a spectrum from leading to non-leading and knowledge of this fact can be utilized by the attorney in steering a witness without being accused of asking leading questions. Questions such as, “What happened next?” are obviously open ended and non-leading. However, having a witness “tell his story” is dangerous for a number of reasons, not the least of which that it will elicit objections.
Rather, the system contemplates a question-and-answer format and therefore contemplates of necessity that some questions will be directed or suggestive. Interrogation, by its very nature, keeps the witness from wandering and keeps the witness focused on specific areas of inquiry. Knowing exactly what the witness will say and anticipating exactly what the answer will be allows the examiner to ask precisely the correct question and directs the witness to the particular point to be made without obviously suggesting an answer.
Through the use of directed but non-leading questions the witness is in the spotlight rather than the attorney. However, certain questions of necessity will have to be leading. For example, questions laying a foundation or other ritualized areas of questioning will be leading. It will be necessary to ask leading questions to refresh a witness’s memory and, in fact, may be appropriate to move through uncontroverted background or technical material.
The examiner should utilize a continuum from leading to non-leading questions to control the tempo, pace and focus of the testimony. Often the degree to which leading or non-leading questions will be utilized will depend on the capabilities of the witness, which must be assessed prior to trial. A combination of leading and non-leading questions is generally the most effective in keeping the jury’s attention and in controlling the focus so that the jury is centered on the witness’s testimony that is most important. The extent of which leading questions are permitted on direct examination is subject to the trial Judge’s discretion. However, the use of leading questions should also be guided by tactical considerations in which questions will prove both helpful in persuading the jury.
Leading questions may be appropriate with preliminary matters such as background that are not controversial. In addition, leading questions are necessary in establishing a foundation for certain documents or photographs or business records and the like. Leading questions may also be utilized to direct the witness to a certain area or new topic. Of course, leading questions are generally permitted in examining the opposing party. However, other than an adverse party, generally a witness called by a party cannot be asked leading questions or cross-examined. However, such a witness may turn out to be hostile or uncooperative. Once it is established that the witness is hostile or adverse, the Court may allow leading questions in its discretion. Leading questions may be utilized to refresh a witness’s recollection.
Some witnesses may have limitations in their ability to remember or express themselves, either because of mental disability, age, or other infirmities. Under those circumstances and the Court’s discretion, leading questions may be utilized. Furthermore, even an accommodating witness needs to present his or her testimony with structure and control. It is for this reason that the examination must be conducted with questions and answers as opposed to open ended narrative form. Of course, with adverse or hostile witnesses or on cross-examination, the witness has to be strictly controlled through the use of targeted specific leading questions. C. Presenting Testimony in a Natural, Yet Logical Manner. Both the order of witnesses, as well as the structure of the testimony of an individual witness must be given careful consideration. Often a chronological approach is utilized. However, the chronological approach is not the only approach that may be appropriate.
For example, liability witnesses may be called first and damage witnesses may be called later. However, to a large extent, the order of witnesses will depend on the strengths and weaknesses of the case. It is important to start strong and end strong. While as lawyers we tend to think of liability first and then damages. However, if the damages are the strongest part of the case, it may be appropriate to present damage witnesses first. This is because jurors remember most what they first hear and what they last hear. Therefore, it is important to start strong and end strong. Often it is not practical to present the case in exact chronological sequence. One witness may be relevant to both liability and damages, for example. In addition, consideration needs to be given to dramatic effect.
For example, in an explosion case, it may be appropriate to first present evidence regarding the explosion and its impact. Then it may be appropriate to backtrack and introduce liability experts who explain why the explosion occurred. Even though the most well planned and organized presentation must yield to logistical considerations such as witness availability, accommodating expert witnesses, and other scheduling issues. The availability and scheduling of expert witnesses can be particularly problematic. Often a medical expert, for example, may become suddenly unavailable. Mass. R. Civ. P. 30(a)(m), should be utilized to videotape expert depositions given the foreseeability that they may become unavailable when needed. The order of some of the witnesses will be compelled by the rules of evidence. For example, where it may be necessary to lay a foundation for certain evidence, the witnesses necessary to lay that foundation will generally be called first. Chain of custody evidence is an example.
As a preliminary matter the witnesses relationship to the case must be made clear to the jury. The jury needs to know more than the witness’ name and in order to assess the witness’ credibility and should have sufficient background information about the witness. This is very important to get into the witnesses background because it will bolster the witness’ credibility, put the witness at ease and make the witness human and personalized to the jury. This is not an area that should be treated perfunctorily. More than anything, a witness, unlike a document or other type of exhibit, is a human being. The witness’ character, background, knowledge and relationship to the parties or events in the lawsuit is critical. Clearly if this witness is an upright citizen with a responsible job and responsible position in the community, his or her testimony might be entitled to more weight than a witness who has never held a responsible job or position.
Accordingly, even with lay witnesses, the background of the witness is critical. Appropriate biographical information about the witness is therefore necessary. When the witness is a key witness such as a party or a critical eyewitness, great attention needs to be given to exploring the witness’ background. Important factors that can influence the jury in assessing the witness’ credibility should be mentioned, including military service, family life, children, amount of time spent at a particular job, position and other relevant biographical information, all have an important bearing on the witness’ credibility. In accordance with the general principle that adverse evidence should be anticipated and often brought out first by counsel to avoid the sting, unfavorable background information should also be addressed. The witness’ involvement or relationship with the case must be brought out at the beginning of the witness’ testimony after the witness’ background. For example, if the witness is the plaintiff, that must be explained. Some jurors will not know what a plaintiff or defendant is or how that relates to a civil case.
It is appropriate to ask the witness whether he or she is the plaintiff and is the person who has brought the lawsuit. Furthermore, many witnesses, as a result of their relationship to the party or otherwise cannot be considered disinterested. A neighbor, friend or family member will obviously have some allegiance to the plaintiff. This type of relationship cannot be avoided, but should be directly confronted and brought out on direct examination. The extent of their relationship should be fully addressed to avoid any suggestion that the witness or attorneys were being anything but candid on direct examination of the witness’ relationship to the party or suit. You cannot wait for cross examination for these matters to be explored for the first time. Otherwise, it will appear that neither the witness nor attorney have been candid and will substantially undermine the witness’ credibility. Some witnesses, on the other hand, are completely disinterested and have no relationship to the party or lawsuit other than the happenstance of perhaps witnessing an accident.
The witness may be in court only as a result of subpoena. This can also be brought out on direct examination to show that the witness is just there to do their duty as a citizen and has no stake in the outcome. When it comes to dates, times and places and other specifics, a leading question may be perfectly appropriate to set the scene. For example, “Mr. Witness, I would like to direct your attention to August 28, 2006, at approximately 3:00 PM. Do you recall where you were on that date and time?”. Once the stage has been set and the time, date and location established, the witness’ description of the event can be elicited. If the witness has been able to answer questions without difficulty in a clear, concise and persuasive fashion, it may be appropriate at this point to ask an open ended question such as: “Would you tell the ladies and gentlemen of the jury what you observed at that time.”.
This will permit the witness to give a narrative and for the jury to focus on the witness rather than counsel. After this narrative, it then may be appropriate to follow up with specific questions that fill in any gaps and highlight specific, important information concerning the events. Thus, a combination of narrative and question and answer approaches is generally most effective. D. Assisting Your Witness in Persuasively Delivering Their Testimony. The witness should have a complete understanding of the case, the issues, why their evidence is important and how it fits into the overall claim or legal theory and have good sense of the theme of the case. For example, a common theme in a products liability case might be “profits over people”. The witness should understand this theme. By understanding the theme, the witness will both consciously and subconsciously express him/herself with knowledge of how that piece of evidence or testimony resonates with the theme.
In order to keep the jurors awake and invoke some drama into the case, there are a number of techniques that can be utilized. A combination of leading, non-leading and open ended questions can be utilized in varying degrees to highlight or focus on particular areas. Specific directed questions can highlight certain testimony while on other occasions drama can be added through an open ended narrative. A good understanding of what the witness will testify to and developing a rapport is necessary to assess which questions at which time will be most effective. In addition, it is appropriate to use introductory of leading questions when transitioning from one area to another. For example, “Mr. Witness, I would now like to direct your attention to the moments immediately after the crash”.
In addition, as a trial lawyer it is important to use simple, powerful impact words and avoid any legal jargon. As lawyers there are many phrases that have been drilled into our heads from law school and from the cases and our training and experience. However, while we may be comfortable with such words, the jurors will only be confused by them. For example, it would not be appropriate to ask a witness: “What, if anything, did you do to mitigate your damages?”. While the lawyer is fully comfortable and conversant with the concept of mitigation of damages, it will have little meaning for a jury. The question needs to be phrased in plain English. Specific questions need to be asked as for example, “Did you seek immediate medical attention?”. In addition, there are many words that while not legal terms, are awkward and technical. For example, even a question like: “What subsequently occurred?” can be very confusing to a jury.
It is much better to ask: “What happened next?”. Simple action words that are direct are much better than hyperbole. Another way to emphasize a witness’ testimony is to incorporate the witness’ testimony into your questions. For example, if the witness testified that he observed the plaintiff “get run over”, it might be appropriate to ask: “Mr. Witness, you testified that you observed Mr. Jones get run over. Could you describe for us exactly what you mean and what specifically you observed when you say Mr. Jones ‘got run over’?” It is the lawyer’s role to make sure that the jurors do not fall asleep. Accordingly, certain gestures, movement, inflections and drama are appropriate. A droning monotone or an overly rigid and businesslike tone will not keep the jurors’ attention. The lawyer must speak up, must use inflection and emphasis and engage the witness. The lawyer should be riveted by the witness’ testimony and convey that to the jury.
The witness should be directed to give his/her answers to the jury by looking at the jury and by speaking to the jury. If the witness drifts from directing his or her attention to the jury, the witness can be redirected by asking the witness to “please tell the ladies and gentlemen of the jury”. A degree of drama can be added by getting permission to approach the witness with photographs and other exhibits that need to be identified. Pace of the examination is important. The end of the examination should be climactic. The last question should convey a climactic and important point. As for example: “Mr. Witness, you testified that the light was red as the defendant approached the intersection. Was there ever a time when the defendants vehicle stopped or slowed down prior to entering the intersection?”
E. Setting up For Cross-Examination During Direct Examination.
The most important principle to keep in mind is that weaknesses in the case, bias, prior inconsistent statements, and other fertile areas for cross-examination must be anticipated in the direct examination and addressed in order to take the sting out of the information and to avoid appearing dishonest or incredible. Furthermore, the witness needs to be fully prepared for what he or she can expect on cross-examination and be prepared to address these areas during direct examination. Virtually all witnesses, except those that testify regularly, will have some apprehension about cross-examination and perhaps many misconceptions. The way to ease this apprehension is to totally prepare the witness for anticipated cross-examination. The lawyer knows the case and should know exactly what defense counsel will ask to highlight any weaknesses.
The witness must be thoroughly educated about cross-examination, how it is conducted, and what is an appropriate response to the examiner. Many witnesses may feel that they can argue or one-up the cross-examiner and may not recognize that the rules really do not permit the witness to do that, that it will sorely detract from the witness’ credibility, and that the attorney will have an opportunity on re-direct to correct any misconceptions created by the cross-examination. The witness must be fully informed of the rules of cross-examination and also the ability of the lawyer on re-direct to elicit curative information. The witness should be instructed on cross-examination to listen to the question carefully and answer only that question in a direct response without argument or going beyond the question to score a point. The witness should not attempt to explain an apparent weakness or inconsistency and should not volunteer information, which would just detract from the witness’s credibility and open up new doors and opportunities for cross-examination.
The witness should not evade or avoid a direct answer even though it may be harmful. However, the witness should be told that they do not necessarily have to give a yes or no answer if such an answer would not be accurate. Rather, a more expansive or explanatory response may be required. The witness should not be under the impression that he must give an yes or no answer where a yes or no answer is not accurate or appropriate. If pressed, the witness should be told that he/she can inform the Judge that he/she cannot answer the question with a yes or no answer. However, in such an event, it must be clear that the witness, in fact, has a justifiable basis and explanation and is not simply using it as a mechanism to avoid or evade a harmful response.
The witness should be informed that they should not speculate or guess at what an examiner is asking and should ask for clarification if there is any confusion or ambiguity whatsoever as to what is being asked. The witness should understand that a response indicating that the witness has no knowledge or has no memory is perfectly appropriate if that is the case and that the witness is not expected to know everything or remember everything and that if this is the honest answer, it should be provided. The witness should listen to the question and take their time in responding to make sure they give an accurate and responsive answer. The witness should not assume anything about the question. The witness should be instructed on how to handle objections and what to do if the objection is sustained or overruled. The witness must be instructed to keep his/her composure and not to engage in arguments with the examiner or to display anger or frustration.
The witness should be advised that if he is asked questions about a document, he should be shown the document and take the time to read it. He should not take anything for granted. Finally, the witness must be educated about the whole adversary process, the role of direct examination, cross-examination, re-direct examination, and the role of the witness versus the role of the attorney. The witness must understand that his/her role is not to be an advocate but to tell the truth and to be credible. He must feel comfortable that the lawyer in the stages of trial allow for advocacy but that his role is one to give a truthful and credible account and in this manner can be most effective in assisting your client. F. Handling and Introducing Exhibits. The use of exhibits at trial is critical. The first consideration regarding using any exhibit is getting the exhibit into evidence. To some extent, this is a mechanical skill that must be learned, but there are basic steps for admitting an exhibit into evidence and it is necessary to lay the proper foundation before any exhibit can be introduced into evidence.
Procedurally, the exhibit must be marked, shown to opposing counsel, admitted upon laying a proper foundation and only after being offered and a ruling on its admissibility made, can an exhibit be used at trial and by a witness and published to the jury.
Each step must be observed. In using exhibits the following should be kept in mind:
1. Premark exhibits.
Most pretrial orders require that all exhibits be pre-marked. This is good practice in any event.
2. Attempt to reach stipulations regarding the exhibits.
Often foundational requirements such as authenticity are not genuinely in dispute, but would require time consuming and boring testimony from a witness. Often stipulations can be obtained regarding the foundational elements for introduction of an exhibit to avoid time consuming and boring foundational testimony. However, be clear on the scope of the stipulation. Is the stipulation just to authenticity or is it a stipulation as to all elements necessary to lay a proper foundation including relevancy or is it an actual stipulation to admissibility and the use of the exhibit for all purposes? This should be addressed specifically and clarified so as to avoid surprises.
3. Don’t use the exhibit or show it to the jury until it has been admitted into evidence.
This would be improper and is likely to elicit an unfavorable response from the judge if not opposing counsel.
4. Do not ask a witness about a document before it has been admitted.
Get the document admitted and then present the document to the witness before asking about its contents. If Power Point or similar computer assisted software is not being utilized, the document should be blown up and in full view of the jury. If using an exhibit in opening statement, clear it with opposing counsel and the court first.
5. Make sure the judge has a copy of all exhibits.
Give the judge an extra copy and not the copy that is being marked for the record. Of course, opposing counsel needs to be presented with the exhibit before it is offered. It is best to have a separate copy of the exhibit for opposing counsel as well. It will generally be necessary to have one copy for opposing counsel, one copy for the judge, the original to be marked and admitted and then either copies for the jury (less preferable) or a blow up or overhead projected image or digital computer projection of the document.
6. Make sure you use the proper terminology in offering an exhibit.
The exhibit is “offered” and not “moved to admit”.
7. Make sure that exhibits are properly identified and referred to for the record.
If a witness is describing a photograph, make sure that you indicate its is a photograph marked as Exhibit .Each time there is a reference to the exhibit, it is referred to by exhibit number so that the record is clear.
8. Make sure that the exhibit is “published” to the jury.
The exhibit does no good if the only ones familiar with it are the attorneys, the judge and the witness. The jurors need to see the exhibit and understand it. Publication previously involved passing the exhibit around to the jurors but obviously this distracts the jurors and is impractical when a large document is being utilized, but only a small portion is relevant or being focused on.
Similarly, making a separate copy of the exhibit for each juror is impractical and will cause distraction. Therefore, blow ups are preferable with the relevant language highlighted (with the permission of opposing counsel and/or the court). In addition, overhead projection of the document with a laser pointer is an effective approach. However, now with Power Point and other high tech software, documents can be displayed visually with digital projectors, blown up, portions isolated and highlighted, juxtaposed with other evidence and documents, or presented as video clips or otherwise.
9. Don’t allow any exhibits into the jury room until they have been fully inspected and are in proper form and order with appropriate redactions where there has been a stipulation or ruling on the same.
G. Special Considerations for Direct Examination of Expert Witnesses. Experts now play a prominent role in the trial of virtually every case. It is imperative that these experts be properly prepared and that their examination and presentation be persuasive.
In view of the Supreme Court’s decision in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and the SJC’s adoption of that decision in Commonwealth v. Lanergan, 419 Mass. 15, 641 N.E.2d 1342 (1994), the selection and preparation of experts has become even more critical.
The Supreme Judicial Court has adopted Daubert’s reasoning that “the overarching issue is the scientific validity – and thus the evidentiary relevance and reliability – of the principles that underlie a propose submission”. Commonwealth v. Lanergan, 419 Mass. at 25. Therefore, no longer is the Frye test of general acceptance in the relevant scientific community determinative, although it is still a significant issue but not the only issue.
Reliability and validity of the underlying science can be demonstrated by other means, for example, by whether the theory or technique can or has been tested and whether it has been subject to publication and peer review. Daubert emphasizes the trial judges role as a gatekeeper.
Therefore, frequently now you are seeing the opposing side challenge the validity of the theory or science of a preferred opinion and the judge must make a ruling on the reliability of the mythology underlying the expert’s testimony.
Further, in Canavan’s Case, 432 Mass. 304, 733 N.E. 2d 1042 (2000), the Supreme Judicial Court followed the U.S. Supreme Court’s decision in Kumhoe Tire v. Carmichael, 526 U.S. 137 (1999), which made clear that the Daubert analysis applies to all expert testimony.
The court rejected the notion that experts conclusions based on personal observation or clinical experience are exempt from the Lanergan analysis. Often one will find a challenge to the experts opinion on causation. One is seeing challenges to the expert’s opinion as to what caused plaintiff’s injuries where previously experts routinely address such issues as within the domain of their clinical and scientific knowledge. When presenting an expert, one must keep in mind the facts or data that the expert can properly rely on in rendering an opinion. Generally an expert may base his opinion on facts personally observed by him, evidence already admitted in the proceeding or which the parties represent will be admitted, and, in Massachusetts, facts or data not in evidence, including hearsay, if the facts and data would be admissible in evidence.
See, Department of Youth Services v. A Juvenile, 396 Mass. 516 (1986).
In Federal Court, however, the fact or data need not be admissible in evidence if of a type reasonably relied upon by experts in the field in forming an opinion. See, Federal Rule of Evidence 703.
Because the direct examination of any medical expert tends to follow a somewhat conventional pattern, a direct examination of plaintiff’s medical expert can be outlined as follows:
1. Background and Training
c. Medical licenses
d. Clinical experience
e. Teaching and consulting experience
f. Areas of research
h. Professional associations
i. Hospital affiliations
2. Area of Specialty
a. Describe specialty generally
b. Describe diagnostic capabilities of that specialty, particularly as it relates to the plaintiff’s type of injury
c. Describe other diagnostic tools that are available (e.g., X-Ray, CAT scan, EMS, EEG, MRI, SPECT scan, etc.)
d. Describe significance of positive or negative findings
3. Knowledge of the Plaintiff
a. Emphasize treating plaintiff
b. Emphasize number and length of visits
a. History taken
b. Why history is important
c. Relevance of history to causation, diagnosis, prognosis, etc.
5. Examination of Plaintiff
a. Nature of examination
b. Subsequent evaluations
c. Tests performed
6. Records by Other Providers reviewed for evaluation
a. Go through the records chronologically
b. Explain significant findings
7. Opinion regarding Diagnosis (“Do you have an opinion, Doctor, with a reasonable degree of medical certainty as to diagnosis?”). The doctor should give the answer, the basis of the opinion, and anticipate and address why the defendant’s medical expert’s opinion on diagnosis is not correct.
8. Opinion regarding causation (this should be handled similarly to the opinion regarding diagnosis, i.e., an answer, basis of opinion, and anticipating and addressing any arguments to be raised by defense experts concerning causation).
9. Opinion regarding Disability
a. Describe impairments b. Describe effect on work functioning and general functioning
10. Opinion regarding Prognosis (i.e., permanent and total disability, temporary, recommended future medical course, costs of the same, etc.).
Some general rules should be followed when examining the expert on direct. First, the examination must be understandable to the jury. It should be kept simple and as concise as possible. The expert must understand that, unless he is able to communicate his information to inexperienced and often unsophisticated jurors, it is wasted.
Any words used by the expert that are more than two syllables should be explained to the jury. The expert should make liberal use of demonstrative aides to illustrate his testimony, such as photos, drawings, X-rays, anatomical models, charts and anything else that will make the injury understandable to the lay person. Make sure that you meet at length with the expert in advance of his testimony to develop a rapport and to work with him to make his testimony understandable to the jury. He should be fully informed so as to be able to anticipate and address the opposing party’s medical expert’s opinions.
He must be prepared for cross-examination, be comfortable with you and what he can expect, and understand such things as the difference between “reasonable medical certainty” and scientific certainty.
H. Authentication of Documents.
Generally speaking, exhibits will not be self-authenticating (although there are exceptions, for example, medical bills and records introduced under Mass.G.L.c.223, Sec. 799) and therefore it will be necessary to have a witness identify or authenticate the exhibit. The witness will generally be someone who is familiar with the exhibit, will describe his familiarity with it, and identify it. Establishing a proper foundation for the admission of the exhibit will be necessary for most exhibits. Often the witness will not only satisfy the foundation for admission of the exhibit but will explain the substance of the exhibit.
The technicalities for establishing a foundation for admission of the exhibit must be satisfied. In order for the witness to satisfy these requirements, he or she must be competent to testify about the exhibit and its relationship to the case. Generally that requires that the witness have personal knowledge of what the exhibit is. Exhibits are sometimes divided into real versus demonstrative evidence.
Real evidence are actual exhibits that are introduced into evidence and are evidence in the case. Demonstrative exhibits on the other hand may not be necessarily admitted and are designed to illustrate particular testimony. For example, an anatomical drawing or a chalk board recreation of a scene would be considered demonstrative as opposed to real evidence.
The process whereby the witness identifies the exhibit and testifies that it is what it purports to be is known as “authentication”. For example, the witness may testify to the circumstances under which a contract was prepared and to the signatures on the contract. He must testify that this is the contract between the parties that was entered into on such and such a date. Generally, a witness will be able to identify a particular exhibit because it has unique characteristics such as a signature that shows that it is what it purports to be and it has relevance to the case.
Other exhibits such as guns or other weapons may need to be authenticated by establishing through tracing the chain of custody that the object is the object that is relevant and involved in the particular case. Closely related to establishing a chain of custody is establishing that the exhibit has not been substantially changed from the time relevant to the litigation.
For objects that are not unique, generally to establish a proper chain of custody it will be necessary to identify through labeling or otherwise, the object from the outset. For example, contraband and drugs that are seized and have no unique characteristics will have to be packaged, sealed and labeled in order to establish a chain of custody.
Since the object may go through the possession of many hands before it is ultimately offered into evidence, it is only through packaging, sealing and labeling the object that the object can be identified as the object, for example, originally seized from the defendant. If the condition of the object is material to the case, it will be necessary to show that the object as now offered has not been materially altered from its original condition. For example, in a products liability case, the condition of the product at the time of the incident, is the issue.
If the product is subsequently altered by destructive testing, for example, it may be impossible to establish a proper foundation for its admission since it is not in materially the same condition as at the time of the incident. However, the judge may, nonetheless, accept the object in his or her discretion if the alteration can be explained and an adequate understanding of the objects original condition achieved. It has generally been recognized that the introduction of an exhibit must follow in a series of steps which are somewhat formalized.
These steps have been described as follows:
1. Mark the object for identification;
2. Show the exhibit to opposing counsel;
3. Request permission to approach the witness and show the exhibit to the witness;
4. Lay the appropriate foundation for the exhibit’s admission;
5. Offer the exhibit in evidence;
6. Show the opposing counsel the exhibit for examination and possible objection;
7. Obtain the court’s ruling;
8. Publish and use the exhibit. Before the exhibit is admitted into evidence, the witness must identify the exhibit. The exhibit will generally be handed to the witness. Permission to approach the witness should be asked. As the exhibit is handed to the witness, it should be identified, preferably by its pre-marked identification number.
For example, the questioning may go as follows:
Question: Mr. Witness I hand you a document which has been previously marked for identification as Plaintiff’s Exhibit 3 and ask you if you recognize it.
Answer: Yes I do.
Question: What is it?
Answer: This is a letter I signed on August 28, 2006, and mailed to the plaintiff.
A discussion of the rules of evidence is beyond the scope of this article. However, the trial attorney needs to be familiar with the foundational questions for admission of business records, establishing a document as past recollection recorded, establishing the application of certain exceptions to the hearsay rule and other somewhat formalized and technical and foundational requirements. The witness should not be asked to read from the document until after the document has been formally admitted into evidence. Then the witness is generally permitted to read freely from the exhibit.
Often attorneys make a mistake in trying to elicit information regarding the document and will have the witness read from the document before it is admitted into evidence. That is certain to invite an objection. However, once the document has been introduced into evidence, the opposing party has no basis to object to the witness reading portions of the document.
The mere admission of an exhibit really does not persuade the jury to anything. There is no reason to believe that the jury would be familiar with the exhibit or necessarily take the time during deliberations to read it carefully. Its significance must be made apparent immediately through use of the witness who can read from, point out and even describe certain characteristics of the exhibit. It is only through the witness’ testimony that the exhibit takes on life and meaning.
In addition, it may be necessary for the witness to address whether or not this is the best evidence (Best Evidence Objection) and that the document falls within the exception to the Hearsay Rule.
With any document, an attorney should consider:
(1) How the document will be authenticated;
(2) whether the document is the best evidence of the fact i.e. an original
(3) addressing any possible hearsay issue.
I. Difficulties Encountered With Direct Examination.
A. Where to Stand and Sit in the Courtroom
Speak to the clerk and make sure you are seated at the appropriate table. Most courtrooms are set up so that there is a table that is to be used by plaintiff’s counsel and a table typically used by defense counsel. Make sure that you are at the right table. When addressing the court, always stand up. However, stay at counsel table, unless given permission by the court to approach the bench. When examining a witness, it is generally best to stand at the far end of the jury box so that the witness needs to speak loudly so that his testimony can be heard by all the jurors and so that your examination is heard by all of the jurors.
However, do not stand too close to the jurors. Never sit in the jury box while examining the witness. Always stand when addressing the court, examining or cross examining a witness or addressing the jury in opening or closing statements. Always ask permission to approach a witness, either on examination to review a document or exhibit or upon cross-examination. Avoid conferring with your client in the presence of the jury and during the trial. If the client has specific questions, have him or he prepare notes that can be reviewed with the client after the jurors leave.
B. The Most Common Mistakes Made by New Attorneys (and How to Avoid Them)
1. Not sitting at the appropriate table or failing to stand when addressing the court or jurors or asking permission of the court to approach a witness or approach the bench.
2. Speaking with the client during the course of the trial and in the presence of the jury.
3. Failing to familiarize and personalize the witness to the jury.
4. Attempting to speed up the trial by asking leading questions or failing to lay a proper foundation for questions and exhibits.
5. Failing to mark exhibits in advance or addressing stipulations for foundational requirements or not having enough copies of the exhibits readily available and accessible.
6. Making frivolous or pointless objections.
7. Being argumentative or rude or impolite to the court or its staff.
8. Failing to learn about each judge and his or her particular trial procedure and idiosyncrasies.
9. Failing to accurately estimate time. When asked by the court to give an estimate as to how much additional time will be necessary for an examination or cross examination, or presentation of the case in chief, neither be greedy nor short change yourself.
10. Improper introductory remarks to the court. The court should not be addressed as “judge” but rather any remarks should be preceded by “May it please the court … ” .
11. Addressing your opponent rather than the court. In open court very few remarks should be directed toward opposing counsel directly. Rather, issues should be addressed to the court.
12. Arguing with the court rather than to the court.