Gregg's Trial Tip of the Week

As seen in the New Jersey Law Journal

Trial Strategies

Once you settle with a co-defendant, they are no longer considered a “party.” At trial, if you intend to read portions of the settling defendant’s deposition testimony or interrogatory answers to the jury, you must show that the settling defendant is “unavailable” to testify live in court. Protect yourself by reaching an agreement that compels the settling defendant to agree to testify at trial.

We receive and process information in a way that supports what we already believe. We tend to focus on things we agree with, while tuning out or rejecting things we disagree with. Jurors are no different, even if they pledge to be open-minded, fair, and unbiased. To effectively persuade, you must sensitize yourself to this innate bias and find the narrative in your case that fits juror’s attitudes, beliefs, and values. Only then can you effectively match the evidence to the story you planted in their heads.

The window for timely objecting during testimony is narrow. You must be poised and ready to object or risk the jury hearing a detrimental answer. Be prepared to assert the following objections:

1. The question has no relevance (unfair, confusing, misleading, cumulative)

2. The question is argumentative, vague, or ambiguous.

3. The question calls for a legal conclusion.

4. The question assumes facts not evidence.

5. The question violates the hearsay rule.

6. The question is leading, repetitive, or calls for speculation.

7. The question is compound.

8. The question is subject to a recognized privilege.

Remember, if you fail to object, it may be deemed waived.

Having the right to cross-examine a witness does not necessarily mean you should always do it. For example, if cross-examining a peripheral fact witness adds nothing to your case, then consider letting the witness go without asking a single question. Asking no questions of a witness can minimize the importance of that witness in the juror’s eyes. Even asking a few harmless questions can suggest to the jury that you believe the witness is worth questioning. So, the next time you are about to begin questioning, ask yourself: do I really need to cross-examine this witness?

We are taught that the goal of jury selection is to pick a jury that is fair and impartial. Don’t you want to choose jurors who you believe will most closely connect to your client and the claims or defenses your client asserts? Don’t you want to excuse those jurors who you believe will be adverse to your case? Shouldn’t your goal of jury selection be to select jurors who you perceive are partial and biased to your cause? So, what’s your goal? I know mine.

Jury verdicts will be tossed if the cumulative effect of trial errors result in a miscarriage of justice under the law. This includes what you say in opening and closing statements. Don’t comment on issues which were ruled inadmissible. Don’t’ venture-off into argument you know is not supported by the evidence or is legally inadmissible. Protect the integrity of the trial record and the jury’s verdict by trying a clean case.

It may sound basic, but it is imperative that your injured client clearly understands that from the moment the client arrives at the courthouse to the time the jury renders its verdict, the client will likely be observed and scrutinized by jurors, both before and after jury selection. Jurors form opinions and conclusions based on their preconceived prejudices and biases without knowing anything about the client’s damage claims. The client must be made to understand this dynamic and conduct themselves consistent with this in mind. Otherwise, you risk the case imploding.

A motion in limine can be key to winning your case by preventing or limiting certain evidence from being presented before the jury. This means you must carefully think through the written evidence, potential trial testimony, legal issues, and any other damaging issue in your case before the trial and craft your motion in limine. Don’t think that by making the motion you reveal a weakness or vulnerability about your case. It’s better to deal with problems up-front, then watch your case implode before the jury.

As lawyers, we become fluent in our “lawyer language.” It’s like breathing. We don’t think about it. However, when presenting your case to the jury, use language the jurors will understand. Don’t assume that everyone knows the meaning of words like “prior”, “subsequent”, “depict”, and “exacerbation”. You’re better off saying “before”, “after”, “show”, and “make worse”. Jurors won’t be impressed by your “lawyer speak”, may not understand what you’re asking the witness, and will think you’re talking over them, not to them.

In a personal injury case, defense lawyers usually dispute the nature of the injury, causation between the injury and accident, and permanency. In some instances, the defense doctor may confirm one or more of these damages while disputing others. Where there is agreement, the doctor concedes the issue based on reasonable degree of medical probability. When the defense rests, move for a directed verdict on the issue. When granted, have the judge advise the jury during the charge.

When you know the law that the judge will charge the jury at the end of your case, you can begin to sensitize jurors to key legal concepts, beginning with voir dire. For example, in a fall-down case involving possible comparative fault of a minor 13-year-old plaintiff, have the judge ask potential jurors whether they can assess the actions of a 13-year-old child against the actions of other reasonable 13-year-old children. After the question is repeated over and over, the legal concept will be engrained in the jurors’ minds, and they will listen with a discerning ear.

Give careful thought and consideration about where you want your client seated in the courtroom. If seated at counsel’s table, the jury will scrutinize your client’s appearance, demeanor, and reaction to testimony. In certain cases, it may be advantageous to have your client sit away from the jury’s line of sight.

In a serious injury case, have friends, family and co-workers testify about how the injury has affected your client’s life.

In the right case, build the value of the plaintiff's spouse’s per quod claim by focusing the loss around emotions and feeling, rather than activities. Explore how the spouse can no longer depend on their injured spouse. That there exists a loss of trust, through no fault of the injured spouse. Show how those losses have resulted in fear, anxiety, and depression.

Given the uncertainty of a jury verdict, it is generally in your client’s best interest to attempt settlement. If the negotiation proves unsuccessful, re-direct all your focus and energy into the trial. Remember, you can only control what you have the ability to control.

In preparation for trial, troll the defense expert’s website. You may find links to authoritative sources that support your theory(s). It makes for great cross-examination.

Sometimes the best liability expert is the one with “dirt under their nails,” rather than the “professor.” For example, consider the qualified mechanic, over the engineer.

While it is common to put the plaintiff on the stand first, calling the plaintiff as your last witness can be quite dramatic in the right case.

Remember that the glove in the O.J. Simpson case. Try to find a physical symbol for your case. It could be a single document, a photo, an exemplar. Use it over and over again with the various witnesses. The symbol will become fixed in the memory of the jurors and will serve as a powerful reminder of what your case was about.

In a catastrophic injury case involving paralysis or coma, prepare a compelling “day in the life” video of your client. Have the client’s nurse emotionally narrate the video as it is shown to the jury.

In a substantial case that must be tried, you can control risk by considering a “high-low” amount, where the plaintiff agrees to a guaranteed low amount, even if the case is lost, in exchange for capping the defendant’s exposure at an agreed-upon “high” amount.

In the appropriate case, the emotional description of your client’s pre-impact terror and fright is a compelling element of conscious pain and suffering, which can evoke a strong jury reaction in the amount of the verdict awarded.

Present your case in a way that appeals to the jury’s inherent sense of fairness. Don’t disrespect your adversary, bully witnesses, stretch facts, or argue every point beyond reason. If the jury trusts you, then they’ll trust your case.

Jury consultants agree that jurors’ attention span is limited. Keep your questions focused. Use exhibits to keep the jury’s attention and the testimony moving along. Finally, know when to quit.

No matter how much time we spend preparing our clients for testimony, it rarely goes as planned. We’ve all experienced gut-wrenching moments when the words which come out of their mouths contradict their prior version. Here’s a helpful tip. Prepare your client through a visual. Put them back in the moment. Get them to describe the scene and action in real time. Then re-create it on the witness stand.

Build your case around 1 or 2 key themes. Use buzzwords and catch phrases to communicate the themes persuasively. We all remember, “if the glove doesn’t fit, you must acquit.”

Good trial lawyers must be open to genuinely evaluate the strengths and weaknesses of their case. Don’t become blinded by what you believe are the “only” facts that support your theory of the case. An honest appraisal will help you decide whether to settle or maximize your chances of a favorable jury verdict.

As the courts emerge from the pandemic, it has probably been years from your original trial date. In these cases, your damages expert reports are “stale.” To avoid an issue where your doctor is cross-examined on stale opinions, obtain updated damage reports. Your medical expert will be unable to opine about additional injuries, but the doctor should re-examine the plaintiff, re-affirm earlier findings, and comment on the plaintiff’s progress. This way, at trial, the doctor is not relying upon your client’s condition from years prior. Instead, your medical expert will be able to testify about your client’s up-to-date medical condition.

It’s not only what you say, but how you say it. You must engage jurors to feel, believe, and act on what they hear. Learn to regulate the pitch and tone of your voice. Use inflection, a whisper, or silence to powerfully and purposefully advance your message.

Do not let your adversary’s expert engage in irrelevant, inadmissible, and possibly damaging commentary about your case from the witness stand. Prior to trial, promptly file a motion in limine to bar the impermissible portions of your adversary’s expert opinion(s). While it will be rare that you will strike the entirety of an expert’s report, experts often stretch the limits of their opinion(s) and include inadmissible statements and conclusions. Instead of simply relying on cross-examination, which may go awry, file the appropriate motion to bar these impermissible portions. Then, at trial, ask the judge to instruct the expert witness not to veer into areas that are barred. Using these strategic motions in limine will successfully allow you to limit an expert’s opinion and conduct a tight cross-examination on pertinent issues.

Lawyers always seem reluctant to object during opening statements. If your adversary’s comment violates a pre-trial ruling, or the comment is prejudicial or inflammatory, you must object. In some instances where the comment is egregious, you should request a mistrial, or at a minimum a curative instruction. If you fail to object, you may be barred from raising the issue on appeal.

Exceptional lawyering begins with legal research. The Model Civil Jury Charge may not always address the specific claims and unique facts involved with your case. There may exist good reason to submit a proposed request to charge to the trial judge, incorporating the holding in controlling cases. The goal is to find key language from those cases that best define the law as applied to the facts of your case. Taking this step can likely affect the jury’s verdict.

Give thoughtful consideration to the order of witnesses you intend to call at trial. Think about the length of the trial and which witness you should strategically call to testify before others. In the right case, you may want to begin with a damage or liability expert. Always begin and end your case with strong witnesses. Those witnesses who are vulnerable to cross-examination should be called early on in the case. Consider calling the defendant as your first witness. They are usually unprepared!


Don’t let the insurance companies dictate the value of your client’s case. Find those “GEM” cases and thoroughly prepare them for trial. The results may surprise you.

In a construction accident case, make use of all available OSHA resources, including the unredacted report of the accident and the OSHA website. The OSHA findings regarding the accident are not evidential at trial, but the report will contain a treasure trove of information about facts surrounding the accident, potential parties, and witnesses. Additionally, the OSHA-issued violations can assist your expert in developing theories of liability. On the OSHA website, search the federal database for prior OSHA violations committed by the defendants. You may find that the defendants in your case have a pattern and practice of maintaining an unsafe workplace.

Pre-suit investigation is crucial for identifying claims and potential defendants. Pre-suit investigation is also crucial for developing theories of liability. A well-crafted open public records act (“OPRA”) request is a useful, inexpensive tool to gather necessary information. Use OPRA to request material from public entities, including police records, body cam footage property ownership documentation, construction permits, witness statements, and a myriad of other data. Obtaining records through OPRA in the investigation phase of your case assists you in determining the viability of your claims and housing your theories of liability week before suit is filed.

Adding fictitious defendants to your Complaint is required to prevent the statute of limitations from running against a potential unknown defendant. However, simply adding a “John Doe” defendant to the caption does not insulate you from the applicable statute of limitations. Describe any potential fictitious defendant as thoroughly as possible in your initial Complaint. Be specific regarding the description of the fictitious defendant and the fictitious defendant’s responsibilities. Thoroughness and specificity will permit the successful amendment of the Complaint if you uncover the identity of a necessary party after the statute of limitations runs.

Examine your adversary’s Answer when filed. The Answer may cause you to file an amended Complaint. It may provide the correct legal name of defendants and identify additional parties. Do not assume that the defendant’s affirmative defenses are boilerplate. Pay attention to the affirmative defense and tailor your discovery requests accordingly. The affirmative defenses may shed light on the defendant’s litigation strategy. Examples include: “Effects of Black Out,” “Acts of God,” and statutory immunity. Attacking the affirmative defenses in discovery may eliminate defendant’s key allegations and streamline settlements.


When noticing the depositions of corporate witnesses, send official notices to the corporate representative, even if the witnesses are identified by name in interrogatories. During the deposition of the corporate rep., explain to the witness the meaning of the corporate representative’s designation, have the witness state on the record that he or she agrees to be the corporate representative, and advise the witness that his or her testimony binds the corporation. Throughout your questioning, refer to the corporation directly. For example, ask “what was the defendant corporation’s policy to check for refreeze conditions after a snowfall?” At trial, use the corporate representative’s deposition as direct evidence that the corporation, not merely its individual employee, breached its duty.

During discovery, don’t simply accept your adversary’s claim that certain documents are privileged. “Privilege” is not a blanket excuse to withhold relevant discovery. Rather, it’s the burden of the asserting party to prove that withheld documents fall into a narrow privilege category. Request a privilege log and require your adversary to specifically identify which privilege your adversary asserts. If the withheld documents do not fall into the narrow privilege claimed, make the appropriate motion to obtain them. Withheld documents may hold the key to liability.

Use Requests for Admissions to bind your adversary early in litigation during paper discovery. Keep your Requests for Admissions simple and narrow, requiring your adversary to answer them directly, and simultaneously allowing a jury to understand them at the time of trial. When properly served, Requests for Admissions may eliminate peripheral issues and allow you to concentrate on the primary parts of the case. Once these undisputed issues are resolved, you can direct your focus, target your remaining discovery, and maximize your results.

In a case with disputed liability, conduct your depositions with the impending motion for summary judgment in mind. Know the legal elements required to prove your claim and tailor your deposition questions narrowly to those elements. Use third-party witnesses and party representatives to create short, concise soundbites that can be easily quoted at trial. Using the words of witnesses and party representatives to demonstrate to the judge that you satisfy the necessary elements of your claim and helps the court easily understand the major issues and rule in your favor at the summary judgement phase.

Request more specific responses to interrogatories when your adversary is evasive. Often, your adversary will avoid providing responsive answers to discovery, especially when those answers are beneficial to your case. Do not simply accept responses like “to be provided” or vague references to documents. Force your adversary to answer written discovery fully with specificity and file an appropriate motion if necessary. Obtaining responsive answers to interrogatories allows you to develop the theories of your case and bind your adversary to its answers.

Absent court Order, notices to produce are unlimited. Without abusing this liberal discovery tool, use it to your advantage throughout the litigation. Narrowly tailor notices to produce and demand that your adversary identify which documents are responsive to individual requests. Do not accept a “document dump.” Use responsive documents to mold your narrative without being bound to pre-determined, thought-out lawyer responses to interrogatories. When it’s time to depose party representatives, craft questions using these documents to lock your adversary into a position from which they cannot wiggle.

When serving supplemental interrogatory requests on your adversary, don’t waste them on items covered under the form requests. Instead, use supplemental interrogatories to ask questions specific to your case to develop your theories of liability. Answers to narrowly tailored questions bind your adversary early in discovery. These answers can be used to reign your adversary in if they stray from their initial position. Keep the interrogatories clear and concise with the intent to read the questions and answers to the jury at the time of trial.


Posing carefully framed rhetorical questions during closing argument is effective when the question is one that the jurors will probably ask when they deliberate. Remember, jurors are more vested in an outcome when they reach the conclusion on their own. Therefore, rhetorical questions should be used to persuade and evoke emotion, without telling the jurors what to think. Here’s an example:

While showing the jury a photo of your client, whose leg was amputated following hip replacement surgery due to the post-operative nurse’s negligence in failing to perform timely assessments, rhetorically ask the jurors “how much time went by as Ms. Simpson’s leg was losing blood flow, without any nursing assessment, before becoming necrotic, die and require amputation to save her life?”

This type of question empowers the jurors to reach your desired outcomes on their own, even though the answers are obvious.

To significantly maximize damages in a serious personal injury matter, you must show the jurors how to calculate damages. Recognized damages include 3 separate elements: (1) pain and suffering; (2) disability and impairment; and (3) loss of enjoyment of life. When the injury is claimed permanent, each of these elements are calculated from (1) the date of accident to the present and (2) from the present to your client’s life expectancy. A successful closing will lead the jurors to make individual calculations per injured body part for each of the 3 elements over 2 sperate time periods. For example, if your client injured her neck, back, and shoulder, the jury should be shown to make 18 separate calculations. Using this strategy will result in substantial jury awards.

Future life expectancy is best illustrated to jurors by looking at the past. For example, you represent a young adult, who is permanently injured in an accident, with a 50-year life expectancy. Emphasize the concept of time by giving examples of what life was like 50 years ago, i.e., Nixon was president, gas was 25 cents per gallon, the average cost of a house was 20,000.

In your summation, it is a good technique to go over the verdict sheet with the jury. Walk them through each question. Take the opportunity to explain what each question means and how the facts demonstrate what each answer needs to be. Don’t treat the verdict sheet as an afterthought.

In closing argument, do not violate the so-called “golden rule” by asking the jury to stand in the shoes of your client, in an attempt to get the jury to identify, relate and empathize with your client’s injury.

Avoid telling the jury in opening or closing statement, “what I say is not evidence.” Never undermine your own importance, credibility, or knowledge of the facts of your case.

To maximize your recovery in an injury case, you must educate the jury that each injured body part involves physical pain, immobility, and results in functional limitation. Tell the jury that each aspect of the injury should be evaluated and compensated separately.

In your opening statement, gain the jury’s confidence by telling them a “secret.” Getting the jury to believe that you are pulling back the curtain and revealing some important material fact that was discovered in the case will build an immediate trust between yourself and the jury. You can even communicate your secret by taking a few steps closer to the jury box and lowering the volume of your voice to a whisper. Here’s an example: “let me tell you a little secret. We found out that the defendant corporation created its own written policy, which if it followed, would have prevented Mary’s injury.”

In opening statements, talk to the jury in descriptive and colorful language. For example, rather than say “Ms. Smooth severely injured her forehead in the car accident,” detail how Ms. Smith’s head got smashed into the windshield causing the glass to spider and leaving her with a 6-inch open gash on her forehead.

You should reveal in your opening statement any material weakness in your case. If you fail to disclose it, you can bet your adversary will exploit the weakness, and you will look like you’re hiding the truth. By revealing the weakness, you mitigate the negative effect it may have on the jury.

In opening statements, don’t lose the jury’s attention by spewing every fact in your case. Focus on key issues and tell the jurors only those facts that support your message. Use visuals to emphasize the points. If the visuals include potential trial exhibits, you should obtain court pre-approval.

Telling a good story is the most effective way to communicate and engage the jury. Your story should be organized and make sense. Use plain ordinary language. Your story should appeal to the jury’s sense of right and wrong. Carry the themes of your story from opening through closing.

During your opening statement, enlist the jury in helping you reach the desired result. “Together we will investigate how ABC corporation violated its own workplace safety policy, which led to Mike’s horrific fall and tragic death.”

When presenting your case to the jury, use everyday language that jurors understand. For example, don’t assume that everyone knows words prior, subsequent, depict, or exacerbate. It’s better to use words like before, after, show and made worse. Also, don’t talk to jurors like a police officer: “the defendant’s vehicle was traveling in a southbound direction on Main Street, approaching the intersection of 1st avenue.” Remember to use simple words, phrases and colorful adjectives that bring life to your narrative and create visual images that connect with jurors.

Direct Examination

When presenting your case to the jury, remember that jurors connect with emotions as much as facts. While developing the facts, ask questions that elicit emotion. Here are some examples:

“As you saw the coming towards you, what was racing through your mind?”

“What were you thinking when the doctor recommended surgery to help with your pain?”

“How did it make you feel when you found out the bar served the defendant driver 12 beers?”

Without emotion, your case is dull, and the verdict will reflect that.

In a bone fracture injury case involving surgical implantation of medical hardware, have the testifying surgeon describe the procedure with exemplar tools, plates, and screws. Make blow-up prints of the x-ray negatives showing the hardware screwed into your client’s shattered bones.

Jurors will connect to your client’s depth of injury through details. Your inquiry shouldn’t stop at what life’s activities your client can no longer do because of the injury. You must go further. Genuinely ask, “how does that make you feel?” The unscripted response will reveal the emotional truth.

In a death case, have the surviving spouse or parent save the telephone voice messages as friends and family learn of the tragedy and express their shock, disbelief, and condolences. Replay key portions of these emotional messages during direct exam of the spouse or parent.

When trying a case with complex issues, only elect relevant and critical testimony in support of your proofs. Don’t ask questions or allow your witness to stray from the focused testimony needed to prove your case. Should your witness foo off-topic, gently interrupt the witness and repeat your question. Irrelevant testimony will not only confuse the jury or cause them to lose focus and give undue weight to peripheral issues. Jurors want to do a good job, but understandably can have a difficult time processing complex testimony and evidence. Don’t make it harder by muddying the waters with irrelevant and noncritical testimony.

Deciding whether to conduct re-direct of your witness may be the trickiest part of witness testimony. The purpose of re-direct is to be able to enable the witness to explain and clarify testimony which may have been weakened or clouded in cross-examination. It is not intended to be a recitation of your direct exam. In choosing to re-direct your witness, you should lay a foundation by referencing the cross-examination question or topic. Given that you are limited to asking only open-ended questions, you must consider that the unprepared answers you receive may only reinforce the successful cross-examination. In light of this risk, it may be better to ask no questions at all, or simply to ask a few clarifying softball questions and get the witness off the stand.

As trial lawyers, we must not speak beyond the understanding of the jurors. Speaking in lawyer talk or asking witnesses run-on questions will guarantee juror confusion. Your questions must be short and easily understandable. Use plain language, asking questions one after another in a staccato fashion. Whether conducting a direct or cross-examination, your purpose is to build the testimony, layer by layer, establishing each point clearly like a soundbite. Then know when to stop or go on to the next topic.

When examining any witness or party, use topic sentences to identify the subject matter for your line of inquiry. For example, “let’s now focus on the moment you first realized your apartment was on fire.”

During direct examination, stand beyond the last juror furthest from the witness stand. This will cause your witness to maintain eye contact with the jury while telling her story.

A hypothetical question is an effective tool used in direct or cross-examination for establishing or negating an expert’s conclusion or opinions based on relevant facts you select. As the questioner, you pick which facts to provide the expert. By controlling the facts, you control the expert’s conclusions, while at the same time highlighting those facts which support your proofs. Also, you control how the question is asked, including the pace of the question and intonation of keywords. This allows you to relay a sense of drama and action into the question.


When an adverse witness makes a prior inconsistent statement, point it out immediately. Contradictions weaken the witness’s testimony and undermine the defense’s overall credibility.

A hypothetical question is an effective tool used in direct or cross-examination for establishing or negating an expert’s conclusions or opinions based on relevant facts you select. As the questioner, you pick which facts to provide the expert. By controlling those facts which support your proofs. Also, you control how the question is asked, including the pace of the question and intonation of keywords. This allows you to relay a sense of drama and action into the question.

There are times when the testimony of a witness you’re about the cross-examine, whether fact or expert, appears impenetrable. What do you do? You must anticipate this before trial and prepare for peripheral examination. A peripheral cross-examination asks questions not directly pertaining to the issues in a case, but which are indirectly relevant. They can involve details of events, motive, bias, or recollection of other collateral facts. The goal is to obtain arguments you can use in summation to attack the witness’ believability. Here’s an example:

“Doctor, how could you not have asked to see the photos which show the horrific damage to the car?”

Try this technique when cross-examining the defense medical expert on the time it took to perform the actual physical exam. Using the expert’s report, have the expert explain how each body part was examined. Then, place a chair in front of the jury and have the expert re-enact the exam on you. Have the expert agree on the amount of time spent on each separate aspect of the exam, write each time down on a big board and add it up in front of the jury. Watch the jury react when the doctor agrees the entire physical exam took 1-2 minutes.

In a personal injury case, defense doctors often dispute the following: the nature of the injury, the causation connecting the injury to the accident, and permanency of the injury. In some instances, the defense doctor may confirm one or more of these damage issues, while disputing others. Where there is agreement, have the doctor concede the issue based on a reasonable degree of medical probability. When the defense rests, move for a directed verdict in your summation, and the judge’s finding as a matter of law may lead the jury to decide the remaining issues in your favor.

We’ve all come across situations where an adverse witness’s direct testimony is damaging, but not credible. If you believe the witness will exaggerate or elaborate on the testimony, you must question the witness through a lengthy cross-examination. Your goal is to show the jury that the testimony is ridiculous and not worthy of belief. Question the witness on each phase of the testimony in minutiae, probing for embellishment, memory lapses, inconsistencies, or memorized repetition. Find the hole and exploit them to your benefit.

Cross-examining an adverse expert witness can be difficult, considering it is unlikely you will ever get the expert to change his opinion. If the expert won’t change his opinion, then try attacking the facts upon which it is based. Question the expert using new or different facts that “might affect” instead of “would change” the opinion. The opinion will likely remain the same, but using this approach to methodically chip away at the expert’s credibility will show the jury that the adverse expert is not independent, but rather an advocate.

As trial lawyers, we must not speak beyond the understanding of the jurors. Speaking in lawyer talk or asking witnesses run-on questions will guarantee juror confusion. Your questions must be short and easily understandable. Use plain language, asking questions one after another in a staccato fashion. Whether conducting a direct or cross-examination, your purpose is to build the testimony, layer by layer, establishing each point clearly like a soundbite. Then know when to stop or go on to the next topic.

If an adverse witness insists on answering close-ended questions with a Niagara of words, ask the judge to admonish the witness to listen to the question and answer only the question asked.

There are times when you must rely on the defendant’s testimony to establish an element of plaintiff's prima-facie case before you rest. The strategic issue becomes whether to rely on the defendant’s admissions established during discovery and read them to the jury or call the defendant to testify live in your case-in-chief. If the defendant’s discovery admissions (i.e., interrogatory answers or depositions testimony) are unambiguous and lock-in the defendant on the issue in question, it may be more powerful to call the defendant to testify so the jury can hear the key admissions out of the defendant’s own mouth. If the defendant contradicts himself, you can always use the prior sworn testimony as a sword to impeach. Good examples when to call the defendant to testify may include issues involving the defendant’s prior notice, establishing the defendant’s policy/procedure, or the defendant’s contractual responsibility.

Sometimes an admission from an adverse witness can be pivotal to proving your prima facie case. It can be frustrating when the witness responds, “I don’t know,” “I don’t remember,” or “I don’t recall.” If this happens, don’t give up. Refocus your questioning based on “routine and habit.”

Here is an example: “Mr. general contractor, even though you don’t recall what you observed when you inspected the worksite the afternoon before the accident happened, what is your routine and habit when you arrive at a worksite and inspect for fall hazards involving your subcontractors?”

Obtaining needed admissions based on routine and habit can be used to prove a key element of your case by inference.

Don’t expect the adverse expert to change his opinion. Instead, attack the facts upon which it is based. Ask whether new or different facts “might affect” rather than “would change” his opinion. The answer may still be the same, but you’ll sound more reasonable than the expert.

Recognize that it may be difficult to directly attack the science supporting the expert’s opinion. Rather, focus the attack on the collateral issues which undermine the expert’s credibility and expose the expert’s bias.

Almost every opposing expert will have opinions that support your case. With this thought in mind, weaken the opposing expert’s damaging opinions by having the expert agree on undisputed facts and possible alternative explanations. Jurors will give weight to opinions based on possibility, even if not couched in terms of probability.

Cross-examination should always be considered with a specific objective in mind. Preparation is the key to making cross-examination appear easy. Preparation enables you to control the tempo and substance of your examination, without fumbling for documents or asking a rumbling series of irrelevant questions.

When cross-examining a witness, listen carefully to the answer. If you rush to the next question, you may miss the opportunity to exploit a self-inflicted damaging response.

When examining any witness or party, sure topic sentences to identify the subject matter for your line of inquiry. For example, “let’s now focus on the moment you first realized your apartment was on fire.”

Never browbeat or fight with an elderly or infirmed witness. Ask questions with courtesy and respect. Start your questioning while seated and ask the witness for permission to stand and approach.

In cross-examination, pare your questions down to a minimum, while connecting on your strongest points. Your goal is to narrow the issues to support your theory of the case.

A hypothetical question is an effective tool used in direct or cross-examination for establishing or negating an expert’s conclusion or opinions based on relevant facts you select. As the questioner, you pick which facts to provide the expert. By controlling the facts, you control the expert’s conclusions, while at the same time highlighting those facts which support your proofs. Also, you control how the question is asked, including the pace of the question and intonation of keywords. This allows you to relay a sense of drama and action into the question.

Try these witness control techniques to prevent the adverse witness from becoming evasive and non-responsive. When the witness asks you a question to avoid answering yours, respond – “I’m sorry, the rules of evidence don’t allow me to answer your question. If they did, I’d be happy to explain it to you.” When the witness provides a non-responsive answer, reply – “we’ll get to that later, but please answer the question I asked.” When the witness gives a rambling answer, say “is that a yes, or a no?” Using these techniques effectively will help reveal the bias of the adverse witness.

Presentation of Evidence

With today’s use of technology in the courtroom, you should accustom yourself to using a PowerPoint presentation throughout the trial, beginning with your opening statement. Using PowerPoint in opening also serves as your outline, without having to look at notes. The PowerPoint should include your trial themes, key photos, undisputed documents, and a chronology of medical treatment. Be creative with your presentation, focusing on font type, size, color, animation, and transition. In advance of opening, make certain you provide the court and your adversary with prints of your slides to avoid objections and more serious problems.

Include in your presentation evidence the jurors can touch and closely scrutinize, like blow-ups of photos or key documents, models, and exemplars. Use a white board to handwrite names, keywords, or a damaging quote from the testimony. When you mix-up modern technology with an “old-school” presentation, you keep the juror’s attention focused and enable them to connect to your story on multiple levels.

Demonstrative evidence brings your case to life and connects testimony to a juror’s real-life experiences. However, we must be sensitized to the reality that we all process information and learn differently. You should choose demonstrative evidence that appeals to all a person’s senses. Consider using visual, auditory, and tactile demonstrative evidence that repeatedly highlights your proofs.

The way we present information and demonstrate evidence in the courtroom has dramatically evolved over the decades with advances in technology. It has become routine to electronically display information to jurors. PowerPoint, graphics accompanying text, 3-D imaging, and computer animation is now commonplace. However, technology has its limitations and viewing a monitor or projection screen can become monotonous and desensitizing.

Courtroom Etiquette

Jurors are inquisitive and despite judicial admonition, they are still going on-line and researching the lawyers, parties, witnesses, experts, claims, facts, expert opinions, and the law. This problem leads jurors to consider things beyond the proof presented in the courtroom and has the potential to prejudice the outcome of your case. In an attempt to stave off this problematic issue, ask the judge to have each selected juror sign an agreed upon written pledge not to conduct an online search of any aspect of the case. This will not be foolproof, but it won’t hurt!

Always be respectful and courteous when addressing a trial judge. Refer to the judge as “your honor.” Ask the judge permission to approach a testifying witness. Don’t argue with the judge over a list ruling and never argue with your adversary in open court.

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