I. Examination of Plaintiffs in Civil Rights Cases
A. Preparation
*Case Theory and Plaintiff Testimony
What need from witness?
*Strategy to Deal with Weaknesses
Best to front
*Identify strengths
What are important areas to get out
Prioritize
*Study deposition testimony, other statements
Plaintiff’s prior and other witnesses
*Discuss impeachment, explanations for discrepancies or deviations in Plaintiff’s prior statements or with other
witnesses
*Anticipate Cross
They will emphasize weaknesses
Bring weaknesses out but not first or last
Attempt to impeach credibility
*Both lawyer and client
Understand and empathize with client and story
B. Practice
*Client comfortable and at ease
*Consider practicing with client in the courtroom
*Consider practicing with other people present
*Important to understand each other’s language
*Not so sounds rehearsed, so you can engage in dance
*Prompt witness to bring out what you know is there and practice how to present it
* Practice cross-examination with witness
Discuss pace, listening to and understanding questions
Try out possible questions
How to deal with areas of weakness
C. Organize Examination
*Simple, understandable, logical flow
Chronological
*Areas of inquiry, not specific questions
Review elements of claims
Break up into episodes of story
Plan transitions to each new episode
Close one, break flow, start another
*Creativity
How to keep interesting
(15-20 minute attention span)
Use of exhibits, demonstrations
After first run through, to highlight not distract
*Anticipate objections
Know FRE, Motions in Limine rulings
Areas off limits and consequences
Admissibility of exhibits
D. Presentation of testimony
*Discuss with client how to present evidence,
i.e. if you say things this way, it will help the jury to understand what you really mean to say
*Client to view testimony to jury as if telling friend story of what happened to you
*Speak clearly, simply
Avoid so-called “powerless speech” hedging (“I think” “sort of) hesitation (“well” “um”) frequent use of intensifiers (“surely” “very definitely”)
*Consider posture, reactions, facial expressions, gestures
* Look at jury during testimony
*Manner of dress
Present client’s personality
Review wardrobe in advance
E. Execute Examination
*More it sounds like story the better
*Focus on Witness
Be interested in what witness says
Be empathetic
Witness to Dominate
Testimony from witness not examiner
Lawyer’s position
Maximize witness contact with jury, minimize lawyer
Change position to highlight important testimony, move in closer
Give witness time to fully answer, don’t interrupt
*Questions simple, direct, nonleading, no unusual, complex or highfalutin phrases
Assist telling of story
Have witness explain
Use introductory and transition questions
Easier to follow, retain, like headings to a brief
*Pace
To keep interesting
Slow down important/major information
Avoid unimportant testimony and tangents
Follow up with detailed questions on important matters
Change up: “Now think about question carefully and tell jury…”
[Experience: all know witnesses who can’t stay on point, maybe nerves]
Avoid sounding like going through a checklist
*Watch and listen to witness
Follow up on partial, incomplete, potentially misunderstood answers
Don’t be stuck to your outline/questions
May miss what witness saying
Respond to witness
*Watch Jurors
See how they are reacting to testimony
Told to focus on witness/not jurors
*End with a bang, a strength
Something important
Jury will retain what is most recent
F. Special Concerns
*Emotional testimony
Be authentic
Jurors may react negatively, undermine credibility and likeability
Don’t want to identify with victims, by now witness should be over
Fits in with “Reptile” but contrary to continuing damages
*Damages
Prison experience
PTSD
Relationships
II. Examination of Damages Witnesses in Civil Rights Cases
A. Preparation
*Case Theory
What need from witness
Depending on effectiveness of plaintiff
Testimony consistent with plaintiff, other witnesses
*Get to know witness
Talk about experience with plaintiff, impressions
Identify testimony
Use specific examples, anecdotes
(Experience: Avery and Harris, good chunk of time just getting to know witness and relationship to plaintiff in order to pull out what will be most effective, what aspect of damages they can speak to, can’t go in with preconceived notions, kid missing father)
B. Organize Examination
*Similar to above
Simple, areas of inquiry, creativity
*Get in and get out
C. Execute Examination
*Similar to above
*Elicit facts and details not conclusions
*Start and end with something interesting if possible, but keep entire testimony focused and interesting
*Focus on witness, simple questions, use pacing
Know well enough to adjust questions
*Don’t ignore jury
III. Redirect Examinations
A. Explanation of anticipated impeachment
B. Restate most important testimony
C. Only important issues
Attachments:
Direct of plaintiff William Avery in Avery v. City of Milwaukee
Direct of Avery’s aunt, damages witness
Wrongful conviction case
Direct of plaintiff’s public defender, damages witness
Malicious Prosecution case
Direct of Decedent’s sister in Gomes v. Lake County
Wrongful death in custody case
Sources:
Trial experiences and observations of the authors;
ProCLECenter, Client and Witness Preparation Strategies, Jesse Wilson, June 5, 2018
Fundamentals of Trial Techniques, 3rd Edition, Chapter IV Direct Examination, Thomas A. Mauet, Little, Brown and Company, 1992
The Trial Process: Law, Tactics & Ethics, Chapter 6 Direct Examinations, 7/31/02
Prepare your Plaintiff for Direct Testimony, A.H. Dudnik, Cleveland State Law Review, 1957, Engaged Scholarship@CSU