Over the past several weeks I’ve written about the admissibility logic I use in my trial consulting practice. Probably the most common thing trial lawyers do in court is present lay witness testimony. I recommend taking five steps as you prepare to question your lay witnesses at trial…
Create a table of contents: This is a good first step to organize your thoughts around the topics you’ll address. As our logic teaches, the primary purpose for introducing evidence is either to prove or disprove an issue framed by the pleadings. This may include damages. Your table of contents needs to anticipate the possible cross examination so that you can begin planning your re-direct examination as well.
Draft witness questions: While some attorneys like to wing it from an outline, I think the better practice is to write out the questions, at least initially. Failing to do so could risk a sustained objection e.g., a compound question. Sometimes you’ll need to lay a series of foundations to get to the ultimate factual point. If your client is the lay witness he or she also needs to know how you are going to ask the questions.
Link trial exhibits to the questions: Exhibits are critical, but don’t shoot for overkill. Introduce those exhibits you have to state a prima facie case or to advance your trial theme or story. Don’t tell that story three times.
Tie prior testimony to witness questions: You’ve got to anticipate impeachment. See if there are any testimony transcripts or non-sworn statements out there. Make sure your witness is familiar with his or her prior statement/testimony.
Identify the evidentiary problems: Now that you’ve outlined the direct examination, drafted specific questions and gathered relevant exhibits and impeachment material, you now have to anticipate the problems. Work through those if need be with a colleague or a consultant. You may have to call another or additional witness to solve your problem so the sooner you problem solve the better.
Preparing to present lay witness testimony at trial is a process that if pursued correctly can identify problems in time to solve them. The more time you give yourself to get this right the greater potential there is not only for avoiding mistakes but for presenting captivating testimony.
