Trial Tactics from the Defense Perspective Tammy J. Meyer MillerMeyer LLP 9102 North Meridian Street, Suite 500 Indianapolis, Indiana 46260 (317) 571-8300 [email protected]Please Note: The author practices law in the State of Indiana, and therefore has cited many trial rules which apply to the practice in that jurisdiction. Readers are encouraged to carefully review the trial rules in their specific state or jurisdiction. Return to course materials table of contents
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Trial Tactics from the Defense Perspective
Tammy J. Meyer
MillerMeyer LLP
9102 North Meridian Street, Suite 500 Indianapolis, Indiana 46260 (317) 571-8300 [email protected]
Please Note: The author practices law in the State of Indiana, and therefore has cited many trial rules which apply to the practice in that jurisdiction. Readers are encouraged to carefully review the trial rules in their specific state or jurisdiction.
Tammy Meyer has tried numerous civil cases and she has experience in insur-ance coverage and environmental insurance coverage. Tammy has published numerous articles in local and national law journals. She speaks frequently for professional associations and serves as an instructor at several trial academies. Tammy is an active member of DRI, and isVice Chair of the Trial Tactics Com-mittee. She also participates in the Indiana Association of Defense Counsel, the Indianapolis and Indiana State Bar Associations, and the Alumni Board of the IU School of Law at Indianapolis. Tammy is a Distinguished Fellow of the Indi-anapolis and Indiana Bar Foundations, and a delegate to the State Bar.
Trial Tactics from the Defense Perspective v Meyer v 111
Trial Tactics from the Defense Perspective
I. Make Solid Decisions in the Defense Pretrial ...................................................................................... 113
A. Make Sense of the Use of Mediation and Arbitration to Reduce Damages ........................... 113
8. Handling and Introducing Exhibits ....................................................................................... 145
9. Effective Cross-Examination of Experts ................................................................................ 146
J. Objections .......................................................................................................................................... 150
7. Objections During Cross Examination of the Expert Witness ......................................... 157
8. Leading ........................................................................................................................................ 157
5. Demonstrations O’Connor v. State, 529 N.E.2d 331 (Ind. 1988). Demonstrations do not
have to be formal scientific demonstrations. They can be as simple as asking the witness to
demonstrate how the defendant waved the traffic by. Or, use other exhibits that have been
introduced for the demonstration. For example, ASir, please show us how the pallet jack
was sitting and how the plaintiff walked backwards into it. But, be careful; the glove may
not fit.
6. Diagrams
7. Charts
8. Maps
H. Opening Statement—Setting the Stage for a Successful Verdict
1. You Never Get a Second Chance to Make a Good First Impression—Ways to Ensure a Great Start
The first 30 seconds of opening statement are the most important. Rehearse it over and over
again if necessary, just to make sure it’s done right. The beginning of the opening statement has to be
simple, otherwise there is the risk of the “used car salesman syndrome.” If the theory of the case and
“theme” are not simple, the opening can be annoying and will probably irritate the jurors. None of the
jurors choose to be in the courtroom, they were subpoenaed. The last thing counsel wants them to do is
have to “work” to figure out what counsel is saying. Without a theory of the case being simple, the jury
may get lost in opening statement. Do not get “behind the 8 ball” in opening statement and play “catch-
Trial Tactics from the Defense Perspective v Meyer v 137
up” during the trial. It is unnecessary. Talk to people not affiliated with the practice of law. Ask what
they think about the case. Ask what they want to know about the case. Ask why they want to know what
they want to know. Listen to those opinions. Counsel is probably unable to think like these individu-
als. Seize this opportunity—it is like looking in the other team’s playbook before a football game. Unlike
most lawyers, these opinions will be short, sweet and to the point. Once equipped with this informa-
tion, counsel should prepare to deliver it succinctly to the jury, make a great first impression and ensure
a great start.
2. Compelling Openings That Make the Jury Want You to Win
Opening statement should be fact specific. Using general statements and
Anecdotes impersonalize counsel and the client, and will take away from believability. Preemp-
tively strike every piece of damaging evidence. Show the jury you are not afraid of anything, and have
a reasonable explanation for each and every piece of evidence which could damage the case. Leave no
stone unturned.
Remember the key things learned about each juror in voir dire. Keep that in mind and, if pos-
sible, use an analogy related to a fact or a personal experience of a juror to show how simple the case
theory is. Be careful not to oversimplify the case. Since this is opening statement, don’t argue. However,
explain the client’s position with enthusiasm.
Rebut the opponent’s case with specific facts that will be introduced into evidence, as well as
explaining adverse witnesses’ motivations to lie. In criminal cases, show the jury the alleged victim’s
motivation to lie or the law enforcement officers’ incomplete and/or sloppy investigation. If opposing
counsel overlooks evidence in his/her opening statement, pounce on it and explain what the evidence
will show with respect to each issue. Always put the “meat on the bones,” but make sure the “meat” is as
simple as the “bone.” If the opening statement is fact specific and convincing, it will make the jury want
you to win.
Explain that the client is a family person, if appropriate. Get that evidence in, preferably
through the witnesses with the most damaging evidence to the case. It is critical to demonstrate a cli-
ent’s human side, but all points gained are lost if the jury believes counsel is looking for sympathy. If
possible, get a “warm” story about the client before the jury. Remember, pictures tell a thousand words
and, if used correctly, they can personalize the client to the point of taking him/her completely out of
the courtroom setting, and into the jurors’ living rooms. And, of course, never, ever refer to the client in
a criminal case as the Defendant—he/she is not guilty, and that word says otherwise. Likewise, in civil
cases, avoid the negative connotation that comes with the word Defendant, but use the word Plaintiff
to your advantage. Never, ever, refer to your client as “my client.” Make the jury forget you are paid—
counsel is doing this because the client is in the right. Always use exhibits where/when possible. Poster
boards work fine, as do power point presentations. Visual aids/pictures really do say more than words.
Never use a prop, unless certain it will not cheapen the opening statement. Use the exhibits which will
be introduced at trial, if possible. Embrace all the exhibits that potentially hurt the case in opening
statement. Touch/handle the other side’s “evidence.” Say the “magic words” (which are always case spe-
cific) while touching the evidence. Always keep the theory of the case in mind, and tie it into what is
being said (without overstating it of course).
If there are no trial exhibits that help, create exhibits. Hire an investigator to take pictures of the
scene or draft something—anything—visual which helps the case. In cases where the primary evidence
against the client, or for the client, involves documents, use the documents and explain to the jury that
138 v DRI Annual Meeting v October 2010
this is the evidence, then attach a reasonable explanation to it. In closing argument, always come back to
the exhibits referenced in opening statement. By coming “full circle” with a compelling opening state-
ment, the jury will want you to win.
3. The Art of Telling the Full Story in Your Opening Statement
Always tell the jury in opening statement that they will be given the complete and entire pic-
ture, regardless of the burden of proof. Explain that without the full story, there is no way the jury can
make an informed decision and render a just verdict. Never tell the jury the opening statement is a
“roadmap.” Many lawyers do that, but it is overused. The roadmap must be in counsel’s mind so that
the opening statement is perfectly organized and the full story is told. Counsel has done all of the work,
and preparation necessary to give a cogent and persuasive opening statement—now it must be exe-
cuted. Grab the jury’s attention instead of telling them the opening statement is a road map of the evi-
dence. Jurors are not stupid. If the opening statement is complete, they will figure out it is a roadmap of
the evidence. Just tell the jurors what they will hear. Always include the good, bad and ugly. This is the
chance to rebut the negatives before they are presented to the jury.
It is a lot easier in state court cases, rather than federal, to add counsel’s touch of persuasiveness
to the facts. Once this is done, as the jury hears the evidence, the “stain” of anything negative has already
been removed. It is likely the jury will trust counsel (and counsel’s opening statement) either on a con-
scious or unconscious level. As counsel tells the full story, it is helpful to preface some facts with “the
evidence will show,” but do not do this too much. As counsel discusses the facts, pepper the opening
statement with adding in “... and that is reasonable doubt” in a criminal case or “... and that is why Mr.
Smith should prevail” in a civil case. This way, counsel links specific facts and/or evidence to the burden
of proof that the jury will hopefully decide in the client’s favor at the end of the case.
Do not have an objection sustained by the Court during your opening statement. Counsel does
not need a “point scored” against him during the few times counsel has full control of the courtroom.
Believe “that the evidence will show” what is being said—if counsel does not believe it, counsel will
never have a shot at convincing the jury to believe it. Make sure the client knows to believe it as well,
because if he/she does not look like he/she believes it, the jury never will. If counsel does this success-
fully, even if the jury disagrees with the position, counsel may win. How? In a criminal case, the pros-
ecutor did not meet his/her burden of proof beyond a reasonable doubt, and/or in civil case the burden
of proof was not satisfied.
Opening statements should not just be a roadmap of the evidence; it should be the “full story”
of the entire path to a verdict in the client’s favor. The art of telling the full story in your opening state-
ment will include the facts, the burden of proof applicable, and jury instructions (where appropriate).
Paraphrase the key jury instructions in opening statement. This will show the jury that counsel demon-
strated early on that the just and appropriate verdict is the one counsel is asking for in closing argument.
4. Importance of the Delivery of Your Opening Statement
A compelling factor to consider incorporating into the delivery of an opening statement is
clarity. Have a comfortable format. When the format is used, counsel will always be clear. A format for
delivery can be simple: grab the juror’s attention, convincingly state the client’s case, and why that posi-
tion is the correct one (insert the reasons here), present the facts from the client’s perspective, tell the
jury who lied or who “got it wrong,” then give a great “close” to the opening statement. Always address
and clear up anything that is even slightly complex. Take time and explain the process of how the sys-
Trial Tactics from the Defense Perspective v Meyer v 139
tem works (this is fact/case specific). If counsel has a format, the delivery will always be clear because
the presentation makes sense to counsel.
Never overstate the case. Counsel will automatically lose if this mistake is made. If you truly
believe less is more, this mistake won’t be made. Never repeat yourself if you “get stuck.” Once that is
done, the jury will undoubtedly think the tactic is “if I say it enough times maybe they will believe it.”
The point always is the client should prevail because (insert the reason(s) here). Meet the challenge of
saying and showing that in different ways without repeating. “Do not sell what’s already been sold.”
Give the jury the theory of the case succinctly and keep them interested in what is being said. Just give
the jury the facts, believable explanations, highlight the weaknesses in opposing counsel’s case, explain
the burden of proof, give a great close to the opening—then sit down. Find the appropriate balance -
never rush opening statement, but do not overdo it. Less is definitely more. In criminal cases, always
remember counsel is not proving innocence and counsel never wants the jury to think that you are.
Actual innocence does exist, and if it does in your case, the jury will figure it out. Many lawyers fall into
the trap of overstating their case when it comes to the burden of proof. In criminal cases, the burden of
proof is always on the State/Government. Show the jury why/how the client did not commit the crime
and that counsel is answering all of the allegations. Counsel is not proving anything. If counsel shows
the jury that he is “proving” his case, then counsel has overstated everything and the constitutional
advantage is lost.
Counsel must personalize his client. Have several conversations with the client. When engag-
ing in conversation with the client, counsel will pick up on those intangibles he otherwise would not.
Once that is done, counsel is armed with ammunition to convey this to the jury - ethically. Many times,
opposing counsel’s witnesses know the client on a personal level. This is a chance to reveal the positive
traits for the client, and rebut the negative ones (which usually come before the jury -whether or not
they really should). Also the jury will see how counsel interacts with his client. Never underestimate the
jurors’ “perceptiveness.” In a criminal case, if the client is charged with a violent crime, show the jury
through actions why they should not be afraid of him/her. In a civil theft case, do likewise, and show the
jury why he/she should be trusted. If the client has a nickname, somehow/some way, get it before the
jury (ethically of course). The above are helpful pointers for a convincing delivery of an opening state-
ment, but of course by no means, an exhaustive list. As in every aspect of the trial, believability to the
jury is the most important part of the delivery of opening statement.
I. Comprehensive Cross-Examination
1. Should You Always Cross-Examine?
One of the most effective ways of impeaching a witness at trial is through the use of deposi-
tions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly
impeach using depositions and inconsistent statements. This results in embarrassing situations for
those attorneys.
When a witness makes a statement in trial that is inconsistent with his or her deposition tes-
timony, first highlight the question that was answered differently at trial. Make sure that the trial testi-
mony being impeached is a direct inconsistent statement with the deposition given before trial. Then,
ask the following questions:
• You gave a deposition on (state the date)?
• A court reporter was present at your deposition?
140 v DRI Annual Meeting v October 2010
• You were sworn in to tell the truth? Just like today?
• You told the truth on that date?
• (If applicable) Your attorney was present at your deposition?
After you have set the foundation for the impeachment, then ask the witness the following
question: “You were asked the following question and gave the following answer?” At this point, read the
question previously asked and the answer given by the witness in the deposition.
A similar method may be used to impeach a person using an inconsistent statement in a docu-
ment such as an affidavit, sworn statement or letter. The trial attorney should first highlight the incon-
sistent trial testimony that will be impeached. Next, identify and authenticate the document that will
show the inconsistent statement given by that same witness. To establish the foundation necessary to
impeach an individual with the use of an inconsistent statement, the witness should be asked the fol-
lowing questions:
• You gave a statement to (person) regarding how the accident occurred?
• You gave that statement freely?
• XXX was present when you gave your statement?
• The statement was given on XXX?
• The witness can then be shown the exhibit and asked the following question: I show you what
has been marked as Plaintiff ’s Exhibit “A” for identification. This is a copy of your sworn state-
ment?
Finally, read the relevant portion of the statement that directly contradicts the trial testimony
of the witness. Impeachment through the use of depositions or documented inconsistent statements
should be accomplished in an organized fashion and should be performed smoothly and directly using
leading questions. The relevant pages and sections of the deposition should be marked and highlighted
beforehand so as not to fumble through pages or lose control of the witness. There is nothing more
impressive than to see an attorney properly impeach a witness through the use of inconsistent state-
ments in documents or in a deposition. It is a very simple procedure to learn and, once mastered, will
prove to be an effective means of cross-examining even the most “dangerous” witness at trial.
2. Developing Causes of Action and the Case Theme
• Determine what the client is suing for and who is being sued.
• What theory is the client promoting?
• Has counsel complied with the existing law and covered all applicable areas of law?
• Is the claim going to pass muster with a jury?
• Will the client survive the dreaded directed verdict?
After answering these questions, develop a theme that will be used in voir dire, opening, direct,
cross, and closing. The “theme” can be tested in depositions and before non-lawyers. The theme is to be
believable and emphasized at all stages.
3. Rules of Evidence You Need to Know
There is no substitute for a well-prepared lawyer, and to prepare for a deposition, trial, or other
proceeding which follows the strict rules of evidence, counsel must evaluate the case in terms of the evi-
Trial Tactics from the Defense Perspective v Meyer v 141
dentiary problems. Then, prepare for these problems with legal research and a strategy. Problems may
be encountered that are unanticipated or problems that were anticipated, but developed in other than
the manner in which they were encountered. The best weapon is thorough preparation. One of the big-
gest evidentiary issues to prepare for is hearsay.
a. Hearsay
Hearsay is an out of court statement, which asserts facts, and is offered in court to prove the
truth of the facts asserted. Buffking v. State, 700 N.E.2d 1147 (Ind. 1998). The statement can be oral,
written or nonverbal/conduct. General principles of hearsay are found in Ind. Trial Rules 801, 802, 803,
805, 806.
A statement is not hearsay if it is offered for a purpose other than to prove the truth of the mat-
ter asserted. If the statement is not one of fact, it is not hearsay. Questions, commands and requests are
not hearsay. Often times, opposing counsel will try to have hearsay admitted by using the response, “not
offered for the truth, just that the statement was made.” However, it is rarely contested that the statement
was made, and this is rarely a justification for admitting hearsay. If a statement is not being used for the
truth of the matter asserted, then it must be used for some other legitimate purpose. Legitimate purposes
other than to prove truth are: impeachment, rehabilitation, state of mind, identification, and notice.
A number of exceptions to the hearsay rule are found in Rules of Evidence 803 and 804. Know
these exceptions well, and keep a copy of the Rules nearby during trial.
Most hearsay exceptions are based upon the concept that the statement is otherwise reliable
and should be admitted. For example, the present sense impression exception is permitted because a
person is not apt to fabricate a statement made while an event is happening because there is no time for
reflection. The same is true with excited utterances. Similarly, statements of physical condition made
to a doctor for the purposes of treatment are deemed reliable because one would not ordinarily lie to a
doctor when seeking treatment. Likewise, for dying declaration, one is considered to make reliable state-
ments when he is at the “doorway of meeting his maker.”
Under Ind. Evidence Rule 801(d), certain statements which might appear to be hearsay are
allowed to be used as substantive evidence. Prior statements of a witness are allowed to be used as sub-
stantive evidence if:
(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning
the statement, and
(2) the statement is:
(A) inconsistent with the declarant’s testimony and was given under oath subject to the
penalty of perjury at a trial, hearing or other proceeding, or in a deposition; or
(B) consistent with the declarant’s testimony, offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive,
and made before the motive to fabricate arose; or
(C) one of identification of a person made shortly after perceiving the person; or Ind.
R. Evid. 801(d)(1).
Also, prior statements by a party opponent may be introduced as substantive evidence if:
The statement is offered against a party and is:
(1) the party’s own statement, in either an individual or representative capacity; or
(2) a statement of which the party has manifested an adoption or belief in its truth; or
142 v DRI Annual Meeting v October 2010
(3) a statement by a person authorized by the party to make a statement concerning the sub-
ject; or
(4) a statement by the party’s agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship; or
(5) a statement by a co-conspirator of a party during the course and in furtherance of the con-
spiracy.
Ind. Evidence Rule. 801(d)(2).
It is not enough for counsel to be conversant with these rules. If the case requires expert testi-
mony, insure that the expert knows the parameters and limitations of the rules as well. As the attorney,
it is counsel’s job to insure that all of the expert’s testimony, which is essential to the case, makes its way
to the jury. A failure in this regard is generally due to a lack of proper preparation. The converse is also
true. Knowing the full extent of the limitations placed by the hearsay rules may enable the prepared
lawyer to keep damaging evidence from the jury.
b. Other rules
Several of the Indiana Rules of Evidence frequently come into play during cross examination.
The following is a list of some Rules that commonly arise.
— Rule 611(c) sets forth the rule permitting leading questions on cross-examination.
— Rule 611(a) gives the judge discretion to control the cross-examination and prevent harass-
ment of witnesses.
— Rule 402 gives the judge discretion to exclude prejudicial, confusing, or cumulative evidence.
— Rule 401 defines relevant evidence. Often objections are made by opposing counsel during
cross-examination that the question seeks inadmissible evidence.
— Rule 401 provides that “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence” is relevant evidence.
— Rule 403 provides that if the prejudicial impact of the evidence solicited on cross is not out-
weighed by the probative value, the evidence may be excluded.
— Rules 404, 405, and 608 address when the character of a witness is admissible. This is often
important as often times a witness’ character will be attacked during cross.
— Rule 407 provides that evidence of subsequent remedial measures is inadmissible. This often
comes up during the course of cross-examination.
— Rules 609 and 613 deal with impeachment. Impeachment is at the heart of all cross-exami-
nation.
— Rule 609 provides that a witness may be impeached by evidence of conviction of a crime.
— Rule 613 allows impeachment by use of a prior statement.
— Rules 701-705 govern expert testimony.
It is critical that counsel has a thorough understanding of the Rules of Evidence. Study the rules
of evidence, and keep a reliable practice aid handy at all times during trial.
Trial Tactics from the Defense Perspective v Meyer v 143
4. Plotting Your Strategy Beforehand
Narrate your drive. While driving to work, use leading questions to narrate the trip. Look out
the window - what do you see? Describe it with leading questions:
• “I’m driving.”
• “On Elm Street.”
• “Heading southbound.”
• “To my left is a car dealership.”
• “A Ford dealership.”
• “Their parking lot is filled with vehicles for sale.”
• “New vehicles are parked to the left.”
• “Used vehicles are parked to the right.”
• Etc...
Cross-examine your cat. As I mentioned earlier, it’s not normal to ask leading questions.
Practice. One of the best ways to do that is to cross-examine your cat or something else that
won’t understand what you’re doing. If counsel attempts to practice by asking her husband or friend
leading questions, do NOT hold the author responsible for the inevitable breakup that follows! Prac-
tice on your cat, an inanimate object, or anything else that won’t get upset by this style of questioning,
because the witness would only respond “yes” or “no” to the questions anyway.
5. Selecting an Effective Sequence for Cross-Examination
Some of the most common ways attorneys alienate the jury during cross examination:
(A) Demanding “yes” or “no” answers. During cross-examination, counsel wants to lock the
witness into “yes” or “no” answers. The answer, however, usually sounds like this: “Well, yes,
but...” Then the attorney cuts the witness off, saying, “You must say ‘yes’ or ‘no;’ you can’t
explain your answer.”
When that happens, jurors get offended. In a normal conversation, one is not limited to “yes”
or “no,” he’d be given a chance to explain the answer. When lawyers curtail the answers, jurors
sense that the lawyer isn’t playing fair. Of course, there are times when a “yes” or “no” answer is
needed, and there are several techniques that can be used to limit a witness’s answers to “yes”
or “no” without alienating the jury. But evaluate each witness carefully. Ask if the witness is
honestly trying to answer the question, or if he’s trying to be evasive. If he’s honestly trying to
answer the question, counsel will appear unfair if the witness is cut off. Instead, ask shorter
questions and phrase them more carefully. Counsel will get more single-word responses, and
won’t alienate the jurors.
(B) Quibbling over minor details.
When arguing over minor points, counsel risks losing credibility with the jury. Analyze the
cross-examination and ask, “What are the most important points I need answered?” If the
answer doesn’t fall into one of those major points, counsel probably doesn’t need to quibble
with the witness. If the witness said “3:32 PM” at his deposition and says “3:34 PM” from the
witness stand, is that worth an intensive cross-examination? Depending on the trial, it might
144 v DRI Annual Meeting v October 2010
be, but best to show the jury that it’s a major detail before starting down that path. Pick your
battles. When fighting over minor details, counsel usually loses more than he gains.
(C) Doing a “cross” cross-examination.
Novice cross-examiners get angry with witnesses. They treat the witness as a mortal enemy,
someone to be left bloodied, beaten, and defeated on the witness stand. Expert cross-examin-
ers know better. They realize that there’s almost never a need to become angry with a witness.
When counsel finds himself getting upset with the witness, pause for a moment and take a deep
breath. Don’t let emotions get in the way. If anyone needs to get angry at the witness, let the
jurors get mad at him. Don’t steal their righteous indignation by attacking the witness. Remain
calm, be a professional, and let the facts, rather than emotions, guide the cross-examination.
(D) Thinking that everyone’s a liar.
Many inexperienced attorneys think that for their cross-examinations to be successful, they
must crush the witness and expose him as a liar. In truth, most jurors aren’t that willing to
believe that a witness is lying. In their experience, most people are good and honest, so when
witnesses promise to tell “the truth, the whole truth, and nothing but the truth,” they probably
do, right? When organizing a cross-examination along the lines of “this scumbag is lying to
you,” be able to deliver the goods. If not, counsel will risk raising the jury’s ire. A better way to
organize cross-examination is to start from the presumption that the witness is mistaken or is
relying on bad information. Jurors relate to that concept much more easily.
As the examiner, very special powers are gained during cross-examination. Counsel can force
someone to answer the questions. Through the use of leading questions, counsel can put words in their
mouths. And counsel has the power to talk about embarrassing impeachment material, ranging from
criminal convictions, to lies, to (if appropriate) sexual indiscretions, alcoholism, or drug addiction.
All of these powers can be used effectively to reach the truth during cross examination. But,
one of the dangers of cross-examining witnesses is that jurors usually identify with the witness, rather
than the attorney. When the jurors walked into the courtroom for jury selection, they too, were on the
receiving end of the questioning process. They may identify with the person who’s forced to answer the
questions, rather than with the person who asks the questions. That means that they can feel counsel is
abusing power simply because counsel is aggressively cross-examining a witness. Since the jurors may
identify with the witness, and not with counsel, the most important thing counsel must do when exam-
ining the witness is to be polite. If counsel is going to be the guide they can trust, counsel can’t suddenly
take off the guide hat during cross examination.
Just because he’s charged with a crime doesn’t mean counsel can cross-examine him differently
than any other witness. Don’t raise your voice or lose your cool...even if the witness lies straight to your
face. Treat the witness with respect, even when he hasn’t earned it. Always take the high ground. When
the witness quibbles or fights, don’t lower yourself to his level.
6. Taking Control of the Cross-Examination
Tell a story. Use leading questions to tell a story. It might be the client’s story, the story of
missed opportunities (what else could the witness have done or should the witness have done?), or
the story of impediments to observation (what did the witness misread, fail to observe, or neglect to
observe?) There are numerous stories to be told - pick the story, and then tell it with leading questions.
Trial Tactics from the Defense Perspective v Meyer v 145
Practice by telling the stories already known. Counsel represents the Three Bears, and has the
opportunity to cross-examine Goldilocks. What story will be told through leading questions? Cross-
examining the Big Bad Wolf, can counsel tell a story from the Three Pigs’ perspective? Or, cross-examine
a favorite movie villain. Practice telling stories with leading questions until it becomes second nature.
One fact per question. Only ask for ONE fact per question. Examine each question. How many
facts does each question request? If counsel asks for too many facts per question, it gives the witness
room to escape. If counsel asks for only one fact with each question, counsel will tell a more effective
story. Limit questions to ONE fact per question. Drop the taglines. Most attorneys add taglines to their
questions (“...didn’t you?” “...is that not true?” “...correct?”), but they are probably not needed. Use tone
of voice to indicate that the statement is really a question. Although some judges require adding taglines
to create a “proper” leading question, most will not. If they do, consider using taglines for the first few
questions, but then dropping them once the witness gets into the proper rhythm. Here is the rhythm
to develop: Counsel asks a question, the witness says “yes” or “no,” and then repeat as necessary. Once
counsel develops a command of leading questions, something amazing will happen. The witnesses stop
evading questions. Counsel will tighten the cross examinations. Best of all, jurors will look to counsel
for the answers during cross examination.
7. Destroying Safe Havens
“Quibble words”
When cross-examiners ask questions containing quibble words, they provide witnesses with
easy escape routes. Quibble words color the testimony, ask for opinions, or taint answers to favor the
questioner’s position. Although quibble words can take any grammatical form, they are typically modi-
fiers, such as adverbs or adjectives. Here are some examples of questions asked with quibble words.
— “You went to the store quickly, didn’t you?”
— “You hit the man with a stick repeatedly, correct?”
— “Mr. Uhmlaht hated you a lot, didn’t he?”
Each of the highlighted words modifies the witness’s response to favor the attorney’s case. They
color the testimony. And, they’ll become the bones of contention when the witness answers the ques-
tion. The most common quibble words are adverbs, so focus attention there. Review the rough draft of
cross-examination questions. Review the language. Hunt for the adverbs. Strike it from the page. These
are the words that cause the most contention between the questioner and the witness. Every time an
evasive witness hears an adverb, he has the opportunity to argue with the questioner Quibble words
give the witness room to honestly argue with the questions. Take a moment to place yourself in the wit-
ness’s shoes. If you absolutely, positively did not want to answer the question, to which words would
you take exception? With which words would you argue? These are the quibble words. These are the
words with which the witnesses will find contention. Eliminate them.
8. Handling and Introducing Exhibits
Demonstrative evidence is used as an illustrative aid to testimony. Demonstrative evidence
includes diagrams, charts, models, graphs, computer generated simulations, animations, etc. These aids
to testimony may help the jury understand the witness’ oral explanations. In themselves, they don’t pro-
vide the basis for inferences; they simply assist in communicating information from the witness to the
jury. Illustrative aids don’t have to be admissible in evidence. Authenticity, i.e., that the item is in fact the
146 v DRI Annual Meeting v October 2010
real item in question, is not an issue when you are dealing with demonstrative (illustrative) evidence.
The demonstrative or illustrative aid to testimony will have to be authenticated in the sense that a wit-
ness will have to testify: (1) what the demonstrative or illustrative exhibit portrays or represents and (2)
that such exhibit will aid the jury in understanding what the witness will be trying to explain to the jury.
The true purpose of the demonstrative exhibit is to help explain the testimony of a witness
9. Effective Cross-Examination of Experts
Preparing the Cross of the Opposition Expert:
• Try to determine the expert’s previous relationship with any persons associated with the
opposition, such as experienced prosecutors working with crime lab personnel for long peri-
ods and opposing counsel having exclusive relationship with IME doctors. Remember, there
may also be social friendships involved.
• As counsel interviews/deposes the opposing expert, think about developing facts that may
provide one or more of these attack points:
— The expert himself
— The expert’s technique
— The facts and assumptions involved in the expert’s opinion
— The manner in which the expert applied the theory or technique
— The ultimate conclusion or inference that the expert draws
• Get a copy of the opposing expert’s publications. Read them. Understand them. Ready your-
self for cross-examination. When the opposing expert testifies inconsistently, impeach him
with his own writings as prior inconsistent statements. When the opposing expert does not
mention a relevant subject in his testimony, but his publications contain statements that are
favorable to your position, show him his own publication, ask if it is a reliable authority, and
when he says it is, offer the favorable portion as a learned treatise, and read it to the expert.
[The preceding suggestion only works if there is nothing damaging in the portion of the
learned treatise not offered. For if there is such damaging information, the opposition may
offer it under the completeness rule 102.
• Independent experts typically have web pages where they tout their services. Check the oppos-
ing expert’s web page. Look for puffing (overblown claims) that can be used for impeach-
ment.
Cross examination of the opposition’s expert, like cross of any witness, can be of two types: (1)
Supportive and Concession Based - here the cross-examiner seeks to obtain helpful concessions from
the opposing expert, or (2) Discrediting - here the expert’s credibility is attacked. The rules of cross-
examination and impeachment apply to expert witnesses in the same manner that they apply to non-
experts. The only additional mode of impeachment available to those who cross-examine an expert is
by way of challenging the witness with statements contained in a learned treatise. A discrediting cross-
examination may focus on factors such as the following:
• Bias or fees or prejudice
• Reliance on facts and/or data that are not credible
• Lack of thoroughness in gathering and reviewing information
• Failure to prevent contamination and/or corruption of samples
Trial Tactics from the Defense Perspective v Meyer v 147
• Insufficient testing
• Subjective nature of the opinion
• Differing opinions within the field
• Other likely causes
As a cross-examiner, counsel will not be able to change the opposition expert’s opinion.
Instead, attack the opinion by revealing its deficiencies. Instead, take the opposition expert apart by
undermining his education, his experience, his examination, and his explanation.
Tip: When deposing the opposing expert, try to get him to admit the competence of your expert.
Planning for cross-examination at trial should fall into place if counsel has adequately pre-
pared before trial. By the time of trial, counsel should know the strengths and weaknesses of the case.
He should also know the strengths and weaknesses of the opposing expert’s opinions. Focus on the
weaknesses for purposes of cross examination. Never enhance the opponent’s case by emphasizing its
strengths. While every trial attorney has his own style, the following guidelines should help to insure a
solid cross-examination.
(A) Despite the stress and excitement of cross-examination, the attorney must:
(i) stay in control;
(ii) have all materials ready and at hand;
(iii) have a previously prepared list of points to be made on cross-examination of each wit-
ness;
(iv) be prepared to back up each point to be made on cross-examination with direct testi-
mony;
(v) prioritize the points to be covered and spend appropriate time on each point in order
of strength;
(vi) know what the witness will answer before asking the question;
(vii) ask to examine all notes that the doctor brings with him;
(viii) don’t feel the need to cross-examine every expert. If you feel that the expert did not
damage your case too much, then do not give him the opportunity to hurt your case dur-
ing cross-examination
(ix) the cross-examination should flow from one in logical sequence from one subject to
another.
(B) Some things to try to reveal if possible are:
(i) the doctor who only appears for plaintiffs
(ii) the doctor is an academic with little practical experience
(iii) the doctor has never personally seen the patient
(iv) the doctor never saw the plaintiff before the injury for comparison purposes
(v) the doctor’s fee is outrageous,
(vi) the doctor’s license has been suspended or he has had malpractice suits against him
The cross-examination of medical experts is one of the most challenging cross examinations
that can be encountered. Medical experts are often evasive on the stand, and the technical nature of
their testimony mandates that attorneys prepare adequately. Cross-examination of medical experts is a
learning process, and with hard work and experience, counsel can learn to make the cross-examination
of medical experts a strength for the client’s case.
a. The Medical Expert
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The cross-examination of the medical expert witness is similar to the cross examination of a lay
witness. Basic rules such as asking questions clearly and politely, making good use of leading questions,
insisting on questions being answered, and using a firm, authoritative voice should be followed. However,
the effective cross-examination of the medical expert witness also requires special care and preparation.
As a result, this section will not reiterate the basic tenets of cross-examination, but rather will focus on
the special challenges that arise in the context of the cross-examination of a medical expert witness.
(1) Preparation
The following steps should be followed to prepare for the doctor’s deposition.
(A) If an initial review of the medical records suggests that counsel might need an expert of his
own, hire a medical expert as soon as possible. Counsel’s own expert will not only provide
important testimony, but will also help to educate counsel and provide insight for cross-
examination of the opponent’s medical expert.
(B) Learn the identity of the medical expert as soon as possible. Interrogatories are a useful
tool for this purpose.
(C) Obtain the curriculum vitae for all medical experts. Consider contacting the doctor’s for-
mer employers to determine the doctor’s qualifications. Take a look at any publications
attributed to the doctor.
(D) Search for previous depositions or trial testimony for the doctor. Start the search within
your law firm, then move on to brief banks, or other local counsel. Each deposition should
be analyzed. It is important to know both the good and bad of each doctor. If a doctor has
impeccable credentials, then the best cross examination is probably a short one.
(E) Make sure to have all test results, x-rays, etc. that the doctor relied on prior to the deposi-
tion or trial.
(F) Determine whether the doctor consulted with any other specialists. If so, get copies of these
consultation reports.
Take the doctor’s deposition. Use your judgment when taking the deposition. You may or may
not want to tip your hand as to potential weaknesses in the opponent’s case in the deposition. The ques-
tions asked depend on what counsel is trying to accomplish in the deposition.
b. The Scientific Expert
Cross examining the scientific expert is substantially similar to cross-examining the medical
expert. However, there are some issues that are more likely to come up within the context of cross-
examination of the scientific expert. One of the issues is whether or not the witness is an expert. Are
they experts? Scientific experts can come in the form of vocational rehabilitation experts, engineers,
accident reconstructionists, and many other forms.
(1) Daubert and its progeny
(a) District Court is the gatekeeper in admission of expert testimony
(b) Court must determine whether the expert’s testimony pertains to scientific knowledge
that requires the District Court to consider whether the testimony has been subjected
to the scientific method and the Court must rule out subject belief of unsupported
speculation.
(c) Non-exclusive list of factors which District Court should consider when making this
determination is:
Trial Tactics from the Defense Perspective v Meyer v 149
• Whether the theory could be and has been tested.
• Whether the theory has been subjected to review and publication.
• The known or potential rate of error.
• General Acceptance of the theory in the scientific community.
c. Other Experts
Most trials require the introduction of, and therefore challenges to, evidence introduced by and
through expert witnesses. Typically, expert opinion evidence will be extremely important due to the
powerful effect if will have on the trier of fact, be it the Court or a jury. The following are general points
regarding obtaining and examining experts at trial:
(1) Retain an expert that clearly knows their field and who has credentials in the area.
(2) Retain an expert that can communicate what he has to say in a clear and cogent fashion.
(3) Goals in introducing expert testimony at trial:
(4) Focus on credibility of your expert;
(5) Allow the expert to educate the trier of fact;
(6) Allow the expert to persuade the trier of fact;
(7) Focus on what your expert must testify to for you to make a submissible case;
(8) It is important to use exhibits while examining your expert witness —allow the expert to
teach the trier of fact with the exhibits; and
(9) Anticipate and diffuse points of attack against your expert on cross examination.
d. Structure of Direct Examination of Expert Witness:
(1) Establish the special qualifications the expert has to render his/her opinion;
(2) Review what the expert has done to arrive at opinions/conclusions;
(3) Educate trier of fact regarding standards used by expert in rendering opinion;
(4) Ask the expert to “please confine all opinions rendered to a reasonable degree of medical
certainty”; and
(5) Ask the expert for his/her opinion and then allow the expert to narrate/elaborate on the
opinion.
(6) Structure/Important Points on Cross Examination of Expert Witness:
(a) Do not assume that the opposing expert is completely adversarial, determine what can
be obtained from the opposing expert to support his case;
(b) Do not try to “take on” the expert in his/her field of expertise;
(c) Always challenge the facts that form the basis of the expert’s opinion;
(d) Always develop the bias of the expert, but try not to do so in an adversarial fashion;
(e) Do not attack an opposing expert in areas that your expert is also subject to attack;
(f) Always develop the areas of disagreement between opposing experts;
(g) Always use short, focused questions to maintain control over an opposing expert wit-
ness; and
(h) If available, use collateral sources to impeach
150 v DRI Annual Meeting v October 2010
Preparation of expert witnesses for testimony, and preparation for cross-examination of
opposing expert witnesses is absolutely critical. Always be completely aware of the role played by the
expert witness in the presentation of a client’s case, and the necessity of questioning expert testimony
that will be used by an opponent.
J. Objections
1. Preliminary Issues
Making and meeting objections during the examination of a witness is perhaps the most diffi-
cult trial skill to master. We are taught as children not to interrupt and to be quiet when others are talk-
ing. To the contrary, an objection is an interruption. In fact, counsel is asking the judge to tell opposing
counsel to “stop”. An objection involves a short, concentrated exchange, requiring substantive, tactical
and technical questions to be solved within a moment. Counsel must argue succinctly how and why
the evidence is proper or improper. The speech should be anticipated, prepared, polished and delivered
convincingly and accordingly.
One key to mastering objections is in recognizing “buzz words” (words or phrases that an expe-
rienced trial lawyer is conditioned to know are objectionable) and reacting to them in a timely fashion.
This can only be done through experience (not through a textbook - or a seminar). However, learning
the rules, studying, attending seminars, and watching others try cases, combined with hands on experi-
ence, will result in mastering the essential trial skill of objecting.
a. When to Object (Whether or not to Object)
Many times an objection may be proper but not wise. Instantaneous decisions must be made as
to whether or not the objection should be made at all. Most times, jurors do not like objections, unless
they do not like the witness or the opposing lawyer. When possible, make pretrial motions in limine,
object outside the presence of the jury, or object during a side-bar conference. Warn the jury during voir
dire that you may be objecting and that such is required by the Rules of Evidence and to properly repre-
sent your client.
If the answer is not going to hurt your case, don’t object. Unless, however, your objective is to
interrupt the flow. An objection can be used as a tactical device as it interrupts the flow and pace of the
testimony. However, have a valid basis for the objection!
b. How to Object
(1) Timeliness
Evidentiary objections must be timely made. Rule 103(a)(1). That means, before the answer is
given. Normally, the objection should be stated immediately after the question, and before any answer.
However, if the question itself is prejudicial, jump in—don’t wait—interrupt! In fact, keep interrupting,
asking for a sidebar on your way to the bench. It could avoid a mistrial. If a speedy answer is improper,
and made before or during an objection, object immediately and move to strike that portion that got
before the jury if the judge sustains your objection. Counsel may also seek to have the jury admonished
(instructed not to consider) and an additional jury instruction prior to deliberations would also be in
order.
c. Be Specific
Objections must be specific. Rule 103(a)(1). Assert all possible grounds for objecting at the
time you object. Before ruling on objections, judges often ask attorneys for a more in-depth explana-
Trial Tactics from the Defense Perspective v Meyer v 151
tion of why the objection should be sustained in the context of the trial proceeding. Therefore, have a
clear understanding of all objections in order to engage in a meaningful discussion with the judge when
asked why the objection should be sustained. The judge may find one basis improper and another of no
consequence.
The objection should be specific enough to alert the judge to the proper course of action and
to enable the opponent to obviate the objection, if possible. What constitutes a “specific ground” varies
with the situation. Normally an objection suffices without any citation of authority, though as a prac-
tical matter rattling a rule or precedent at the judge may improve the objector’s chances of getting the
evidence excluded and thus eliminate any need to preserve error for appeal.
d. The Mechanics
Don’t start with a speech. Start by saying “Objection.” Then, state the specific reasons, rule, etc.
for the objection. If your opponent gives a speech instead of a proper objection, move to strike. And,
if it continues, ask that he/she be admonished. This is not to say, however, that points about your case
can’t be made during the objection. They very well can be.
Don’t start by explaining how you’d like to object, the judge may have a clever response:
Counsel: “Your Honor, I’d like to object.”
Judge: “That’s wonderful, counsel. When you do I will rule on it. Move along.”
or
Counsel: “Judge, I think he’s leading the witness.”
Judge: “Very well, thank you; Your thoughts are on the record.” “Let me know if you ever
have an objection.”
Normally, counsel should stand up when making an objection. Look confident, assertive and be
direct. When citing to a Rule of Evidence, cite the Rule number and pick up your Evidence Handbook.
You at least look to the jury like you know what you are doing.
Talk to the judge, not the witness or your opponent. Most judges do not permit counsel to
address anyone but the Court.
Make sure to get a ruling. If counsel does not get one from the judge, ask for it. If you don’t get
one and you don’t ask, no error is preserved. U.S. v. Griffin, 818 F.2d 97 (1st Cir. 1987).
When responding to objections, stand up to signal first that you want to respond, and second
that you are confident in what you are saying.
e. Preliminary Questions
If a line of inquiry is inappropriate, or that by questioning the witness further an objection
to the testimony or exhibit can be made, move for leave to ask preliminary questions to formulate the
objection. Sometimes, damaging cross examination can be done at this juncture.
f. Continuing Objections
If there is an objection to a series of exhibits, or an entire line of questioning, ask the court
for permission to enter a continuing objection. Don’t be a pest! However, remember that the continu-
ing objection must be specific. See, State v. Churchill, 646 P.2d 1049 (Kan. 1982). A continuing objec-
tion that lacks the specificity required by Rule 103 will not preserve error. A continuing objection only
preserves the ground specified; if a different ground emerges in subsequent questions, a new objection
asserting that ground must be interposed.
152 v DRI Annual Meeting v October 2010
g. Waiver
If counsel fails to object, he cannot complain on appeal that the admission of the evidence was
improper unless it was “fundamental error.”
If an objecting party offers similar evidence, the issue is waived. See, St. Louis & S.F. Ry. Co. v.
Sullivan, 48 P. 945 (Kan. App. 1897). Your opponent has opened the door!
Likewise, if an objecting party did not object to similar evidence, the issue is waived. Id.
h. Offers of Proof
When your opponent objects to your evidence, counsel may need to make an offer to prove.
This is merely a way of placing the excluded evidence into the record for appeal. See Ind. Trial Rule
103(a)(2). General conclusory summaries are not sufficient. Be specific about what the evidence would
be if admitted. Counsel can make the offer orally, it can be in writing, or it can come directly from a
witness or an exhibit.
2. Hearsay Evidence and Its Exceptions
a. What Determines Hearsay vs. Non-Hearsay
Hearsay is an out of court statement, which asserts facts, and is offered in court to prove the
truth of the facts asserted. The “statement” can be oral, written or nonverbal/conduct. General princi-
ples of hearsay are found in Ind. Trial Rules 801, 802, 805 and 806.
If the “statement” is not one of fact, it is not hearsay. Questions, commands and requests are
not hearsay. Further, only statements of fact which are offered for their truth are hearsay. Some attor-
neys try to get all hearsay in by using the response, Anot offered for the truth, just that the statement
was made. However, it is rarely contested that the statement was made. Legitimate purposes for state-
ments used other than for their truth are:
— impeachment
— rehabilitation
— state of mind
— identification
— notice
b. Blocking Unreliable Hearsay
Most hearsay exceptions are based upon the concept that the statement is otherwise reliable
and should be admitted. For example, the present sense impression exception is permitted because a
person is not apt to fabricate a statement made while an event is happening because there is no time for
reflection. The same is true with excited utterances. Similarly, statements of physical condition made to
a doctor are deemed reliable because one would not ordinarily lie to a doctor if they are seeking medical
treatment. Likewise, for the dying declaration, one is considered to make reliable statements when he is
at the doorway of meeting his maker. However, to block unreliable hearsay you must go to the necessary
foundations and show, for example, time for reflection, ulterior motives, etc.
Additionally, if a lack of trustworthiness can be shown, then records can be excluded under
803(8), 803(6), 803(7).
Also, consider using Rule 403 to exclude unreliable hearsay as its unfair prejudice substantially
outweighs its probative value.
Trial Tactics from the Defense Perspective v Meyer v 153
Additionally, when a hearsay statement or statement defined in Ind. Trial Rule 801(d)(2)(C),
(D), or (E) is admitted into evidence, the credibility of the declarant may be attacked by any evidence
which would be admissible for those purposes if the declarant had testified as a witness. For example,
evidence of character reputation for truthfulness (608 (1)), prior criminal convictions (609), inconsis-
tent with statements (613), bias, prejudice or interest (616), may be admitted.
c. Exceptions
The following exceptions apply to permit the introduction of hearsay. Know them to get hear-
say into evidence, and know how they block hearsay from being admitted. The Rules of Evidence and
case law have changed since many judges/attorneys began practicing. Old habits are hard to break.
Know your Rules and take an evidence handbook with you to trial.
(1) Statements by Party Opponents
Under Ind. Trial Rule 801(d)(2), statements made by or attributable to the opposing party are
not considered hearsay. These statements used to be referred to as “admissions.” However, now, they do
not have to be against interest. Additionally, the old “Patterson” rule has been abrogated which allowed
prior statements of any witness present in court to be admissible. Now, the statement must be one made
by or attributable to your opponent. This prohibits counsel from introducing prior statements of his/her
own client. Many attorneys, as well as judges, confuse the old “Patterson” rule with the new rule.
If your opponent attempts to introduce a prior statement of his/her client, object and cite to
Ind. Trial Rule 801(d)(2) and the fact that Patterson is no longer good law.
(2) Present Sense Impression
Ind. Trial Rule 803(1) provides that statements describing/explaining a material event made
while the declarant was perceiving it or immediately thereafter are admissible under the present sense
impression exception. Example:
Q: When Mary left the store did you see her look anywhere?
A: Yes, out the side window.
Q: While she was looking out the side window, did she say anything?
A: Yes. She said, “I wonder why Frank is running from the bank?”
If confronted with an objection, respond as follows:
“This is a present sense impression, an exception to hearsay under 801(1). I have laid the
foundation that the declaration was made by a witness, it describes the event, and was
made contemporaneously with the event.”
(3) Excited Utterance
Under Ind. Trial Rule 803(2), an excited utterance is a statement relating to a startling event/
condition made while the declarant was under the stress or excitement caused by it. There must not be
time for reflection or fabrication.
(4) Complaint of Sex Crime Victim
Evidence that a sex crime victim made a prompt complaint is an exception to the hearsay rule.
If the victim is an adult, only the act that the person made the complaint is admissible, the details are
not. However, if it is a child victim, the details are admissible.
Watch the form of the question. If it is too broad, object as the witness (if an adult) can only
state whether or not a complaint was made.
154 v DRI Annual Meeting v October 2010
(5) Statements of Then-Existing State of Mind
Ind. Trial Rule 803(3) provides that statements of then existing state of mind or emotion are
admissible if the declarant’s state of mind is relevant.
If an objection is raised you must explain how the declarant’s state of mind is in issue if it is not
obvious.
(6) Statements of Physical Condition
Ind. Trial Rule 803(4) permits statements describing then-existing or past physical condition,
symptoms to be admitted if made to medical personnel for purposes of medical diagnosis/treatment.
One possible objection to this type of testimony can be based on the intent of the declarant.
Statements by a personal injury plaintiff to a consulting physician may not be made for treatment. They
may be made for purposes of a lawsuit.
Additionally, one may object if the statements go too far and give more information than nec-
essary for the treatment. For example, a description of the accident may be pertinent, but naming the
driver of the car and other information may not be.
(7) Recorded Recollection
Written records made by a witness while fresh in the witness’ mind are admissible under
803(5). Total lack of memory is not necessary, only insufficient recollection to permit full/accurate testi-
mony. The record may be read but not introduced.
(8) Business Records
This is probably the most widely used exception to the hearsay rule. Rules 803(6) and (7) per-
mit records to be introduced when they were made in the routine course of business, at or near the time
of the event, based on personal knowledge and maintained by the business as a permanent record. The
foundation can be laid by affidavit.
If the record was prepared in anticipation of litigation, object. This would apply to letters in a
doctor’s file to/from plaintiff ’s attorney.
(9) Public Records
Properly certified public records are an exception under Rules 803(8) and (10).
(10) Statements of Family History
Statements of family history are admissible if: (1) kept in records of religious organizations
(803(11)); (2) marriage, baptismal and similar certificates by authorized persons (803(12)); (3) a wide
variety of permanent records (803(13)); or oral statements if the declarant is unavailable (804(b)(4)).
(11) Documents Affecting Property Interests
Records affecting property interests are admissible under 804(14) (if properly recorded),
803(15) (if consistent with the way the property has been treated), and 803(16) (ancient documents).
(12) Commercial Directories and Market Reports
Market quotations, tabulations, lists, directories or other published compilations generally
used and relied upon are admissible under 803(17). This includes telephone directories, stock market
reports, used car price guides, and television schedules.
(13) Learned Treatises
Rule 803(18) permits evidence of reliable learned publications that contradict an expert’s tes-
timony. The treatises must be reliable authority. That can be established by judicial notice, expert testi-
Trial Tactics from the Defense Perspective v Meyer v 155
mony or stipulation. The expert’s attention must be called to it. The contradictory passages may be read
into evidence but the treatise is not admissible.
(14) Reputation
Evidence concerning reputation may be admissible under 803(19) (family reputation), 803(20)
(community reputation regarding property or history), and 803(21) (reputation as to character). The
foundation is that the witness have knowledge and that the reputation is relevant to the issue at hand.
(15) Judgments
Rule 803(22) excepts judgments for convictions for felonies and Rule 803(23) excepts judg-
ments concerning family or personal matters, property boundaries or general history. Admissibility
depends on relevance.
(16) Former Testimony
Testimony given at a former trial, hearing or deposition may be admissible if the declarant is
unavailable. Rule 804(b)(1). It should be noted that substantive objections may be made at trial to any
part of the deposition that would be inadmissible if the witness testified in person. Trial Rule 32(B).
However, objections that go to the form are waived unless asserted at the deposition. Trial Rule 32(D)(3).
(17) Dying Declaration
Statements made by a person facing impending death are admissible if the statement concerns
the cause/circumstances of the impending death and the declarant believes death is imminent. The
declarant must be unavailable at trial but need not have actually died. Rule 804(b)(2).
(18) Statements Against Interest
Under Rule 804(b)(3), statements against interest are admissible if the witness is unavailable.
(19) Statements by Child Crime Victim
Where the child is of very tender years, inability to appreciate the proceedings, guilt or fear, fad-
ing or faulty memory are not unusual, therefore, the necessity of admitting hearsay statements become
more apparent. Experts are of the opinion that statements of children in this regard are reliable. Thus,
pursuant to K.S.A. §60-460 (dd), statements are admissible if “the trial judge finds, after a hearing on
the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable
and the child was not induced to make the statement falsely by use of threats or promises.”
d. Refuting Hearsay Objections
The best way to refute hearsay objections is to know the Rules and prepare in advance under
which exceptions your evidence will fall. On key issues, have short briefs or memoranda of law prepared
on the issue. Have a copy of key cases with pertinent points highlighted for the Judge. Pull out your evi-
dence book and have the appropriate pages tabbed.
3. Rule 403
Even if a question is relevant and proper in all other respects, it may be objectionable if the pro-
bative value is substantially outweighed by the potential prejudicial effect. See Rule 403.
Just because the evidence prejudices a party is not sufficient. However, evidence is unfairly
prejudicial if it unduly arouses the jurors’ sympathy, bias or hostility, if it involves a collateral matter
and will confuse/mislead the jury, or if it will cause undue delay and be cumulative. Also, if the answer
would endanger a witness (e.g., an address) it can be excluded.
156 v DRI Annual Meeting v October 2010
4. Expert Witnesses
Unlike lay witnesses, expert witnesses may base their opinions on the factual findings of oth-
ers. (Rule 602). For this reason, experts are sometimes allowed to stay in the courtroom to hear tes-
timony of other witnesses which can, subsequently, support the opinions of the expert. To have an
expert remain in the courtroom, the attorney should take the position with the court (Rule 615(3)) of
the Rules of Evidence) that such expert and his opinions are essential to the presentation of the parties’
cause. An attorney seeking to prevent the expert from staying in the courtroom may gain some success
by showing that the expert has already rendered opinions by report, deposition, or otherwise, and that
even if the expert forms new opinions at this late stage, it would be unfair to allow such opinions to be
submitted to the trier of fact without the opportunity for proper discovery. At this point, the attorney
seeking to keep the expert in the courtroom should point out to the court that pursuant to Rule 703 of
the Rules of Evidence, “[t]he facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to the expert at or before the hearing.” (Rule 703). However, an often overlooked objection is based upon whether the testimony even requires
expert opinions. A close look at Rule 702 of the Rules of Evidence discloses that an expert witness must
satisfy two significant tests. First, scientific, technical, or other “specialized knowledge” must be needed
to substantially assist the trier of fact to understand the evidence or to determine a fact in issue. Second,
the witness must be qualified based upon his knowledge, skill, experience, training, or education. (Rule 702). The gray area of determining whether the expert’s testimony will “substantially assist” the jury
is a question for the court. The question is generally considered under Rule 104(a) of the Rules of Evi-
dence regarding general admissibility of testimony. The basis of an expert’s opinion must be of a type
reasonably relied upon by experts in the particular field. (Rule 703). The court “shall disallow testi-
mony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthi-
ness.” (Id.) If the appropriate foundations are met, an expert witness can testify with opinions that are
based upon inadmissible hearsay.
The court must determine whether the evidence will substantially assist the trier of fact to
determine a fact in issue, and whether the facts and data underlying the evidence indicate a lack of
trustworthiness. The rules together necessarily require a determination as to the scientific validity or
reliability of the evidence. Simply put, unless the scientific evidence is valid, it will not substantially
assist the trier of fact, nor will its underlying facts and data appear to be trustworthy, but there is no
requirement in the Rule that it be generally accepted.
A non-exclusive list of factors to determine reliability are useful in applying Rules 702 and
703. A court may consider in determining reliability: (1) The theory upon which the procedure, test, or
experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts,
or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3)
The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
Although the trial court must analyze the science, and not merely the qualifications, demeanor
or conclusions of experts, the court need not weigh or choose between two legitimate but conflicting
scientific views. The court instead must assure itself that the opinions are based on relevant scientific
methods, processes and data, and not upon an expert’s mere speculation. The trial court should keep in
mind that the preliminary question under Rule 104 is one of admissibility of the evidence.
Though there are limitations on lay witnesses providing testimony on certain ultimate issues,
opinions or inferences given by an expert are not objectionable simply because they embrace the ulti-
mate issue to be determined (Rule 704).
Trial Tactics from the Defense Perspective v Meyer v 157
5. Impact of Kumho Tire on Daubert
KumhoTire reinforces the notion, that if courts are to exercise their assigned duty as “gate keep-
ers” of reliability, they must apply a Daubert type analysis to ensure that there is a reliable foundation
for expert testimony, regardless of the witnesses’ field of endeavor. The Kumho Tire case held that the
Daubert factors may apply to testimony of engineers and other experts who are not scientists. It rein-
forced the gate keeping obligations that applied Daubert, not only to “scientific” testimony, but to all
expert testimony. It recognized that Federal Rule of Civil Procedure 702 does not distinguish between
scientific knowledge and technical or other specialized knowledge, but basically that any such knowl-
edge might become the subject of expert testimony. Further, it is the Kumho Tire court that held it is the
word “knowledge” not the words like scientific that modify that word that establishes a standard of evi-
dentiary reliability.
6. Qualifications
It is beyond dispute, that all expert testimony, at least in the Federal court systems currently,
will need to be demonstrated to the court to be relevant and reliable. Meaning, all the backgrounds
found in the Daubert method, must be demonstrated to insure that all information brought forward to
the court and/or the fact finder, is reliable, has been tested, and is accurate. It is there to eliminate “junk
science.” The more that society changes, the more methods of scientific investigation occur. In order
to bring forth such information in the Federal court system, it will become increasingly important for
such scientific and other expert methodologies to be generally accepted; tested; and reliable.
7. Objections During Cross Examination of the Expert Witness
Some courts have Local Rules that give detailed directions for objections at a deposition and
limits objections to, essentially four (4) categories:
a. Objections that would be waived if not made under [Trial Rule RE: errors and irregularities
in the deposition];
b. Objections to assert a privilege, enforce a limitation on evidence directed by the court, pres-
ent a motion under Rule 30(d) [motion to terminate or limit examinations]; or,
c. Objections that the questioning is repetitive, harassing or badgering; and,
d. Objections that the questioning is being done in bad faith or is being done in such a manner
as to unreasonably annoy, embarrass or degrade the deponent.
The Rule may further provide that “No other objections shall be raised during the course of
the deposition.” (Emphasis added). The rule may also provide for a remedy of calling the trial judge, by
conference call, for direction.
8. Leading
A leading question is one that suggests the answer or merely requires a “yes” or “no” answer
because it merely asks the witness to agree with the attorney’s statement.
Examples: *Did Jason scare you?
vs.
How did Jason make you feel?
*Did you cry out in pain?
158 v DRI Annual Meeting v October 2010
vs.
What did you do or how did you feel?
As a general rule, leading questions are not proper on direct except to lay a foundation, if the
witness is hostile, when the witness is a young child, to refresh the witness’ memory, when inquir-
ing about preliminary matters/foundation, or asking for specific details after a general answer. Lead-
ing questions are permitted on cross, Rule 612, except when examining one’s own client who has been
called as an adverse witness.
Qualifiers such as “if anything,” “did you,” or “did you not,” do not make an otherwise leading
question proper.
9. Speculation/Conjecture
Witnesses who lack personal knowledge cannot speculate. Rule 704(b). Asking a witness a
question that would require the witness to guess or speculate is improper. However, a witness can give
their best estimate or an approximation.
Warning Words:
“Isn’t it possible that...”
“What would you have done if...”
“Couldn’t Mrs. Smith have ...”
10. Form of the Question
Objecting to just the form of the question is not specific enough. State why it is improper.
a. Confusing, vague, unintelligible, ambiguous
A witness is entitled to be asked questions that are not confusing, vague, unintelligible or
ambiguous.
Examples:
*Asking the witness to describe “the” person when several people were involved.
*Asking the witness to say what he wrote in “the letter” when several letters were written.
In the objection, be specific and call the Court’s attention to the confusion, uncertainty or
ambiguity.
If your opponent continues to object to questions as vague, etc., ask the witness to please tell
you if they do not understand a question that you ask and if they don’t state so, you’ll assume they
understand it. Reach an agreement with the witness who is less likely (most times) to be disruptive.
b. Compound
A question that asks several things at once is generally improper if the different parts might be
answered differently.
Example: Did you go to K-Mart on the 13th and Target two days later?
Did you go to Cub Foods on Sunday and if so, did you see Mrs. Smith there?
The danger of the question is that the witness will give a simple “yes” or “no” and part of the
answer will be improper.
If you are confronted with this objection, just break your question down and move on.
Example:
Trial Tactics from the Defense Perspective v Meyer v 159
Mrs. Jones please tell the jury what you know about the accident?
If the question is otherwise proper, such as “what did you do after you stopped,” but the witness
continues to narrate, object. When confronted with a narrative objection you can either respond that
the witness is explaining, or ask “What happened next?” Or state, “I am simply giving the witness the
opportunity to relate what happened in her own words.”
11. Improper Foundation
Although this objection is typically made when exhibits are introduced, it can be made when a
witness is asked about a conclusion, opinion or the like, as counsel may not have laid the proper foun-
dation for the testimony.
12. Assuming Facts Not In Evidence/Issue
It is improper to assume or insinuate facts not proven. For example:
Q: Sir, was Mrs. Smith intoxicated as she was speeding down the street?
Objection: There is no evidence that Mrs. Smith was driving the car, much less speeding.
The improper question can be remedied by breaking it down into several questions or leaving
out the objectionable word or phrase.
13. Asked and Answered—Cumulative
Rule 403 provides that relevant evidence may be excluded if it is needlessly cumulative. Mere
repetition is not sufficient. For a discussion, see Doty v. Wells, 682 P.2d 672 (Kan. App. 1984).
An attorney cannot ask the same question twice of the same witness. The proper objection is
Aasked and answered.@ The following exceptions apply:
a. The question is different in some respect;
b. A question asked on direct can be repeated on cross;
c. A question asked on direct can be repeated on redirect to clear up confusion caused by
cross;
d. A question asked of one witness can be repeated to a different witness;
e. A general question may be followed by questions for specific detail;
f. The same question can be repeated if the witness gives an evasive/incomplete answer.
14. Argumentative
Rhetorical questions are argumentative. Sarcastic comments are argumentative. Any question
that is essentially an argument to the jury is improper. If it does not elicit new information or simply
states a conclusion and asks the witness to agree with it, it is argumentative and should be saved for