Trial lawyers with a “barrister” mindset know that early trial preparation is a key to success. How early? To have a winning edge, you should begin this process before the completion of discovery. The process I will describe below will reveal evidentiary problems with witness questioning that you’ll still have time to solve before it’s too late. (For more about the barrister mindset, please read, “Are You A Barrister or A Solicitor?”)
The basic building block of trial evidence is witness testimony. While early thinking about trial themes and arguments is imperative, the hardest but most essential part of trial preparation is planning out the testimony you intend to elicit from witnesses – either on direct or cross examination. Each witness will require his or her own set of questions. To do that in an efficient manner, consider the following approach.
Before getting too granular, you should first think in terms of the broad topics you intend to cover with each witness. Be sure to consider the elements of the causes of action and defenses you will either be proving or disproving. Think about the case themes you have developed through focus groups or other brainstorming devices. Finally, think about the sequence of topics from a storytelling perspective. The sequence must be understandable by a juror. Create a table of contents cover sheet for each witness, listing only the topics. This will later help you think about the case from a big-picture perspective.
This is the hardest part. Before drafting the questions, you’ve got to do your homework, thorough investigation and discovery. Once you are satisfied those tasks are completed, draft questions in a format appropriate to the type of witness. Remember the basics:
You can come back and add questions later.
Witness questioning is usually how trial exhibits are introduced. (You should nonetheless consider whether testimony substitutes can be used). Consider the exhibits you must introduce to get past a directed verdict (or JMOL in federal parlance). Think also about the exhibits that support your case theme. Be careful not to over-try the case. Jurors will resent repetitive exhibits. You’ll need to reference the exhibit in a manner that fits your style in the witness outline. Consider using outlining software like Omni Outliner that allows you to link files (like PDFs) to outline elements.
This task is particularly important in preparation for the cross-examination of an adverse witness. Remember the litany of questions one must ask to properly set up prior inconsistent statement impeachment. Include page and line numbers in your outline as part of that litany.
Once you begin this process, you may soon realize certain questions or topics will invite trial objections. For instance, you may realize that inadmissible hearsay is the only response a witness can give to certain questions. Give yourself time to solve these problems by beginning the process early enough to depose the hearsay declarant or take whatever measures are necessary, depending upon the possible objection. Go back and reconsider your questions considering newly discovered facts. Don’t do any of this in a vacuum. Share your topics and questions with a partner or colleague and seek feedback. Try them out in a focus group setting.
There is still much trial preparation work to be done after you’ve begun drafting witness questions. Nevertheless, you’ve got to begin somewhere, and this is the place to start if you want to properly script a trial.