Direct Witness Testimony

Evidence is introduced through direct witness testimony. Thus, direct witness examinations are critical and
should be prepared in advance, and tied into the documentary evidence available. Counsel should determine, in advance, how to properly lay a foundation for the evidence and anticipate admissibility issues. Trying to address evidentiary concerns on-the-fly is courting disaster.

Counsel should format his or her examination so that it leads off with a brief introduction of the witness to the jury. This introduction should contain a description of why this witness could have relevant information to share, i.e., foundation. Once this foundation has been laid and while the jury is still paying attention, elicit the most critical evidence from this witness. Key evidence should be delivered early when the jury is still interested in what this witness has to offer. Likewise, it should be supported with documentary evidence or descriptions of what happened so that jurors can draw a mental picture of what happened. If the jurors cannot picture it in their minds, they will have nothing to assist them in recalling the significance of these events later when they deliberate.



Cross-examination allows you to show evidence to advance the plaintiffs’ case as to liability, causation, and
damages. It also may allow you to undermine the defense case or bolster the credibility of other witnesses.
Preparation of a trial cross-examination requires painstaking detail. Identify each admission made by each
witness with reference to lines from their deposition or exhibit. This allows immediate impeachment if the
witness contradicts his deposition testimony. Once this process has been completed, you can identify all
admissions you will seek to establish during the trial and any existing documents for impeachment. Once you have done this, you can make an informed decision about the order of witnesses to cross-examine your case in chief. Thereafter, you can turn to prepare each individual cross-examination.

However, one of the biggest questions is whether or not to cross-examine a witness. Some argue that when a witness has not harmed your case, you should not cross-examine the witness. The thought is you may do more harm than good by allowing the witness to correct harmful testimony. If you do decide to cross-examine a witness, you should do so pursuant to a plan to elicit specific favorable admissions or concessions.

You should be cognizant that some methods of cross-examination can offend jurors, and adversely affect the decision-making process at trial. Examples of bad techniques are unprepared bumbling, browbeating a
witness, or an arrogant better-than-thou approach. If you are mean to the witness, the jury may feel sorry for the witness and be sympathetic to the witness and offended by you. However, if the witness is being
intentionally evasive, the jury will understand that you need to be more assertive to get the desired admissions or evidence admitted.

Also remember, one of the surest ways to go from attacker to victim is when your cross-exam of a defense
expert goes wrong. So it is imperative that you be extremely prepared if/when cross-examining an opposing expert at trial. Remember to tread lightly in an area where you are not the expert and they are.


Order of Witness for Examination

In any case, it is often best to call a defense witness in your case in chief under Evidence Code §776. Under
this section, you can call a defense witness a “hostile witness” thus allowing you to cross-examine the witness in your direct examination. This way you can elicit the damning testimony at the beginning. By calling a witness under Evidence Code §776 you can prevent the defense from first humanizing the defendant before the negative information comes forward. In the manner which I suggest, there is no initial humanization of the defense witness. Rather, the jury has heard the opening statement which is extremely critical of the defense witness followed by this witness’ own testimony proving careless if not reckless or intentional conduct or even fraudulent conduct of that witness. If the defense witness has been deposed, much of this can be accomplished by playing the video deposition of the damning parts of this party’s deposition testimony without allowing the defense witness a chance to explain or rebut the points being made. By the time defense counsel is able to examine this client or witness the damage has already been done.

The order of the witnesses will depend on the case itself. Generally, however, I believe in calling the defense party and percipient witnesses under Evidence Code §776 followed by the plaintiff’s experts that will show how the accident or injury occurred. Thereafter the plaintiff’s experts are called to show the nature of the damages suffered and the calculation of cost. Sometimes I will hold off on calling the plaintiff until I have established the defendant’s bad conduct and thoroughly established sympathy for the plaintiff. This exam of the critical decisions that depend on the case and the evidence. All of this takes place before defense counsel has a good opportunity to call witnesses that could or would have potentially undermined the plaintiff’s case.

By the time the defense witnesses take the stand, the jury should already have their minds made up as to who was at fault and the negligent, reckless, intentional, or even fraudulent conduct that occurred. Hopefully, the jury will also understand the scope of the damage and future impact upon the plaintiff’s lives as well by hearing directly from the plaintiff about the severe devastating loss suffered, its critical impact upon the plaintiff, the plaintiff’s family, or business now and into the future.

The bottom line, nothing comes easy and as I often say: “The harder I work, the luckier I get.”

If you have a need for a strong trial lawyer, I would welcome the opportunity to learn about your case and
provide assistance in finding you a top trial attorney. Contact me at 888-570-0000.