CIVIL LITIGATION BASICS2010 UPDATE

PAPER 9.1

Direct Examination

These materials were originally prepared by Thora A. Sigurdson of Fasken Martineau DuMoulin LLP, Vancouver, BC, for the CLEBC publication Civil Litigation Basics2008 (January 2008) and updated for the Continuing Legal Education Society of British Columbia, January 2010. Thora A. Sigurdson

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DIRECT EXAMINATION
I. II. III. IV. V. Introduction ....................................................................................................................... 1 Identifying the Issues/Theory of the Case .......................................................................... 2 Review of Documents ......................................................................................................... 2 Review and Use of Discovery Transcripts ........................................................................... 2 Preparing Minutes of Evidence ........................................................................................... 3 A. Formal Question-and-Answer Minutes of Evidence or a Narrative Statement ................. 3 B. Order and Content ................................................................................................................ 3 1. Elements ......................................................................................................................... 4 C. Specific Issues ......................................................................................................................... 4 1. Refreshing Present Recollection/Cue Words ................................................................ 4 2. Exhibits .......................................................................................................................... 5 3. Prepare for Objections to Admissibility........................................................................ 6 Preparing the Witness......................................................................................................... 6 Conducting the Examination.............................................................................................. 6

VI. VII.

I.

Introduction

The purpose of direct examination is to obtain all that the witness knows in the partys favour. While this is simply stated, many counsel believe that direct examination is the most difficult form of examining witnesses. You must ask the questions in a direct and non-leading way and stand quietly by while your witness attempts to capture the courts attention and belief. A coherent and smoothly delivered body of direct evidence is difficult to dislodge while a disorganized collection of half answers leaves the court wondering why the case is before him or her. Your preparation and skill has a lot to do with how your clients case is received. Extracting all that the witness knows in your clients favour without asking leading questions, all the while presenting an organized, clear, concise and credible body of evidence, requires skill, preparation and practise.1 In this paper the basic components of direct examination are discussed. These are: A. B. C. D. Identifying the issues/developing your theory of the case; Review of documents; Review and use of discovery transcripts; Preparing minutes of evidence;

I have relied on the articles of Allan Seckel and Peter Ballam in Papers on Trial Advocacy (Russell & DuMoulin, 1994).

9.1.2 E. F. Preparing the witness; and Conducting the examination.

A unifying theme underlying all of these components is preparation. Like so many elements of litigation, preparation is the thread that unifies all of the components of good advocacy.

II.

Identifying the Issues/Theory of the Case

You have to know what is at issue in order to know what evidence to call. You have to have developed your theory of the case to know what evidence is necessary and helpful. The pleadings will be your starting point. You will have developed a better sense of what is really at issue through the discovery process. Try to weed out unimportant questions that are not central to your case. You will likely need less evidence on those issues. You want the focus to be on what really matters and not on side issues. Do not lose sight of the forest. What do I have to prove? and how do I prove it are questions to keep in mind throughout your preparation of a case.

III. Review of Documents

You must be familiar with all of the documents in the case to properly prepare a good direct examination. This means that you must be familiar not only with your own documents, but any documents disclosed by opposing parties. Consider what documents may be in the possession of persons who are not parties to the litigation. You will want to know if there are any documents that might appear at trial that you have not seen. If there are, try to get copies before preparing your witness by interviewing non-party sources of information. This will help you prepare for potential cross examination and prevent the witness from getting ambushed by dealing with any embarrassing or damaging evidence up front, in the direct examination. When reviewing the documents, consider which documents you will want to enter as primary evidence of your case. Which documents do you want to have as exhibits at the trial? How can you prove the documents? Often you can avoid these issues through a document agreement with opposing counsel, but the agreement may only deal with authenticity and not the truth of the contents of any document. Consider how you will prove the contents of the document, and what witness you will need to prove the document. Consider the rules of evidence that may assist or prevent you from entering an exhibit. Also consider whether any of the documents can be used to assist the witness with her recollection. You should appreciate the difference between a past recollection recorded and a present recollection revived. Is the document a record or merely an aide memoire?

IV. Review and Use of Discovery Transcripts

During preparation and at trial you need a system for finding evidence given at the examinations for discovery. Unless the transcripts are short and you can easily remember where to find things, or the issues are simple and straightforward, an index or summary of the transcripts will be necessary. Computerized summaries of the transcripts or the use of one of the many software search programs can also be very helpful. The summary will assist you in preparing or revising the minutes of evidence you will want to have for most witnesses. It will also remind you of discovery evidence that you may have to correct at trial.

9.1.3 It is better to raise any mistakes that your client made at discovery in his examination in chief than to have her cross-examined on them. It is usually useful to advise your friend of the error before trial. Do not forget to review the discovery evidence of opposing witnesses; it can be an excellent source of information that will prod your witnesss memory. You will also want to think of ways you can address the harmful evidence through the evidence of your own witnesses. Ask yourself whether any rebuttal is necessary or whether your own witness can take the wind out of an opponents sails by admitting a fact and explaining it away.

V.

Preparing Minutes of Evidence

In this section we discuss the process of deciding what evidence each witness will give, and how you will work with the witness to enable her to present the evidence clearly and persuasively. By this time you will have reviewed the witness statement, the documents and discovery transcripts, and considered the precise evidence you want to lead from that witness. You should also have considered the admissibility of what the witness has to say or any exhibits that must be entered through her testimony. The minutes of evidence created at this time are the script for trial.

A.

Formal Question-and-Answer Minutes of Evidence or a Narrative Statement

There are several styles of minutes of evidence. Some counsel simply prepare narratives of the witnesss evidence without regard to the types of questions that will be asked. The minutes read like a story and no effort is taken to break the proposed evidence into appropriate bits. Others use a the witness will say format, again without noting the nature and types of questions that will be asked or the order that the evidence will be given. Others use a Q & A style. The choice of format turns on your preference, the nature of the evidence, and the witness. I usually prepare minutes of evidence that are organized in the question-and-answer format. This forces me to think about the questions that I will ask before I get to the courtroom, and makes me think about how I will actually call the witness evidence. The question-and-answer format has advantages and disadvantages. The advantage of the question-andanswer format is that you will have something to fall back on at trial. You have a question that you have thought about (and so it is clear and is not leading) and which the witness is familiar with. I find it helps with pacing. Through the course of preparation, the witness becomes used to giving a short answer and then pausing for the next question. The disadvantage is that you may start to sound like you are merely reading from a text rather than asking fresh, interesting questions. This may affect how the witness responds, especially if you have prepared by reviewing the minutes of evidence. Some witnesses will try to memorize the questions and answers, resulting in additional stress for the witness and unpersuasive testimony. The witness must understand that the minutes are an aid for the lawyer. Preparing the minutes and reviewing them with the witness, ensures the lawyer understands the witnesss evidence. The minutes provide the lawyer with a checklist so the lawyer can make sure all the witnesss evidence comes out at trial. But the evidence is the witnesss evidence. It is her story and she should tell it in her own words.

B.

Order and Content

You must organize the evidence into a coherent order. Usually this will be chronological, but do not overlook other methods of order. You may wish to deal with evidence on an issue-by-issue basis rather than the purely chronological.

9.1.4 You should, of course, try to contain the witness to evidence that is relevant to the issues in the case. But do not let the evidence become so focused on the purely relevant that it becomes sterile. The judge will need some context; he or she will need to know how this witness fits into the big picture. There may be technically irrelevant facts that will make the witness evidence more credible or which will create sympathy for the witness or your client. It is a difficult line between too much evidence and not enough. Lastly, make sure your client leaves the witness box feeling that she was allowed to tell her story. That may include letting her give some testimony that is strictly irrelevant (but not too much). Better that your client got to say her piece than to feel frustrated that she did not get her day in court.

1.

Elements

Because it is at the stage of preparing your minutes of evidence that you are actually planning your direct examination, it seems appropriate to discuss the elements of good direct examination now. A good statement of the elements of direct examination is found in Fundamentals of Trial Techniques (Canadian Edition) by Mauet, Casswell and MacDonald. They identify the following elements: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. Keep it simple; Use simple, carefully chosen language; Organize logically; Elicit description, then action; Elicit general, flowing descriptions; Use pace; Do not lead; Use open-ended questions; Have the witness explain; Volunteer weaknesses; Listen to answers.

C. 1.

Specific Issues Refreshing Present Recollection/Cue Words

What if your witness forgets or has a memory lapse while in the box? What if she forgets one of the details she was going to describe. There are two situations: (i) where your witness has missed part of her evidence and you want to give her a signal to that effect; and (ii) where the witness is drawing a blank on a topic and there is a document that will refresh her recollection. (i) Tell your witness during preparation that if they have forgotten a detail, you will say, is there any thing else you would like to tell Her Ladyship about that. Explain that you are not inviting the witness to muse about the case. You are telling her she has skipped over a detail. If she remembers, that is good. If not, tell her, I will come back to that, and do so. That will give the witness time to reflect and, hopefully, to recall. If there is a document that might assist, follow a similar process. Ask the witness, do you remember anything else. Then ask questions that establish the foundation for refreshing the witnesss recollection. The following elements must be established by your questions: 1. That the witness knows the facts, but has had a memory lapse;

(ii)

9.1.5 2. That the witness knows that there is a document that will refresh her memory; e.g.: Q: A: Q: A: 3. 4. Do you recall anything else? No Would anything refresh your memory? Yes, my notes would, or, Yes, a letter I wrote at the time would.

After giving the document to the witness that the document does indeed refresh her memory; and The witness can now testify about the facts without further aid from the document.

Note that in these circumstances the document does not become an exhibit. It has been used solely as an aide memoire.

2.

Exhibits

You may wish to enter a wide variety of exhibits through direct examination and the particular questions you will need to ask for each type of exhibit vary somewhat. But there is a common approach which applies to any type of exhibit. The following steps apply: 1. Show the exhibit to opposing counsel first. In many cases, before trial you and opposing counsel will have discussed, at least generally, what documents will be tendered at trial and perhaps exchanged document binders. But if that has not occurred, make sure opposing counsel knows what you are going to do. She may contest the admissibility of the exhibit, but you must give her a reasonable opportunity to review the document and determine her position; Show the document to the witness and identify it for the record; e.g.: I am handing to you a letter dated 3. Lay the foundation for the exhibit. This will require you to ask the questions that establish whether that particular exhibit is admissible through that witness. The questions differ from document to document. Did the witness author the document? Did she receive it? Is it a document prepared in the ordinary course of business; and if so what evidence can the witness give about the ordinary course of business?, etc. Move for admission of the document; e.g.: Could this document be marked as exhibit 1? In general terms, the questions you must ask are: 1. 2. 3. 4. 5. Questions establishing the relevance of the document to the case; Questions establishing that the witness recognizes the document; Questions establishing that the document was created or signed by a party to the action or her agent; or Questions establishing another basis of admissibility, such as Business Records; and possibly Questions establishing that the document has not been altered;

2.

4.

In many cases, you will be able to avoid these questions by reaching an agreement before trial about the authenticity of documents. Such an agreement will not remove the need to prove the contents of documents, but it will automatically cause all documents created by a party or its agent to be admitted, at least as regards authenticity.

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3.

Prepare for Objections to Admissibility

Based upon the pleadings and the course of the examination for discoveries you will have a pretty good idea of what the objections to the evidence are likely to be. The time to prepare your response to these objections is prior to trial and it is important to have copies of the relevant authorities available for the court and your learned friend. When you are preparing the witness to give evidence, explain to her that you expect that there may be an objection to her evidence or to a document you put before her, and that if the other lawyer objects to a question, she should refrain from giving her answer until the court has ruled. Explain that it is not uncommon for a witness to be asked to absent herself from the courtroom while the objection is being dealt with and that if this happens she has not been singled out for unusual treatment.

VI. Preparing the Witness

Shortly before the trial, but preferably not the night before, you should review the minutes of evidence and relevant documents with the witness. Last minute preparation should be avoided if possible as it can tend to cause the witness to become very nervous. Assume the witness will be very nervous in any event. It is unlikely she will ever have been in a courtroom before. Explain the process. Discuss whether they wish to swear or affirm. Tell the witness that she should speak to the judge when answering questions. Explain where they will sit in the courtroom, when they should be present, and similar practical information. Prepare the witness for the examination and cross-examination by conducting a dress rehearsal of the examination. Simulate some of the cross-examination and alert the witness to potential lines of questions that opposing counsel may ask. Do not prepare, however, to the extent that you exhaust the witness. Witnesses should not try to memorize the minutes of evidence. One option is to have the witness return all copies of the minutes of evidence before trial so that they cannot try to memorize them. Concentrate on the witness language when you are preparing her. Caution her about phrases like I would have Warn her about the difference between I do not recall and I deny Explain knowledge versus hearsay, and be sure you understand the basis of your witness knowledge. Many witnesses do not recognize the difference between conclusions or speculation and what actually happened or what was said. Witnesses have a deep-seated tendency to speak in terms of conclusions rather than the details of what happened because the conclusions are what is normally important in life. Most people would say I agreed to buy his house rather than I signed an offer to buy his house and later he signed his acceptance on that offer. A witness may say Bob was dating Betty, because everyone knows that, even though the witness had no first hand knowledge. This deep-seated tendency emerges on the stand often enough to make it worthwhile to explain to the witness in the comfort of your office what the constituent elements of his evidence are and how he will have to go through it point-by-point.

VII. Conducting the Examination

1. Accrediting the witness. It is customary to begin with a series of questions which are directed to providing the court with the background information on the witness and how her testimony will be relevant. Usually, counsel will lead the witness through these uncontroversial questions. However, these questions provide inexperienced witnesses with an opportunity to work their way gradually into giving their evidence. While leading the witness in this area will usually not be objected to, you may want to let the witness collect herself during this warm-up time and answer the questions in full rather than simply say yes or no to leading questions.

9.1.7 2. Form of questions. Keep the questions short, simple and clear. Cut out the verbiage. Did you see the defendant driving a car on December 24, l989? is preferable to Did you have occasion to observe the defendant on the evening of December 24, 1989 at a time when he had the care and control of a motor vehicle. You may think that this is so obvious that it is ridiculous to mention it in these materials. Unfortunately we understand it continues to be a problem. Repetition. The courts are busy and you do not want to earn a reputation as one who wastes the courts time. However, a little tactical repetition in important areas does not hurt since the judge is new to the evidence which you are calling. You will receive a proper admonition to get on with it from the court if you repeat too much. Lay the groundwork. Remember that the judge is unfamiliar with the issues in the lawsuit so it is necessary to build the evidence from the ground up. Control your questioning so that you lay the evidentiary groundwork necessary for the court to understand the witnesss evidence. Leading questions. While we sometimes refer to leading a witness through his evidence you should understand that you are not permitted to ask leading questions in direct examination. Even though the other side might not object to leading questions for reasons of their own, you should know that the form of questioning undermines the impact of the evidence. If the witness needs to be led, he probably needs more preparation. Bitter pill. There are times when a witness has given earlier testimony which is not correct or there is what may be referred to as a skeleton in the closet. Ill-considered answers on the examination for discovery are typical of this sort of thing. You can either ignore it and hope that it will remain hidden or deal with it in direct examination. If you ignore it and the matter is brought out in cross-examination you can rest assured that the fact that it was not disclosed to the court will be exploited to full advantage and the matter will assume the greatest impact possible. I consider it better to deal with it somewhere in the middle of direct examination. If the witness gave an incorrect answer on the examination for discovery (and if the witness can provide an explanation that softens the impact), ask the witness what he said earlier, whether that evidence was correct, and if it was incorrect, to explain in what way the answer is incorrect. If there is a particular reason such as he did not review the relevant documents prior to the examination, ask why he answered incorrectly. Demeanor. Attempt not to be obtrusive but to display a genuine interest in the witnesss evidence, i.e. do not stare out the window in uninterested fashion while a witness gives his evidence. Since evidence given in court is not a conversation, a running commentary during the course of the witnesss answers would be most inappropriate. For example, it would be out of line to say, Oh dear, did he really while an aggrieved plaintiff was describing the conduct of the defendant. Further, we all encounter the occasional witness that we would prefer not to have to call, but it is unhelpful and improper to display your discomfort with the witness at trial. Listen. Listen to the witness and allow the witness to finish his answer before you jump in with the next question. It is crucial to avoid such preoccupation with the topic of what question am I going to ask next that you have your nose buried in your notes and do not hear what the witness says. You may think that the witness has answered your question with the words that you expected while in fact he has not. When the time comes for argument you may refer to that witness as having said the passage that you missed only to have your friend or the judge point out that the witness did not say that at all. Courtesy. Allow the court a decent chance to listen to and make notes of the evidence. If the court is furiously making a note or looking at something else, you can tell you are going too fast. PAUSE. The court will tell you if you are moving along too slowly. If the judge is having difficulty hearing the witness, ask the witness to address his answers to the court; the preface Would you tell Her Ladyship to the question works reasonably well.

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9.1.8 10. Checklist. Do not finish with the witness until you have gone through your checklist and marked off all the items as covered.

Junior Counsel. Junior counsel on a case have a very important role. There are many real benefits to having junior counsel on a case which is fortunate in view of the cost to the client. One of the most critical is that they can take careful notes of what the witness actually said. This provides an opportunity to periodically double check to make sure that the evidence which you need is in. Most counsel will not appreciate persistent tugging on their robes during the course of the direct evidence but will check prior to concluding the examination-in-chief. In the case of dispute with the lawyer on the other side, it is very comforting to be able to say Our note of the witnesss evidence is as follows (then to read from a precise note of what words the witness said). Apart from the contribution of a well-trained mind, the other benefits include having someone help with document management, maintain a close watch on the reaction of the witness and the court, and help with the preparation of the witnesses. If you have an opportunity to junior, get involved. Think of what you would do if you were leading the evidence. Talk to the senior counsel about strategic decisions. Junioring is a great way to learn. The more you put into the case, the better the experience.