preparing a direct and cross - no trial ad experience HELP Forum

[Anonymous User]

Ok guys, my boss wants me to prepare a direct and cross examination of a mother in a child neglect proceeding. I am the child services attorney. I have zero. Zero. Idea where to begin. ANY thoughts advice words of encouragement before my panic ensures is greatly appreciated.

Zero trial prep experience and really trying to avoid looking like a complete idiot

[fats provolone]

have you seen a few good men?

[glitched]

Ask your coworkers for help...?

[Skool]

I'm not allowed to post here because 0Ls don't know anything.

Still, a lot of attorneys I know swear by this book. There's a chapter on cross.

http://www.trialguides.com/book/rules-of-the-road/

[fats provolone]

if you want something short and simple try basic trial advocacy by Peter Murray

[Teoeo]

With regards to Cross: write down all the points you want to make. Start with broad points like bias, and move to specific points that are fact related. Then divide your cross into sections by Goals. Example:

Goal #1: Establish that person y's statements regarding xyz are inconsistent with document z to attack credibility.

Next, for each goal, write a list of factual statements that relate to that goal. Introduce one new fact for each question and pin the witness down before you hammer them. Example: (assume a witness says the light was green when she went into an intersection)

Goal #1: Establish that the witness testified that the light was red in a deposition to (1) impeach and (2) to enter into the record for the truth of the matter as an inconsistent prior statement. (impeach as needed with documents on each point)

1. You were deposed in this case.
2. That deposition was in July of this year.
3. It was at your attorneys office.
4. There was a court reporter there.
5. You swore to tell the truth.
6. After you swore to tell the truth, I asked you questions.
7. You answered those questions.
8. You answered those questions truthfully.
9. And at the end of the deposition, I presented you with a complete transcript of what you said.
10. I asked you to review that transcript.
11. I asked you if you disagreed with any answers that you gave.
12. You said that your testimony had been accurate. (impeach with signed page regarding corrections)
14. I am showing you what has been marked as Plaintiff's exhibit A.
15. This is a copy of the deposition transcript.
16. Please turn to page 16, line 18. Let me know when you are there.
17. Now please follow along as I read: "Q: What color was the light when you went into the intersection? A: Red."
18. etc. (eg. the events in this case happened in June so your memory of the events was better in July then than now [broken down to one fact per questions as said before], etc.)

Obviously this is very basic, but its just an idea of how I usually structure of my crosses. I only ask open ended questions in specific instances and for strategic purposes (normally when the answer can't hurt).

Hopefully this is marginally useful. You should buy a NITA book on cross.

[A. Nony Mouse]

Mauet, Trial Techniques, is super helpful. Also Winkleried (sp?) on evidence is SUPER helpful if you need to intro stuff on direct.

[englawyer]

Big picture: both are ways of communicating the story to the jury. The primary difference is in "who does the talking."

For a direct, you need to write open-ended questions that allow the witness to tell the story. "Where were you on Sept 15?" "Who else was there?" "What did you see?" "What happened next?" You basically need to imagine the narrative you want the witness to tell, and then break up that narrative into logical questions so that the attorney can guide the story along.

For a cross, you cannot ask open-ended questions because the witness will have an opportunity to tell a story you do not want told. Instead, the attorney is the one telling the story. How to make a straightforward cross outline: start with a list of undesirable facts and evidence that you want the witness to admit. Then break each fact into a pointed question, coupled with the evidence that will contradict the witness if needed. The questions should force the witness to say "yes" or "no" without any additional comment.

E.g.

FACT: The mother left her child in the park alone for several hours while she went to a bar and got drunk with her friends.
PROOF: Deposition, pg 15, Line 10:14

Question: And didn't you leave your child in the park alone for several hours while you went to the bar and got drunk with your friends?
Answer: Yes.

If the witness answers "No," then you can impeach using her deposition testimony. It's better to have tighter questions that closely mirror the "control device" or you will run into this kind of situation:


Question: And aren't you a terrible mother?
Answer: I wouldn't say that. I think I am a great mother. I saved up $50,000 dollars for college, attended ballet practice, and made sure my daughter did her homework every day.

You can't really use the depo testimony about the park because it does not directly contradict her answer.

[2807]

... youtube ....

Endless videos, lectures, and examples on all of that from law school professors and more.

[purr se]

Big picture: both are ways of communicating the story to the jury. The primary difference is in "who does the talking."

For a direct, you need to write open-ended questions that allow the witness to tell the story. "Where were you on Sept 15?" "Who else was there?" "What did you see?" "What happened next?" You basically need to imagine the narrative you want the witness to tell, and then break up that narrative into logical questions so that the attorney can guide the story along.

For a cross, you cannot ask open-ended questions because the witness will have an opportunity to tell a story you do not want told. Instead, the attorney is the one telling the story. How to make a straightforward cross outline: start with a list of undesirable facts and evidence that you want the witness to admit. Then break each fact into a pointed question, coupled with the evidence that will contradict the witness if needed. The questions should force the witness to say "yes" or "no" without any additional comment.

E.g.

FACT: The mother left her child in the park alone for several hours while she went to a bar and got drunk with her friends.
PROOF: Deposition, pg 15, Line 10:14

Question: And didn't you leave your child in the park alone for several hours while you went to the bar and got drunk with your friends?
Answer: Yes.

If the witness answers "No," then you can impeach using her deposition testimony. It's better to have tighter questions that closely mirror the "control device" or you will run into this kind of situation:


Question: And aren't you a terrible mother?
Answer: I wouldn't say that. I think I am a great mother. I saved up $50,000 dollars for college, attended ballet practice, and made sure my daughter did her homework every day.

You can't really use the depo testimony about the park because it does not directly contradict her answer.

The first is not a good example of cross - I would object like crazy to that because it's compound as hell and the witness can really screw with you when you ask questions like that. You need to break that up into a whole chapter of questions with only one fact per question. E.g.:

Q: On [x date], you left your child.
A: Yes (or impeach with depo transcript p. 15, line 10:14)
Q: You left your child alone.
A: Yes
Q: You left your child alone in the park.
A: Yes
Q: You left your child alone in the park for x hours.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar and met Friend.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar and drank with Friend.
A: Yes

[Teoeo]

Big picture: both are ways of communicating the story to the jury. The primary difference is in "who does the talking."

For a direct, you need to write open-ended questions that allow the witness to tell the story. "Where were you on Sept 15?" "Who else was there?" "What did you see?" "What happened next?" You basically need to imagine the narrative you want the witness to tell, and then break up that narrative into logical questions so that the attorney can guide the story along.

For a cross, you cannot ask open-ended questions because the witness will have an opportunity to tell a story you do not want told. Instead, the attorney is the one telling the story. How to make a straightforward cross outline: start with a list of undesirable facts and evidence that you want the witness to admit. Then break each fact into a pointed question, coupled with the evidence that will contradict the witness if needed. The questions should force the witness to say "yes" or "no" without any additional comment.

E.g.

FACT: The mother left her child in the park alone for several hours while she went to a bar and got drunk with her friends.
PROOF: Deposition, pg 15, Line 10:14

Question: And didn't you leave your child in the park alone for several hours while you went to the bar and got drunk with your friends?
Answer: Yes.

If the witness answers "No," then you can impeach using her deposition testimony. It's better to have tighter questions that closely mirror the "control device" or you will run into this kind of situation:


Question: And aren't you a terrible mother?
Answer: I wouldn't say that. I think I am a great mother. I saved up $50,000 dollars for college, attended ballet practice, and made sure my daughter did her homework every day.

You can't really use the depo testimony about the park because it does not directly contradict her answer.

The first is not a good example of cross - I would object like crazy to that because it's compound as hell and the witness can really screw with you when you ask questions like that. You need to break that up into a whole chapter of questions with only one fact per question. E.g.:

Q: On [x date], you left your child.
A: Yes (or impeach with depo transcript p. 15, line 10:14)
Q: You left your child alone.
A: Yes
Q: You left your child alone in the park.
A: Yes
Q: You left your child alone in the park for x hours.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar and met Friend.
A: Yes
Q: You left your child alone in the park for x hours while you went to Name of Bar and drank with Friend.
A: Yes

Glad you said this, I didn't want to be the dick to point it out .

[Fed_Atty]

Cross is harder to prepare in advance because a lot will depend on the testimony on direct. Pay a lot of attention on direct and develop your points. If you can trap them, make sure they fully commit before springing the trap. Hopefully you get a witness that thinks he/she is smarter than you, those are the easiest ones to trip up.

[smallfirmassociate]

Goal #1: Establish that the witness testified that the light was red in a deposition to (1) impeach and (2) to enter into the record for the truth of the matter as an inconsistent prior statement. (impeach as needed with documents on each point)

1. You were deposed in this case, [under oath].
2. That deposition was in July of this year.
3. It was at your attorneys office.
4. There was a court reporter there.
5. You swore to tell the truth.
6. After you swore to tell the truth, I asked you questions.
7. You answered those questions.
8. You answered those questions truthfully.
9. And at the end of the deposition, I presented you with a complete transcript of what you said.
10. I asked you to review that transcript.
11. I asked you if you disagreed with any answers that you gave.
12. You said that your testimony had been accurate. (impeach with signed page regarding corrections)
14. I am showing you what has been marked as Plaintiff's exhibit A.
15. This is a copy of the deposition transcript.
16. Please turn to page 16, line 18. Let me know when you are there.
17. Now please follow along as I read: "Q: What color was the light when you went into the intersection? A: Red."
18. etc. (eg. the events in this case happened in June so your memory of the events was better in July then than now [broken down to one fact per questions as said before], etc.)

Protip: If this is a bench trial or hearing (that means no jury present), skip questions 3-12.

[Jaymore]

For a direct, you need to write open-ended questions that allow the witness to tell the story. "Where were you on Sept 15?" "Who else was there?" "What did you see?" "What happened next?" You basically need to imagine the narrative you want the witness to tell, and then break up that narrative into logical questions so that the attorney can guide the story along.

According to one judge in my jurisdiction, those are leading questions. Apparently they suggest she (a) was somewhere on Sept. 15, (b) someone else was there, (c) she saw something. Which is fucking ridiculous.

Really all I could do was repeat variations of "what happened next" twenty times. When stuck, I worked in a little asking the non-leading question, the leading objection would be sustained, and then I would ask, "what happened next" and get the same answer.
i.e. "Q: who else was there?
A: Joe,
objection, leading, sustained,
Me: Let me rephrase.
Q: what did you do next?
A: I saw Joe.

Just your daily reminder that the Judge is God in his courtroom, and there is no such thing as the law. Just what the judge decides to do.

[Anonymous User]

im a judicial law clerk at a federal court so not sure how technical it gets in the state court (which I assume that is where the case is since its child neglect) but one thing I would say is that make sure you set up the foundation for your question before getting into question. I have seen so many attorneys jumping into questioning without laying sufficient foundation and get bombarded with objections. Majority of the direct is establishing the basis for the knowledge and then they get into the questions. It is super boring but I have to say that is the most important part (often the lengthiest part of the direct unless you are talking to an expert witness) and the rest is just asking what you want to ask and rephrasing as necessary if someone objects. So I would say work it step by step in detail even if it seems silly.

[smallfirmassociate]

You can add "if anything" or a variation to remedy this in some cases. "What do you remember, if anything, from September 15th of 2004?"

But like the other poster said, if you've already established background facts (which are not objectionable on the basis of being leading questions), then you can jump into more specific questions without being leading. Also, ideally you and the other side have already stipulated to the admission of a lot of evidence, so you've already got things to go off of.

I mean, if there's a contract that the other lawyer already stipulated to admitting, he's not going to get very far to objecting to your question of "Did you sign a contract with XYZ on September 15, 2004?" Or at least he shouldn't.

For a direct, you need to write open-ended questions that allow the witness to tell the story. "Where were you on Sept 15?" "Who else was there?" "What did you see?" "What happened next?" You basically need to imagine the narrative you want the witness to tell, and then break up that narrative into logical questions so that the attorney can guide the story along.

According to one judge in my jurisdiction, those are leading questions. Apparently they suggest she (a) was somewhere on Sept. 15, (b) someone else was there, (c) she saw something. Which is fucking ridiculous.

Really all I could do was repeat variations of "what happened next" twenty times. When stuck, I worked in a little asking the non-leading question, the leading objection would be sustained, and then I would ask, "what happened next" and get the same answer.
i.e. "Q: who else was there?
A: Joe,
objection, leading, sustained,
Me: Let me rephrase.
Q: what did you do next?
A: I saw Joe.

Just your daily reminder that the Judge is God in his courtroom, and there is no such thing as the law. Just what the judge decides to do.

[Kivan]

Opposing Counsel is going to have his way with you,

you know that right?