Trial Advocacy


Class Info

Law School: Liberty University School of Law

Course ID: LAW 595

Term: Fall 2019

Instructor: Prof. Rost

Books Used
  • Trial Techniques by Thomas Mauet
  • 2019 Federal Rules of Evidence Summary Trial Guide by Erwin Chemerinsky & Laurie L. Levenson

Direct Examination

Direct examination is the questioning of a witness called by the examining party.

When doing direct examination, leading questions are not permitted. You would not want to anyway.

When doing direct examination, you want to ask broad, open questions and let your witness talk so the jury can relate to and sympathize with him.

Good direct examination questions often start with one of these 8 words:

  1. Who
  2. What
  3. Where
  4. When
  5. Why
  6. How
  7. Explain
  8. Describe

You want to avoid simple yes/no questions. (Usually such include forms of "be" such as "were" and "is".)

It's important to end on a good note. Ask background and lead-up questions first, and save the actual event for the end, then end.

  • If your witness starts talking about the event too early, cut him off and say you'll get.
Cross-Examination

Cross-examination is the questioning of a witness called by the opposing party.

Cross-examination happens after direct examination.

Leading questions are permitted on cross, and you will want to take advantage of them. You want to control the narrative and not let the witness talk too much, so try to just ask yes-or-no questions that you already know the answer to.

Leading Question

A leading question is one that suggests a certain answer.

Examples:

  • "You're wearing a purple shirt, right?"
  • "Wasn't the light green?"
  • "You were at the bank, weren't you?"

Leading questions are usually formed by adding a tagline to statement.

Tagline

A tagline is a phrase added to the end of an otherwise declaratory statement to turn it into a leading question.

Common taglines include "...correct?", "...isn't that right?", "is that correct?", "weren't you?"

Mix up taglines; don't just repeat the same phrase over and over again.

An otherwise declarative sentence can be turned into a leading question by tone and context. (Just saying a sentence is not a question though, despite what Prof. Rost says.)

Leading questions not permitted on direct examination, only cross-examination.

You can have three, usually contradictory, goals during cross-examination:

  • Destroy the witness
  • Confirm your own preexisting facts
  • [Draw out new facts]

Adverse witnesses are never going to give you the case. Just ask questions that support your theory and let the jury make the inferences.

  • Don't ask "You were speeding?". Ask when work starts and what time it was.
  • Don't ask "Was the sun in your eyes?". Ask the time and the direction heading.

Once you get all you think you can get, stop.