Trial Advocacy Lecture Notes – Witness Preparation, Direct & Cross Examination

Chapter 1 – Establishing the Story & Human Connection

  • True-crime podcasts are a model: the host assembles the entire narrative in a way that is easy to follow.
    • Attorneys must do the same for jurors.
  • Every participant (lawyer & witnesses) must appear:
    • Personable
    • Credible
    • Intelligent
    • Professional (both in look and demeanor)
  • Many witnesses are ordinary citizens who happened to be present and are nervous about court.
    • Preparation reduces fear of the judge, oath, formalities, etc.
  • First rehearsal frequently produces a convoluted timeline.
    • Let the witness tell the full version once.
    • Guide them—without scripting—to begin at the most logical event (“You pulled into the driveway and saw…”).
    • Never put words in a witness’s mouth or forbid truthful statements.
  • Timelines must be clear:
    • E.g. gunshot → man running → only person in sight ⇒ logical connection.
  • Discuss what the witness did not see (e.g., the runner’s face) to enhance credibility.
    • Jurors respect candor about limits of perception.

Chapter 2 – Attorney vs. Witness Speaking Time

  • Direct examination ideal speaking ratio ≈ (90% witness:10% lawyer)(90\%\text{ witness} : 10\%\text{ lawyer}).
    • Student guess: (80%:20%)(80\% : 20\%) accepted, but professor pushes for even more witness talk.
  • Lawyer’s job during direct:
    • Elicit, clarify, structure.
    • Disappear so jurors focus on the witness.

Chapter 3 – Question Types

  • Open-Ended Questions (who, what, where, when, how, why):
    • Primary tool in direct examination.
    • Allows storytelling.
  • Leading Questions (suggest the answer / yes-no):
    • Primary tool in cross.
    • Acceptable sparingly on direct to “warm up” a nervous witness.
    • Example warm-ups: “You work for the Dallas Police Department, don’t you?”
  • Definitions repeated for clarity:
    • Leading = guiding witness to a pre-chosen answer.
    • Non-leading = open, witness-driven answer.

Chapter 4 – Physical Layout & Presence

  • Diagram used: piano = jury box; screen = judge; witness chair marked.
    • Lawyer stands near the jury box so witness, lawyer, and jury form a visual triangle.
  • Eye contact: lawyer mostly looks at the witness, then briefly turns to jury to highlight key points.
  • Visual aids (diagrams, photos, floorplans) anchor testimony in physical space.

Chapter 5 – Mock Trial of Lee Harvey Oswald (PBS, 1980s)

Direct Examination of Officer M. Baker

  • Questions: location on Houston St., hearing three shots, identification of Book Depository, pursuit route, encounter with Oswald on 2nd-floor landing.
  • Use of Exhibit F (street diagram) & Exhibit 7-H (floor plan) to show not just tell.
  • Witness demonstrates:
    • Calm presence, admits gaps (doesn’t recall Oswald’s clothes).
    • Candor about lack of breathlessness, dress details.

Cross Examination Highlights

  • Defense counsel shows photo “21-A” of a man in the Depository doorway.
    • Long, silent pauses let jurors study the image.
    • Counsel never says “That’s Oswald,” allowing jurors to draw inference.
  • Builds counter-argument without overtly stating it (jury feels smart connecting dots).
  • Attempts to summarize (“not excited, not nervous”) ≈ argument, not question.
    • Proper ground for objection; professor deems objection wise.

Chapter 6 – Strategic Planning: Know Closing Before First Question

  • Attorneys must draft closing argument first to know which facts must surface.
  • Cognitive psychology: Primacy & Recency
    • People remember the first and last items best.
    • Place crucial facts at the start or end of a witness/direct; hide weaker facts in the middle.

Chapter 7 – Student Example: Phil’s Direct Examination

  • Phil (3L) shows ideal courtroom persona:
    • Friendly smile, steady voice, casual yet professional.
    • Constant eye contact with witness; rarely looks at notes.
  • Witness dominates speech; Phil only nudges with open-ended prompts (“What happened next?”).
  • Phil politely corrects soft-spoken witness (“Could you raise your voice for the jury?”) without breaking flow.

Chapter 8 – Cross-Examination Philosophy & Tactics

Goals

  • “Find the hole, exploit the hole.”
  • Get witness to concede limits, contradictions, or bias.
  • Sometimes force a “SODDI” defense (Some Other Dude Did It).

Techniques
1 One fact per question → keeps answers to “Yes” or “No.”
2 Build incrementally with harmless facts to lull witness, then pounce with damaging fact.

  • Example string:
    • Referral existed → referral for Ms. Jones → to WizQuiz → placed Oct 30 → done by phone → THEN reveal witness’s romantic relationship with WizQuiz manager & 50,000{50{,}000} bank deposit.
      3 Keep witness in box:
  • Height, clothing, visibility limitations (e.g., orange windbreaker, never saw face).
    4 Control tone:
  • Never yell; ask judge to direct witness if they ramble.
    5 Use exhibits/photos for silent impact; pause to let jury absorb.
    6 If opposing counsel is “arguing” instead of questioning → object (“argumentative,” “calls for conclusion”).

Chapter 9 – Objections (Preview)

  • Direct exam: rarely object unless damage is great; objections interrupt flow and may annoy jury.
  • Cross: objection may be strategic to stop attorney from slipping into mini-closing.

Chapter 10 – Common Mistakes to Avoid

  • Scripting or coaching witness to parrot lawyer’s words → destroys credibility.
  • Forgetting to rehearse courtroom logistics (oath, pointing, diagrams, microphone).
  • Lawyer hogging spotlight on direct.
  • Interrupting witness mid-answer (appears rude, breaks rhythm).

Chapter 11 – Practical / Ethical Considerations

  • Reassure witnesses: it is okay to admit ignorance; never exaggerate knowledge.
  • Ethical prep vs. coaching:
    • Clarify procedure, sequence, decorum.
    • May suggest starting point but not substantive testimony.
  • Professionalism extends to mannerisms: smile, steady posture, no grandstanding.

Chapter 12 – Quick Reference Checklist

Direct Examination

  • [ ] Draft closing argument →\rightarrow know required facts.
  • [ ] Select engaging witness & rehearse timeline.
  • [ ] Use ≥90%\ge 90\% witness talk time.
  • [ ] Begin with strong fact (Primacy); end with strong fact (Recency).
  • [ ] Employ open-ended questions; reserve 1-2 leading warm-ups if needed.
  • [ ] Stand where jury, witness, lawyer form clear sightlines.
  • [ ] Integrate visual aids; pause for jurors to view.

Cross Examination

  • [ ] Establish tone with harmless admissions.
  • [ ] One fact per question.
  • [ ] Lead witness; keep answers short.
  • [ ] Reveal limits, biases, contradictions.
  • [ ] Maintain civility; use judge to control hostile witness.
  • [ ] Listen for openings to impeach (prior statements, missing details).

Witness Prep

  • [ ] Explain oath, layout, procedure.
  • [ ] Practice telling story in logical order.
  • [ ] Discuss unknowns (“I don’t remember / can’t be sure”).
  • [ ] Train on vocal projection & pace.

Psychology

  • [ ] Use pauses for emphasis.
  • [ ] Trust jury intelligence; let them form conclusions whenever possible.

Final Takeaway

An effective trial lawyer is a silent narrator who equips credible witnesses to paint the full picture, then surgically dismantles the opponent’s version through precise, respectful cross-examination.