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Anatomy of a Civil Trial A trial in which a judge is the trier of fact—that is, a


in the courtroom—especially the trier of fact—has to hear and understand the testimony that the witness is giving. Next, attorneys should tailor their style of questioning to


the witness at hand. For instance, although some witnesses can be asked questions that are more complex, other fact witnesses may only understand questions using a more basic vocabulary. An attorney that understands which style of questioning each witness best will respond to has a better chance of informing the trier of fact. Finally, attorneys should make sure that the witnesses


know that their testimony important and that the witnesses should testify in a respectful manner. A witness’s demeanor that appears combative with the attorney or who is unsure of the procedure only detracts from his or her testimony. Te communication between the attorney and the witness during the direct examination should be seamless, and this is only achieved by having a prepared witness. Terefore, it is important to prepare witnesses carefully—perhaps even rehearsing the examination—so that the witnesses will present their testimony with clarity, confidence and integrity to bolster the theory of the case.


Know the Audience 12 Trial Reporter / Spring 2012


bench trial—is different in many ways than a trial in which a jury is the trier of fact. Although a bench trial may not necessarily have all of the bells and whistles of a jury trial, there are key differences an attorney should appreciate with respect to direct examination of the witnesses. First, judges are trained legally and by experience to understand that a trial does not occur in the fashion that is shown on television—in one hour with a Perry Mason-like “gotcha” moment. And, if an attorney has already sufficiently outlined the case in the opening statement, the questions can be more focused and directed to the relevant facts. Moreover, judges undergo training to preside over many different trial matters, even if they did not necessarily practice in the particular subject area, so attorneys should try to avoid the “red herring” approach or the “shell game”, because the trial judge understands the law and how to apply the law to the facts. Judges do, however, appreciate attorneys bringing relevant law to their attention, at appropriate times and in a manner that acknowledges the jurist’s judicial experience and familiarity or lack of familiarity with the subject matter. On the other hand, in a jury trial an attorney should not assume that juries will understand all of the testimony while it is being presented. So attorneys should ask questions in a manner that does not leave too many gaps in the testimony, leaving jurors to later question the course of events or why certain questions were not asked of witnesses (i.e., shorter, more direct questions rather than compound and complex questions).


In essence, witnesses tend to respond best to


shorter direct questions which makes it easier for them to avoid irrelevant and non-responsive and lengthy narrative testimony. And they are less like to appear frustrated in front of a jury if they understand the question. Te important goal, therefore, is to ask questions that allow the plaintiff and other witnesses to impart important information that advances the theory of the case in a manner clearly understood by the jury.


Engage the Trier of Fact Whether the case is to be decided by a judge or a jury,


an attorney should engage that particular audience to make the case memorable to the trier of fact. In this regard, the pace of the testimony is just as important as the substance of the testimony. Although it may be true that most jurors’ experience or understanding about the legal system is limited to what they have seen on television, attorneys should avoid the drawn out style of litigation in an attempt to impress the jury. Moreover, although the evidence is largely anecdotal, jurors with busy lives sometimes feel inconvenienced by unnecessary court proceedings, and often do not appreciate


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