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The Researching Paralegal

Category Archives: Witnesses

Witness Preparation – The Classics.

19 Monday Mar 2018

Posted by Celia C. Elwell, RP in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witness Preparation, Witnesses

≈ Comments Off on Witness Preparation – The Classics.

Tags

Dr. Ken Broda-Bahm, Persuasive Litigator, Witness Preparation

Witness: Top 10 Posts, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2DFr8fI

Have you ever prepared witnesses or clients for a deposition or trial? If you have, then you know these rules or techniques are the classics. Tried and true. If you haven’t, here is some of the best advice you will ever get. This is a “must bookmark.” -CCE

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Trial Witnesses And Depositions Transcripts.

22 Saturday Apr 2017

Posted by Celia C. Elwell, RP in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Trial Witnesses And Depositions Transcripts.

Tags

Depositions, Dr. Ken Broda-Bahm, Persuasive Litigator, Trial Tips, Witness Preparation

Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2piUoBR

Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE

See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.

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Excellent Advice for Witness Preparation.

26 Sunday Feb 2017

Posted by Celia C. Elwell, RP in Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Excellent Advice for Witness Preparation.

Tags

Dr. Ken Broda-Bahm, Persuasive Litigator, Witness Preparation

Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2017/02/witnesses-know-your-seven-ways-out-of-the-yes-or-no-trap.html

This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.

This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE

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Witness Preparation for Depositions. How to Say Enough But Not Too Much.

17 Sunday Jan 2016

Posted by Celia C. Elwell, RP in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Witness Preparation for Depositions. How to Say Enough But Not Too Much.

Tags

Depositions, Dr. Ken Broda-Bahm, Fact Witnesses, Persuasive Litigator, w, Witness Preparation

Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/1SXtKtl

One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know:  ‘Witness, Don’t Teach.’ . . .

Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to ‘just answer the question and stop’ proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. . . . To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea. . . .

Continue reading →

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Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?

21 Monday Sep 2015

Posted by Celia C. Elwell, RP in Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?

Tags

Dr. Ken Broda-Bahm, Jury Trials, Persuasive Litigator, Witness, Witness Preparation

Treat Witness Eye Contact As a Three-Way Conversation, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://www.persuasivelitigator.com/2015/09/treat-witness-eye-contact-as-a-three-way-conversation.html

Please note the additional posts at the bottom of the page on witness nonverbal communication. -CCE

The advice is as old as the art of communication: Look at the person you are talking to. And it is good advice. Eye contact makes it easier for audiences to stay engaged and more likely that speakers will focus on their targets. For a witness on the stand during trial testimony, that means ‘Look at the jury.’ But not just the jury. A witness who shuts out counsel and fixes their gaze only on the jury is likely to look a little contrived, or even creepy. So the advice is to look at the attorney when she is asking a question, and then look at the jury when delivering your answer. But that advice can create its own problem. . . .

Continue reading →

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Depo Prep – Is Less Really More?

29 Wednesday Jul 2015

Posted by Celia C. Elwell, RP in Exhibits, Graphics, Legal Technology, Presentations, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Depo Prep – Is Less Really More?

Tags

Graphics, Litigation, Sound Jury Blog, Thomas M. O’Toole Ph.D., Witness Preparation

Less is More When Preparing Witnesses for Deposition, by Thomas M. O’Toole, Ph.D., Sound Jury Blog

http://soundjuryconsulting.com/blog/2015/07/15/less-is-more-when-preparing-witnesses-for-deposition/

There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. . . .

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The Rule of Witness Sequestration.

25 Saturday Apr 2015

Posted by Celia C. Elwell, RP in Evidence, Trial Tips and Techniques, Witnesses

≈ Comments Off on The Rule of Witness Sequestration.

Tags

Federal Rules of Evidence, Sequestration, Trial Tips and Techniques, Witnesses

No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by…Lifting the Order, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/puhw9k9

If you’ve ever been to trial and in charge of wrangling witnesses, you know about the rule of sequestration. Usually one or both parties invoke the rule at the beginning of trial, and anyone who may testify as a witness must leave the courtroom. The point is to prevent any witness’ testimony to be influenced by that of another’s.

This post discusses the Rule and the Court’s ruling when the Rule is not followed.  Like Mr. Miller, I don’t understand the Court’s ruling on this one. -CCE

Similar to its federal counterpart, Pennsylvania Rule of Evidence 615 reads as follows:

At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:

(a)  a party who is a natural person;

(b)  an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;

(c)  a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d)  a person authorized by statute or rule to be present.

So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You’d expect there to be severe consequences for that witness, right? . . .

Continue reading →

35.221486 -97.414187

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The ABA’s List of the Top 25 Legal Movies.

17 Friday Apr 2015

Posted by Celia C. Elwell, RP in Closing Argument, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on The ABA’s List of the Top 25 Legal Movies.

Tags

ABA Journal, Legal Movies, Legal Profession, Oscar, Richard Brust

The 25 Greatest Legal Movies, by Richard Brust, ABA Journal

http://www.abajournal.com/magazine/article/the_25_greatest_legal_movies

There is a unique group of movies that show the best — and worst — traits and practices by the legal profession. We all have our favorites. Check out the ABA’s list. Are your top choices there? If not, please leave a comment, and share your favorite. -CCE 

What would Hollywood do without lawyers? In a town built on copyrights and cosmetic surgery, lawyers have done far more than pen the small print in studio contracts or post bail for hollow-eyed stars on the way to and from rehab. From the incisive Henry Drummond and the droll Mr. Lincoln to the callow Danny Kaffee and the regal Atticus Finch, lawyers have provided some of Hollywood’s most memorable cinematic heroes and some of its most honorable and thoughtful films.

Earlier this year, the ABA Journal asked 12 prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. We’ve collated their various nominees to produce our jury’s top picks.

Together these films represent 31 Oscar wins and another 85 nominations as befits the best work of some of the greatest actors, writers and directors of their time.

So quiet, please. A rap of the gavel, a pull of the curtain, and ‘Hear ye! Hear ye!’ for the 25 greatest law films ever made. . . .

Continue reading →

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At Depositions, Ask the Witness To Show, Not Tell.

16 Monday Feb 2015

Posted by Celia C. Elwell, RP in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on At Depositions, Ask the Witness To Show, Not Tell.

Tags

Court Record, Depositions, Elliott Wilcox, Evidence, Transcripts, Trial Theater©, Trial Tips & Techniques

Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©

http://trialtheater.com/trial-skills/cross-examination/impeach-witnesses-by-creating-an-effective-record-at-depositions/

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

Continue reading →

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Top Witness Preparation Tips for Litigators.

24 Wednesday Dec 2014

Posted by Celia C. Elwell, RP in Experts, Litigation, Trial Tips and Techniques, Witnesses

≈ Comments Off on Top Witness Preparation Tips for Litigators.

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Depositions, Expert Witnesses, Ryan Flax, The Litigation Consulting Report, Trial Tips & Techniques, Witness Preparation, Witnesses

The Top 14 Testimony Tips for Litigators and Expert Witnesses, posted by Ryan Flax, The Litigation Consulting Report

http://tinyurl.com/me7elwo

Litigators and their witnesses are confronted with difficult situations during testimony, and it’s nice to have reliable ways out of those sticky situations.

Expert witnesses are engaged to provide their expert insight and opinions supporting their client’s case during testimony and are there to tell the truth to the best of their knowledge when questioned at trial or deposition.

Litigators get paid to ask good and, at times, tough questions to get desired answers from the opposition’s witnesses and to help their own witnesses do their best.

During both courtroom testimony and in depositions there are common situations where an attorney tries to make things difficult for the witness. Below, I identify 14 of these common situations and provide some good strategies, both from my own experience as a litigator and from tips collected from attorneys and expert witnesses. Consider the points below when advising and preparing your witnesses for trial and depositions. . . .

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Witness Credibility When Witness Has A Criminal History.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Colorado Supreme Court, Evidence, Federal Rules of Evidence, Jury Persuasion, Rule 609, Trial Tips and Techniques, Witnesses

≈ Comments Off on Witness Credibility When Witness Has A Criminal History.

Tags

Evidence, EvidenceProf Blog, Felony, Judge Sotomayor, Violence, Witness, Witness Credibility

Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pr3nqtl

Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.

This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’

Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’

Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.

Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.

Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.

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Former Convictions Do Not Always Ruin Witness Credibility.

28 Tuesday Oct 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Former Convictions Do Not Always Ruin Witness Credibility.

Tags

Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Prior Convictions, Trial Tips & Techniques, Witness Credibilitiy, Witness Preparation

Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lgssphj

The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.  

These results have some implications for attorneys assessing the risks to their witnesses’ credibility. . . . .

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Adverse Witness Direct and Cross-Examination Tips.

16 Tuesday Sep 2014

Posted by Celia C. Elwell, RP in Cross-Examination, Direct Examination, Trial Tips and Techniques, Witnesses

≈ Comments Off on Adverse Witness Direct and Cross-Examination Tips.

Tags

Adverse Witness, Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Trial Tips & Techniques

Flip the Order of Your Adverse Witness Preparation, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

 http://tinyurl.com/mhz8fes

Excellent related articles at the end of Dr. Broda-Bahm’s post. -CCE

 Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct.[1]  But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the ‘flipped’ order, and in this post, I aim to make the case for this as the better approach. . . .

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When Your Witness Goes Rogue.

14 Sunday Sep 2014

Posted by Celia C. Elwell, RP in Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on When Your Witness Goes Rogue.

Tags

Litigation Insights, Robert Gerchen, Senior Consultant, Trial Testimony, Trial Tips & Techniques, Witness Preparation

Why Didn’t My Witness Do What I Told Him To Do During Witness Preparation?, by Robert Gerchen, Senior Consultant, Litigation Insights

http://tinyurl.com/kvh62we

Boy, have I been there. After spending hours to convince a Vice President of Human Relations that, no, his idea of “explaining” to the case to the jury was a bad idea, of course, that is exactly what he did. It was like a nightmare in slow motion. –CCE

It’s a universal experience. Nearly every attorney who has ever sat down for witness preparation before a deposition, or before trial, to provide clear instructions and guidelines about what to say/not say, or what to do/not do, has at some point found himself asking:

“Why didn’t s/he listen to me?!” . . . .

</link rel=”author”

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Direct and Cross-Examination – Links, Tips, and Resources.

13 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Child Witnesses, Cross-Examination, Direct Examination, Experts, Making Objections, Trial Tips and Techniques, Witnesses

≈ Comments Off on Direct and Cross-Examination – Links, Tips, and Resources.

Tags

Child Witnesses, Cross-Examination, Direct Examination, Expert Witnesses, Pace Law Library, Trial Lawyers, Trial Practice Skills

Examination and Cross-Examination: Getting the Facts, Trial Practice Skills, Pace Law Library

http://libraryguides.law.pace.edu/content.php?pid=149008&sid=1265851

Links on Direct Examination, Cross-Examination, Examining Expert Witnesses, Child Witnesses, and other related links. -CCE

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Children as Witnesses.

06 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Admissibility, Child Molestation, Child Witnesses, Criminal Law, Evidence, Judges, Sexual Assault, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Children as Witnesses.

Tags

Admissibility, Anatomical Dolls, Child Welfare Information Gateway, Child Witness, Comptenct, Leading Questions, Sexual Abuse

The Child as a Witness, from Child Welfare Information Gateway

https://www.childwelfare.gov/pubs/usermanuals/courts_92/courtsk.cfm

Good, basic information. I recommend that you check out the entire website. This is only a taste of what it contains. -CCE

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Witness Preparation – When May The Witness Show Anger?

09 Monday Jun 2014

Posted by Celia C. Elwell, RP in Paralegals/Legal Assistants, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on Witness Preparation – When May The Witness Show Anger?

Tags

Expert Witness, Legal Assistants, Legal Insights Blog, Litigation Insights Blog, Merrie Jo Pitera, Paralegals, Witness Preparation

Witness Preparation Tip: When Is It Appropriate For A Witness To Show Anger? by Merrie Jo Pitera, Ph.D. – CEO, Litigation Insights Blog

http://tinyurl.com/ma4hps8

Many years ago, I was working on witness preparation with a corporate HR Director who was being deposed. It was quickly apparent from the moment that he walked in the room that he was not happy to be there. During his own mock direct examination, when the questions were clearly “friendly fire” from his own attorney, he was angry and aggressive. He was so mad that he was getting out of his seat and pointing at his own attorney with his finger when answering simple questions. What was worse, he was getting progressively more emotional and belligerent as the questioning continued. And we hadn’t even gotten to mock cross examination yet! It was clear we needed to take a break and pull him aside for a heart-to-heart discussion. In his current emotional state, he was the antithesis of an HR Director, and his display of anger was inadvertently reinforcing the plaintiff’s claims that the company did not care about his complaints of racial discrimination. An additional complication was that the HR Director thought his strong, angry reaction was helping his employer’s case.

While extreme, this witness’ reaction to testifying is not unusual. It is no secret that no one looks forward to being deposed. . . .

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Nine Top Tips for Paralegals Preparing for Trial.

09 Monday Jun 2014

Posted by Celia C. Elwell, RP in Adobe Acrobat, Animations, Bates Numbers, Legal Technology, Paralegals/Legal Assistants, PowerPoint, Presentations, Trial Notebooks, Trial Tips and Techniques, Witness Preparation

≈ Comments Off on Nine Top Tips for Paralegals Preparing for Trial.

Tags

Courtroom Presentations, Legal Assistants, Paralegals, Trial Preparation

9 Critical Steps for Trial Preparation, by David J. Dempsey, Paralegal Today Magazine (formerly Legal Assistant Today)

http://paralegaltoday.com/issue_archive/features/feature1_ja03.htm

I suspect that any paralegal with significant trial experience would have other things to add to this list. But it’s still good advice and a good start. -CCE

[P]aralegals play an indispensable role in the trial preparation process. It’s imperative that, in conjunction with the lead counsel, you design and adhere to a plan to make sure your energies — and those of the entire support team — are focused on the tasks that will contribute most to the success of the trial.

As the final phases of intense trial preparation approach, paralegals can wear many hats: coordinating schedules, monitoring deadlines, helping prepare witnesses and documents, organizing files and exhibits, preparing subpoenas and working with all members of the support team, including expert witnesses, outside vendors, and other legal assistants and attorneys involved in the trial.

Every trial attorney will use the talents of a paralegal in different ways. In my practice, I tend to rely heavily on paralegals and delegate a considerable amount of responsibility to them.

While the following guidelines will not work for every trial team, these are nine critical steps I believe paralegals can take to help make sure when the opening gavel falls at trial, your team is prepared to prevail. . . .

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Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

≈ Comments Off on Like Us, Judges and Juries Get the “Munchies.”

Tags

Dr. Ken Broda-Bahm, Judges, Juries, Lunch and Snack Breaks, Persuasive Litigator Blog, Persuasive Trial Strategy, Rocket Science Blog, Trial Tips & Techniques, Trials

Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

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Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

≈ Comments Off on Lawyers — First Impressions Stick!

Tags

Bad Impressions, Dr. Ken Broda-Bahm, First Impressions, Mock Trials, Persuasive Litigator Blog, Trial Tips & Techniques, Visual Images, Witnesses

Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . . 

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More On Why Lawsuits Are So Expensive.

22 Saturday Feb 2014

Posted by Celia C. Elwell, RP in Cross-Examination, Damages, Exhibits, Experts, Litigation, Motor Vehicle, Personal Injury, Plaintiff's Counsel, Product Liability, Trial Tips and Techniques, Video Deposition, Witnesses

≈ Comments Off on More On Why Lawsuits Are So Expensive.

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Accident Reconstructionist, Cross-Examination, Daubert Rule, Engineer, Expert Witness, Filing Fees, Personal Injury, Product Liability, Video Deposition

Why Lawsuits Are So Expensive, Pt. II, by Gregory H. Haubrich, Foshee & Yafee, Butter’s Blog

http://greghaubrich.com/2014/02/13/why-lawsuits-are-so-expensive-pt-ii/

In my previous edition of Butter’s Blog, Part I explored why lawsuits are so expensive. In Part II, we are going to break down the costs of getting your case to trial. To get a rough estimate of what your law firm may spend handling the case,  we must first look at what kind of case it is.

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Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by Celia C. Elwell, RP in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

≈ Comments Off on Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

Tags

Conservatives, Dr. Ken Broda-Bahm, Judges, Juries, Liberals, Persuasive Litigator, Politics, Trial Tips and Techniques

Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

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A New Theory of Hearsay – Part 2.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

≈ Comments Off on A New Theory of Hearsay – Part 2.

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Colin Miller, Criminal Defendants, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rule of Evidence, Hearsay, Hearsay Exception, Impeach, Nonhearsay Purpose, Rule 609

A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m8pcyw8

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?

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A New Theory of Hearsay – Part 1.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

≈ Comments Off on A New Theory of Hearsay – Part 1.

Tags

Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness

A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m6fchaq

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

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The Importance of a Jury’s First Impression.

11 Saturday Jan 2014

Posted by Celia C. Elwell, RP in Trial Tips and Techniques, Witness Preparation

≈ Comments Off on The Importance of a Jury’s First Impression.

Tags

Douglas Keene, First Impressions, Jury, Mock Juries, The Jury Room, Witness Preparation

The Power Of First Impressions, by Douglas Keene, The Jury Room

http://keenetrial.com/blog/2011/04/18/the-power-of-first-impressions/

[W]e’ve written about many aspects of witness preparation before and have come to the belief that people come to firm conclusions about most witnesses very quickly. Now, as is so often handy, we have new research that shows us (again) why first impressions of witnesses are so very important.

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