Podcast - The Witness Outline
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the best practices for organizing a trial and questioning witnesses. He highlights that no one approach is the same and that it varies for each attorney. Some best practices he mentions include being thorough, user-friendly, well-organized and well-documented, while some practices he advises against include avoiding broad questions, sounding scripted and being lengthy.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: When it comes to organizing for trial and questioning witnesses, there is no "one size fits all" way to do it. Nevertheless, you have to do what works best for you. There are good reasons for and against different approaches. Not using notes at all is a bad idea. It's less effective, it's an invitation for disaster, and it insults the jury's patience and intelligence.
If you don't care enough to be prepared, why should they care enough?
Well, why not a script, then?
It's an attractive option, we'll talk a little bit more about it in another episode, but it may be the safest one. For some lawyers, particularly new ones, it may be helpful. However, it comes with inherent dangers.
First, the first danger is focus. There's a powerful, irresistible magnetic attraction between your eye and the written word. The more you have written down, the more you will look down and read. The more you look down, the less you're focused on what's important, including the witness, the jury, the judge, and the courtroom.
Second danger is voice. Actors and actresses spend a lifetime learning how to read a script - or memorize a script - and sound natural. You haven't. You use a different voice for reading, and most people don't like it. They want you to talk with them, not read at them, even if that means you stumble occasionally. Gee, you're not perfect, isn't that great? It's okay.
Third danger is length. We're lawyers, and therefore we write too much. If your questions are so long that you need to write them out, they're too long and they won't be effective.
So if not using notes is a bad idea, and using a script isn't a better one, what should you do? The good news is there is a middle ground. It's a simple bullet point style outline. Properly done, it's more of a checklist than an outline. The goal is to give you both inspiration and guidance. Whether you're staring down a witness across a deposition table, reading an exhibit, or watching a jury's reaction, you can easily return to your checklist, see where you are and know where to go from there.
To be effective, it has to be thorough, user friendly, well documented and well-organized. I think the witness outlines should be in a three ring binder with one subject matter per page. The text should always be in large type. Help yourself out. Use large type, generous spacing so you can glance at it and find your place, not glance down and look at a page full of gibberish. Draw a vertical line two thirds of the way over on the right hand side, and a horizontal line toward the bottom. On the left hand side of the page are the notes for questions in short, bullets. No full sentences, no question marks and nothing that's more than three words long. These are your topics. You're creating a checklist of things to ask a witness.
The only exceptions to this are quotes from a statement or document, questions that are foundational or hypothetical questions, particularly posed to an expert witness. The right hand side of the witness outline is for your notations. Anything that backs up the questions you're asking, every reference and any exhibit or citation that relates to a question you intend to ask should be noted there, such as page line references to depositions, exhibit numbers or other exact references. The other item that goes on the right side are notes to yourself. You should include items that will help you during the trial or the deposition. Next to exhibit references, write offer. Seems kind of silly, but it's important. If you tend to talk too fast, write slow down. If you wander around too much, write stand still. These are your notes. You can tell yourself whatever you want. The bottom section of the witness outline should include your citations. If there is an issue of evidence or law that you think may come up, address it in the witness outline and include relevant case or law citations. If it's a key point, you could prepare a mini memo, which is literally a 1 or 2 page memo about the relevant law. If you're prepared to counter an objection with a mini memo, guess what? You'll get fewer objections. And if you do get objections, the judge is more likely to trust you, because you'll be prepared to present the issue in a way that increases your credibility.
The system can be used whether you're dealing with a small case with only one witness, or a large complex case with dozens of witnesses. Every notebook, one for each witness, is an independent, complete and separate item. You don't have to flip back and forth between different notebooks. While the size and number of notebooks will change, the concept stays the same. Although, this system has been used by some lawyers for many years. What's important is that you develop your own system that you feel comfortable with, and then use it in a disciplined and focused way. Consistency is important. Every time you open a notebook, what you see should be comforting and familiar. That way, no matter what the situation, no matter how frazzled you are, you can have confidence that you're prepared, and what you're looking at, and what you're looking for, is in there.