McElhaney on Litigation

A Painful Breakup


The ones you hear about always seem to involve a big bang: the treacherous witness who does a last-minute turnaround and changes all his testimony, the nationally recognized expert who is destroyed by a brilliant cross-examination.

But that’s not the way it usually happens. Like everything else, most cases come apart not with a bang but a whimper:

• Testimony drags on and on, with no clear beginning and no good place to stop.

• Witnesses are indefinite–they don’t seem to know what is wanted, and the lawyers don’t seem to know how to get it.

• Evidence is interrupted with incomprehensible objections, arguments and instructions that destroy the continuity of the case.

And the jury sits there–tired, bored and confused.

Of course, you have to keep the problem in perspective. An occasional awkward pause or two is hardly fatal. But dead time is a cumulative poison. When continuity is seriously damaged, enough facts can slip through the net of understanding to put a whole case at risk.

You are the one who has to watch what is happening to your case–no one else is going to do it for you. Fortun­ately, there are some techniques that can help hold it together. Start with trial testimony. Even though it’s the heart of the case, it still takes two or three times longer than it should. That’s because most of us are wordy, repetitive and not well-organized. If you don’t believe it, go listen to somebody else try a case, and see what you think. Television culture, which has trained us to have 20-minute attention spans and expect new camera angles every 17 seconds or so, usually makes the typical direct exam seem even worse than it is.

What can you do about endless witness examinations besides rending your garments and gnashing your teeth? Stop asking questions like, “Directing your attention to the afternoon of April 17, I ask you what, if anything, were you doing on that occasion?” Besides being stiff and hard to understand, open-ended questions like that give the witness very little guidance and the jury even less.

Paragraph Your Direct

Instead, start using the paragraph method of direct examination. Break down everything you need from the witness into a series of simple paragraphs and think of a short, simple title for every subject.

Then announce the title for each paragraph before you start asking any questions about it: “Ms. Collins, our first topic is the afternoon of April 17, right around 2 p.m.” Then see how easy it is to ask simple follow-up questions that tell the witness what you want and show everyone else where you are going. Ask questions like, “Where were you?” “Why were you there?” “Was anybody with you?” “Who was it?” “What were you doing?” “How long did you stay?”

The paragraph method of direct examination helps save trial time that is otherwise wasted when witnesses flounder around, trying to figure out what the lawyer wants them to talk about.

It keeps you on track, too. Instead of writing out all your questions for direct examination, work from an outline that has only the topics written out and just a word or two for each of the questions that follow.

Why is that an advantage? When you write out all your questions, you have a complete script for your part. But the witness does not. And the problem is that the witness always says something different from what you expected when you wrote your script. Within three or four questions, your script no longer fits the situation. Then you have to take apart your questions to find your next point and rewrite them in your head when you should be listening to the witness respond to your last question.

Dividing your attention that way produces the kind of mess in which you ask questions that have already been answered, the witness wonders what you want, and the jury wonders what you are doing. Writing out questions may have the seductive lure of security when you are preparing the case, but it can do a lot of damage when you actually get to trial.

Another point: Well-planned breaks are important to continuity, but most direct examinations don’t have any. They just go on and on. They are painfully seamless, like an oral version of War and Peace that has no illustrations, no new chapters or even paragraph indentations to give the mind a rest.

But when you use topic sentences, each new subject creates a different tone, a change of pace, a pause that lets everyone rewind their attention clocks and focus on something new. Even better, each new paragraph sends the message that, unlike the other lawyer, you are actually organized. You know what you are doing and are worth listening to. But verbal continuity is only part of what holds a case together. Not everyone lives in the world of words the way lawyers do, and visual interest is essential to keeping most people’s attention.

Have some visual ingredient in each witness’s testimony, every 10 minutes or so. You don’t have to bombard the jury with thousands of new images to do it. Lots of times it is better to use an already familiar map or chart to tie a new witness’s testimony into the case. It helps the jury “see” what the witness is saying as well as anchor your visual aids in the jurors’ minds.

Relax, Mongo

So you decide to try all this and concentrate on continuity in proving your case. There you are, painting your forensic Mona Lisa in front of the jury when your opponent comes along with a spray can full of objections and interruptions.

That’s when Mongo, your inner beast, screams in your head, “Mongo kill other lawyer now!”

Interestingly, Mongo understands the situation perfectly. Your case has been going too well, and your opponent is instinctively trying to tear it apart.

To keep your inner beast from taking over, you have to say, “Relax, Mongo. The other side has fallen into its own trap. Watch and see what happens.”

Here is the principle you are going to use: Every interruption of your case is an opportunity to make it stronger.

“Sure,” you say. “It’s a great opportunity to get out a bottle of Krazy Glue and stick everything back together again. Or maybe I’m supposed to use another one of those topic sentences?”

That’s it. “Wait a minute,” you say. “I was being sarcastic.” I know, but I’m not.

Say you have an expert witness, an economist, who is about to explain how much the defendant’s patent infringement cost your client over the past three years.

But at the crucial moment, the other lawyer interrupts with a barrage of objections. Even though every issue was disposed of in the pretrial conference, it still takes 10 minutes to go through them all in a sidebar conference.

Try making a snotty little remark about the interruption at the start of your next question, and see what happens:

“Well, Dr. Francis, right before the defense counsel’s frivolous interruption and specious objections, I had asked you … ”Opposing counsel: “Objection, your honor!”

The court: “Sustained. Counsel, you know better than that. The defense has every right to make objections, just as you do. Ask proper questions without any editorial comments, or I’m going to have to consider what disciplinary measures would be appropriate to deal with the situation.” Instead, take the opportunity to do a little recapitulation. Of course, you just do it to reorient the witness–but make sure the jury understands it all, too:

Q. Dr. Francis, you had just finished telling us how you had studied the sales of both Electro-Toys and Micro-Kwik over the past three years. And now the topic is profits. Have you been able to determine what Micro-Kwik’s sales have done to Electro-Toys’ profits?

A. Oh, yes. Micro-Kwik has cost Electro-Toys more than $12 million a year for the past three years. In fact, the total loss to Electro-Toys has been greater than $37 million from 1995 to 1998.

This simple formula–that is where we were and here is where we are going–only takes a few moments to do its job: Punish your opponent for disrupting the continuity of your case. It works by making sure everyone is on track.

Just keep it simple and don’t turn it into a speech. The judge will cut you off when you get Krazy Glue all over your hands. James W. McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Fred Parks Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

McElhaney At His Best

The ABA Journal will occasionally reprint some of James McElhaney’s most popular columns from past years. This article originally appeared in the Journal’s April 1998 issue under the headline “The Case Is Falling Apart.”

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