August 23, 2017

What Do You Wish You Had Known Before Your First Trial?

December 3, 2012

Follow the Witness's Lead—Not a Script
Before my first trial that I first chaired, I was determined to script out in advance not only every question, but also every response. I prepared each witness according to those scripts, and I was completely committed to following each script verbatim. Looking at those scripts gave me a sense of confidence that I was prepared. Of course, as any experienced trial lawyer will tell you, it's just not possible to script out an entire trial. Inevitably, despite how well you prepare your witnesses for direct examination, they are going to go off script. They will testify about facts in a different order than what you want or will skip certain facts entirely. One of the first witnesses that I put on in direct examination at trial was a lawyer himself. He completely understood the facts and legal theories of the case. Indeed, he even helped prepare the outline for his own testimony. He was appealing, articulate, and charismatic. He (and our client) assured me that he was going to be the best witness for our side during the whole trial. Nothing to worry about, right? Very, very wrong.

The lawyer witness (who was not a litigator) had a severe case of stage fright that translated to amnesia once he took the stand. He gave monosyllabic responses to the questions that we had agreed he would expound on, and went on at length about things that were irrelevant or inconsequential. The more that I tried to force him back to the script, the more he kept veering off. His testimony was disjointed and not persuasive, as if I was trying to force testimony that he did not want to say. After the first few harrowing moments while I struggled with him to get him back on script, I realized that I needed to follow his testimony wherever it led, and meet him where he landed, with a question that would naturally trigger the testimony that we needed.

Once I stopped trying to control exactly how the testimony would come in, he relaxed and his testimony became much more compelling. In every trial that I have handled since then, I prepare an outline, and hone it down to the key facts that I absolutely need to establish. Once the witness is on the stand, I follow the lead of the witness, not my script, and check off each fact as it comes in. Definitely more nerve-racking for the trial lawyer, but the result is more natural and inherently more persuasive testimony.

 

Lucia Coyoca is a partner at Mitchell Silberberg & Knupp LLP in Los Angeles.

Premium Content For:
  • Litigation Section
    • Commercial and Business Litigation
Join - Now