“One of the hardest tasks of a trial lawyer is to ask the right question, and ask it well,” wrote Paul Mark Sandler and James K. Archibald in the introduction to the first edition of their book, Model Witness Examinations. This statement continues to ring true 14 years after it was originally penned.
The authors’ goal is to cover situations that commonly occur at trial, regardless of the substantive area of law. The Third Edition contains 70 model examinations designed to help lawyers ask the right questions at trial. The book remains a viable and valuable resource, particularly for newer lawyers.
Organization and Updates
Model Witness Examinations provides sample examinations for common evidentiary issues. Each model examination is a series of questions and answers designed to elicit facts or opinions or to introduce documents into evidence. After each examination, Sandler and Archibald identify and analyze the applicable Federal Rules of Evidence, case law from around the country, and secondary source material.
Model Witness Examinations has three parts: direct examinations, cross-examination and redirect, and use of discovery devices in trial. Each part is divided into chapters, which include recollection, documents, demonstrative evidence, opinions of lay and expert witnesses, character evidence, prior inconsistent statements, depositions, and interrogatories.
The Third Edition adds three new model examinations to keep up with changing technology, including how to introduce email chains, digital images, and computer simulations. There are also two new model examinations in the bankruptcy context: examination of a creditor on the “ordinary course of business” exception to preferential transfers and examination of a debtor to declare a debt nondischargeable. In addition, the Third Edition includes updates and expanded sections to reflect changes in the law and current styles of questioning.
Not Just Useful for New Lawyers
Although Model Witness Examinations is a particularly valuable guide for younger lawyers, it remains a practical resource for litigators at any level seeking to prepare direct or cross-examinations. Additionally, the citations to rules and cases can be used to argue evidentiary issues in court or as a starting point for further research.
What Is Not Covered
It is important to note that this book is not a discussion of general strategies of direct examination or cross-examination. It does not teach, for example, ways to organize a direct examination or tactics for cross-examining a difficult witness. It does not offer suggestions for effective courtroom styles or oral advocacy.
Instead, the model sequences of questions and answers, along with Sandler and Archibald’s commentary based on years of trying cases, provide a ready guide for any trial lawyer. Litigators can rely on Model Witness Examinations to ask the right questions well.
Kristine L. Roberts is a print editor for Litigation News.