by James A . Johnson © 2016
* James A . Johnson is a Trial Lawyer based in Michigan and not connected to James A . Johnson , Jr . who has a Display Ad reflecting his Polygraph Services in New Hampshire .
PRACTICE TIPS Direct Examination
* This article is dedicated to Daniel P . Richardson , Esq ., past President of the Vermont Bar Association in conjunction with his President ’ s Column , Vermont Bar Journal Vol . 41 No . 2 , Summer 2015 . Atty . Richardson eloquently expresses Trial Advocacy as the Defining Feature of Our Profession and should be re-read by all members of the bar .
JURY INSTRUCTIONS
One of the first tasks an attorney should perform in starting a case for trial is to prepare the jury instructions . In preparing the jury instructions you will set out the elements of your cause of action or defense . The jury instructions will have all the substantive law essential to prove your case . The jury instructions or court ’ s charge should be your bible and road map .
The primary purpose of direct examination is to establish the essential proof of facts in support of a claim or defense . Examining witnesses is like telling a story and you want to make certain that each witness tells his or her part of the story with clarity and believability . Use ordinary , everyday language and avoid legal jargon . For example , you should ask : you got out of the car and not you exited the vehicle .
THEME
The purpose of the theme is to grab the attention of the jurors . You want to captivate their interest and understanding all the way to the jury deliberation room . The theme of the case is a one sentence explanation of your theory . A theory is a succinct statement as to why the plaintiff should win or why the criminal defendant is not guilty of the charged crime . Here ’ s a sampling : “ This is a case about a broken promise .” “ Accidents don ’ t just happen …. they are caused …. by people .” “ This is a case about defective construction work by the general contractor .” “ This is a case about protecting the everyday consumer .”
The defendant in a criminal case needs a good theme , just as much as , if not more than , the plaintiff in a civil case . For example : “ This is a case of self-defense .” “ This is not a case about justice …. This is a case about injustice . Only you , through your verdict , can do justice .”
The theme should flow logically from the facts and relate to the jurors ’ life experiences . The theme of the case is the basic underlying idea which explains both the legal theory and factual background of the case . And , it ties them together into a coherent and believable whole . The theme also dictates what witnesses to call and their order . The theme should be evaluated , honed and changed throughout your preparation , until you have the best one .
EVIDENTIARY FOUNDATIONS
An important procedural rule is that the proponent of an item of evidence must lay a foundation or predicate before formally offering the item into evidence . For example , the proponent of a letter or photo must present proof of its authenticity as a condition to its admission . The proponent must present proof that the article is what the proponent claims that it is Vermont Rule of Evidence 901 ( a ) and Federal Rule of Evidence 901 ( a ) – Requirement of Authentication or Identification : “ The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims .” The foundation is very simple when you elicit from the witness that he recognizes the author ’ s handwriting on the letter , that he or she is familiar with the author ’ s handwriting and has a sufficient basis for familiarity . VRE 901 ( b ) ( 2 ) and FRE 901 ( b ) ( 2 ) recognizes this authentication technique .
AUTHENTICATION OF BUSINESS RECORDS
One of the most widely used exception to the hearsay rule is the business record exception . Business entries have a high degree of trustworthiness because the entry is routine that ensures the reliability of the record . FRE 803 ( 6 ) Records of a Regularly Conducted Activity and similarly VRE 803 ( 6 ):
The elements of the foundation for the business entry hearsay exception are :
1 . The report was prepared by a business employee .
2 . The employee had a business duty to report the information .
3 . The employee had personal knowledge of the facts or events reported .
4 . The written report was prepared contemporaneously with the facts or events . 5 . It was a routine practice of the business to prepare such reports . 6 . The written report was made in the regular course of business .
The witness laying the foundation for admission of business records is usually the custodian of business records . But , any person who is familiar with the business practice of its record keeping can qualify . The witness need not have personal knowledge of the entry ’ s preparation . The testifying witness need only to explain his or her connection with the business and then describes the routine method with which the business prepares and maintains its records . Many jurisdictions have a form affidavit for execution by the custodian of records or other qualified witness that eliminates the personal appearance at trial for the admission of business records .
LEADING QUESTIONS
Leading questions are not ordinarily permitted on direct examination and are objectionable . A leading question is one that suggest the answer to the witness . VRE 611 ( c ) and FRE 611 ( c ) Leading Questions : “ Leading questions should not be used on direct examination except as necessary to develop the witness ’ s testimony .” Ordinarily , the court should allow leading questions on cross examination . However , there are exceptions to this rule . There is no prohibition against using leading questions on preliminary matters and on undisputed facts . For example : Your name is Miles Standish ? You work at the Federal Building in Burlington ? The accident occurred on Elmwood Ave in front of the Federal Building ? These leading questions are undisputed facts and permissible on direct examination .
Also , under VRE 611 ( c ) and FRE 611 ( c ) ( 2 ) leading questions are allowed on direct examination when a party calls a hostile witness , an adverse witness , or a witness identified with an adverse party .
Moreover , VRE 611 ( a ) makes clear the courts inherent power to control the courtroom . Leading questions can be allowed during direct examination of a witness with learning disabilities , memory recall problems or those with difficulty in communicating . The proper use of leading questions on direct examination permits the trial to move smoothly in ascertaining the truth and a just determination in the proceeding . Keeping in mind counsels ’ ethical du-
20 THE VERMONT BAR JOURNAL • WINTER 2016-17 www . vtbar . org