GETTING STARTED WITH
YOUR TRIAL
OPENING STATEMENTS:
Opening statements should be compelling and concise. They set the
context in which exhibits and testimony will be understood. Long opening
statements are counterproductive to this purpose. Your opening
statement should also take into account your audience. In a trial court,
you will be addressing either a judge or jury, or just a judge. In short,
your guiding principle in delivering your opening statement is to present
the theory of your case, an overview of the evidence and the witnesses
you plan to introduce, and what the evidence and witnesses will
demonstrate.
OPENING STATEMENTS:

Start with a persuasive story based on a theory.

Preview the evidence you will present.

Outline the order of credible witnesses.

Your theory should be a compelling counter-story to rebut
points that you expect opposing counsel will make.
Presenting your opening statement:
OPENING
STATEMENT
Stand and begin your opening statement with
the words:
 “may it please the court . ”
Wait for the presiding judge to acknowledge
you before continuing with you opening
statement. The say:
 “your Honour(s)…” (depending on the
number of judges presiding)
Or
 “ladies and gentlemen of the jury…” (if there
is a jury presiding)
And proceed with your opening statement.
Tips for Delivering an opening
Statement


Delivery and
technique(eye contact,
voice, volume, pacing):
Tailor the statement to
the audience. For a
jury trial, begin with
the story and outline
the legal issues.

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
Summarize the indictment.
What are the key legal
issues?
Outline the order of
witnesses. What do you
anticipate they will testify?
Indicate what the evidence
will be and-more
important-explain what the
evidence will show.
OPENING
STATEMENT



In previewing your evidence, try to deal
with what you anticipate will be
opposing counsel’s theory. For example,
“It is anticipated that you will hear…”
or “My client disputes the following
issues…..”
Connect the facts and supporting details
to the relevant issues in the case.
Organize the facts in a persuasive and
logical sequence.
OPENING
STATEMENT



Build your case. Prioritize the evidence.
Demonstrate continuity of evidence.
Demonstrate how evidence will be
corroborated or confirmed.
Ask for the verdict you seek
Thank the judge and or jury for
listening.
THINGS TO AVOID

Do not try to advance an argument. You may have a theory, but nothing has been
proven yet. At this stage of the trial you are theorizing, giving an overview of what
you intend or hope to prove through the evidence. Save your arguments for the
closing.

Do not outline opposing counsel’s theory of the case.

Do not repeat the indictment verbatim.

Do not object to statements by opposing counsel in their opening statement.

Avoid repeating the same point in slightly different language

Avoid using loaded, biased or controversial language.

Do not mock, sneer at, or make fun of others.

Do not chew gum.

Do not tell the judge how you feel about the case. Evidence only.
DIRECT EXAMINATION
KNOW YOUR PURPOSE AND HOW TO BE
EFFECTIVE
Direct examination (also known as examination –in-chief) is your opportunity to
call witnesses to prove the facts on which your theory of the case rests. Since the
most important facts in the case will probably be those that are in dispute, your
task is to persuade the judge and/or jury, through the testimony of credible
witnesses, of the accuracy of the facts.
Basic Rules for Direct Examination
• During the direct examination, you may not lead the witness. A leading
question contains or suggests the answer sought. Allow the witness to tell
his or her story in the witness’s own words.
• Carefully design and sequence your questions. Know your purpose. What do
you have to prove?
• Prioritize the legal issues you need to cover with each witness.
• Encourage the witness no to be overly wordy. Keep him or her focused on
the question and the evidence that will be revealed by the answer.
• Do not interrupt the witness. Allow him or her to give a full answer.
• Ask the witness to clarify or confirm important testimony in order to reinforce
your point.
EXAMPLE
Q. “So , Ms. Clark, your evidence is that … Correct?”
A. “Yes” or “No” with an explanation.
Witnesses, other than expert witnesses, are not allowed
to offer opinions (see “Expert Witnesses” later in this
chapter).
Avoid cluttering your witnesses' testimony by asking
unnecessary or irrelevant questions.
Get to the point. Be Precise. What will the witness help
you prove?
Explain where the testimony is headed, then go there by
using headline or transitional statements.
Example
Q. “Now, Mr. yates, let’s talk about the morning after the prom. What injuries
did you sustain?”
•End with a “clincher” – a single fact that supports your theory of the case.
•Example
Q. “Ms. Verkerk, did you know that the drugs were in the pool table pocket?”
A.“No”
Q. Thank you. No more questions.”
•Start strong and end strong
Questioning Techniques for Direct
Examination




Use short , open-ended questions. Let
the witness tell his or her story.
Use directive or transitional phrases to
direct the witness’s attention to a topic
you want to examine.
Use headline questions to alert the
judge and/ or jury that you’re “shifting
gears.”
Use questions to focus the attention of
the judge and/or jury on your key
points.




Ask a series of questions to breakdown
the whole testimony into digestible and
logical chunks.
Use reflective questioning to create a
verbal image.
Use visual aids such as drawing, models,
or photographs.
Review and re-evaluate your sequence
of questions to ensure that you have not
missed an important point.
Thing to Avoid During Direct
Examination.
Do not ask confusing questions.
Example
Q. “ Did you see the defendant, not when you entered the
lunchroom at lunchtime when you were with your debate
group friends, but when you entered the library when
you were alone when classes had ended?
 Do not ask double questions.
Example
Q. “ Is it true that you skipped class yesterday and stole
$20.00?”
 Do not interrupt the witness.

A Typical Direct Examination




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

Q. “ What happened on March 2, 2005?”
A. “I was attacked by a dog.”
Q. “What kind of dog was it?” (Instead of: “Was it
a pit bull?”)
A. “A pit bull.”
Q. “How big was the dog?” Instead of: “was it a
big dog?”)
A. “It was very large.”
“What happened next?”
In this way, you are getting the witness to say what you want, but you are not
leading the witness.
CROSS-EXAMINATION
In cross-examination, you ask questions of your opponent’s witnesses.
Cross-examination can pose a challenge for even the most
experienced advocate. Your opponent’s witnesses may not
cooperate with you and may resist your line of questioning. Their
attitudes can range from uncooperative to hostile.
One of your goals in cross-examination is to minimize the damage
caused by a hostile or argumentative witness. The challenge will be
to decide how brief or extensive your questioning should be.
Consider the purpose of cross-examination and then review some
tips on how to be effective.
The purpose of Cross-Examination

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

To repair or minimize damage that the witness did
to your theory of the case during your opponent’s
direct examination.
To enhance your case. Are there points that will
advance your theory of the case?
To expose the weakness in your opponent’s case by
revealing contradictory evidence or inconsistencies
in the witness’s testimony.
To discredit the witness by suggesting that he or she
is not reliable or credible.
To expose inaccuracies or lack of certainty in the
evidence.
Example
Q. “ You say you saw the driver of the car, yet you also
say you were in the basement when you heard the car
drive by. How could you have seen the driver?”
To raise doubt about the plausibility or logic of the
witness’s testimony. If the testimony doesn’t make sense, it’s
not believable.
To demonstrate where the witness’s testimony conflicts
with the testimony of other, more credible witnesses.
To raise doubt about the witness generally. Is the witness
biased? Untruthful? Not credible?

Three Considerations to Guide Your
Cross-Examination



1. Know what you want to cover during
cross-examination.
2. Know the order in which you want to
cover it.
3. Design the questions to get the
answers you want.
General Guidelines to Govern
Cross-Examination




-
Carefully design and sequence your questions. Know your
purpose.
Prioritize the legal issues you need to cover with each
witness.
Take control of the witness through a well prepared,
sequenced set of questions. Don’t allow the witness to
take you hostage!
Every question should be a leading question.
Start by asking the witness friendly, non-threatening
questions. These will put the witness in a cooperative
frame of mind.
EXAMPLE
Q. “ You would agree with me, Ms. Moniz, that
you own a pit bull, yes?”
A. “Yes.”
Q. “You would agree with me that a pit bull is a
large dog?”
A. “Well, I guess so.”
Q. “You would agree with me that a person might
be frightened of a pit bull?”
A. “Maybe.”
You have the right to insist on an answer to your
question.
Example
Q. “Mr. Harman, you haven’t answered
my question. Can you please answer yes
or no?”
Q. “Perhaps the question wasn’t clear, Mr.
Harman. Allow me to rephrase it.”
You have the right to ask for clarification
of the witness’s testimony to reinforce your
point.

Example
Q. “So your evidence is that ….. Correct?”
A. “yes” or “No” with an explanation.
Things to avoid during crossexamination

During cross-examination
of a stubborn or clever
witness, you may get
answers that you don’t
want. When this
happens, it may be in
your best interest to
concede the point and
move on to another
topic. By doing this you
will regain control of the
questioning.



Never ask a witness to
explain anything during
cross-examination. You
risk being taken hostage
by a verbose witness.
You may not physically
intimidate a witness.
You may not shout, make
threatening gestures,
bully, or badger the
witness.
Things to avoid during crossexamination continued…


-
-
You may not mislead the
witness or use trick
questions.
Do not ask open-ended
questions.
Do not ask, “Do you have
an opinion about this or
that?”
Do not ask, “What do you
think about….?”



Avoid long questions that
give the witness more
opportunity to disagree.
Do not interrupt the
witness. You will appear
rude. Allow the witness to
give a full answer.
Do not argue with the
witness. Rephrase the
question or move on to
your next point.
CLOSING ARGUMENTS
Unlike the opening statement, the closing
summation is an argument. Remember the
cardinal rule: less is more!
Tips for preparing a persuasive
closing argument
1. Tell a persuasive story.
 Review facts. What happened?
 Why did it happen?
 Who is credible? Who should
be believed?
 How can we know for sure what
is true?
 Does the evidence make sense?
 Is the theory compelling?
2. Tie up the loose ends from
cross-examination


Leave space in your closing
argument to make inferences
and assert claims that were
implied during crossexamination.
Highlight inconsistencies,
contradictions, and gaps in the
logic of opposing counsel’s
theory of the case.
3. Deliver on your promises

During your opening
statements, you told the
judge and/or jury what you
intended to show,
demonstrate, or prove. Now,
during your closing
argument, you should
comment on the promise that
were kept.
4. DEAL WITH YOUR
WEAKNESSES

During cross-examination of
your witnesses, opposing
counsel may have exposed
inconsistencies,
contradictions, or
weaknesses in the logic of
your theory of the case.
Confront these problems
and resolve them.
5. Ask for your verdict or damages


In a criminal trial case,
confidently ask the
judge and/or jury for
the verdict you seek.
In a civil case, after
you have
demonstrated liability,
address the issue of
damages.
Tips for Delivering a Persuasive
Closing Argument




Do not read or try to memorize your
argument word for word.
Use an outline to organize and plan
your argument.
Deliver your argument with an air of
spontaneity.
Be flexible with your closing argument.
Allow space in your outline to include
unexpected statements made during the
trial.
Animate your delivery with body movements
and gestures for emphasis and effect, or to
contrast differences between your case and
that of the opposing counsel.
 Use verbal headlines and transitional phrases to
signal where you are going next and to guide
the judge and/or jury through your argument.
 Use enumeration to summarize related points in
your argument.
Example
“There are three reasons….. One…..two…..three




Practice speaking. Locate your natural tone. Use the voice
techniques of inflection, volume, and pace to get your message
across effectively.
Use simple, persuasive language. Simple language is more
compelling than elaborate and ponderous phrasing that strains
the attention of your audience. Choose active nouns and verbs
to convey emotion. Avoid inflammatory adjectives and
adverbs.
Use visual aid as appropriate. You may use any exhibit
entered into evidence-a document, a diagram, an item of
clothing, a weapon- to illustrate a key point in your closing
argument.
Things to avoid during your
closing argument

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


Do not use a statement of your personal beliefs as a basis
for the verdict of your case.
Do not appeal to emotion or sympathy as the basis for the
verdict. The case must be judged on its legal merits and the
evidence presented.
It is unethical to use inflammatory arguments based on
prejudice or bigotry to persuade or appeal to the judge
and/or jury.
Do not misstate the facts or deliberately employ logical
fallacies to jump to conclusions or make inferences that the
evidence does not support.
When enumerating items, do not number more than six
items. Most people’s attention starts wandering after seven
WITNESS ROLE
If you are playing a witness and enjoy acting, you can have a lot of fun
brining your witness to life by wearing a distinctive item of clothing, adding
an accent, or developing a personal mannerism. You can also use your voice
to evoke emotion and enhance your credibility.
However, dramatic techniques that heighten the impact of your
portrayal should be secondary to your main purpose: advancing the case
for which you are testifying. As a witness, you are expected to testify
truthfully according to the facts. Witnesses who make up evidence or
perjure their testimony risk being impeached by a clever lawyer.
Tips for Witness Portrayal
Practice. Know your testimony thoroughly, inside and out. You are not allowed to
use notes on the stand, so you need to know your stuff. Through telling and
retelling the story, you will gain confidence.
Strive to stay in character for your entire testimony (direct examination and
cross-examination). For example, adopting an accent and then losing it midway
through your testimony lessens your credibility. Strive to be convincing. Acting
too big or over the top can be counterproductive and lessen your credibility.
Whatever persona you decide to adopt, it should always complement your
witness’s character and advance your side’s theory of the case.
Speak slowly, loudly, and clearly to convey confidence.
Pause before answering a question. Give yourself time to think, especially
during direct examination. You don’t want your testimony to sound canned or too
rehearsed. Use a natural conversational tone. Avoid being sugary or insincere.
Remember to breathe. Especially during cross-examination, when your adrenalin is
pumping in your showdown with opposing counsel, it is important to remain physically
grounded. Deep breathing help you do this, and also keeps you from speaking too
quickly.
Know your own weaknesses. From your analysis of the case, anticipate and prepare
for questions that target your credibility.
Don’t allow yourself to be bullied or rushed into giving an answer.
Don’t argue with examining counsel or try to be evasive if you suspect your answer will
damage your testimony. Answer the questions to the best of your ability. If you're not
sure of an answer, say, “I don’t recall.”
Remember your audience. The judge, the trier of fact, and the jury, if there is one,
must be able to hear your testimony. Make eye contact with them as you answer.
Address your answers to the judge, even though you’re responding to examining
counsel’s questions. The lawyer should position himself or herself and stand in a spot
that allows for a triangular flow.
Tips for testifying During CrossExamination
Listen carefully to the question being asked of you. If you don’t understand it, or
if the question is long and complex, ask examining counsel to clarify or simplify
the question.
Think before you speak. Don’t deliberately delay and offer a nonresponsive
answer, but don’t feel pressured.
If you’re questioned about a fact of the case that is unfavorable or damaging to
your side, concede the point and act as if it has no significance. If you delay or
appear shifty or reluctant tot answer, you will only reinforce the damage.
If you’re presented with a document, take time to read it. If something in the
document damages your credibility or contradicts your testimony, diminish the
significance by responding as briefly as possible.
If you’re challenged with strong evidence that contradicts your testimony,
apologize for having been inattentive at the time and concede the point o
minimize the impact on your credibility.
• If you don’t know the answer to a question – even if you’re an
expert witness- say so. You’re not expected to know absolutely
everything.
Always try to give a full uninterrupted response to a question.
If examining counsel harries or badgers you, your own counsel
should object.
If you are asked to affirm a claim that you believe to be
untrue, politely respond that you don’t think it’s true and clarify
where examining counsel made an error. Expert witnesses
often do this during cross-examination.
If a leading question is well crafted and absolutely clear-cut,
you must respond accordingly – usually “Yes” or “ No”.
However, if you believe that you can’t answer a question
properly or fully with a simple yes-or-no response, indicate as
much and let the judge rule on it.
Expert Witnesses
The outcome of a trial may depend on the testimony of an expert witness.
An expert witness is someone who is recognized and qualified in a
particular field. Such a witness can enhance the theory of the case that
Crown or defence counsel is seeking to advance. In order to qualify such a
witness, counsel needs to demonstrate that the expert has some special
knowledge or expertise gained through education and/or experience and
that the witness can apply this expertise to the relevant issues in the case
and give his or her “expert opinion.”
If you are playing an expert, your lawyer must lay the foundation for your
expertise by asking a series of questions about your education, training,
experience, scholarly work, and/or publications.
Example
Q. “Dr. Scallen, please tell us about your
education.”
Q. Do you have a specialty within the
field of economic?”
A. “Certainly. I have an undergraduate
degree from McGill and a PhD in
economics from the University of British
Columbia.
A. “yes, my specialty is business
valuation.”
Q. “What work have you done since
receiving your doctorate?”
A. “I was a professor in the economics
department at Dalhousie university for
six years. Then I left to start my own
consulting firm, which is called Scallen &
Associate.”
Q. “What is the field of business
valuation?”
A. “It is the study of all components that
contribute to the fair value of a business,
including anticipated future profits,
assets, receivables, goodwill, and
investment potential.
This example outlines and confirms the expert
qualifications substantiated by the witnesses' education
and experience. Dr. Scallen should now be able to give
his expert opinion as to the projected profits of a
business involved in the case.
If there are no objections from opposing counsel, the
lawyer asks the court’s permission to have you qualified
as an expert. This step is significant, because only an
expert witness may off an opinion in his or her testimony
to the court.
Refreshing a Witness's Memory
Example
Human memory is fallible
and full of gaps. Most of us
can’t remember, minute for
minute, where we were last
week or what happened
earlier in the day. A witness
may honestly have a
memory lapse or
unintentionally change his or
her testimony. It may be
necessary for the lawyer to
help refresh the witness’s
recollection.
Q. “You testified during the direct examination that you went directly from
the scene of the accident to the hospital.”
A. “Yes, that’s right.”
Q. “In fact, you went to the telephone and called your office first.”
A. “I’m not sure that I did.”
Q. “Let me refresh your memory.” (Refer to prior statement.) “you were
asked this question and you gave this answer.” (Read word for word)
A. “I see.”
Q. “ Does that refresh your collection as to whether you did anything
before going to the hospital?”
A. “ yes it does.”
Q. “in fact, you went to the telephone and called your office first, didn’t
you?”
A. “yes, I did”
OBJECTIONS
Avoid being a jack-in-the-box, popping up
every time opposing counsel asks a question. A
timely and appropriate objection will make a
better impression with the judge and jury. Only
object if doing so advances your case.
Five Simple Rules About objections
RULE #1
Objections are permitted during the examination of witnesses but not during opening
statements or closing arguments.
RULE #2
Only one lawyer for each side may object during the questioning or testimony of a
witness. This lawyer is the one conducting the direct examination or the cross-examination
of the witness.
RULE #3
Both the Crown and the defence may object to questions or to the admissibility of an
exhibit. The judge may either sustain (agree with) or overrule (disagree with) an objection.
RULE #4
A lawyer makes an objection by standing and stating, “Objection, Your Honour,” and then
specifying the grounds for the objection
RULE #5
Before the trial begins, the Crown must disclose to opposing counsel all evidence and
exhibits that will be introduced during the trial. If the crown attempts to introduce
evidence or an exhibit that was not previously disclosed, defence counsel may object.
Variety of Objection





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
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


1. Leading Question
2. Narrative Question
3. Narrative Answers
4. Protecting the Witness
5. Asked and Answered
6. Non-Responsive Answers
7. Character
8. Opinion
9. Speculation
10. Relevance
11. Hearsay