EXPERT WITNESSES
As a conservative estimate, eighty percent of all trials in courts of general jurisdiction
involve the examination of skilled or expert witnesses. For example, in personal injury
cases, there are medical experts and experts in accident reconstruction; in criminal cases,
there are chemical, ballistics, fingerprint, and handwriting experts; and in commercial
cases, there are economists and market analysts. The opportunities for use of skilled or
expert witnesses are limited only by human knowledge and the trial lawyer's ingenuity.
Accordingly, no lawyer is worthy of the name "trial lawyer" until she has mastered the
techniques that attend the direct and cross examination of skilled or expert witnesses.
The function of the expert witness is to bring to the trial of a case knowledge beyond the
everyday and to apply that knowledge to the facts in the case so that jurors may better
determine the issues.
The basic guidelines are stated simply, but they are not so simple to apply.
1.
Qualifications. The proposed expert witness must be qualified by training or
experience in a recognized field of knowledge beyond that of the average layman:
2.
Explanation of Expertise. If the field of knowledge is at all esoteric, the expert
witness should provide a brief explanation of it, particularly with reference to its
application to the case at hand.
3.
Ruling Oil Qualifications as an Expert. In some jurisdictions after the witness'
qualifications have been elicited, the witness is tendered to the court as an expert
in his or her field, and the court either accepts or rejects the witness as an expert
at that time. Some courts, however, are reluctant to give their imprimatur to the
witness' testimony or to rule on the witness' qualifications as an expert prior to
hearing the actual opinion the expert will be asked to give. In those jurisdictions,
the direct examination simply proceeds unless there is an objection, at which time
the court rules.
4.
Cross Examination on Qualifications. The opposing counsel may voir dire (cross
examine) the witness on his or her qualifications at the time the witness is
tendered to the court as an expert witness or, if that procedure is not utilized,
before the witness is permitted to express her opinion.
-
'Under the Federal Rules of Evidence, the test is whether the witness' knowledge, training, or experience
will assist the trier of fact in understanding the evidence or determining a fact in issue. Note also that the
witness, if qualified as an expert, may testify in the form of an opinion or otherwise. FRE 702.
-
P-37
Potter v. Shrackle Prohlems
-.
5.
Basis of Opinion. The direct examination should elicit a description of what the
expert did with regard to the case and the facts that are the basis of the
opinion.··
The facts that may be used as the basis for the expert's opinion and may be
elicited on direct examination are limited to those facts that:
(a )
The expert personally observed,
(b)
Were elicited in the courtroom and heard by the expert, or
(c)
Were transmitted to him hypothetically.
In the federal courts and in some state courts, facts that were made known to the
expert outside of court, and other than by his or her own perception, may also be
used if they are of a type reasonably relied upon by experts in the expert's field.
See FRE 703.
In most state courts, the hearsay rule and the other traditional principles of
admissibility apply to expert testimony. Opposing counsel should keep an ear
carefully tuned for the application of these principles during the expert's direct
examination. In the federal courts and some state courts that have relaxed the
hearsay rule and the other traditional requirements for admissibility for expert
testimony, the expert may testify to, and base his opinion on, facts that are not
admissible in evidence.
6.
Opinion. The expert's opinion may not be speculation or conjecture. Rather, it
must be an opinion to a reasonable degree of certainty within the expert's field.
Most courts require that the opinion be elicited in a two-question sequence: (1)
Do you have an opinion as to
?, and then (2) What is that opinion?
This gives opposing counsel an opportunity to object before the opinion is heard
by the jury.
··In most state courts the direct examination must elicit the factual basis for the expert's opinion as a
foundation prerequisite for the expert stating his opinion. This is the method for ensuring that the
expert's opinion is based on admissible evidence.
While, in the federal courts, the underlying facts for the expert's opinion need not be disclosed on direct
examination, the expert will be required to disclose them on cross examination. FRE 705. The court,
however, has the discretion to require that the underlying facts be disclosed prior to the expert stating his
opinion when the interest of justice so requires. See FRE 703.
-
The underlying fact.s for the expert's opinion are usually quite persuasive, and most trial lawyers will
make them an integral part of their direct examination. The trial lawyer has the option in federal court,
and she may tailor the direct examination to meet the needs of the particular case.
P-38
Potter v. Shrackle Problems
-
When the expert's opinion is based on facts that the expert did not personally
observe or hear in the courtroom, the hypothetical question format is required in
most state courts. However, in the federal courts and some state courts, the
hypothetical question no longer is required, and the trial lawyer has the option of
using it or not. FRE 703, 705. When this format is optional, the trial lawyer's
decision is a matter of trial strategy, which depends on many factors. Perhaps
some of those factors will be demonstrated in the exercises.
The primary objections that are available to opposing counsel when the
hypothetical question format is utilized are:
(a)
That the hypothetical question included facts not in evidence, or
(b)
That it did not include relevant facts that are in evidence.
Thus, in a complicated case the hypothetical question can be quite cumbersome.
In anything but the most routine case, it can be a delicate procedure with pitfalls
to snare the unwary.
7.
-.
Cross Examination. The expert witness may be cross examined with respect to his
or her opinion on the basis of:
(a)
The expert's qualifications;"
(b)
Other facts in the case, or
(c)
The published opinions of other recognized authorities in the field (learned
treatises ).
"""The cross examination of qualifications, discussed in paragraph 4, is a voir dire on the admissibility of the
expert's opinion. The cross examination here goes to the weight of the expert's opinion. Counsel
should weigh carefully whether to cross examine in both instances or to elect one or the other.
-
P-39
Potter v. Shrackle Problems
-
IMPEACHMENT AND REHABILITATION OF WITNESSES
Impeachment
Although it is a part of the cross examiner's art, impeachment is a sufficiently difficult
problem in itself to warrant separate consideration.
1.
The cross examiner must consider not only how to impeach, but also whether the
witness should be impeached at all. Just as the trial lawyer should not cross
examine in some situations, he often may decide wisely that, although impeaching
evidence is available, it should not be used. If the witness has not hurt your case,
usually it is better not to impeach and risk offending the jury. If the testimony of
a witness can be turned to your advantage, as in the case of a truly impartial
expert witness, do so and do not impeach.
2.
Foundation for impeachment by prior inconsistent statement:
-
-
(a)
Under the law of most jurisdictions, the witness must be confronted with a
prior inconsistent statement during cross examination. If his or her
attention has not been called to the earlier statement, extrinsic evidence of
it will not be admissible. Cross examination should be specific as to the
time, circumstances, and content of the earlier statement.
(b)
The rule requiring a foundation for prior inconsistent statements is relaxed
under the Federal Rules of Evidence. Federal Rule 613(b) provides that
the witness must be "afforded an opportunity to explain or deny" the prior
inconsistent statement in order for extrinsic evidence to be admissible, but
no time sequence is specified. Therefore, as long as the witness is available
to explain the inconsistency if he so desires, extrinsic proof is admissible.
(c)
Most advocates will prefer to lay a foundation on cross examination
regardless of whether or not it is required under the rules. The reason for
this is two-fold. First, the witness may admit the statement, making
extrinsic evidence unnecessary. More significantly, confronting a witness
with her own inconsistency often will have a dramatic impact that cannot
be duplicated by introducing evidence of the earlier statement through
another person.
3.
If the witness denies making an earlier statement, be prepared to prove it by
extrinsic evidence.
4.
If the witness admits making an inconsistent or otherwise impeaching statement,
do not ask questions that give him an opportunity to explain it away, unless you
are certain that this cannot be done. The attorney who has called the witness will
P-19
Potter v. Shrackle Problems
-
have an opportunity on redirect examination to elicit explanations, if any are
available. This affords you the opportunity for recross.
5.
There is no need, and it is usually harmful, to dwell on the impeaching matter
after it has been brought out in cross examination. Remember, you have a closing
argument.
Rehabilitation
If a witness has been impeached during cross examination, counsel must evaluate
whether to attempt to rehabilitate the witness on redirect examination.
-
-
1.
As with any redirect examination, counsel should limit the scope of the redirect to
those items in which the witness needs an opportunity to explain or amplify upon
his testimony after the cross examination. Redirect examination and rehabilitation
of a witness is not the time to rehash the direct testimony once again.
2.
In considering whether to rehabilitate a witness on redirect examination, counsel
should first of all be absolutely certain that the witness has, in fact, been
impeached. If the witness has not been effectively impeached, do not attempt to
rehabilitate the witness as you may only worsen matters.
3.
Rehabilitation generally consists of providing the witness with an opportunity to
explain the circumstances pertaining to the impeachment and to elicit any
"exculpatory- factors. Give the witness the opportunity to put the impeachment
in context.
4.
If the impeachment can be explained, do it; if not, leave it alone on redirect as
you just may worsen matters.
5.
If the witness has been impeached by a prior inconsistent statement, counsel
should consider the admissibility of any prior consistent statements. See
801(d)(1)(B) of the Federal Rules of Evidence. Prior consistent statements are
generally admissible if they rebut an express or implied charge of recent
fabrication.
P-20
Potter v. Shrackle Problems
-
DIRECT, CROSS, AND REDIRECT EXAMINATION
The ability to examine and oppose the examination of witnesses in open court in an
adversary setting is the most basic skill of the trial lawyer. Yet, the most common
criticism of trial lawyers is that they are unable to conduct proper, intelligent, and
purposeful examinations and to oppose these examinations.
As with any skill, practice is the only sure way to achievement. The practice should be
conducted with some guidelines in mind.
1.
The purpose of any witness examination is to elicit information.
2.
The basic format is an interrogative dialogue.
3.
The witness is probably insecure. She is appearing in a strange environment and
is expected to perform under strange rules. This is a handicap you must
overcome on direct and an advantage you have (and may choose to exploit) on
cross.
4.
Your questions should be short, simple, and understandable to the witness, the
judge, and the jury on both direct and cross examination.
-
(a)
It is imperative that your audience - the judge and the jury - understand
your question so that they can reasonably anticipate and comprehend the
answer.
(b)
On direct examination, the insecurity or anxieties of the witness will be
increased if he does not understand your questions.
(c)
On cross examination, the complex argumentative question provides a
refuge for the witness to evade the point.
5.
As a general proposition, you may not lead on direct except as to preliminary
matters or to refresh the recollection of the witness. Both of these exceptions are
discretionary with the judge.
6.
In any event, on direct examination leading questions and the perfunctory answers
they elicit are not persuasive.
7.
On cross examination you may lead and you should do so. Control of the witness
on cross is imperative.
P-5
Potter v. Shrackle Problems
-
8.
At the outset of direct examination, have the witness introduce herself. Then,
place her in the controversy on trial, and elicit the ''who, where, when, what, how,
and why" of the relevant information the witness has to offer. Then quit. Do not
be repetitious.
9.
If you know that the cross examination will elicit unfavorable information,
consider the possible advantage of eliciting it during your direct examination.
10.
Do not conduct a cross examination that does nothing other than afford the
witness an opportunity to repeat his direct testimony.
(a)
If there is nothing to be gained by cross examination, waive it.
(b)
If you can accomplish something by cross examination, get to it. Organize
your points and make them.
(c)
Be cautious about cross examining on testimony elicited on direct that was
favorable to your position. You may lose it.
(d)
Be cautious about asking questions to which you do not know or cannot
reasonably anticipate the answer. Be particularly cautious in these
situations if the only evidence on the point will be the unknown answer.
11.
Listen to (do not assume) the answers of the witness. As an examiner, you are
entitled to responsive answers. Insist on them by a gentle repetitive question on
direct or a motion to strike on cross. Of course, if the answer is favorable, accept
it and return to the pending question.
12.
Objections to the form of the question must be made before an answer is given.
If the question reveals that the answer sought will be inadmissible, an objection
must precede the answer. The grounds of the objection should be succinctly and
specifically stated. If the question does not reveal the potential inadmissibility of
the answer, but the answer is inadmissible, a prompt motion to strike should be
succinctly and specifically stated. Only the interrogator is entitled to move to
strike an answer on the sole ground that it was unresponsive to the question. If
the answer is unresponsive and contains objectionable matter, then the opposing
counsel is entitled to object.
13.
If an objection to the content of the answer (e.g., relevancy, hearsay, etc.) as
opposed to the form of the question, is sustained, then the interrogator should
consider the need for an offer of proof at the first available opportunity. If an
objection to the form of the question is sustained, then the interrogator should
rephrase the question to cure the objection.
-
P-6
Potter v. Shrackle Problems
Fot':
\,/"""" C l i e n t
[112a b:±b~..Ll1j-"",:ur-')1Aa....o-,--_______
0pEon~nt
Name of Witnoss:
Home Address:
Home Phone: '1 i-t'1- .5
Employer: --.l.}~S--fOR:--n())\ el{~\li
Work Phone~~- JDCO
Employer's Address:
D6i.l.l('Y_~e....L.\TIL...>.f~-,-Qi-,-,-J,,-t_.,--_________ Occupation:
It \
\
a>D
8xpert7
____ Medical?
Field of
I f ex pe t't. summary of qua I if i ca t ion s:
i~
fuli30dSlst pm{.
eXf\~r1iise,: fl'--"l<Ci(Y:(l........(2ill
..........J)u.>oiC"'~""-'-::-_~'r-:,--_---,,-,--,-,,-.,....,..~-=-_ _
.4-~-I-ra..J..i1...:.,_'LdL..L'\-'~P"-/d.l''''"i,''''..l.L&i,UL(muLL\i~c'"'<
...;:.:..-_ffL!....I.().:.lr-'-!.Il_.I>6i..d<l..I.I.l..I...$if=tJ.'I.s..!f~e..,,-_
Call under MRE/FRE 611(c) as adverse party?
Adverse Witness?
Cover at
Trial
Covered
-------------------------------------- - - - - -
BASES FOR IMPEACHING WITNESS
. 0-----
- - - .------_._----
===
. __~:-- Request statement or report
bY_ill1eeJ~__ / Does
v
Attached
Sch~,dule
opponent
Fi led
_~Statement
V
have copy?
'e' I' c'
yes
I~ ~A~_AL---"
Deposition subpoena issued
O"pllsition
Duces Tecum
TranGcript received
COllpe1-ativ.~?
for
L\.e./ __
l1- ia 1
.....
~-,,;zl._-C)_*__.
"i.,,\£:?-"'-y..,.. . _-..
Duces Tecum
.... __ ~Subpoenu Let.ter
l,..-/
............ Prepared
CI.IEST:
----------------
testimollv ,,-ith >litller,s on
Appearance? ----<:\.ct:.L--------,I--,-.-----__
~.
Dp.lievablp.?
-.t D~~eanor? C:fX:{)-------.. -Il(~ 1 iable? - ... ---..L.\f::2- .___
0 tiler obsel'vat iOIE..\ t\-n,JJ.I..¥rl-r:. . ___ ..__ .____ .. _.. _______________ _
Hevie"'f'd
.__V::'" Suhpol.'lIa
-
3-eJ-q +
no
:~ __L.s.:ra:1LUJr"u:r:~------
IJrpoGit inn tuitPI1 011
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or report obtained on
C -SnY{lCk Ie...
-)
MJ\TTEIl:
~
Served
Magner
Ms. Buchanan, w0l11rl YOll explain why YOI\ fee]
1.
that Dr,
Glenn's pr'ojertion of SAlary increasps would not. hp fflir t.o
(-" s t
A
2 .
fppl
h1i
h
A
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11 I'
to;
to
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f\lI('llHtlHtI:
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Pot.t.pr"",
4.
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r d <:; H <:;,
r;.lPT1t1'~
rp<::l'ert
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fld t l p d
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111
e
p'~p1,:.d.n
FI C; 11
I"hy
thp
r i n g 1>1 r ,
lnss:
R'.whnn:ln:
1'1
PASP
IS i vp
th(-' court
conclllding 1h'11
Dr.
Glpnn's assumption
C'ontrthllt'ion
lIl':>
family well
t(l
'"
(If
hAsi
s
for
gifls
Fll1r1
not.
hping ,"hich W()lllrl ('()llstjtl1tp
For:
Client
Witn~ss: D'I''IK ~'L~~G~,~·enn
LW
Name of
lIome Addres~: 'I -L'J5 ?'~'~~.!?
Employer: _LJ'1Il)eY~_~L~~i __ _
El1Iployer's Address: c '
~iin
I---- 0.Jlp~ment
(J {q
~'
o:L-~.:afl~;;f~
-'--_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-~_
~Expert7
-V If
Home Phone:
Work Phone :-;~e""=-~-~-_"-~-Occupation:
'
____ Medical?
Field of exprrt)~e:P~fLL~I~O~liOO~I~~I~~~·r_-~~_r---~~~r_---_ ____
expert, summary of Qualifications:
D,
JJOIIK(~dit
IIIPOI"':'y
JiOiiL
Adverse Witness?
6£ --C
Cull under MRE/FRE 611(c) as adverse party?
Cover at
T~'ia1
EXPECTED TESTIMONY
Covered
_ _--_... _------------_.
...
--------------_._---
--------
-
---_1,-
...
---
.....
~ Statement
__ .~:__ Request statement or report
by
_B.ldt~ks_,
Does opponent have copy?
At t a c h e d . _
Scll£'dule
Dr~pus
~
Filed:
ilion
J)(lpon it j nn
or report obtained on
v--::- yes
no
._.?_t;..C~~tcl:ll.mCn+~ )/
Deposi t ion subpoena issued
lulu,!11 011
t:.. 3-D - qt)-
--_.
__._---
Duces Tecum
._...... _ T"onscl'ipt
rec~'ivcd
flev if'wf!d test imony ,d til ,Ii tile"" on ... ,._ ._. ___ ._. _____ . Appearance? .... ___ ... _ _ •. _._ ..... _'_. __ .• __ .. __
COllJlC'l'ativ(!'? __ ....... _....__
nf!lievIlble? .'.' ............ _ .. _. ____ ....... Demeanor? ._'_ ._...... _._._ .. _ ..
lleliable?
Othl'l' obsel'vation!,:
Suhpo(~lla
....•..
-
Cl.IENT:
{o.· lrial
Pl'l'llll
('.'r!
] "gilI'd
. Subpoena Letler
Dlle!:'s Tecum
Ilt~C().'Jsary
(Sl'rvilt~,
OCf ic(!r:.
MATTEIl:
Served
LDY6YlCj-hd
PoHer
V
duilll . Sul+-.
:Sl~r-a C ~le,
-
Robert Glenn - Rebuttal Questions
1.
Would Katherine Potter have completed her Ph.D.
and entered the labor force in two years.
2.
How would Dr. Glenn know that Katherine Potter would
retire at age 60?
This is an assumption and no economist would know.
-
3.
Salary increases along with discount rate projections are
based on relative recent years, how can this fairly be
said to establish a trend t~t will apply over the next
thirty years . / '
4.
Would Mr. Potter IU!"'(e stayed in the same housing when he
did not have a spouse?
5.
Would Mr. Potter have the same housing expenditures if
he was living in the house alone, with~ Mrs. Potter?
.
\
~-
YOUR
~) ./
L/
~ "II j ___________________________________
NAME--L,~/l~a~rl~~L~j~~l__~~
__~~_~_~t
YOUR
ADDRESS
1£110
&1
deV bn.
~g~E <fQ'hI G/1i r~f!{:~&~J1US
OCCUPATION
PHONE #--OFFICE 6c::J5-~ )&10
txt\') K -KIleY'
EDUCATION
SPECIAL AClUEVEMENTS OR HONORS (DON'T BE MODEST)
~fd l.UI t..¥JH)LO'tQ ct;p-.{DYl I.,lvYI.4JtWt'i1 d OC ~ in.
_.
HOW LONG HAVE YOU KNOWN PLAINTIFF, AND IN WHAT CONTEXT HAVE YOU
KNOWN HIM/HER?
(NEIGHBOR, WORKED TOGETHER, ETC.)
.LLl iw .IILLV-L'1, LYTk£ -t
WHAT WERE PREINJURY ACTIVITIES OF PLAINTIFF?
THE HOUSE, ETC., TYPE OF WORK)
(SPORTS, WORK AROUND
LvuAf>)t.o ~m
FIRST
K~OWLEDGE
~_-O~~~'-LDESClnBE YOCR INITIAL OBSERVATIONS OF \\'HAT '''AS DIFFERENT ABOUT
PLAINTIFF AFTER THE INJCRY?
(STIFF NECK, LIMP, UPSET, NERVOUS,
,
.
.
TENSE, ETC.)
_t::k.u---.i::¥!..f,;.o~j_LcL_~) J1flLiV! r.i2td (In ~ C1 FL 'IC(j.-£_}zA.1LQ-1-_______.___ ,
HOW OFTEN DID VOlT SEE PLAINTIFF AFTER INJURY?
POSSIBLE.
~t.l,
DE AS SPECIFIC AS
For:
Client
Honl'-d..D- ke.-llW-
-m-r-:-r-------__________
Name of Witl'less:
--r1d:-;---cT"rr
l
lIome A(ldre~: J'1l.D.._...fJaU'-__ hL~ll'_'1_I'_lli'-""-~I.....'_'__'~-'f-Employer: KXl.OkEl1Iployer's Address:
Em ________________
une
532> W,
V
Oyponent
Home Phone :~)E) Work Phone ~..:::-f-~~di"::---'I-"~"""'u~-Occupation:~±~e_uIl~~1~-_ _ __
1d-j3
Expert?
Medical?
Field of expertise:
If expert, summary of qualifications:
Adverse Witness?
Cull under MRE/FRE 611(c) a9 adverse party?
Cover at
Trial
-
Covered
----------------------------
_
~_....,._~===_~_=_7_=:=_=-..::=~ _:::_:___"=_~_-_
~
BASES FOR IMPEACHiNG WITNESS
.. ,---~"
v
Request statement or report
~ Statement or report obtained on
by _ _ _ _ _ _ _ _ , Does opponent have copy?
~yes
no
Attached
Sclwdul ..
IJI!PllU
J)flopOG
it
j
ilion
on
llepositiun subpoena issued
tult{~ll
__
Oil
Tran~cript
Duces Tecum
received
Heviewed tPstimony "'ith ,;itne"s on _________ .________ ,\ppearance? ________________,________________ .. ___ _
Coopct'a t i vC'? ___________ ______ _
De lievablc?
__________________ . __________ Demeanor? ___________________ _
Il(!liable?
othC!t' Ob~c!l'vation,,:
Suhpoena for l r ia I
,,____
-
C1.IENT:
IlPCif1 '-,sa
.. y
nucP.s Tceum
_ Subpocno Let-lcl'
Served
P I'Plla I-C!d
MATTEII:
i,
CDntr I.bL\~1-n'~ l\ (Ie 5 'qerce ./
i0YDrl~~u( dea...+11 SL(lt
Questions for Marilyn Kelly
1. Where exactly was the crossing guard when you first saw
saw her?
2. How long were yoU at the stop light?
3. What was the weather like that day?
4. How old are you?
5. How is it that YOU noticed exactly what Mrs. Potter was
wearing that day?
6. You witnessed everything that day~ didn't you?
7. Did you have time to fit a few chapters of War and Peace
while you sat at the stop light?
PD 60
YOUR
ADDRESS·
AGE
HOHE
.~
~I
.
3'T6 -liO I
OCCUPATION
HARITAL STATUS
(llicrled
PHONE #--OFFICE:hS-&~43
UIL<£;'O'\ Qup;(d
J
)
EDUCATION -=::[:;q.:/j6='-"=D_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
HOW LONG HAVE YOU KNOWN PLAINTIFF, AND IN WHAT CONTEXT
KNOWN HIH/IIER?
(NEIGHBOR, HORKED TOGETHER, ETC.)
HAVE YOU
o(»U]
WHAT WERE PREINJURY ACTIVITIES OF PLAINTIFF?
THE HOUSE, ETC., TYPE OF WORK)
(SPORTS, WORK AROUND
LVY11~']..oul:t1____ _
- ..
_---_. __
..
---_.
__._._ .. ---_._--_._----------------------
FIRST K\JOWLEDGE OF INJURY TO PLAINTIFF leU?:)"] \/2o/1f'Citzd ,;£/<(7
r[,ttiJ f'
{YO ~tr1"-z,
~1JVlC I" ( I) ,klAfl,
-v~L mp veL yJ d ._::::{rJ'v;)
,P
e
DESCHIBE YOU{ INITL\L OBSERVATIONS OF WHAT \"AS
PLAINTI FF AFTER TIlE INJURY?
(STIFF NECK, LIMP I
1:fNSE I ETC.)
Ui.L-WJy.;::L-.-bLU~01%--i_WrrJ--,;;tlJ.L. h
HOW OFTEN
POSSIBLE.
~1.£.1L
-
DIU YOU
SEE PLAINTIFF
DIFFERENT ABOUT
UPSET I NERVOUS,
taO, .--.-.-.--..---.-.---_. __. _.
AFTER INJURY?
BE AS SPECIFIC
AS
F01':
Na•• o£
WHne"",p~1rJ.{-•
1I0me Acldress:
- -'.
,_I
Employer:
VV'[
r
E.ploye.·" Addm;;;c;;i;
OCt
-
4
J dh~~
u6~t~
i!l dtl
,
-L
Client
_ _ Opponent
lIome Phone:
leo
Work Phone: ~)'"; ·-US43
Oeeupat ion:~ i
(~' If)
,9
3-'78 -
CAbq
uq)
rd
Expert?
Medical?
Field of expertise:
If expert, summary of Qualifications:
Adverse Witness?
Cull under MRE/FRE 6Il(e) as adverse party?
Cover at
Trial
EXPECTED TESTIMONY
Covered
~~ ~J~~~51rM~~' - - -----------------------.. _-_._-------_._---------------
-----.- _._- ---_.
.,--_....
____ .k-::::~
'-'--'---_ ... _-
__ .-._------._--- _----_._--_ .. _ - - - -
.
..
~ Statement or report obtained on
Request statement or report
V
by _ _ _ _ _ _ _ _ / Does opponent have copy?
,v / '
Attached
ScI ... dule
ll,~p"'l
SUh')O(~IHl
for
lol{(~ll
C1.lENT:
fJ L_. _________.____ _
k
Deposit.ioll subpoena issued
Duces Tecum
.. __ Transcript received
Oil
t r in 1 Ilf,!cpSSa ry
lB!i\lt"d
-
no
II <~)I, +hI
Filed :~r.e_~R_
-m..e.o±----T-'-~~-
ilion
1)pponi t ion
yes
Duces Tecum
(Spl'viIlJJ. Offic(!f':,
MATTEIl:
_ Subpoenu Let.ler
)
Served
QUESTIONS FOR ALICE MALLORY
Would you please state your name and age for the court please?
2.
What is your occupation?
3.
Did you have any training for this job?
4.
Where do you work as a crossing guard?
5.
How long have you worked as a crossing guard?
6.
When do you work at the intersection in question?
7.
Were you working at that intersection on Nov. 30, 1992?
8.
What happened that day on your afternoon shift?
9.
What else did you see that day?
10. About where would you say the impact occurred?
11. Where and when did the pick-up truck driven by C. Shrackle
stop?
12. What did you do after you observed the accident?
13. Why didn/t you come forward with this information immediately?
14. Is it your job to observe everything at the intersection for
the protection of the children?
-
,.
.
~.1
YOUR. \
NAME~l me=-::5::,.....·--"LI----...!"'-Gt"-(.. .: : ~'_'_1. .:. .: {C'_'_tI~_________________
__________________
YOUR
l ;\
(\ .
lie
ADDRESS_lv_O_I___~,~_~_~
__
S __
HU_)_t_._~~~/W ~_'t~v
___
AGE
HOME
9-1
HARITAL STATUS ~I n~\e
PHONE #--OFFICE
~'5~S-cc33
"£Ct rnf
OCCUPATION
EDUCATION
Dwof,y
hi'Jh
-op2udvc
SchUlJ
of
0,
'Te¥tA 0) S,1-Cl-h 00
I cJwdua.. t(
/IJ(}-
or CQlte~e
yes
SPECIAL ACfU EVEt>1ENTS OR HONORS (DON'T BE HODEST)
¥love
.-
HOW LONG HAVE YOU KNOWN PLAINTIFF, AND IN WHAT CONTEXT HAVE YOU
KNOWN HIH/IIER?
(NEIGHBOR, WORKED TOGETHER, ETC.)
neuev::
WHAT WERE PREINJURY ACTIVITIES OF PLAINTIFF?
THE HOUSE, ETC., TYPE OF WORK)
l.un rz.J\..-GtA.O-L_
FIRST KNOWLEDGE
or
....ti1LL.JJLp_____.____ _
(SPORTS, WORK AROUND
INJURY TO PLAINTIFF
DESClnBE YOCR INITIAL OBSERVATIONS OF ,mAT '~AS DIFFERENT ABOUT
PLAINTI FF AFTER TIlE INJURY?
(STIFF NECK, LIMP, UPSET, NERVOUS
TENSE, E T C . ) .
.
Cku UJ{u:LbLucLV:rJ4--Cdld._ {J;)1 ,CcoUY'J.QUA '
I
IIOW OFTEN DID YOU SEE PLAINTIFF AFTER INJURY?
POSSIBLE.
JrlU,,~1· _.
-
__
DE AS SPECIFIC AS
For:
Client
~ OppQnent
Name of Wi tnf!Ss:
1I0me Phone:
5 - 6D33
1I0me Add res s: -.ltD () J --.4-.....,.-u*-''-----'''"''+-Wo'-'~'"''-'_'"1'---.
S4xne..
Employer: ~~'~~~~~~~~~~n-~--'-.- ~~~~~-________ Work Phone:
Employer's Address:
Occupation.: ~V-rre-YClfPr
Jo.me:""S';-->:-r7-'..a..c-'=7
=sc)
Mav5no.Ps -reWW
Expert?
Hedical?
Field of expertise:
If expert, summary of Qualifications:
Adverse Witness?
Call under HRE/FRE 611(c) as adverse party?
Cover at
Trial
Covered
\.
±=~
BASES FOR IMPEACHING WITNESS
:.--_.--\.L::::~ Request statement or report
_~ Statement or report obtained on
by _ _ _ _ _ _ _ _ / Does opponent have copy?
\/Yes
no
--_.
SclU!tiu Ie Dr,pu,. ilion
))f'poni t ion
IJeposi t ion subpoena issued
lul{(~11
__._----
Duces Tecum
........ _ Transcript recl'ived
011
Hevif'wed \(>stimony 'dth ~;itnerJs on ___ "._.... _. ___ .___ Appearance? _____.... ____ .___ ..__ .... _. __ ._._._
COOpf'l·ntivr,'? .. _ .. ___
BelievablG?
__... ______ ._. ___.......... Demeanor? .. ___ .. ______ .. __ ..... __ ..
HE I iab 1 ('? _ .. ___________ .__ ____ ____ 0 t Ill' r obse I'va t. ion!; :
Subpoena for trial
lssupd
-
CI.IENT:
Subpoenu Letter
Dut:p.s Tccum
IH!'cP~.iSaJ'y
(Sprvin~
Officer:.
MATTEIl:
,
of
..... __ .l
().JVD()0JtLLI dtu++L~U t
CVD-~I~
Served
,For:
Client
Expert?
Medical?
Field of expertise:
If expert, summary of qualifications:
Adverse Witness?
Call under- MRE/FRE 611(c) a9 adverse party?
Cover at
Trial
EXPECTED TESTIMONY
Covered
,---==::-="""--~.-=":';::==--::==-:::'.'----::"'--=:-::-::~~'::='-":==.=-'::=--=----
BASES FOR IMPEACHING WITNESS
,--------,,---------------------------------
.,--_.-
__ ,_~~ Request statement or report
_~Statement
Does opponent have copy?
v
----------
or report obtained on /-
Vyes
Attached
Jc ~ct+
no
-------------
,.-
___V _ Sclwdule Deposition
Deposition subpoena issued
,CT ~ ;(1 - Cl 3
Duces Tecum
,~TrOIWCl-iPt recl'ived
tpstil1lony ",ith ,,;itneri5 on ___ .__ _____
AI)pearance7. __ ... _ .. _____ ._______. _______ . _____ ...
Cooperative'? __ , __ ,__________ _
Ilelievohle? ,__ ,_, ,____________________ _ Demeanor?
Illdiable?
Other obael'vatloIE;:
HeV.le","·~d
Suhpo(!l1a for t
PI'ppa ,'e(\
-
CI.I ENT:
to
in 1
III~Cf'~.;sary
lBSUf'd
lhlC'C'S Tecum
(S(ll'vin~
Officer:.
MATTEH:
Subpoentl Let lel'
Served
· ..
-.
QUESTIONS FOR JEFFREY POTTER
1.
2.
3.
4.
5
How long were you married?
Did you have a strong marriage?
Do you have any children?
Were you planning to have any children?
Was your wife in agreement with this?
6.
7.
8.
9.
10
Is it true you have a girlfriend?
How long have you been seeing her?
When did you first start dating her?
Are you employed?
What is your occupation?
How long have you work there?
What is your position in the company?
What is your weekly income?
What is your educational background?
What degreeSdo you hold?
Information:
-
A.
They were married 8 years.
B.
Girlfriend was Cheryl Tobias, met 8 months ago, she is
young graduate student, they went on vacation together.
C.
No children, decided to wait, Katherine didn't really
want any children.
D.
Associates Professor in Physics
E.
Bachelor degree in Physics - Purdue
Doctorate in Physics - Wisconsin.
(Shows he has a good steady career and can support
himself )
For:
Cha. y-b '~brY\L~:.:...u..-IL",---_ _ __
-.l-11li--~' ~~~;g.() 5D'
~
Client
o
Name of Witlless:
Home Addres,!.>:
0
Employer: =iby=acj<.I~l(]-S;
~Cb(lt')
Employer's Address;
-=-Cl_ ~-'-)-'~.G..lL-.:-'_ _ _ _ _ _ _ _ _ __
.3..lb-_v,
Home Phone: -::j.~~~,.......,~:":S".L-­
Work Phone~~~~~~~--­
Occupntion:~'~~'~4La-___
Expert?
Medical?
Field of expertise:
1£ expert, summary of qualifications:
call under MRE/FRE 611(c) as adverse party?
Adverse Witness?
Cover at
Trial
EXPECTED TESTIMONY
Covered
l./'"
_.. V . _
V
..............
Ie
LL
~
1/
v:
Lc
~~.'.---==_-=--=~:-:=--:-_-",.
!~----
. . . -: .. -_-.: :
-=_"'''''_.:.=..:::~~"''';
_-=--=--,;- """'--":C.--.:
;7""' -
-,.,;,.....:-.::::;:;"":":-=-::::-:::.=-.-
!;":.:-"::::-:':':-=-=-.=:.:=-==-.--=--=~-==:.::.-~:;:_=:=:-:---=:::=--==:::===--=~.-:--=~-=.:.::.=:;-
:.:
BASES FOR IMPEACHING WITNESS
..
._~_ Request statement or report
bYJ~LJd~f:J(S .__ 1
. /""
_L:-:::.. ___
Statement or report obtained on
Does opponent have copy?
~yes
V .....
Deposition subpoena issued
I)('pnsi t ion tuk""
011
(r-.JC).~.C]J... __.
t-f_ -_ICJ_=.1 ~
Duces Tecum
...... _ TI'olwcript
rec('ived
_Ci.ocd__._ --- ---
Ilr>v ipwr>d t pst i mOllV '" i t h ,Ii tnt"'s 011 __
Allpearance?
t-- ___ .__ ._
Coopel·ativ.!'? ___
fir>lievabl(!? __ . k.~eS
,...r,-\-T~- Wemeunor? C~'DCI _____ .. __
Il.!liable?
Othl'l' observation!,:
~Y.!"1:l.-Zen ______ .0___________ _
L1.e.-S._._...
-ye..5!----.- __
Suhpoena fur tria 1
IIt~(.'pr;saJ'~·
___
D\lCp.s Tecum
.. _... __ P I'epa .'ed
CI.IENT:
L
--------_._---
Schedule Dr>pllsition
. . v~
_e(1 L
no
Attached
_.Y
I_InI
Subpoenu Let.ter
.....
MATTEH:
--_... )
Served
.-
-
REBUTTAL OF CHARLES SHRACKLE
1.
Were you on the way to Greenbriar Manor as your deposition
stated?
-
2.
Was the light green?
3.
How many cars did you wait on before you turned?
4.
Did you come to a complete stop?
5.
Was your turn gradual or sharp?
6.
Did you see any children?
7.
Where were they located?
8.
How is your eyesight?
9.
Did you observe a school guard?
10.
Where was she located?
11.
Did you apply any brakes prior to impact?
12.
When did you last have your truck inspected?
13.
What was the condition of the tires?
14.
Are you certified to work on brakes?
15.
What was the condition of the pavement?
16.
What were the weather conditions?
17
18.
-
Do you wear contacts or glasses?
Were you drinking prior to the impact?
Do you have insurance?
Which company?
YOUR . I.
NAME-LAJQnr
YOUR
ADDRESS
+a.
3X4
AGE ~L}
HOME 'l~l
~
Ni±a L-ij--q
fO<5cuxr.d QvC.
MARITAL STATUS
<3SLf'd
mav-n'eci
.-
----
home \)leek-e.y
OCCUPATION
blCjYiiJch:v\ ~vC\clucL+C
EDUCATION
PHONE #--OFFICE
I
60
I
n heme
PO',oom ics.
EMPLOYMENT
HISTORY ~N41~A____________________________________________
SPECIAL ACIUEVEMENTS OR HONORS
er H - f'UOOt/7--t
.-
(DON'T BE MODEST)
HOW LONG HAVE YOU KNOWN PLAINTIFF, AND IN WHAT CONTEXT
KNOWN HIM/HER?
(NEIGHBOR, WORKED TOGETHER, ETC.)
O1..u.ttYf
WHAT WERE PREINJURY ACTIVITIES OF PLAINTIFF?
THE HOUSE, ETC., TYPE OF WORK)
IUrLie 1L·(!t tJ-y)
--
... -.---.--.-..
..
- . - .. - . - - ..........
HAVE YOU
(SPORTS, WORK AROUND
_ __. _ - - - - - - - - - - - - - - - - - - - .....-_.
or
FIRST KNOWLEDGE
INJURY TO PLAINTIFF
-/)'"'Ck~
< 1 %W....."
.....·J:.r. . Z--'-'Q"'->-'fe'--'1.....h~da...L_IYX..RL..L\od._ _ _ _ _ _ _ _ _ _ _ _ _ __
an
urn.un
._.
__._--_.__ _--_._._----- - - - - - - - - - - - - - - - - ..
lJESCHIlH: YOl'R INITIAL OBSEH.VATIONS OF WHAT WAS DIFFERENT ABOUT
PLAINTI FF AFTER THE INJURY?
(STIFF NECK, LIMP, UPSET, NERVOUS,
};ENSE, ETC.).
'.
l[1J£ ..R..Q(J2-a!LLLLL~·-·..k./)'LdU fz d ' -_ _ _ _ _..._. __ .___.________.
e
---------_.
!lOW OFTEN
POSSIBLE.
J)1LcbLr1
-
DI l> yat!
SEE PLA 1 NTl FF
AFTER I N,JURY?
__._-_._-_._.
BE AS SPEcr FIC
AS
-~lient
Name of Witll~SS:
W~ I.I,(A.~
Oppone~
Home Address: ~e.H)()Q~-rg-r--dr--ii---;('-:;:""'f"""""1i""------ 1I0me Phone: -.-2':!-J - 3'6'-1-0
Work Phone: ---Emp loyer: f.-.\Address:
!=\CL..----;-;-r-:::---------Employer's
',..
occupation:~~~"~~(~VYk~2~tce~-t~-
l1J(](},dn
\.Lii________.
1:'\
Expert?
Medical?
Field of expertise:
If expert, summary of qualifications:
Adverse Witness?
Call under HRE/FRE 611(c) as adverse party?
Cover at
Trial
......_1../._
V
Covered
v
-~
__ . _ _._-_._ _ _._ _ __ _-_ _._-- - - - - - - - - - __ _--_._--_ - - - - - - - - - - - - - - - - - _ ...---- -------.. _ _ _--_._-_ _--_ __ _- _ _-----_._---
..
...
......-
-
.. ....
..... .....
... _....
..
..
...
..
-
..
......
- _ . _..
....
...
.....
....
..
_---------_._--_._---_._---_.._------
..~
~-'--....,....----=---=.-=.:==-=~-=::--.':"...:;:-:":::-:::--'-==.:;=::=:--=:=.~~=---:;::::--:;--"-
-=-:.=-.::....---::=::::-.
BASES FOR IMPEACHING WITNESS
I,
d.
..
----
._ ...
- .......... - - -..- ... -
..... - - - . - -...
-------.--.----------.-----
...
v ....
.._ ........ _. Request statement or report
_ ~Statement or report obtained on
by _____ .. _____ / Does opponent have copy?
V-yes
no
- - _... _-_._-_ ....
Attached
Schedu 1 .. \J"puBi lion
Urponi t inn
tul~'~11
Deposition subpoena issued
*.-;;0..-..1*. _.
Oil
... ___ .. _._",
. ,_, ._.
Duces Tecum
T1"nn!a~ript
r'ecpived
_ ....V...-Hevi,,"'ed t(>stimony ,.-itl> ,;itnec;s on ..
Appearance? ..~od--COllpel"n t i ve? .... .L\f5_......
."
8" 1 iev"hln7 ......L.\..'€$ .. __. . _ .. ___ ......
elneanol'?~ ............. __ .... _ ..
UE-liable? _ ..._~~~.. __ ._ '.. _ other obsel'vation!;:
.... ___ ... ___ .......__..... __ ..._ .._ .. _._ ......................._ _ .
. .-..--...... -.-- . . . . -.. _
.. Subpoenu Let.ter
Duces Tecum
..... _. Prepa I'ed
-
CLIENT:
1 !~S\II'c\
(SPI'V ill~
Off iCf!r:.
MATTEIl:
. ......
~ ,elJikY V·
Wn> ()C~ (\.A.. l
-- .. )
Served
$hcQ.clL~"
Cleo...:Yh
Su.... 'd~
QUESTIONS FOR JUANITA WILLIAMS
1. State your name, address, age and marital status.
Juanita Williams, 35, married.
2. Your occupation.
Domestic Engineer.
3. Your husband's occupation.
Pilot for NorthAmerican Airlines.
4. Where you in the vicinity of Kirby and Mattis on November
30, 19921
Yes.
5. What was the purpose for being in that area that day?
I had picked my daughter up from a Girl Scout meeting
after school.
~
6. What time did you pick up your daughter?
I was there about 3:20.
7. Did you observe anything at the intersection of Kirby and
Mattis on November 30, 19921
I was east bound on Kirby, stopped at a red light at the
intersection of Kirby and Mattis.
I noticed a white
truck facing west on Kirby with his left turn signal on.
When the light turned green, the white truck pulled a
little ways out into the intersection, waited for me to
pass, then proceed with his turn going south on Mattis.
8. Was the white vehicle at a complete stop as he waited for
you to pass?
No, he was rolling slowly.
9. Since the driver of the white truck was not at a complete
stop in the intersection, did you get the impression that
he was in a hurry?
No.
10. How would you characterize the way Mr. Schrackle was
driving that day?
From what I saw, I'd say he was driving as reasonable as
anyone else.
11.Was the intersection busy that day?
Moderate traffic as usual.
12.Are you familiar with this intersection?
Yes.
13.How often are you in this intersection?
I take my daughter to school and pick her up five (S)
days a week.
I go through the intersection ten (10)
times at least each week, sometimes more.
14.What caused you to notice the white truck?
I just happened to be looking that way.
1S.Did you happen to see the deceased anywhere in/near this
intersection?
No.
16.How/when did you know that it was Charles Schrackle
driving the white vehicle?
When my daughter and I went to the scene of the
accident, someone standing near by told me that Charles
Schrackle was the driver.
17.When your daughter announced that she thought someone had
been hit, why did you turn around and go to the scene of
the accident?
My daughter had just been waiving to some of her friends
on the sidewalk.
I was concerned that one of the
children may have been involved in the accident.
18.What did you observe at the scene of the accident?
There was a small crowd gathered. Mr. Schrackle was
bending down near the woman's body, performing CPR.
·
.
19.When and from whom did you learn that the woman was
Katherine Potter?
Someone standing in the crowd said that the man driving
was Charles Schrackle and someone else thought the woman
was Katherine Potter.
I didn't know anyone else in the
crowd.
20.Have you discussed this matter with your daughter?
Not the details of the case or what she saw. We've
discussed what will happen to Katherine Potter's body
and soul if she dies. Just the spiritual aspect of
dying.
21.Have you discussed Victoria's court appearance with her or
have you gone over what she is going to say?
I've just told her that if she tells the truth about
what she saw, there is nothing to worry or be nervous
about.
YOUR
ADDRESS ,;)8(l7
~
n
~{)$f(,uucd HLC
!J
I
ftt
(J 1(1
PHONE #--OFFICE __-_______
AGE I:],
HARITAL STATUS N LA
HOME , / / . - ; V 1 - 3 ' 3 @ - ' - + - ' - - OCCUPATION
EDUCATION
$4-uden+
~~~~~--------------------------------------------
(}ttl
lJatde.,
EMPLOYMENT
HISTORY ~N~)a~___________________________________________________
--------------------------------------------------SPECIAL ACIUEVEMENTS OR HONORS (DON'T BE MODEST)
DDODr
YU\!
HOW LONG HAVE YOU KNo\VN PLAINTIFF, AND IN WHAT CONTEXT HAVE YOU
KNOWN HIM/IIER?
(NEIGHBOR, WORKED TOGETHER, ETC.)
ne.1J t~ v-
WHAT WERE PREINJURY ACTIVITIES OF PLAINTIFF?
THE HOUSE, ETC., TYPE OF WORK)
(SPORTS, WORK AROUND
l;l(l \UJQW~ ______..________________________________________
_ ..
_-_._.-._------_._ .. ----- --_._-_._.... _.-._--- .. _-_._--_._-_._----
---------------------
FIRST KNOWLEDGE Of INJURY TO PLAINTIFF
l.ube;(l :r:
$a 1.0 hey
~(?j-
hi t.
DESCI/IDE YOU{ IN] TL\L OBSERVATIONS OF WHAT \,'AS DIFFERENT ABOUT
PLAINTI FF AFTEH TIlE INJUHY?
(STIFF NECK, LIMP I UPSET I NERVOUS,
~NSEI ETC .. )
_~ he..- LDqS __Q~llil_LnIj~ _________
HOW OFTEN DID YOU SEE PLAINTIFF AFTER INJUR.Y?
POSSIBLE.
Jlwtr-___ . . . . __
-
,
\ ...........
DE AS SPECIFIC AS
For:
:~:: ~!d~!~~~s:js9cfW~w~cl
lie&? NIta Cd1~ _ __
____
____________________________
Employer: _~)~I~aL~~
Employer's Address: ~N~ILBL-
-L-~
_____________
___________________________________________
Oppone!l,!.
Home Phone: ~'trJ - :::5?
Work Phone:
Occupation:.J;.J..f.13:-
L-Pa
-JWL=-JL.OAc----------
Expert?
Medical?
Field of expertise:
If expert, summary of qualifications:
Adverse Witness?
Call under MRE/FRE SlICe) as adverse party?
Cover at
Trial
EXPECTED TESTIMONY
Covered
---~
,/
---------------------
BASES FOR IMPEACHING WITNESS
...
----...Request statement or report
__ ~tatement or report obtained on
I Does opponent have copy?
by
Attached
SchedulE'
__
~ yes
no
~F i led: _-;-?e~~~~kr.tl~i1t.~____________ .__.______ _
D,~position
Deposition subpoena issued
Deposi t ion tuken on ..._______.__ .___________.__
t~stimony ~~ith
Duces Tecum
____. Transcl-ipt received
on_--t}--';)I--Cl±----.
~D_QcL___;. ___ .__ . ____._____ _
-v--___________________ _
._._V·ReviFwed
>:itnc.'is
,\ppearanc:e? __
COUPCl'''tlve? -L:\.~~;?--- __ _ Bf'llevable? _ .u.,._rl~Dl:.\W~J. _~_, __ ._ rr'el!leanor~
RelIable? ___
Othel' ubse,-vat Ion,;: C~:111ct_._W_Lllie:s_::s
q_.,.,1.____ __
Suhpo(~na
for t l'in]
Ill~cessal'y
Duces T(:"cum
Subpoenu Le t let-
___ ._ PrE'lla ,oed
CLIENT:
Served
MATTEn:
WYbl1~fu I deaJ'h~ ~,~
Po-H~x V· SI-1V"aCliJe..,
Questions for Victoria Williams
-
-
1.
How old are you?
2.
What grade are you in.
3.
What kind of grades do you make.
4.
Do you know the difference between a lie and the truth?
Can you explain it to me.
5.
Where were you on the afternoon of November 30, 1992
6.
Did ahything special happen on this afternoon.
7.
Can you tell me exactly what you saw on that afternoon.
8.
Can you show me on this diagram what you saw.
9.
Are positive that the woman you saw that afternoon was
not in the crosswalk when she was struck.
1.
Do you have any problems with you eye sight.
2.
Were there any other cars or anything else in your sight
when the accidence occurred.
3•
What were your friends doing when the accident took
place.
4.
Have you ever lied to your parents or your teachers.
5.
Do you realize how important it is that you tell the
truth here today.
6.
Could you show me again just what it was you on that
afternoon.
FOI':
Client
;S'G-
~ op~nent
U'Wi1
Home Phone:
d:1r~~
Work Phone:~;0:,5]
Occupation: . ,.
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_____
Expert?
_~Medical?
Field of expertise: Cl)~Y~D4()~e~/y=~______.___________________________
If expert. summary of Qualifications:
Adverse Witness?
Cull under MRE/FRE 611(c) as adverse party?
Cover at
Trial
EXPECTED TESTIMONY
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---------_. __.------
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--
BASES FOR IMPEACHING WITNESS
-- ..
,.--_.---
_- ...
---- ---------.- .. - - - - - - - - - - - . - - . - - - - - - - - - - - - - - - -
,. __ ~_. Request statement or repol·t
~_
Statement or report obtained on
V
/ Does opponent have copy?
Attached
_..
Filed:
~ Sch.~dule D'~Pllsition
UrpoGi \ inn
yes
_~(L~t{d:t_D.wfJ+cS
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no
II
Deposition subpoena issued
-----------.---Duces Tecum
.... _ TrnnscriPt received
tulu,!11 on
Hevipweu t<'stil1lony "'i th >litnec,s on ____ .______ .___ . Appearance? _. ____.. ______ .___ .__. ___ .__ .________ __
COllpel'ntive? _ ....___ ._ _____ _ _
Delievnbln?
._ .. ______________ ... __ Demeanor? ..___ . __...._________ ._.
Ueliable?
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Name of
__
For:
Client
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Elllployer 's Address: _ _'------.oi.-.
,--'________________
Expert?
Medical?
Field of expertise:
If expel·t, summary of Qualifications:
Cull under MRE/FRE 611(e) as adverse party?
Adverse Witness?
Cover at
Trial
EXPECTED TESTIMONY
Covered
Jl~.J;JLJi _~ti \mid
__
- - - - -...- - - - - - - - - - - _ .
.
-----_._----_._------_ .._--_._-----_.
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Request statement or report
byjl.ldeth__ ,
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Does opponent have copy?
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Duces Tecum
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V. :,)hr--aclL\e,
HANDLING AND INTRODUCTION OF EXHIBITS
The ability to examine and oppose the examination of witnesses in open court in an
adversary setting is the most basic skill of the trial lawyer.
The second basic skill of the trial lawyer is the proper, efficient and orderly handling and
introduction of tangible evidence. Again, however, a common criticism of the trial bar is
its lack of facility in this truly simple undertaking.
This is all the more regrettable when one considers the highly persuasive quality of
relevant exhibits. Jurors (and judges, too) trust them. They are the real thing. They do
not exaggerate as witnesses do and they do not overstep their bounds as lawyers do.
Many a case has been won or lost because a particularly intriguing exhibit was received
in evidence or excluded.
The four touchstones for the handling and introduction of exhibits are:
1.
2.
3.
4.
--
Authenticity
Relevance
The Hearsay Rule
The Best Evidence Rule
These four touchstones must be satisfied before an exhibit can be received in evidence.
Some call it "laying the foundation." By whatever phrase, the essential element is
testimony establishing that the exhibit is authentic and relevant and complies with both
the hearsay and best evidence rules.
Authenticity is simply a demonstration that the exhibit is what it purports to be. Is this
thing - whatever it is - that is being offered in evidence, prima facie that which it
purports to be?" The essential requirement is testimonial vouching for the thing unless,
of course, authenticity is established by admissions in the pleadings, discovery, or a
request to admit. See, for example, Federal Rule of Civil Procedure 36.
Relevance, as well as the hearsay and best evidence rules, is intrinsically dependent on
the issues raised in the case and the purpose for which the exhibit is offered in evidence.
In each instance, however, the foundation must be laid demonstrating that the exhibit is
relevant and that it complies with the hearsay and best evidence rules.
·The standard is a prima facie showing of authenticity, as the court determines admissibility. Its weight
is left to the fact-finder.
-
P-9
Potter v. Shrackle Problems
-
For each exhibit" counsel should check the four touchstones and then lay the foundation
necessary for its admission in evidence through the testimony of one or more witnesses.
As in the case of witness examination, the skill of handling and introducing exhibits is
developed by practice and is conducted with certain guidelines in mind.
-
1.
Select with care the witness or witnesses you will use to lay the foundation for
your exhibits. A mistake here could be fatal.
2.
Because the introduction of exhibits usually is done through witnesses, keep in
mind the basic principles of witness examination.
3.
Have the exhibit marked for identification by the appropriate court official
(usually the court reporter or clerk) at the earliest opportunity. Many lawyers have
their exhibits marked for identification prior to trial in the sequence in which they
expect to use them. Some judges insist on this. It is a good practice in cases
involving many exhibits. But also consider the advantages to be gained from a
brief pause (respite for the witness) and a little bit of the lawyer doing his or her
"thing- that attends your stepping to the bench and requesting in a voice the jury
can hear, "Your Honor, may the reporter mark this document (or object)
defendant's exhibit 1 for identification?-
4.
Once the exhibit has been marked for identification, include that identification in
any reference you make to the exhibit and see to it that your opponent, the
witnesses, and the judge do likewise. Never permit the record to read merely,
"this letter" or "that bottle" or "the photograph, - etc.
5.
Proceed to "lay the foundation" as follows:
(a)
Elicit from the authenticating witness those facts that qualify him or her to
authenticate the exhibit. For example, have the witness say he saw the gun
in the robber's hand.
(b)
Have the witness identify the exhibit by saying, for example, that State's
Exhibit 1 is the gun (or looks like the gun) the witness saw in the robber's
hand.
(c)
If the condition of the exhibit is a factor in its relevancy, either elicit
testimony that its condition has not changed between the event and the
time of trial, or offer a testimonial explanation of the change in condition.
(d)
If the exhibit is a reproduction of a place, a thing or an event (e.g., a
photograph or a tape recording), elicit testimony that it fairly and
accurately portrays that which it purports to portray.
-
P-10
Potter v. Shrackle Problems
(e)
-
-
If more than one witness is required to authenticate or connect the exhibit,
your offer until you have completed your foundation. A
premature offer and rejection can condition a judge to reject the exhibit
later when the foundation has been completed.
~withhold
6.
Once the foundation for an exhibit has been laid properly, offer it in evidence and
obtain a ruling on its admissibility. In some jurisdictions an exhibit may not be
offered during cross examination, and in those instances the formal offer of the
exhibit is reserved to your case in chief or rebuttal.
7.
When you are opposing the introduction of an exhibit, you are entitled to conduct
a cross examination on the foundation before the court rules on the offer. The
scope of this cross examination, often referred to as a voir dire on the exhibit, is
limited to the admissibility of the exhibit. The proponent of the exhibit should be
alert to so limit the voir dire on the exhibit and not permit the opponent to
conduct a general cross examination on the weight that is to be given to the
exhibit.
8.
When you are opposing the introduction of exhibits, be on the alert for changed
conditions and distortions (particularly in photographs). Insist that an adequate
testimonial explanation of the changes be given by the authenticating witness.
9.
Do not permit your opponent to display tangible items in the presence of the jury
until they are marked for identification and proffered to the witness for
identification.
10.
Keep a separate record of the status of your exhibits and those of your opponent.
Know at all times their identification numbers, their general descriptions, the
witness or witnesses who authenticated them, and whether they have been offered
and received or excluded. Many lawyers keep a columnar record somewhat like
this:
Plaintiff's Exhibits
-
Date or
page of
record
offered
Date or
page of
record
received
6/1/88
p. 140
No.
Description
Witness
1.
Letter from
Jones
Smith
6/1/88
p.138
2.
Hammer
Jones
6/2/88
p. 100
P-ll
Potter v. Shrackle Problems
Date or
page of
record
refused
6/2/88
p.210
11.
At the close of your case, if you are uncertain as to the status of any of your
exhibits, re-offer them before you rest.
Each exhibit has its own standards of authenticity and admissibility. For our purposes,
they are better demonstrated than described.
-
-
-
USE OF VISUAL AIDS
1.
VISual Aids in General. In addition to exhibits that are offered and received in
evidence on the basis of their intrinsic relevance to the case, visual aids frequently
are used by lawyers during examinations of witnesses. These aids are exhibits that
assist witnesses in explaining their testimony. Such exhibits, in and of themselves,
are not relevant to the case; their relevance flows from the fact that by assisting a
witness in testifying, .they ~nhance th~yrobat.!~e ~alue of the testimony. The
phrase "visual aid" as opposed to "demonstrative evidence" indicates that the
exhibit's evidentiary value is derived from its role in assisting the witness as
opposed to any intrinsic evidentiary value.
The foundation for visual aids is based on the same four touchstones that govern
other exhibits: authenticity, relevance, the hearsay rule and the best evidence rule.
For authenticity and the hearsay and best evidence rules, the foundation depends
on the particular exhibit and will be determined on an individual basis. The
general analysis of the necessary foundation, however, is the same as that used for
all other exhibits.
The relevance foundation for visual aids is testimony establishing that the exhibit
will assist a witness in explaining his or her testimony. By permitting the court or
the jury to more fully understand the value of the testimony of a witness, the
exhibit enhances the probative value of the testimony. The countervailing
argul!l~.D.!~ .~!!._th~_~'-.!..e.~~i9jl of .~~!~~e are t~at the exhibit raises collateral issues,
wastes time, or is unduly prejudicial. In ruling on the use of visual aids, courts
employ the classic relevancy balancing test, meaning the use of such aids is
discretionary with the court. Most judges are inclined to permit their use as aids
to understanding witness testimony if they will not unduly emphasize that
testimony.
-
2.
Diagrams. In many jurisdictions, diagrams are sui generis and may be classified as
either demonstrative evidence or visual aids depending on their relevance to the
case. If testimony establishes that a diagram is a fair and accurate representation
of something that is relevant, then the diagram is demonstrative evidence. The
foundation required for diagrams is essentially the same as that required for
photographs. (What is the purpose of the offer? Is the exhibit, when used for
that purpose, relevant? Does the exhibit fairly and accurately represent what it
purports to represent?) If what is depicted by an authentic diagram is not itself
relevant to the case, the diagram is not admissible as demonstrative evidence. But
if the diagram is authentic and will assist a witness in explaining his or her
testimony, then it is helpful to a better understanding of the evidence and, thus,
relevant. The diagram is then admissible as a visual aid for use in assisting the
witness. In summary, a diagram usually is admissible as demonstrative evidence if
-
P-l5
Potter v. Shrackle Problems
it is authentic and in itself relevant to the case, and a diagram is admissible as a
or visual aid if it is authentic and will assist a witness in testifying.
-
In some jurisdictions, however, diagrams are not admissible as demonstrative
evidence under any circumstances and may be used in court solely as visual aids.
Although a diagram may be authentic (i.e., it is what it purports to be), courts in
those jurisdictions do not consider a diagram to be a sufficiently fair and accurate
representation of the real thing to permit its admission as demonstrative evidence.
Those courts' rationale is that a diagram by nature only depicts a one-dimensional view. Those courts do permit diagrams to be used to assist witnesses in
testifying. In other words, they allow diagrams to be used as visual aids but not as
demonstrative evidence.
In all jurisdictions, a diagram need not be drawn to scale to be admittecLor used
at trial. The fact thata- diagram IS no11o- scale affects its' Weight and not its
admissibility or use. If the diagram is not being offered or represented as a scale
drawing, then the fact-finder can consider and weigh that factor in evaluating the
exhibit.
3.
-
Problems in the Use of VISual Aids. Problems in the use of demonstrative or visual
aids generally occur because of the lawyer's lack of skill in dealing with the
device once he or she has been granted permission from the court to use it. One
common shortcoming is the lawyer's failure to introduce the witness to the aid
prior to the time he or she testifies. It is not sufficient that the witness be
familiar with the subject matter illustrated in the aid. Unless the witness has seen
the device and has become sufficiently familiar with the particular il1ustration
involved, the testimony can be disastrous.
The trial lawyers also should be careful to preserve the record for appeal. Words
such as "right here" and "at this point" will not have meaning to an appellate
court. If the witness' testimony is to have any value on appeal, it must be
translated in some manner into words or markings.
-
POLITICAL SCIENCE 403
MOCK TRIAL EXERCISE
Dialogue for offering evidentiary exhibits
Step One:
Have item to be offered marked with identification tag.
Step Two:
Show item to the witness who is testifying
Step Three:
"Mr. Witness, I hand you what has been marked for
purposes of identification as Plaintiff/Defendant's
Exhibit A/i.
Can you identify this for the jury?"
Step Four:
Witness answers, "This is a photocopy of a police
report/diagram
of
accident
scene/replica
of
accident scene."
Step Five:
At this point, the questions should be specific to
the exhibit being offered, for example:
-
Step Six:
1)
"Does this photograph clearly and accurately depict
the scene as you saw it at the time of the
accident?"
2)
"Does this diagram clearly and accurately depict
the intersection at
and
?"
3)
"Did you prepare this document in preparation for
your testimony here today?"
4)
"Is
this
the
condition
scene/vehicle/victim was in at the
came to the scene?"
that
the
time that you
Once the witness has clearly identified the exhibit
and establ ished its relevance and accuracy, you
should
say,
"Your
Honor,
I
offer
Plaintiff/Defendant' s Exhibit A/i."
(Now show
exhibit to opposing counsel).
Step Seven: Opposing counsel may ask preliminary questions or make
an objection.
The Court will rule on the objection.
-
Step Eight:
If you wish to ask further questions about the item,
then return it to the witness for further reference.
WITNESSES/EXHIBITS/VISUAL AIDS
In Form 6.1 you will list and continually revise possible witnesses and documents that you
and your opponent may utilize at trial. When in doubt include the name or document on the list.
Include in the list answers to interrogatories or responses to requests for admissions that you
may wish to offer.
Form 6.2 is a worksheet to use in selecting visual aids.
Form 6.3 is your final listing of the witnesses and exhibits that you will use, in the order of
their presentation. Unless you have a strong reason to do otherwise:
Call the witnesses in an order which will present your story in a logical fashion.
Your strongest witnesses should come first and last.
Your first witness should be able to present the most complete overview of the case
or the most telling facts. Many experienced litigators call the opponent first.
Cumulative evidence is useful, but avoid presenting evidence which is not as strong
as previously presented evidence.
-
,-
Form 6.4 is your record of exhibits offered and the Court's rulings on their admissibility.
POSSIBLE TRIAL WITNESS/EXHIBIT LISTING
WITNESSES
6. 1
THAT MY OPPONENT MAY CALL
EXHIBITS/ANSWERS TO INTERROGATORIES/ADMISSIONS
THAT I MAY INTRODUCE
THAT MY OPPONENT MAY INTRODUCE
j.
-
SELECTING VISUAL AIDS
THE MESSAGE
List the specific facts,
images, ideas, which call
for the use of visual aids
because they are (i) most
persuasive; (ii) difficult
to understand; (i i i) convey the theme; (iv) requires reiteration/emphasis.
6.2
WHEN
THE METHOD
Here identify which
of photos, enlargements, diagrams,
models, lists,
charts, physical objects or demonstrations is the best
technique to present the message.
The point in the
trial when the
visual is best
used. ,
v
1.0 l V'I.I f)'/ lnit l\ A
.\1
n {\-Hi h O[)
-
tid (j l"+lln~
,
U
MY FINAL ORDER OF WITNESSES AND EXHIBITS FOR TRIAL
6.3
EXHIBITS
WITNESSES
JJ itIDz1~l'
If) 1 ~ t lillY'Ll}
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CLf..w :tlla ~ QalJ 1=
-
,••
Insert in appropriate order where answers to interrogatories or
requests for admissions may be introduced into evidence or where
the trial court will be asked to take judicial notice of a fact.
124 Bench Mark Lane
Nita City, Nita 99993
September 15, YR-4
Dr. Andrew Stevens
Stevens Counseling
1225 North Street
Lisle, Nita 99980
Dear Dr. Stevens:
I am sorry that payment for our last three sessions is late. I
guess it goes without saying that Katherine and I don't see eye
to eye on the need for this counseling, and it is very difficult
for me to get her to even speak calmly about it, much less agree
for us to pay for it. Nonetheless, I am enclosing our check in
the amount of $300.
I am sorry that we can't continue with you. I thought your advice
was very helpful and I appreciated the opportunity to talk with
you about the problems that we have been having. I especially
want to thank you for your concern about the issue of children.
Of course, I agree with you that our primary responsibilities
appear to be our careers, but my wanting to have children is
becoming more important to me than perhaps Katherine's career.
__
Katherine and I have tried to have more discussions about the
possibility of having children and the time it will take away
from our respective careers. It is very difficult for her at this
stage of her career to talk about children, but I know that she
would really want to have children when she got to a stable
position in her life. I know you understand how important this
issue is to me, and that our marriage relationship depends upon
our being able to get through this rather difficult period in our
lives.
Your comments at the last session, that it was obvious to you
that Katherine and I loved each other very much and would corne
out of this stronger than ever, make me smile and look forward to
the future. I am sure that you are right. Perhaps when we have
more time and her career isn't so hectic, I'll be able to
persuade Katherine to corne back with me to talk to you about the
rest of our problems, which don't seem quite so important now.
Sincerely yours,
~T9~
Jeffrey T. Potter
-21-
Potter Case File
-19-
Potter Case File
-17Potter Case File
-15Potter Case File
~.----------'~
KIRBY
})
~
------------------------~
~---------------
N
Scale: 1"
=
32'
LEGEND
PMoIf"_
9«>TII
0
Denotes Traffic Signal
l:t
Denotes Light Pole
{f Denotes Utility Pole
.-
~
Denotes Fire Hydrant
t-
Denotes Street Sign
<)
Denotes Tree
SCALE DRAWING OF INTERSECTION
-13Potter Case File
-
RECORD OF EXHIBITS ACTUALLY INTRODUCED AT TRIAL
6.4
PARTY
INTRODUCING
P0
P(i}
PW
NO. OR
LETTER
DESCRIPTION
ADMITTED?
N
b-6
f'~)
N
J
'u-a.J:.k
N
0)0
'r.
pID
-
(ili
~N
a~
P(;O
)N
@D
~
PD
P(i)
P(j)
\
b-
~
F/D )
(YD
P(i)
-.
PI D
Y
N
P/O
Y
N
PI D
Y
N
P/O
Y
N
PID
Y
N