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Scanned copy, if there are errors, please e-mail me with corrections:

Trial Preparations
Edward L. Greenspan  of  Greenspan, Moldaver

April 4th, 1981

To main index of these items.

Edward Greenspan - Barrister & Fine Clothier
"Look, I'm charged with break and enter and I wear a size 40 suit"

You write a law exam as if you were writing to your 5 or 7-year-old child -- that's the secret of law school,

    When I was first asked to speak about Trial Preparation, my initial reaction was that there were a lot of things to talk about but I wasn't really sure where I should start. That feeling hasn't really changed since that time. To me, however, the primary aspect of preparing for a trial is preparing my witnesses, and in particular my client, to testify. Much of my remarks will, therefore, be directed along those lines.

    Trial lawyers have a very difficult job. They do not have a quiet, anaesthetized patient lying on a hospital bed passively waiting for the surgeon's knife. Instead, they operate on a frightened witness who perceives little of what he saw, recalls little of what he perceived, and has great difficulty expressing what he recalls. As you stand at the lectern at the trial, looking at your terrified, not overly bright witness, you realize that it's your job to bring forth from his mouth an account of a very complex and involved incident or transaction in such a way that twelve untrained jurors will understand and accept it. No wonder trial lawyers so often resort to leading questions and everything short of a semaphore in an attempt to control the situation and minimize the chance of a real disaster.

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    Our freedom in presenting the client's story is further limited by complicated and far from consistent rules of evidence. Human factors and the. laws of evidence conspire to present trial lawyers with an extraordinarily difficult task. Our success or failure rests largely in the manner in which we prepared and present those witnesses.

    The witness has the most difficult role in litigation. The pressures subjected on any witness, whether a party or not, make testifying a frightening prospect. The least that one can do as a lawyer is to help the poor fellow and by help I don't mean a casual run-through with the witness in your office the day before the trial, or in the corridor before you go into court. The witness is entitled to substantial assistance, not only on the subject matter of the testimony but also on the special problem of presentation as a witness.

    Being a witness is a highly artificial business for which there is no adequate background or experience. Preparation of an important witness must start from scratch, whoever the witness and whatever the case. Most cases will be won or lost on the basis of a witness's knowledge, recollection, and perception and their ability to describe the event. As a trial lawyer, you must take the witness as you find him, train him in simple exposition, and teach him how to communicate simply, clearly and accurately. You must, in short, become a teacher in effective communication. You must teach the witness to use simple words and short sentences. You must introduce the witness to the eloquence of brevity.

- 3 -

    You must also become something of a psychologist. The witness is often a person who has seen an event or been through a transaction he has probably not anticipated. He undoubtedly was not expecting to be called upon to account for what he saw. He was, therefore, no more alert than usual, and that usually is not particularly alert. Because the witness has only a hazy recollection of the details of the event, he will try to substitute a logical guess for recollection. The trial lawyer should know that those logical guesses will provide his opponent with effective demolition material. The human mind does not stop with the facts it has perceived. It transforms those facts and supplements them. Most witnesses suffer perception and communication difficulties. You must somehow overcome, or at least mitigate the damaging effects of these shortcomings. You realize the witnesses are inattentive to detail, generally have poor memories, and tend to oversimplify. A witness tends to modify his story to please the questioner, even on cross-examination.

    And knowing the effects of these human weaknesses, what can we do about them? The witness must be shown the effect of this kind of testimony. A good starting point to preparing a witness is to run him through a rehearsal of examination and cross-examination. It is unprofessional not to prepare a witness. It is also unethical and idiotic to provide him with your version of what must have happened. As soon as the witness wanders off his script, which he must, he is at the mercy of a cross-examiner.

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    The first critical chore then is to visualize the witness on the stand -- what will he or she be like? You should, or must come to know the witness and his patterns of speech and thought well enough to make that judgment. Consider the strengths and weaknesses of each witness. Is he brash, ponderous, does he think slowly and talk quickly, or think quickly and talk slowly? Does he have nervous mannerisms? Does he tend to use large words or too many? Be sure to warn the witness that he may be under scrutiny the whole time that he's in the courthouse. The judge and jury may observe him in the corridor, or sitting in the back row.

    It is old-fashioned to dwell on clothes and grooming, but I believe that a witness is entitled to know that unusual clothes look much more unusual from the witness stand. While the witness must be comfortable, the judge and jury must find the witness plausible, and if his clothes or his manner are, to their perception, grossly inconsistent with the role that he verbally portrays, his plausibility is undermined.

    The first briefing session with the witness should be very relaxed and neither the lawyers nor the witness should be subject to some pressures and interruptions. At this early stage you must get to know the witness as a person, to understand his perception of the events and to start identifying the areas where he needs the most help. It is best to start by giving your overall picture of the case, including his involvement, and ask him to tell his story in his own words without reference to any documents or notes, and particularly ask him to comment on your description of his role.

- 5 -

    This is no time for close questioning -- let him tell his story as he sees it. Be alert as the witness tells his story for the I very first time. The nuances in his first narration can be considerable -- facts glossed over, omitted, or unduly emphasized are clues to possibly troublesome areas. Unless the witness is your individual client, and we'll deal with him separately, do not be certain that he views you as an ally. It is critical that you find common ground and that he comes to trust and rely on you. Should the witness's spontaneous recital of his role contain any surprises, attempt to clarify but be gentle with him. In going over a witness's story with him, stop him whenever he uses defensive-sounding words such as "to tell you the truth", "honestly", or "you know". Try to get him to purge his vocabulary of these words. Also, get rid of the qualifiers that make his testimony sound speculative -- "I guess", "everyone knows that", "1 think", "I felt", and "I always thought".

    Caution him to use his, not your vocabulary. It is amazing how fast witnesses start sounding like not very bright law students. Tell him about objections and to stop his answer when there is an objection. Tell him only to answer if the objection is overruled. On cross-examination make sure that before he answers he thinks carefully about his question. I always tell a witness to count to five before he answers – quietly, in his own head, to insure that he does not answer a question that has not been asked.

- 6 -

    It will also give you an opportunity to interpose an objection. You can tell him something about the rules of evidence so that he won't be too surprised or disturbed by objections and will know he can't talk about what someone else said unless you ask.

    The hard work really begins the second time you see the witness. Ask the witness whether he sees any problem with the role you expect him to play in the litigation. Before going further, re-establish or redefine the common ground. The witness will resent your failure to do so. You must be satisfied that he can properly and truthfully do what is expected of him. In the course of re-establishing or redefining the witness's role, carefully identify his areas of knowledge and those where he lacks knowledge. Then remind him of your instructions about how to answer questions and take him through a practice examination covering his entire knowledge. By a practice examination, I mean one that may be interrupted for questions and comments. Give him a running critique of his answers, and he may seek advice too. After you've covered the subject matter, you should then take the witness through a very serious examination. Have someone else present, if possible, to get a cold evaluation of the examination and the cross-examination. During this serious examination, there are no comments or questions from either the lawyer or the witness you save them until the end of the examination and cross-examination.

- 7 -

    Do not spare the witness at this point -- let him see through your questioning were gratuitous comments lead. If he says he cannot answer without a document, then produce the document, show him the dangers of evasion. Use your knowledge of the whole case to try to have him claim knowledge he does not have. Try to make him look foolish for every wrong answer that he may give. If he claims not to understand a question, ask him what he does not understand. Do all the things you know how to make a witness err. When you are done, you may need to re-establish that you are really on the witness's side.

    Do not overlook this. No matter how poorly he performs, reassure him, pointing out that the object of preparation is to avoid the problems that you've just illustrated to him. If he performs well, do not permit complacency. Witnesses have difficulty understanding the limitations of direct examination. It pays to educate them so that they will appreciate the limitations under which you are operating in questioning them.

Do not use leading questions when you are conducting a practice examination.

    The object, obviously, is for your witness to be as plausible on the stand as he can be. You cannot rebuild a personality. Instead, you must take the personality and the mannerisms that you find and work with them.

    If the witness is a fast talker, you may get him to slow down somewhat, but you cannot count on it when he testifies. Instead, you must make certain that he is so full of information and so aware of the nuances that you can live with his speed.

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    If he is ponderous, perhaps that mannerism can be converted to concern and thoughtfulness. That kind of maximization of the witness's own traits is the most that can be accomplished. A self-conscious witness is almost invariably a bad one. When preparing your main witness for your opponent's cross-examination, you I should actually conduct a practice cross-examination and put your witness through what you anticipate will be the cross-examination.

    A trial lawyer does not want to give the witness the impression that there is anything improper about preparing him to testify. The witness should be told the difference between preparation to make certain he can clearly present his story and the unethical coaching of a witness where a lawyer gives him a story to recite. During this mock cross-examination, you should confront each witness with every challenging question you can possibly anticipate. Do this with the badgering and disbelieving attitude that the prosecutor may have with that witness. Tell each witness that if he can withstand such mock cross-examination, he will be able to testify at trial without fear.
Before the mock cross-examination you should brief each witness about the prosecutor's pet habits or idiosyncrasies, if you know them. If he asks questions in an irritating manner, if he points a finger, disturbs the witness, or if he has any other mannerisms designated to make a witness feel ill-at-ease and uncomfortable, try to prepare your witness for that.

- 9 -

    Alert each witness in advance of the kind of questions with which the prosecutor may try to trap him. Explain how to answer such questions. Caution witnesses not to answer questions unless they truly and fully understand them.

    Many witnesses are afraid to ask that a question be repeated. Caution your witnesses further not to permit themselves to be rushed. Tell them to let the judge know if at any time they do not hear a question or if they become confused about dates or facts. In order for a jury to make a very correct and wise decision, it must have all the evidence put before it in a truthful manner. Tell your witnesses that while they took an oath to tell nothing but the truth, there are two ways to tell the truth. One is in a halting, stumbling, hesitant manner which raises doubts in a jury's mind. The other is in a confident, straightforward manner which makes the jury have more faith in what a witness is saying.

    At your last conference, which is generally just before the trial, tell your witnesses that although the story may have become old and tired to them, to the jury it will be brand-new. Tell them to tell it as if they were telling their favourite story to some new friend. Tell them to speak to the jury and not to you. Tell them to make the jury understand and teach the jury the facts.

- 10 -

    Tell them to watch the jury and to help you help them clarify their testimony when they see that the jury has failed to follow it. Keep making them strive for clarity, crispness and conviction. Those are the hallmarks of good testimony. Then let them know that you are happy with them and your confidence in them will become contagious.

    In order to decide whether or not you are to put the accused on the witness stand, you have a number of questions that you have to ask yourself. How strong is the prosecution's case? What is the strength of your defence without the accused's testimony? Does the accused have a criminal record? What are his appearance and attitude? Is he likely to withstand cross-examination well? How will the jury react to him?

    Prior to my first trial, I generally believed that an accused had to testify. The jury would not accept a theory of defence which did not include an explanation by the accused. I found out otherwise shortly thereafter in my first trial when I couldn't call my client for one reason or another and I didn't. He was acquitted. I discovered that even though I believed in that rule that an accused had to testify when I came into practice, that it was not even based on anything other than a suggested belief that juries had to hear from the accused, in the absence of which they would generally convict. It has been quite the contrary in my personal practice. I've had much greater success when I haven't called the accused than when I have.

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    If you decide to put the accused on the stand, prepare him with special care -- with very special care because his testimony will be scrutinized more carefully than anyone else's. If your client takes the stand, he must be able to convince the jury of his innocence. Tell your client the theory of defence and the place that each witness will occupy in it. The client should know in advance what to anticipate at every stage of the trial.

    Subject him to the most intensive mock cross-examination.

    Until recently there was a lot of dispute between the Crown and defence Counsel as to whether all statements by the accused, including wiretaps, must be disclosed by the Crown. As a result of the recent decision of our Court of Appeal in Regina v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276, an accused is entitled to all statements made to the police and production of other statements made, such as on wiretaps, may be ordered by a trial Judge as part of his inherent discretion in ensuring fundamental fairness to the accused. Needless to say, it is extremely important that all of the accused's statements to the police be obtained. In fact, your investigation in the course of your preparation should have turned up all the statements made by the accused to the authorities. The accused should not be permitted to testify unless he can explain all such statements. Help the accused find ways to convey to the jury that he is a likeable and honest person.

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    I know that it is the practice of some lawyers to take a formal statement from their client. I never do so and I don't believe it is advisable. I never have a client write out a statement and sign it because, given some of my clients, I can never be sure that they won't leave it on a subway where it will find its way into the hands of the Crown, giving them their case and my client's head on a platter. What is more, on a more general level, it is the practice in our firm that the lawyer on a file does not take formal statements from a witness, in order to avoid that lawyer from becoming a witness on the trial itself. Rather, Use an articling student or a para-legal to record the actual statement. Generally, my feeling is that statements taken from the accused are in any case often a waste of time. Far better to spend that time with your client directly, preparing him to testify.

    If the accused is in custody, make sure that he is wearing proper civilian clothes during the trial. He is entitled to present himself in a dignified manner and this includes the right to be tried wearing proper clothing and you should make certain that he has it. I recall one case where I was acting for a man who was charged with murder arising out of a drunken brawl in an area in Toronto called Sherbourne Street -- we called them Bass cases because at the end of the trial, the whole room stinks of the beer that everyone has had, including the victim and the accused. My client was an alcoholic of many years' duration and very poorly dressed and I had asked my student to go down to the east end of Toronto and get this man a suit so that he would appear to be properly attired in the course of the trial.

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    The night before the trial I reminded my student that I expected my client dressed properly and he said, "I've done it". In fact, he hadn't done it and since it was the night before the trial, he went down in our building and bought the man a $300.00 suit, a Pierre Cardin shirt, an Yves St. Laurent tie, and Italian shoes. And when I came into court the next day, the client walked in and was dressed to kill -- I didn’t mean that literally -- and he went to this trial and the jury were perplexed throughout the whole course of this because of his tremendous sharpness of dress. I think we won the trial primarily because no-one who looked like that could kill. Afterwards I got calls from the jails from many, many people. I became a very popular lawyer with people who wanted me to act for them and would say, "Look, I'm charged with break and enter and I wear a size 40 suit".

    Now as I said, with the accused you must go through his testimony many, many times. This is the most important testimony that will be called during the course of the trial. As a rule you must do it many more times than any other witness because the accused is the person who has the most to lose. And, generally speaking, because he is the person that has the most to lose, he will say anything that will help him in his own mind to get off that charge. He will make any self-serving statement that he can.

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    I don't know if any of you have had this experience, but I've had clients say things under cross-examination for the very first time -- I've never heard it before, I'll never hear it again, it is an outright lie, but it was said innocently enough because they want to get themselves off, and yet it sounds so incredible that no-one will believe the kind of self-serving statements that they make. You must be very, very careful to protect the witness from convicting himself, by giving this kind of self-serving explanations, even in a very tough cross-examination, remembering always that the accused will always embellish their stories -- not because they're lying but simply because nobody wants to go to jail.

    In preparing a case for Court, I always make extensive use of a trial brief. Rather than showing up in Court with bulging file folders through which in a state of panic I am forced to sort to find a required document, I always try to have instead a concisely ordered and indexed brief. That will contain everything from the information or indictment up to a witness by witness analysis of the case. Each witness's section will contain the summary of his or her testimony at the preliminary hearing done in a concise manner with specific page and line references to the transcript of the preliminary. If a witness said something three times, there will be three references to his evidence in my summary.

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    There will be summaries of documents and copies of key documents which I need to refer to along with potential questions which may arise from them. I keep separate books on specific legal issues with copies for the Judge and Crown. The trial brief, in my opinion, is an indispensable tool of the properly prepared barrister.

    Let's deal briefly with expert testimony. When you're trying to find a potential expert witness, you should talk first to lawyers who have had cases involving expert testimony in the area that you're interested in, and find out who has really done a good job. Beware of the professional expert who devotes most of his time to testifying. He may trip over some testimony given in an earliest case, or the judge and jury may regard him as a professional witness. Some of them are interested in earning a living from testifying rather than from practising (sic) in their field of expertise.

    Academia is a very fertile source of persons who may make good expert witnesses. You should explore the faculty of graduate schools that are concerned with your field of expertise. There are numerous sources to go for recommendation. What I'm trying to say to you is that you don't necessarily just hire because in a particular area there's one expert who always testifies. Try several sources. Get a line on at least two and preferably two candidates who will make you comfortable, and not just use the expert who in that area that you live in is regarded as the best expert.

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    In choosing the witness you're looking for someone who will impress the judge and jury on a crucial part of the case. In the last analysis, this comes down to the subjective judgment of the trier of facts -- all of the tangible and intangible factors that go into impressing the decision-maker come into play. There's no absolute list but among the important considerations about obtaining experts are the extent of the prospective witness's experience in real life in making the very judgment that he will be called upon to make in your case. He should earn his living making these judgments. He should be a recognized success in his field. The Professor holding a chair at the medical school is better than an Associate Professor. He should be able clearly and persuasively to articulate his ideas in simple terms, readily understandable to the layman. He should be able to think quickly and correctly under hostile questioning. In short, he should possess this mysterious quality called "presence".

    If he is from the academic world, don't use him unless he has regularly had practical experience rendering professional judgments of the sort you're interested in. This should not be a problem for many well-known professors are very active as consultants in their specialties.

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    Some time it is hard to persuade a qualified expert to testify and I've had this problem on many occasions, having found the proper expert, to get them to come to a courtroom. What you do simply is to flatter them.

    You're an advocate and you should use all the skills you have as an advocate to persuade that witness that you need him to testify for you, for your client. You must assure the expert at the outset of your first conversation that you do not expect him to become an adversary, even though privately you do. Tell him that you only want him to recount in a clear, very humble, straightforward manner his qualifications, his opinion, and the basis for his opinion. Often if you settle for a reasonable degree of scientific certainty rather than absolute certainty, his reluctance to testify will resolve.

    If your expert has written in your field of interest, be sure that you have read every word that he has written, that might bear on the issue. Nothing is worse and less excusable than to have your expert's opinion impeached by some things he has written or said in an earlier trial that is inconsistent with the evidence he is now giving.

    In dealing with your potential expert, you want the answer to one question: can he help your case? Do not immediately sign him up as an expert witness. When first approaching him; do so as a consultant and then possibly as a witness. At your first interview with him it is more often than not impossible to determine whether or not that expert will be able to help you.

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    He will sit down with you and review the matter before reaching a definite decision on whether he can help and if so, whether as a consultant only or as a witness. Only after discussion in depth can a decision be made.

    Generally you should use as few experts as possible to establish a particular point. Quality with experts is much more important than quantity. Employing numerous experts on the same point creates the risk of contradiction or disagreement.

    Once you've chosen your expert, the first step in preparing him is to make every effort to demolish his theory, analysis or conclusion that he says he's prepared to testify to. Never accept his conclusion merely because he is an expert and must therefore know what he's talking about. Remember his views are going to be challenged and will be weighed by a judge and jury, so his views must square with. common sense. It is up to you to make sure that your expert's views indeed square with common sense for if they don't, you're going to be in serious trouble at the trial. Put yourself in your opponent's place and explore with your expert every conceivable way that he might be attacked on the substance of his testimony. This is not with a view towards preparing him for cross-examination but to analyzing the substance of his position.

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    Once that is done and you are satisfied that his position is solid, then you prepare him to testify at the trial.

    You should arrange for enough time to permit a complete exploration and simplification of the scientific aspect of his case. Start from scratch, make no assumptions. Have your expert define each term and explain each step that he takes in reaching his opinion. Let the expert, especially one who's had no courtroom experience, know that the consultation is to prevent embarrassment to him as well as to you. Review every piece of technical data that he may give you and upon which you might rely. Make certain that you understand it and you are in agreement as to its significance. Explain the theory of your case and he will help you find the places where you are vulnerable and buttress them.

    Most trial lawyers are excited about new knowledge and new technologies. We enjoy obtaining at least a superficial look at new fields of technologies. We generally enjoy talking to experts. We like to show off our newly acquired experience and expertise in conversations with our expert witness. The trouble is that some of us never stop showing off. We continue to carry on mysterious conversations with our experts during the trial. Then we both sound like we're right out of a medical school symposia. Jurors probably think we're a "couple of experienced smart fellows -- "I wish I knew what the hell they were talking about".

    And if you are, it won't help much when the jury retires to deliberate.

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    You and the experts have a teaching job to do. It can usually best be done in short steps. You both watch the jury for the telltale sign of imperceptions -- the lost look of the walleyed pike. Those twelve people have not shared your exciting new educational experience. You and the experts must get through to them.

    That means taking that overqualified, overpriced, fancy-talking professor and making him into an English-speaking human being. Teach him to speak simply and to draw simple, understandable sketches and diagrams. Encourage him to explain his testimony, first to you and then ultimately to the jury by using whatever demonstrative kinds of evidence that he can, such as charts, diagrams, drawings, or X-ray if it's skeletons or medical drawings. Make him be specific. Make your expert tell it to you and then to the jury as if he were reviewing a book on his subject for a bright bunch of 5th graders. It's no different than writing a law exam. You write a law exam as if you were writing to your 5 or 7-year-old child -- that's the secret of law school, but they don't tell you that until after you graduate. But that is the secret, and that's the secret with expert witnesses as well.

    Don't be patronizing but very, very clear and very organized in your preparation. Make your witness interrupt himself and define every technical word he uses. Interrupt him in the practice session until he does it automatically, or at least at the slightest cough from you. Try to avoid having to interrupt him constantly during his testimony to define terms. If you forget and your coughs don't help, you should take the blame and say, "Sorry, Doctor, I'm afraid you lost me there. What were you referring to when you used the term 'annular space’?"

- 21 -

    Get your experts to use simile and example. Make him watch the jurors as he would a class of students. Do they understand? Are they following him? Or has he lost them? Make your expert as jury-aware as you are. Now some of them suffer from stage fright and I go through this with each expert. One expert that I recently called in a murder trial kept looking at me and I didn't want him to look at me -- I wanted him to look at the jury. He was a kindly old man whose evidence had to be believed in order to have my client acquitted so I kept walking towards the jury and standing by juror No.12 and pushing my head like this to get him to look at the jury, but he was stage-struck and he really was nervous and kept looking at me. So I walked behind the jury to where juror No.7 was sitting in the hopes that in order to look at me, he'd have to look over at least two or three of the jury. He started looking at the judge at that point because he'd lost me behind the jurors. I asked for a recess and took him outside. Now we had gone over this for a couple of hours in terms of how I wanted him to testify and he apologized and he went back to court and he carried on from that point very well.

- 22 -

    But you have to be careful even with your experts in terms of getting them ready to give their evidence because a trial again is a series of impressions. Juries make decisions of credibility based upon impressions they form. The chances of them recalling the evidence that's really being given in detail throughout the course of the trial is minimal. It's almost impossible for any juror in a 10 or 20 day trial to remember what they heard but they have impressions of whether they believed witnesses and that's why the non-verbal communication that I'm discussing in terms of how each witness must impress that jury and how he appears in court is very important. That is probably one of the most important parts of preparation. Facts aren't all that important -- they're nice to have, but as a defence counsel you generally won't have them. You work with everything else, and it's those things and those areas that tend to make whatever defence you're presenting much more plausible.

    Now after you've gone through your examination with the witness, you should take your time understanding the witness's qualifications. Oftentimes they have degrees and have been to schools that really don't mean much to you. Make sure that you know in advance what schools he went to and what those initials mean after his name.

- 23 -

    Now at trial, never accept your opponent's offers to dispense with a recital of your expert's qualifications by just stipulating that he's well-known and qualified. You might express your appreciation for the recognition of your witness's qualifications but since the qualifications go to the weight to be afforded to the testimony as well as to the admissibility of the opinion, you should say to the judge that the jury is entitled to hear his qualifications -- you'd like to recite them.

    Now my practice is not to let the witness cite his own qualifications -- I'll do it for him to save him the embarrassment or any appearance that he's a very arrogant person by the number of degrees he might have after his name, and I'll read out his qualifications and he will humbly say "Yes, sir" too all the great degrees"' and books that he has written.

    Take the expert through the cross-examination before you get into court. Show him how your opponent might take him into areas of concern. Cross-examine him well. Help him to understand what may happen to him in the courtroom. Warn him of the pitfalls. Tell him to listen to the questions carefully and not to supply missing parts with assumed facts. He should be told not to change his manner during cross-examination at all. He should certainly be careful but not evasive or hostile. That's very important with experts because they tend, under hostile cross-examination, to get hostile and take it as a personal affront. It's a very important. part of your function in preparing the expert to him not to be afraid to change his testimony immediately if he realizes he's made a mistake.

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    And that's another area with the experts that you have to be very careful of. Sometimes they'll make the mistake, realize they've made it, but are too proud to admit that they've made it, and that can hurt your case tremendously.

    Point out the most fertile areas of cross-examination – textbooks, his own writing, other possible causes, possibility of errors of fact in the hypothetical question. Tell him that on re-examination you will ask him if he took into consideration the other possible causes before he reached his opinion. Do everything you can to present him to the jury as an honest, fair, sincere, friendly man of science who has done his homework and knows his subject. And God bless him if he's a little humble. The meek may not inherit the earth but they can certainly help you persuade the jury that you're on the right side of the case. Use your expert to help you prepare for cross-examination of your opponent's experts. Have him show you where to probe for weaknesses in the procedure and methodology adopted by the expert in reaching his opinion. Perhaps the expert skipped some steps in a known process or failed to perform recognized tests. Get him to point them out and have your opponent's expert admit to his omission.

    Briefly I'd like to look at character witnesses with you for a moment. Far too often overlooked by barristers, explain to him that there's nothing personal in the abuse that is going to be heaped upon him in the courtroom.

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    And that is probably the most important thing that you will do. If I they understand that, they will never respond in a hostile fashion to the cross-examiner.

    Both the examiner and the witness must really understand each other. Nothing disrupts an examination in chief more than a failure of communication between examiner and witness. The fairest way to avoid this is to prepare the witnesses, the questions and answers in writing, and with experts I do this in every case, because it's very important that there be somewhat of a script when you're dealing -- and I'm thinking particularly of a psychiatrist to testify.

    You should know exactly where you're going with the witness. You should have everything prepared, and the witness can review the questions that are going to be asked and know exactly what is expected of him before he gets on the stand. There's nothing worse than putting a question to a witness who doesn't know what the hell you want.

    And the final step, after you've gone through the examination and the cross-examination with him is to make certain that his confidence and assurance has grown with that cross-examination. Be sure to let your expert know that he will be given an opportunity to clarify or amplify or correct his testimony or re-examination and that he's not required to straighten out your opponent by argumentative answers.

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    Advise it's an area that I think is a very fertile one and a very useful one to explore in all cases, particularly where you're planning to call character witnesses who can give some evidence about your client's general reputation in the community with respect to either honesty or veracity or truthfulness or non-violence, and that is the kind of testimony that should be considered in all cases.

    Check your character witnesses -- see them and make certain that they are people who have good reputations themselves in the community. Try to limit yourself because with character witnesses in many cases you can have up to 20 or 30 -- Interview them all, explain to them what the form of the question is because there's nothing harder for an ordinary human being than to cope with a question as "Do you know the accused? Do you know other people that know the accused? As a result of your knowing him and other people knowing him, are you in a position to state his general reputation in a community with respect to honesty and veracity?" And the ordinary human being will look at you and say "You're nuts. What did you just say?" But you have to go through that because that's the form of the question -- what is that reputation?

    Teach them that when that question comes, "what is that reputation?" they can give a little story about Johnnie when he was a young boy and what a decent person he was. And that's very important with character witnesses -- make it appear spontaneous -- but let them at the end of those swarms of legalistic questions understand that they're then free to make any statement they want.

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    Now I've used character witnesses in most cases that I'm involved in because I find it very helpful. The juries tend to think once the accused comes on the stand, and after they've heard the character witnesses and all these glowing statements of what a decent, wonderful person he was, that surely he couldn't have committed this crime, or should be given the benefit of the doubt where he's testifying.

    I'll call the character witnesses before I'll call the accused. You can get a little too cocky with character witnesses as well, because oftentimes the crime is a very perverse or very horrifying crime. You want the character witness and you want him there but the concern you will have is that you don't want him to know all that much about the facts because he may not come. And in the first year that I was in practice, I defended a man who was charged with murder who with the exception of this rather horrible incident in his life was a very fine worker and everyone was prepared to come and give glowing recommendations as to what an honest and trustworthy and decent human being he was. The problem I had though, wasn't just that he killed his common-law wife in a drunken state, which was going to be our defence, but after he apparently killed her or during the time that he was apparently killing her, he put out cigarettes on her body and there were approximately 100 cigarette burns on here as well, which was a little difficult to explain.

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    The pathology evidence suggested that the cigarette burns were probably placed on the body after death, or at least after the time in which the assault on her occurred and that while he was I in this drunken state as he was lying next to the body talking to her, it was going to be our position he thought it was an ashtray.

    Now I did not tell the character witnesses about these cigarette burns because it has always been my understanding the Crown Attorney never cross-examines character witnesses. I called the character witness in the case and the Crown Attorney did not cross examine the first six. I had called too many and that was my problem -- I had called about seven. The Crown Attorney now has heard all these glowing character references about the accused to the point where he's just fed up. So he stood up and he stated to my seventh character witness "Do you know that the facts of this case are that the accused burned this deceased woman one hundred times with a cigarette?" And the character witness looked at the accused and looked at the Crown and said, "Oh, my God!" And he said, "Does that in any way affect the opinion that you now hold of this man?" And he just looked at the accused as if he were the Son of Sam and he said, "If I had known that, I would never have come." So, with character witnesses, the point is that I never did that again, but I learned that although I still believe Crown Attorneys will not cross-examine character witnesses because they generally believe there's nothing to be gained, but you can go too far in terms of the number of witnesses that you call.

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    You can make your point with two or three of them and leave it at that point. You should really tell them all the facts I but in your own way. Now maybe it's hard to explain one hundred cigarette burns to somebody but you have to do that to make certain that they're ready in the event they are cross-examined.

    It is trite to say that the best lawyers are often the ones who have prepared in the best possible way. The primary aspect of that, to me, remains the preparation of witnesses. No one says that it is easy but your client deserves and desperately needs the exercise of the lawyer's highest skills. It is certainly easier to discuss methods of trial preparation than to actually do it, but the difficulty in doing so does not excuse any lack of effort. It simply has to be done.

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