Post by Jim on May 18, 2010 6:56:58 GMT -5
There are two ways to get evidence from witnesses:
1.Direct Examination
2. Cross-Examination
Lesson #1: You cannot cross-examine your own witness!
This may be the hardest part of litigation skill, but you must master it if you want to win.
You (or your lawyer, if you have one - and, if you do, you need to control him or her at all times, as I teach in my course) call your witness (at trial, hearing, or deposition) and begin your examination.
YOU: "Please state your name."
WITNESS: "Will Witness, 17 Poplar, Anytown, Texas."
YOU: "You were at the scene when my SUV was rear-ended by the defendant, weren't you?"
OPPOSING COUNSEL: "Objection! Leading!"
JUDGE: "Sustained!"
What just happened?
You discovered this simple rule the hard way!
If it happens, you must withdraw the question and go through a sometimes tedious and embarrassing process to get your witness to say what you want your witness to say without being led.
For example, the following would probably be allowed:
YOU: "Have you ever seen me before?"
WITNESS: "Yes, you were the victim of that rear-end collision last month."
YOU: "Why do you say that?"
WITNESS: "Because I saw you having difficulty getting out of your vehicle after that fellow over there rear-ended you."
YOU: "By 'that fellow' do you mean the defendant, Mr. Cannot Drive?"
WITNESS: "Is that his name?"
There's no need to answer a witness' questions. Just keep on.
YOU: "What did you see?"
And, so forth.
Lesson #2: You can turn your opponent's witnesses inside-out and upside-down with cross-examination.
You can "lead" your opponent's witnesses.
Your opponent calls a witness to the stand and does his best to get his witness to tell what she saw at the scene of the accident. When your opponent finally sits down (or says, "Nothing further, your honor.") you may ask his witness questions that suggest the answers.
YOU: "I see you're wearing glasses today."
WITNESS: "Yes."
YOU: "You have difficulty seeing, don't you?"
Perfectly permissible.
WITNESS: "Not really."
Point made. No need to dig further and find yourself digging the hole you're standing in. Move on. Point made.
YOU: "You've known the defendant many years, haven't you?"
WITNESS: "Yes. We are acquainted."
YOU: "In fact, you share an apartment, don't you?"
WITNESS: "Yyyesss."
YOU: "You and the defendant are intimate with each other, aren't you?"
And so forth.
In every case, of course, the facts will be different. Each witness will know different parts of the puzzle, and it's your job to dig out of each witness the parts that will help your case while avoiding testimony that will damage your case!
Lesson #3: Your opponent is permitted to re-direct his own witness if you raised some issue he did not touch on during his direct examination. He may not, however, ask questions that go beyond issues you raised on cross. And, he may not go back over issues he addressed during his original direct examination.
If he explores a new issue on re-direct that you did not touch on during your cross, you can either (1) object in an effort to prevent him from exploring the new territory on re-direct or (2) wait until he sits down and request re-cross by simply standing to your feet and saying, "Re-cross, your Honor?" This is your right if the opposition raises new issues on re-direct. If the judge does not allow re-cross, explain the other side impermissibly explored new evidentiary territory on re-direct. If the judge still refuses, you must object and preserve the record for appeal, in case the judge's error results in your losing the case (i.e., "harmful error").
Lesson #4: If you want to win in court (whether you're on your own pro se or have a lawyer who is charging you by the hour) it is essential to know how witnesses should be questioned.
If you don't have a lawyer, you'll still be required to obey the rules, because the rules apply to both sides and are intended to level the playing field. Don't expect the judge to allow the rules to be broken just because you didn't go to law school or pass the bar exam.
If you have a lawyer, it's just plain foolish not to know the rules your lawyer can rely upon to win your case for you. There's a reason why there are more derogatory jokes about lawyers than all the other professions put together. It just makes good sense to know what your lawyer needs to do and how to know if your lawyer is doing all that can be done to win your case.
Wherever there is crookedness, corruption, and open rebellion against our traditional American values, let's do the right thing, the honorable thing, and step up to the plate for our neighbors and friends by demanding that the values too many have died for be upheld in our courts!
Together, with the knowledge of due process rules that control every court when applied properly, we can be the generation that restores the American Dream: Liberty and Justice for ALL.
To win in court you must fight tooth-and-nail!
This isn't a parlor game!
This is war!
The rules of due process are the People's Power to control the machine we call government and get the redress for our grievances that millions died for!
Due process is your #1 right, because without it none of your other "rights" are enforceable in court!
But! To enforce your rights you need to use the rules!
The Constitution mentions due process. It doesn't begin to explain what due process is or how to use it to control courts ... and thereby to control judges, lawyers, giant banks, high-minded government officials, or even angry neighbors!
Can we Americans afford not to learn the rules?
Due process is the power of the people to control their government by controlling the courts!
1.Direct Examination
2. Cross-Examination
Lesson #1: You cannot cross-examine your own witness!
This may be the hardest part of litigation skill, but you must master it if you want to win.
You (or your lawyer, if you have one - and, if you do, you need to control him or her at all times, as I teach in my course) call your witness (at trial, hearing, or deposition) and begin your examination.
YOU: "Please state your name."
WITNESS: "Will Witness, 17 Poplar, Anytown, Texas."
YOU: "You were at the scene when my SUV was rear-ended by the defendant, weren't you?"
OPPOSING COUNSEL: "Objection! Leading!"
JUDGE: "Sustained!"
What just happened?
You discovered this simple rule the hard way!
If it happens, you must withdraw the question and go through a sometimes tedious and embarrassing process to get your witness to say what you want your witness to say without being led.
For example, the following would probably be allowed:
YOU: "Have you ever seen me before?"
WITNESS: "Yes, you were the victim of that rear-end collision last month."
YOU: "Why do you say that?"
WITNESS: "Because I saw you having difficulty getting out of your vehicle after that fellow over there rear-ended you."
YOU: "By 'that fellow' do you mean the defendant, Mr. Cannot Drive?"
WITNESS: "Is that his name?"
There's no need to answer a witness' questions. Just keep on.
YOU: "What did you see?"
And, so forth.
Lesson #2: You can turn your opponent's witnesses inside-out and upside-down with cross-examination.
You can "lead" your opponent's witnesses.
Your opponent calls a witness to the stand and does his best to get his witness to tell what she saw at the scene of the accident. When your opponent finally sits down (or says, "Nothing further, your honor.") you may ask his witness questions that suggest the answers.
YOU: "I see you're wearing glasses today."
WITNESS: "Yes."
YOU: "You have difficulty seeing, don't you?"
Perfectly permissible.
WITNESS: "Not really."
Point made. No need to dig further and find yourself digging the hole you're standing in. Move on. Point made.
YOU: "You've known the defendant many years, haven't you?"
WITNESS: "Yes. We are acquainted."
YOU: "In fact, you share an apartment, don't you?"
WITNESS: "Yyyesss."
YOU: "You and the defendant are intimate with each other, aren't you?"
And so forth.
In every case, of course, the facts will be different. Each witness will know different parts of the puzzle, and it's your job to dig out of each witness the parts that will help your case while avoiding testimony that will damage your case!
Lesson #3: Your opponent is permitted to re-direct his own witness if you raised some issue he did not touch on during his direct examination. He may not, however, ask questions that go beyond issues you raised on cross. And, he may not go back over issues he addressed during his original direct examination.
If he explores a new issue on re-direct that you did not touch on during your cross, you can either (1) object in an effort to prevent him from exploring the new territory on re-direct or (2) wait until he sits down and request re-cross by simply standing to your feet and saying, "Re-cross, your Honor?" This is your right if the opposition raises new issues on re-direct. If the judge does not allow re-cross, explain the other side impermissibly explored new evidentiary territory on re-direct. If the judge still refuses, you must object and preserve the record for appeal, in case the judge's error results in your losing the case (i.e., "harmful error").
Lesson #4: If you want to win in court (whether you're on your own pro se or have a lawyer who is charging you by the hour) it is essential to know how witnesses should be questioned.
If you don't have a lawyer, you'll still be required to obey the rules, because the rules apply to both sides and are intended to level the playing field. Don't expect the judge to allow the rules to be broken just because you didn't go to law school or pass the bar exam.
If you have a lawyer, it's just plain foolish not to know the rules your lawyer can rely upon to win your case for you. There's a reason why there are more derogatory jokes about lawyers than all the other professions put together. It just makes good sense to know what your lawyer needs to do and how to know if your lawyer is doing all that can be done to win your case.
Wherever there is crookedness, corruption, and open rebellion against our traditional American values, let's do the right thing, the honorable thing, and step up to the plate for our neighbors and friends by demanding that the values too many have died for be upheld in our courts!
Together, with the knowledge of due process rules that control every court when applied properly, we can be the generation that restores the American Dream: Liberty and Justice for ALL.
To win in court you must fight tooth-and-nail!
This isn't a parlor game!
This is war!
The rules of due process are the People's Power to control the machine we call government and get the redress for our grievances that millions died for!
Due process is your #1 right, because without it none of your other "rights" are enforceable in court!
But! To enforce your rights you need to use the rules!
The Constitution mentions due process. It doesn't begin to explain what due process is or how to use it to control courts ... and thereby to control judges, lawyers, giant banks, high-minded government officials, or even angry neighbors!
Can we Americans afford not to learn the rules?
Due process is the power of the people to control their government by controlling the courts!
