Think back to the incident that is at issue in your lawsuit. If you were in a car accident, for example, identify the people who saw the accident. This group could include passengers in your car, bystanders, or passengers in the other car. Get a copy of the police report and read it. Witnesses might be identified in the report. Reach out to the witness and ask if they can meet you. When you meet, take a notepad and jot down what the witness remembers about the incident.
For example, you might have gotten in a traffic accident. You want a witness to testify that you were not speeding. You could have a passenger in the car testify for you because the passenger has first-hand knowledge of how fast you were going. By contrast, you can’t have someone testify to what they heard. For example, your mother can’t testify that you told her over the phone that you weren’t speeding.
Background information. You should start with basic information about the witness: name, age, place of residence, education, and employment history. Any weaknesses. You should anticipate how the other side will cross-examine your witnesses. For example, if your witness has a felony conviction, then the other side might use that information to discredit the witness. You can ask about it first. In this way, you can take the “sting” out of the revelation. What the witness knows. You then should get to the substance of the testimony: what the witness knows and how. For example, you will establish where the witness was and how she got there. Then you can ask what she saw or heard. You should ask the witness what she did in chronological order, since that is easiest to follow.
The question is compound. This means that you are really asking two questions in one. Respond by breaking up the question. Lack of personal knowledge. You are asking the witness to testify to things he didn’t personally observe. Hearsay. Hearsay is an objection to the witness’s lack of personal knowledge. With hearsay, a witness might repeat an out-of-court statement in order to prove the fact asserted in the statement. For example, a witness might say, “My sister told me you were speeding. ” This statement is offered to prove you were speeding. You must be careful when objecting to hearsay because the opposing party will defend the question they asked. Asked and Answered. You should ask a question only once. However, if you don’t get a clear answer, then you can slightly rephrase the question to elicit a clearer answer from the witness. Misquoting the witness. Make sure that you listen closely to what the witness actually testifies to. If you need clarification, then follow up with questions. Leading. Leading questions are not allowed when direct examining the witness, but they are appropriate for cross-examining witnesses. A leading question puts a suggested answer in the form of a question, for example, “The light was green right?” is a leading question. If you are directly examining a witness, you can get around this by asking “What color was the light?” because you aren’t suggesting an answer.
Let the witness answer in his or her own words. You shouldn’t tell the witness what to say. However, if the witness is confused, then you can remind him or her of what was said when you interviewed them earlier. This practice is critical. You want to go into court knowing what the answer to each of your questions will be. [4] X Research source The worst thing at trial is to ask a question and not know how the witness will answer.
You can establish this by asking open-ended “who, what, where, when, and why” questions. [6] X Research source For example, if you want a witness to testify that she was in your car during an accident, you would ask a series of general questions without putting words in her mouth: “Can you state your name?” “Do you know the defendant?” “How do you know the defendant?” “Where were you on June 15, 2014?” “Why were you there?” “Did anything happen that you remember that day?”
For example, “You were a passenger in the defendant’s car on June 15, 2014, correct?” is a leading question. You are basically prompting the witness to say, “Yes. ” Instead of asking leading questions, ask a series of open-ended questions, like those stated above.
The witness might tell a completely different story on the witness stand. In this situation, the witness probably has lied to you outside court. Once on the witness stand after taking an oath, he or she is telling the truth. If this happens, you should end the questioning as soon as possible. It probably won’t happen, but you should be prepared in case it does.
The other side might want to look at the document, so be prepared to show it to them first before giving it to the witness. Only give the witness as much of the document as necessary to refresh their memory. For example, if they gave 20 pages of testimony in a deposition, then you don’t need to hand over the whole 20 pages. Show them the page with the relevant information. Once you give the witness the document, you can’t stand over their shoulder and instruct them what to read. Instead, you need to let the witness read the document. When the witness finishes, you can ask, “Did that refresh your memory?” If it did, you then take the document back before asking the witness questions.
Before telling the judge that you are done, be sure to look at your outline and make sure that you have covered everything you wanted to cover.
Show bias. A witness might have an incentive to lie. You can create that impression by teasing out the witness’s relationship with the other party. For example, the witness might be related to the other party. They also could be business associates. Show contradictory statements. The witness might have made contradictory statements in a deposition or at an earlier trial. You can confront the witness with those statements. Ask about felony convictions. In some situations, you can undermine a witness’s credibility by introducing evidence that a witness has been convicted of a felony. You can also ask about a conviction for perjury.
For example, if you were in a car accident, a witness standing on the sidewalk might claim that you didn’t brake before hitting the other car. You can ask a series of questions about what the witness didn’t see: “You couldn’t see the taillights, could you?” “You don’t know how fast the car was going, did you?” “Was the car going 45 miles per hour?” “55 miles per hour?” “You couldn’t see the defendant’s foot inside the car, right?” “So you don’t know if he was pressing on the brake. ”
For example, you could ask a witness, “You were asleep in the car, weren’t you?”
Don’t get rattled. You should continue to rephrase the question. If you think the witness is being deliberately dense, then ask the judge to instruct the witness to answer.
Some witnesses might give you attitude. You need to smile in return. Remember that an angry witness comes across as non-credible to a jury and judge. If a witness refuses to answer a question, then ask the judge to instruct the witness to answer. [10] X Research source
