Organizing Direct Exam of the Client
Losing points with the jury is the last thing you want in your trial. At the end of the day, the jury will scrutinize your client more than anybody else in the room. So you want to bulletproof your client before they even get up on the stand.
Compassion fatigue is not unusual in a world where we are constantly bombarded by horrific news. You should not repeat the same testimony over and over again. You risk wasting their time and losing their patience.
Therefore, make sure you’re keeping things as organized as possible. Organize your topics, have bulletproof questions and be able to shift and pivot after the defense opening or other witness testimony.
In this episode, learn how to organize the direct exam of the client. One of the first steps is to create a topic list. Your questions are more likely going to be based on this. It will navigate you through the process of preparing your client for when you put them on the stand. Also, this is a process that you can start very early and take care of the other more important things you need to do for the trial.
In this episode, you will hear:
- Why you need to come up with a topic list
- The point of view of the jury
- Topics of liability and damages
- Other witnesses and order of proof
- Considering the possibility of compassion fatigue
- Time management strategies
- Preparing your exhibits
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Episode Transcript:
Elizabeth Larrick: Hello, and welcome to a new episode of Trial Lawyer Prep with me, your host, Elizabeth Larrick.
This is a podcast designed for trial lawyers who are looking to get better in the courtroom, to connect with jurors and their clients, and all in all, just. [00:01:00] And I hope that you will share this podcast with other folks, even particularly, we always talk about focus groups, how to use focus groups, how to do your own focus groups, client preparation, and those types of things to help us be better lawyers in the courtroom.
Today, we’re going to talk about organizing direct exam of your client. I recently was asked to speak at Texas Trial Lawyers Tact College, which is basically a trial preparation CLE. It’s really awesome. And It’s a great opportunity for folks who’ve never tried a case. They basically take it from all the way from the start, all the way to the finish through a trial and go through each of those teaching on each sections.
And then also having basically an on your feet time to practice doing all those things immediately. So it was a great opportunity and I appreciate that. And I was asked to come talk about direct exam of the client and also [00:02:00] plaintiff’s expert. And as I started to put the presentation together and think about it, it really came down to me as like apples and pencils.
Okay. Clients are the apples and plaintiff’s experts are the pencils because experts, there are rules and we have to go through, we have to jump through all the hoops before we can get them even into the case. They have to have qualifications. They have to have experience, knowledge, training, and then They’re gonna do a report.
It’s very much, very structured. What they’re gonna come in and talk about is very structured and the attack on the expert can also be very, very structured. And most of those times those experts who have testified in court, they have a way of doing their thing and sometimes they’re not gonna be flexible.
And I like to think about our clients and even before and after witnesses as apples. Right. It’s very organic. Sometimes you make an apple pie and sometimes it’s a strudel or sometimes it’s all different kinds of things, but either way, [00:03:00] it’s organic and there’s tons of types of apples. And I just love all the things that you can do with your client.
So that’s what I can think of as apples and pencils. So we’re going to focus on our apples because that’s generally what I have done in my experience is. I’m going to help clients get ready for trial testimony, and what I really want to do is help give a template or a way to organize that direct exam that you’re going to go through with the client, because I feel like this is something that is vague.
We’ve got not a lot of structure when it comes to the client. And so what I want to do is really talk today in this episode about how do we think about that? How can we come up with what I call a topic list? Because from that topic list, that, you’re going to take that directly and prepare your client on the topic list.
You’re going to take that list yourself. You’re going to go create questions on it. And it’s going to guide you through the process of preparing the [00:04:00] client, And when you put them on the stand, being able to go with that topic list. So what I always want to be thinking about, though, in this organizing stage is, okay, what is the point of view of the jury?
And also, what does the jury charge say? What are the questions the jury is going to answer? And specifically when it comes down to clients, depending on the type of case, you need to know, Hey, what is it that my client is going to give or provide to the jury in order to answer a question? Sometimes we have clients who pretty much everything they’re going to answer is just going to go towards a damages jury question.
Sometimes we have clients that have to answer for liability and damages, but that’s really kind of the starting point for me for organizing is, okay, let me get out the jury charge. Let me look at liability, question one, damages, question two, what parts of my client going to have to answer for liability?
Yes or no. Is there anything in there that my client Yes. The jury must [00:05:00] answer to the jury. Right? That the jury point of view is I need to hear that client get on the stand and tell me how this wreck happened, or maybe not. So depending on where your client was, another example in a bedMAL case, clients not going to be able to tell how the surgery happened.
They’re completely knocked out, right? It’s still an important fact, but it’s kind of one of those things. Okay. Well, how much can they really answer on liability? Well, thinking about the POV of the jury, jury wants to know about this person’s prior health. They’re in a really good position to talk about that.
So we’re thinking through all those things at this point in time. We’re thinking about the POV of the jury, point of view of the jury. We’ve got our jury, charge out. Now we’re just looking at our topics of liability and damages. What in liability do they need to answer? What in damages do they need to answer?
Okay. Now let me add a third thing here that we’re gonna be thinking about, which is our other witnesses and our order of proof as well. So most people don’t put their client on as a judge. [00:06:00] Number one. First witness. Okay. They’re put them in there somewhere in the shuffle or sometimes at the end. So I always like to look at, okay, thinking about the trial from a 30, 000 foot view, what is my order of witnesses?
Okay. Now let’s also think about what exhibits, what documents, are also going to be coming in, in my proof. Okay, so I’ve got a couple of before and after witnesses that I’m going to give to my client before my client gets there. I’ve got a couple of before and after witnesses, are they going to tell stories that my client is involved in as well?
Okay, so maybe those stories need to be off the list and just give them to that particular witness. Maybe that witness doesn’t have any other purpose other than to tell that story. That goes to the blank on the jury charge. Okay, great. We’re, again, we’re just organizing. We want to see, but we also want to know, okay, what is it that only my client can answer for?
Only my client can answer for when it comes to liability or damages. And also thinking about, okay, what’s already been coming into the jury at this point that maybe we don’t [00:07:00] need to repeat again. Because jurors don’t want you to waste their time and they certainly don’t feel bad For your client, right?
So at the end of the day, and this is not just post pandemic, this is before that, but I think even now people are even more impatient is, we’ve all experienced. At some level, some kind of compassion fatigue, because we live in a world where we are bombarded constantly by horrific news, by horrific things that are happening in the world constantly.
Open your phone and if you’ve got Android or even Apple, you’re gonna get whatever that news is and it’s gonna be some kind of horrible, awful event. And what happens is, it’s really hard to keep some compassion for people when we’re constantly bombarded with these just like super over negative Like just, wow, this world is full of just horrific tragedies and there’s nothing I can do about it.
And it’s also like, well, what about me? That’s the other part of our world we live in [00:08:00] where it’s allow a lot of places, many platforms, I should say, for your personal opinion to be projected everywhere and on to other people whether they like it or not. So, and also all this is coming into this compassion fatigue.
That we’re all experiencing this kind of burnout, right? And then add that fact that the jury probably doesn’t want to be there, right? For 7 a day or 10 a day. Keep that in mind when you’re thinking about what topics, what stories, right, your client’s gonna give and your witnesses and repetitive information.
So we’ve got a lot of things that we’re organizing in here. What I love to do is just take a sheet of paper and just write it all out, everything out, all the topics, okay? I’m not saying questions, your topics. Now compare it with your Order of proof with your other witnesses, with your other documents, thinking about where that comes in a trial.
Can you eliminate some things? Is there somebody, is there a piece of evidence that’s stronger than having it come out of your client’s mouth? All right, cool. Let’s take [00:09:00] some things off their plate because we want to make sure we want to manage their time on the stand. That’s the fourth thing that we are adding to this list now is time management.
Where are they coming in the order? How long do you want them up there? And how long is cross going to take as well? You’ve got to average that in when you’re thinking about how about how long you want your client on the stand. So we’ve got four things on our list. POV of the jury, point of view of the jury.
Our jury instructions, our jury charge, specifically our questions. Our order of proof. And now we’ve got how long do I want to keep this person on the stand? How do I manage the time? So now that we’ve got all this, we’re going to look at, okay, with our topic list out there, comparing to other topics, can we eliminate some?
Is somebody stronger? But now you just basically got the bullet point of the list. And what you want to do now is you want to add in cross exam points. And you’re going to go find those cross exam points from client deposition. [00:10:00] Gone right through it. Gone right through it again. Highlight the question and the answer.
You want to make sure you have that documented so that you know where that goes on your topic list, how to build that in, but also be thinking about what else have you heard? What did you hear at mediation about your client? What has the defense lawyer been telling you about your client? What does the insurance adjuster been telling you about your client?
Put all those things in there because when it comes time to trial, there’s not going to be a magical new list. It’s going to be the same items. So you just want to build those into your topic list. And if it’s not on your topics, then you need to add it into your topics. Because what we want to make sure that we’re doing is we want to get all our points That we need to score, but then we also want to insulate our client before cross exam to just deflate that balloon.
We don’t ever like aha moments, right? Surprise. I got you. The jurors looking for those. That gets them all excited. We [00:11:00] want to deflate that. We want to make sure, hey, we don’t leave somebody up there on the stand all high and dry. We want to be able to give them some protection beforehand and give them that opportunity to explain before cross exam comes up there.
We also want to look at building in exhibits. Right, so we got our topics, we’ve built in our exam points, cross exam points, and we want to put in our exhibits. What exhibits do they need to cover? What are exhibits that we can use with them to help make it easier to testify? For example, I’m working with an individual going to trial on an employment case, and she has a tendency to over explain, if you will.
So, in order to help with that, Avert that compulsion that she has. We’ve worked through and we’ve role played with the exhibit specifically about a text message string. So she doesn’t have to feel like, okay, message one, blah, blah, blah, reply, message, because she’ll do it verbatim. We just put that up there, [00:12:00] put that exhibit up there.
Now, at this point in the trial, the jury has probably seen this thing 20 times. You’re not putting it back up there to walk back through it again. You can just put it back up there to confirm that’s what happened. Yes. Great. Now you get to move on. But we want to make sure that we’re using exhibits, we’re keeping things moving around the room, we’re keeping the jury interested, we’re putting things into evidence that maybe they need to go in there.
Got a car wreck case, you need to talk about bills, you need to talk about medical records. By all means, just do it. Put it in there. But you want to build that list as well so that you can prepare your client as well on those exhibits. But build those in there as well, and then think about how can you work in a demonstrative.
Another example, working with a disemployment trial. You did a lot of dates. And they wanted to create a timeline, that’s great, but maybe let’s create a calendar, right, and so they’re going to have her walk through the demonstrative calendar to show how much [00:13:00] time has passed, what’s going on, great, that’s fantastic.
And then how, if worst case scenario, you don’t have even any photos or any demonstratives to go through, just create one with them. Right. At the end of the day, most clients have to testify on some level for damages here in the state of Texas. You have to have your client testify on very specific pieces of the jury instruction to make sure that it gets into the record.
Let’s get real specific physical pain. We’ve got to have testimony about physical pain. We’ve got to have testimony of stress, frustration, right? That mental anguish portion of it. It’s a good way to get things turned over. So create a demonstrative, make it something that’s digestible that, hey, best case scenario, get to use it again in closing statement.
And it’s just a way to visualize things with the jury, with the client. We’re all working together and we’re trying to put something up on the board to keep [00:14:00] things interesting and flowing. All right, putting all this together in my experience doing client direct exam is a lot of lawyer preparation. I think it takes so much more organization on our part, digging into, doing research, re reading those depositions, going back through our notes for mediation, going back through our call notes with adjusters and what defense have said, on top of it.
Looking at the order of proof and the exhibits and it’s a lot of organization and then on top of that thinking, okay, how do we have questions that avoid objections, right? What are my plan A and plan B on questions with people? And then ultimately being able to shift, if you have to shift the defense opening then is now putting more weight on a different point.
It’s okay, you’re, you’ve organized it so that you can do that. But we want to organize our topics, we want to have questions that are bulletproof, and be able to shift and pivot after the defense opening or [00:15:00] other witness testimony. At times, I’ve had this happen to me where we put on the before and after, and something happens and the before and after does not get to testify to their three points.
Maybe they have three stories, maybe they have four stories, and all of a sudden the judge decides, nope, nope, not coming in. One story comes in. You’re thinking. Well, okay. How do we get those other points in? We really want those in. So sometimes you got to shift and you got to have put more things on your clients.
Sometimes you shift and take things away from them. So trials are always maneuvering. A good point though, about this is these are our clients. We have access to them well in advance so we can start this process very early. We can start organizing that order of proof early, find other people to help carry the load when it comes to testimony.
And then ultimately, we can test, we can test our client’s testimony, have them create a five, seven minute zoom clip, [00:16:00] play it in front of a focus group to see what they think, what’s the strengths, what are the weaknesses, we have a lot of control over this element, and we can start very early, which I would urge you to do that, because once it’s done, you can set that down and keep looking at something else, because as we’re going into trial, Whether it’s waiting for a pretrial, or waiting for exhibits, or last minute motions, like, there’s just a lot of things, other things that have to go on into organizing and creating.
You can do this early, because you don’t want to lose points with the jury when it comes to your client. And, at the end of the day, In that courtroom, the jury is going to scrutinize your client more because they’re like that person more than anybody else in the room. So you want to make sure, all right, you bulletproof it before your client gets up there.
So hopefully this was a helpful episode in thinking and organizing for your client direct exam. If you have questions or maybe you think, hey, Elizabeth, you totally left out this thing for direct [00:17:00] exam, please let me know. I would love to add it in here or maybe make an episode. So my email will be in the show notes.
Thank you again for tuning in and supporting this podcast. I would love it if you could rate it, review it on your favorite podcast platform. And of course, I really love it when you share this podcast with other people. All right. Thanks so much.