1. 2011 NASP Subrogation Litigation: Skills and Management Conference DIRECT EXAMINATION AND CROSS-EXAMINATION Direct: David Henderson, JD and MSCC Dyson, Schmidlin & Foulds Co., L.P.A. 5843 Mayfield Road, Cleveland, Ohio 44124 dhenderson@dsf-law.com; 440-461-9000 Cross: Nicole M. Kustermann, Esq., CSRP Yost & Baill, LLP 220 South Sixth Street, Suite 2050 Minneapolis, MN 55402 nkustermann@yostbaill.com; 612-338-6000

2. 2011 NASP Subrogation Litigation: Skills and Management Conference Scene Diagram with be Here

3. 2011 NASP Subrogation Litigation: Skills and Management Conference WHO YA GONNA CALL? A.Necessary – don’t be repetitive B.Determine order – first and last witnesses C.What information is critical and what is unnecessary? D.Facts to establish credibility and to personalize witness E.Do negatives outweigh the positives

4. 2011 NASP Subrogation Litigation: Skills and Management Conference WITNESS PREPARATION A.Eliminate errors, and address problems, questions and/or anxieties. B.Avoid creating false memories or putting words into the witness’ mouth. C.Tell the truth and avoid exaggeration. D.Listen to each question and answer as asked. Do not volunteer information, speculate, guess or say probably. If unsure, say I don’t remember, I don’t recall or I’m not sure. E.Witness appearance: Negate potential jury bias. F.Witness to focus on jury G.Okay and natural to show emotion. Avoid becoming angry, defensive or losing temper, especially on cross- examination

5. 2011 NASP Subrogation Litigation: Skills and Management Conference ORGANIZATION FIRST K.I.S.S.SIMPLE - MEMORABLE - DON’T FORCE IT LOGICAL Background Scene Description Action Description Identification of Exhibits Description of Damages

6. 2011 NASP Subrogation Litigation: Skills and Management Conference AT TRIAL - “ASSUME THE POSITION” Remove Yourself from Jury’s Line of Sight - Try to Stand at a Point Where the Jury is Between You and the Witness. Makes it Easier for Jury to Focus on Witness Allows Witness to Make Eye Contact with Jury While Explaining Critical Facts Forces Witness to Speak Up Insures Jurors Should Hear All Testimony Lawyer Can Use Written Notes Without Jury Being Aware.

7. 2011 NASP Subrogation Litigation: Skills and Management Conference “GETTING TO KNOW YOU” - Have witness introduce self and develop background. - Establish credibility. - Put any unfavorable questions during middle of direct when jury attentiveness is most likely at its low point. - Once background testimony is elicited, use transitional questions to turn witness’s attention to the critical testimony (“turning your attention to January 12, 2007... “)

8. 2011 NASP Subrogation Litigation: Skills and Management Conference “AND THEN WHAT HAPPENED?” Use Non-leading Open-ended Questions. Ask for Descriptions. Make sure witness not only testifies as to what he or she saw, heard and did, but also the atmosphere and intensity of feelings that existed during the event. Keep Testimony Flowing -- Why, What, Where, When, and How Slow Down Action When Critical - Especially Where Time Factors Are Involved. Use Day-to-day Language - Avoid “Lawyer-ese.”

9. 2011 NASP Subrogation Litigation: Skills and Management Conference “ARE YOU LISTENING TO ME?” Pay Attention - Witness May Not Say What You Anticipated If Testimony Unclear, Have Witness Elaborate/Explain Appear Interested - Give Jury Impression Testimony Is Important, But Don’t Overdo It.

10. 2011 NASP Subrogation Litigation: Skills and Management Conference “SHOW ME” Use Exhibits to Highlight and Summarize Facts Once Witness Testifies to Repeat and Emphasize Important Facts. Demonstration By Witness as to Physical Act or Re-enacting an Event: When Appropriate – Use Evidence

11. 2011 NASP Subrogation Litigation: Skills and Management Conference EXHIBITS: BUILDING A FOUNDATION -- Witness competency -- Relevance -- Authentication -- Recognition, Knowledge, Relevance, Condition --Explain chain of custody, if necessary.

12. 2011 NASP Subrogation Litigation: Skills and Management Conference REDIRECT EXAMINATION Rebut, Explain or Further Develop Scope - limited to what the cross-examiner chooses to raise during his examination. Do not withhold part of direct examination to save it for redirect.

13. 2011 NASP Subrogation Litigation: Skills and Management Conference Do’s and Dont’s of Cross Examination DO Know your objective DON’T try to do too much DO Control your witness through Proper Technique DO Know how to Impeach Properly

14. 2011 NASP Subrogation Litigation: Skills and Management Conference What’s your Objective? Attack Credibility of Direct Testimony / Show Bias of Witness Highlight how testimony given on direct actually supports your case Impeach Witness Testimony Show Gaps in Direct Testimony Develop Trial Theme

15. 2011 NASP Subrogation Litigation: Skills and Management Conference Doing Too Much Trying to cover too much ground Asking one too many questions Trying to argue during examination

16. 2011 NASP Subrogation Litigation: Skills and Management Conference Proper Technique YOU are the storyteller, not the witness Use Declarative Statements Reveal significance of XE in closing, NOT in examination Be Brief- score your points and get the witness off the stand

17. 2011 NASP Subrogation Litigation: Skills and Management Conference Ways to Impeach Proof of Bias or Prejudice of witness Convictions of Crime (Felony or crime involving dishonesty) Prior bad acts, character and reputation for untruthfulness Prior inconsistent statements **** Subsequent remedial measures Defect in Capacity

18. 2011 NASP Subrogation Litigation: Skills and Management Conference Impeachment using Prior Inconsistent Statement Have witness commit to prior statement Establish that statement was complete and truthful Contrast prior statement with inconsistent testimony Simplicity is the key!!!!