1. Mark Pollitt Associate Professor
Courtroom Testimony
Mark Pollitt
Associate Professor
©2005 Mark M. Pollitt

2. Two Kinds of Testimony Fact (or lay) Expert FRE Rule 701
FRE Rules 702/703/705
©2005 Mark M. Pollitt

3. In either case…
Be prepared!
©2005 Mark M. Pollitt

4. Know: What you are going to testify about?
What level(s) of detail you might have to present?
What physical evidence are you going to have to have admitted?
How does this testimony fit into both parties case theory?
©2005 Mark M. Pollitt

5. Order of Testimony Direct Cross Examination Re-Direct Re-Cross
Done by the party calling the witness
Cross Examination
Done by the opposing party
Re-Direct
Clarification by party calling
Re-Cross
Clarification by opposing party
©2005 Mark M. Pollitt

6. Direct Testimony Voire Dire
In the case of expert testimony, Voire Dire is often conducted to ascertain the qualification to be an expert.
Ask the attorney to ask you specific questions about your qualifications – not “tell us about yourself”
A CV is normally presented as evidence of the expert’s qualifications. May be read into the record.
Opposing party can cross examine the witness on voire dire.
Judge makes a ruling on admission.
©2005 Mark M. Pollitt

7. Direct Testimony, cont. Lawyer questions witness.
Physical evidence may be admitted through witness. Remember identification?
Witness may be questioned about physical evidence admitted previously.
Questions may be open-ended or closed.
Witness must discuss with attorney, what approach will be used.
Questions may not be leading for a direct examination.
©2005 Mark M. Pollitt

8. Direct Testimony, cont.
Generally, testimony should follow the following format:
Set up the situation
Educate on the science
Describe the examination conducted
Describe the results
State your opinions and the basis for them.
©2005 Mark M. Pollitt

9. Cross-Examination Done by opposing counsel
May use yes/no and leading questions (isn’t it true that…)
Generally seeks to do one of the following:
Bring out favorable evidence
Minimize the unfavorable evidence
Impeach or reduce the credibility of the process or witness
©2005 Mark M. Pollitt

10. Caution!!! Open ended questions and silence are mine fields!
When the question is asked, do NOT immediately answer it, rather:
Make sure you understand the question
Formulate your best answer
Address the answer to the jury
If opposing counsel can, they will try to make their testimony your testimony, don’t let them.
©2005 Mark M. Pollitt

11. Re-Direct & Re-Cross
Generally may not elicit new testimony, but rather clarify previous testimony
An exercise in “spin”
Use to reinforce your testimony e.g.: “As I described before, …..”
Judges have little patience for extended examinations. Lawyers are supposed to get it right the first time.
©2005 Mark M. Pollitt

12. Courtroom Mechanics
You are on stage the minute you walk into the courthouse!
People will judge your testimony, in part, by you, your dress and demeanor.
Be professional at all times!
©2005 Mark M. Pollitt

13. All the world is a stage!
©2005 Mark M. Pollitt

14. Dress for Success Read the book by John Malloy
Professional, conservative, be aware of jewelry, emblems, styles that the jury might react to.
You will be “inspected” when you are on the stand.
Avoid clothing that presents non-verbal communications challenges
©2005 Mark M. Pollitt

15. While Testifying Think before you speak Speak clearly and distinctly
Slow down
Always address the jury
Make eye contact, look for understanding
Keep an even pace in both testimonies
Be direct, truthful and even in all responses – don’t appear partisan
Clearly differentiate fact from opinion
©2005 Mark M. Pollitt

16. Prepared Exhibits
For expert testimony it is often necessary to explain complex issues
Prepare professional diagrams, pictures, etc. which will illustrate your explanation.
Exhibits may be taken into the jury room to assist the jury.
It should be an “indelible” image which makes the point clearly.
Determine if the court has size restrictions
©2005 Mark M. Pollitt

17. Non-verbal Communication
Non-verbals can ruin perfectly good testimony by sending conflicting messages or distracting attention from the testimony
Be aware of nervous “ticks”, habits, posture, body positions, etc.
Always show respect!
©2005 Mark M. Pollitt

18. When you are done.. Get up Leave professionally Get out!
©2005 Mark M. Pollitt

19. Questions?
©2005 Mark M. Pollitt