Examination Without Discovery
The “no-discovery” Witness
The opponent calls a witness and the cross-examiner does not know who the witness is or why this witness is being called. Either way, thecross-examiner has no pre-trial discovery.
It is natural to feel frustrated and negative but important to control your emotions because they will only distract from the cross-exam.
The direct-exam should have been in accord with common sense. The testimony that was not adds to potential cross-exam and the witness loses credibility by giving an illogical answer that is highlighted for the jury during the cross exam.
The Cross-Examiner’s Advantages
1. The witness does not know the cross-examiner.
a. The cross-examiner has learned about the witness during the direct.
b. The witness has no idea what the cross-examiner’s techniques are, so can not be prepared to take control of the story thecross-examiner will tell through the witness.
c. The cross-examiner can adjust techniques after evaluating the direct exam.
2. The witness does not see the full scope of the case.
3. The witness cannot know how their testimony fits in with other witnesses.
No discovery does not automatically mean that there is no information for the case. The name of the witness allows database discovery. Also, testimony of the witness can often be anticipated.
The opposing counsel’s opening statement is an important tool to utilize in a case that does not have discovery. Opening statement is an opportunity to discover information about the opponent’s theory of the case and identify witnesses.
Opening statement may reveal the facts upon which the opponent’s case in built.
The cross-examiner does not need to “learn” or take notes on the entire direct-exam, only selective notes are required. On direct-exam, take notes using the chapter format by keeping one chapter per page. It is important to actively listen and be selective in what notes to take.
3 Elements of Note Taking During Direct Exam
1. Focused listening
2. Selective note taking
3. Identifying what areas are worth of note taking
What to take notes on during direct is based on the concept of “filtered listening”.
1. The first and most important filter is the cross-examiner’s own theory of the case
2. The second filter is expressed by this question: “Does this testimony contain material which can be used to weaken the opponent’s theory of the case?”
Keying-In on Voice Tone
1. Tone offers clues
2. The less confident tone as a guide to cross-exam
3. The confident tone as a guide to cross exam
4. Taking cues from opposing counsel’s tones
Spotting and Exploiting Gaps in Direct Testimony
Most direct-exams are done in chronological order because it is easier to convey the information and its easier for the witness and jury to follow. This provides an opportunity for the cross-examiner to find gaps in the theory of the opponent’s case.
6 Gaps to Look For During Direct-Exam
1. The conspicuously missing event
2. Lack of details gap
3. Gaps in timing of questions
4. Stories told out of order
5. An illogical stopping point
6. Covering the entire time, but not the entire story
The most important guideline with the “no discovery” witness is to keep control of the witness during the cross-exam. It is important to sequence the cross-exam in chapters just as you would for a witness you are prepared for.
If the cross-examiner has solid chapters on motive, interest, or bias, she should lean toward using them at the start of the cross-exam.
Another way to sequence this type of witness is to marginalize the witness and gain credibility by showing inconsistencies in the testimony.
Direct-exam chapters intended for witnesses prepared for can be used for the “no discovery” witness. The witness can be crossed with chapters consistent with the cross-examiner’s theory of the case.
A useful technique is to take a witness into areas in which the witness is likely to want to answer in a particular way.
To be thorough, an analysis as to that NOT to cross-exam on must be made.
Using the knowledge of the case as a whole, the facts, the opponent’s theme, and the testimony of other witnesses, the cross-examiner can successfully handle the surprise of the “no discovery” witness.