In this episode, join me as we discuss the four main parts of a trial — the opening statement, the direct examination, the cross examination and the closing argument. We also delve behind the scenes a little, to discuss the evidence rules that govern what happens at trial!
Robert Monahan discusses the structure of a trial in this episode. Although the vast majority of lawsuits settle before trial, when the 2 parties cannot reach a settlement, a trial is the inevitable result. Bob outlines the 4 parts of a trial; opening statements, direct examination, cross-examination and closing arguments.
An opening statement is an opportunity for the attorney to tell the story of his or her case. Although an attorney must prove the elements of his or her case using evidence (witnesses, documents, etc.), it is more effective to lay out the elements and evidence of the case as a narrative, rather than as a cut and dried list of each element. The narrative provides a more interesting presentation to the judge and jury. Though some attorneys may waive opening statements, particularly in small claims cases, Bob feels it is important to use the opening statement as a way to present his case in the best light. Additionally, a method that Bob uses to prepare for an opening statement is to use visual images on notecards rather than written statements as he is hoping to paint pictures of the case in the mind of the judge and jury.
Direct examination of the witnesses follows the opening statements. Unlike the opening statements, where the focus is on the attorney, the focus on direct examination should be on the witnesses and the attorneys should recede into the background. The statements of the witnesses should be front and center as they tell their story. The attorney cannot lead their witness on direct examination, but should ask open-ended questions.
The cross-examination of witnesses by opposing counsel is very different than direct examination. On cross, attorneys should not recede into the background but try to become the center of attention by making statements as they ask leading questions. Additionally, it is important to try and avoid asking questions on cross-examination that you do not know the answer. Cross-examination can be a delicate balance of trying to control the testimony of the witness, yet not alienating the judge and jury by being too aggressive.
The examination of witnesses is governed by the rules of evidence. These rules are complicated but can be better understood if one thinks that the assumption behind all these rules is that evidence is presumed to be inadmissible until proven otherwise by laying of the proper foundation for a witnesses’ testimony or a document or photograph. It must be shown that a witnesses’ testimony is admissible as evidence because that witness had personal knowledge and saw the accident occur or that a photograph is admissible as evidence because a witness is familiar with the scene that is the subject of a photograph.
All of the testimony and evidence can be wrapped up in the closing argument. Unlike an opening argument, conclusions can be argued in the closing. It is difficult to prepare for a closing argument until the direct and cross-examination have been completed as some evidence that an attorney may have counted on being admitted, was ultimately denied by the judge. Thus, the attorney has to be flexible in his or her closing argument. The attorney wants to connect the dots and reach a conclusion in the closing to establish why the evidence admitted supports their side.
Much preparation goes on behind the scenes for a trial. This includes preparing the story of your case, the evidence to prove your case as well as how to lay the foundation to get that evidence admitted. Moreover, the attorney needs to connect all that information to support the conclusion that his or her side should prevail in an interesting manner.