PUTTING ON YOUR CASE: ORDER OF PROOF, BURDEN OF PROOF, DIRECT AND CROSS-EXAMINATION
October 14, 2016[1]
Scot L. Claus
I. PUTTING ON YOUR CASE.
It is typically easier to conceptualize putting on your case if you are the plaintiff, because you get to go first. However, it is equally important if you are the defendant to conceptualize the way in which you are going to put on your case, even though your presentation often times comes during the plaintiff’s case via cross-examination.
Whether you represent the plaintiff or the defendant, you have to remember that putting on your case means that you are telling your client’s story to the jury. Think of yourselves as filmmakers (think George Lucas: screenwriter, director, and producer, all rolled into one). How you tell your story--and how well you tell your story--often determines which story will be accepted by the jury (which, in turn, will determine who wins at trial).
A. Ways to Tell Your Story.
Most films tell their story chronologically. This is almost never a bad approach at trial. Of course, some compelling and memorable films tell their story using flashback sequences -- think, The Usual Suspects. Unfortunately, unless you possess a high degree of virtuosity with respect to your story telling, varying from the tried and true method of chronological story telling can have disastrous results (think Domino[2]).
B. Order of Proof and Burden of Proof.
1. Order of Proof. The order of proof and burden of proof determine how (more precisely, when) you tell your story to the jury. They are not terribly difficult concepts: the order of proof dictates the “order” in which the case is presented. There is actually a rule for this that you can read: Rule 39(b), Ariz.R.Civ.Proc. The bottom line is this: in all but rarest of circumstances, the plaintiff goes first. Then the defendant puts on its case, and then each side can put on a “rebuttal” case.[3]
2. Burden of Proof. The burden of proof is also a relatively easy concept. If you represent the plaintiff, your burden of proof is generally dictated by the elements of your claim. If you represent the defendant, your burden of proof is generally dictated by the elements of your affirmative defenses.
C. How Do You Tell Your Story?
1. Testimony.
You can tell your story through the introduction of testimony. If you are the plaintiff, this testimony is first presented during your direct examination. If you are the defendant, your story is first told through cross-examination of the plaintiff’s witnesses. (Though, this is not really true for either the plaintiff or the defendant: the fact of the matter is that both sides introduce the jury to the story in voir dire. They then retell their stories more fully during opening statements. The introduction of evidence really represents the third opportunity the lawyers have for presenting their story).
This may all sound very repetitive, but remember, the jury knows nothing about your case when it walks into the courtroom. You, on the other hand, have lived, eaten, and breathed your case for months or years.
Think of how many times you have watched a really good movie (one of my favorites is Local Hero--check it out if you can); there are things that you didn’t see the first, second, or tenth time you watched the movie that you pick up each time you watch the movie anew.
Also, don’t forget that the jury is basically sitting through a five and one-half hour movie every day of your trial (in fact, not just one movie, but two, three, four or more movies, depending on the number of parties, that are showing pretty much on the same screen at pretty much the same time). Unless everyone in the courtroom is the greatest lawyer in the world, eliciting testimony from the greatest witnesses in the world, about the most compelling subject matter in the world, it is invariably a pretty damn boring movie.
Moreover, it is not even a movie that the jury gets to watch. Instead, it is somewhat of the inverse of a silent movie: rather than being a movie with all pictures and no sound, a trial can typically be a movie with virtually no pictures and all talking. Depending upon the subject matter of your trial, all that talking can lead even the most diligent juror to lose his or her attention.
2. So, Tell Your Story As Much As You Can Through the Effective Use of Documentary or Other Evidence.
This cannot be overstated. You need to find every way possible to share documentary evidence with the jury (in other words, show them lots of pictures). In the E-Courtrooms, should you be so lucky as to find your trial in such a courtroom, sharing testimony with the jury is much easier, because you can do so electronically. However, even if an E-Courtroom is not available, you should find every way possible to share documentary evidence with the jury through the use of blow-ups, an overhead projector, or ELMO.
D. Direct Examination.
Irrespective of which side you represent, the direct examination is your opportunity to help tell your client’s story to the jury through (usually) compliant witnesses. This leads many lawyers to assume that presenting a thorough and effective direct examination is easy. In actuality, precisely the opposite is true.
Because there is not the typical tension that accompanies a cross-examination, presenting an effective direct examination is one of the more difficult things that lawyers have to do. To do so, you must remember your role as a filmmaker. During the direct examination, you are the director.
First, you need to know how you are going to win your case. Even though your role as story teller sometimes involves some “screenwriting,” really you are adapting a screenplay. The nuts and bolts of your story come from the elements of your claim (or if you are the defendant, rebutting the elements of the claim and proving the elements of any affirmative defense).
Identifying and becoming knowledgeable about the elements of your claim (or for the defense, rebutting such claim and establishing affirmative defenses) is something you must do early on in your case. This way, you can develop deposition testimony and other responses to discovery to tell your best story. For most claims, the basic skeleton of the elements of those claims can be found in the Recommended Arizona Jury Instructions (“RAJI”).
Let’s consider the following hypothetical facts:
Ms. Jones consents to take part in a cholesterol study in which she gives blood, which is analyzed in varying ways: LDL cholesterol level is measured; her HDL cholesterol level is measured; and then her blood is further separated into cell lines such that her DNA can be studied to determine if there is a genetic variant that can be correlated to high or low cholesterol. The entity performing the study, XYZ Research Corporation, sends her blood and DNA information to other laboratories, without Ms. Jones’ consent. One such research laboratory, Research Corp., uses her DNA information not to correlate genetic makeup to cholesterol, but instead correlate her genetic makeup to a higher susceptibility to sexually transmitted disease. The research is published. Ms. Jones discovers that her DNA was used to perform research on sexually transmitted disease. She sues, stating that she suffered from a negligent infliction of emotional distress.
So, what is your story going to be if you represent the plaintiff? Well, among other things, the outline of your script is provided by RAJI, 4th Ed. Negligence No. 9. If you represent the defendant, the outline of your script is also going to be RAJI, 4th Ed. Negligence No. 9.
Of course, how you develop your script and tell your story should differ dramatically.
- Introduce Your Characters.
Remember, your jury knows nothing about your story when it walks into the courtroom. Your jury knows a little bit about your story having sat through voir dire and opening statements. Still, however, if you think about your trial as a movie, you want to make sure the jury remembers your characters.
You have to craft your direct examination so that your characters become known early on, are readily identifiable, and can be remembered by the jury. How do you do this? You direct the examination.
Remember, that’s what it’s called: a direct examination. Consider the following possible direct examination of our plaintiff, Ms. Jones:
Q: Please state your full name to the jury.
A: Elizabeth Marie Jones.
Q: Please spell your last name for the court reporter.
A: J O N E S.
Q: Ms. Jones where do you currently reside?
A: 123 Elm Street, Phoenix, Arizona.
Q: How long have you lived there?
A: Seven years.
Q: Where did you live before that?
A: You mean the address?
Q: Yes.
A: 456 Poplar Street, Phoenix, Arizona.
Q: Ms. Jones are you currently employed?
A: Yes.
Q: Who is your employer?
A: Smith Corporation.
So far, this is not very compelling stuff. Frankly, there is not a lot you can do to make banal information very whiz-bang exciting.
What you can do, though, is take an approach that doesn’t make the mundane even more mundane by making it seem robotic. What if this was the beginning of the direct examination instead:
Q: Ms. Jones, good morning. Is it ok when I ask you questions today if I use your first name Elizabeth?
A: Sure.
Q: Thanks Elizabeth. Are you a Phoenix native?
A: No. I was born in Fargo and moved to Phoenix in 1979.
Q: I am sorry to intrude Elizabeth, but can you please tell the jury how old you are?
A: Well, I am 46.
Q: So if my math is correct, that means you moved to Arizona when you were 16.
A: Yes, I had just turned 16.
Q: So did you get to go to school at all out here in Phoenix?
A: Yes, I graduated from Central High School and then went to Arizona State University.
Q: Do you still make your home full time here in Phoenix?
A: Yes I do.
Q: And could you please tell the jury what it is that you do for a living?
A: Yes, I am a personal banker at Wells Fargo.
Now, admittedly, the foregoing exchange isn’t exactly bottle rockets and sparklers. However, it is at least is a little more lively than the previous example. Also, it is more in keeping with a direct examination. Because the examining lawyer directed the witness to the subject matters of his or her questioning more precisely.
But aren’t those leading questions, you may ask? No. A leading question is a question that “puts the answer into the mouth” of a witness. See Ball v. State, 43 Ariz. 556, 33 P.2d 601 (1934).[4]
Remember, it’s called a direct examination for a reason. You need to direct the witness. If you were a movie director, you wouldn’t just show up the first day, shout “Action,” and then just film the actors doing whatever they wanted to do. You would first develop a vision of how you wanted each scene to look. You would figure out the messages and themes you wanted to portray through the script. You would then direct your actors to make your vision come true. That is exactly what you want to do as a lawyer during a “direct” examination.
Though some sources advocate the use of the “fewest words possible” or to “keep it simple” by repeatedly using words such as “when,” “where,” “how,” “why,” and “who”: this type of examination can put some jurors to sleep faster than a tumbler of Scotch and a fist-full of Ambien.
Instead, to help tell your story--remember you are telling a story--let the jury know where you are going, and sometimes more importantly, let the witness know where you are going. To do this, you need to direct the witness (and the jury) to the subjects you are going to be discussing by introducing the topics in your direct.
Consider this line of questioning in a hypothetical accident case:
Q: Did you enter the US 60 freeway?
A: Yes.
Q: Then what happened.
A: I moved into the center lane.
Q: Then what happened?
A: I continued driving down US 60.
Q: Did there come a time when you saw a car crash into the median wall?
A: Yes.
Q: What did you do?
A: I slowed down.
Q: Then what did you do?
A: I swerved to avoid the car.
Q: Then what did you do?
A: I saw a pedestrian standing in the roadway.
Q: Then what happened?
A: I swerved to avoid hitting the pedestrian.
Of course, there is nothing exactly wrong about the foregoing example, except that I made it up, and so I gave fairly good answers.
The problem that exists in the real world is that the lawyer asking the questions in the foregoing example provided absolutely no direction to the witness (and even less direction to the jury). So, it would not have been surprising if both the witness and the jury eventually got distracted, lost interest, and failed to understand precisely what the examiner was trying to achieve. Consider this alternative:
Q: Mary, I want to talk to you about the accident that occurred on June 4, 2008, ok?
A: Ok.
Q: Now first, I want the jury to understand where the accident occurred: when you drove home from work did you drive your car onto US 60?
A: Yes.
Q: What direction did you drive on the US 60?
A: East.
Q: What entrance ramp did you use?
A: The Val Vista entrance ramp.
Q: Please tell the jury how far the Val Vista entrance ramp is from your home.
A: About 4 miles.
Q: Is most of that 4 miles that you drive every day done on the US 60?
A: Yes.
Q: If you would have successfully made it home on the date of the accident, what exit would you have used to get off the US 60?