\5

Chapter9 MockTrials

125

TRIALeAsEFROM
PART2: MOCK
TOCLO$NE
OPENING
TRIALOUTLINE
ANDSIMPLETIMEFRAME
l . C l e r kc a l l sc o u r t r o o mt o o r d e r
clerk readsthe charges,defendant
2. Teamintroductions,
entersaplea..

4min

opening statement
l. Prosecution/plaintiff's
'1. Prosecutioni
plaintiff'sdirect examinationof first witness . . . . .
of prosecution/plaintiff's
5. Defence'scross-examination
firstwitness

5 rnin
5 min

..

4min

directexaminationof secondwitness . . .
6. Prosecution/plaintiff's
of prosecution/plaintiff's
7. Defence'scross-examination
s e c o n dw i t n e s s

5 min
4 min

B. fhe Crown restsits case.

9. Defencemay askfor a directed verdict.
In competition,a directedverdictmay be requested,but don't
expectit to be granted.Theother team will need to presentits
casein order to be evaluatedand/or scorepoints.
1 0 . Defence's
opening statement

5 min

direct examinationof first witness

I l . Defence's

5 min

1 2 . Prosecution/plaintiff's
cross-examination
of defence's
firstwitness

..

1 3 . Defence'sdirectexaminationof secondwitness
1A
It.

4min
5 rnin

cross-examination
Prosecution/plaintiff's
of defence's
secondwitness

4 rnrn

t 5 . Defencerestsits case.
..

5min

1 7 . Prosecution/plaintiff's
closingargument
(Crowncloses
firstif defence
did not submitevidence/exhibits.)
1 8 . Court adjourned,judgeand/orjury recesses
to decide
verdict
1 9 . Judgeand/orjury returns,deliversthe verdict;judge may
providean oral critiqueon the legalrneritsof the caseand
explaininghis or her reasoning . . . . .
eachteam'sperformance,

5 min

to.

Defence'sclosingargument
( l f d e f e n c e s u b m i t s e x h i b i t s / e v i d e n c e ,t h e n d e f e n c e c l o s e s f i r s t . )

varies

varies

Approximate time frame: 6O-75 min

Note: Includingadditionalwitnesses,
allowingthe jury more time to
judge
more time to providean oral critiquewill
deliberate,or giving the
vary the time frame.
?

126

WITHA PURPOSE
SPEAKING
Noto:Beforeyou continuewith part 2, you and your teamwill find it
helpfulto visit the followingfigures:
(ChapterI, pagel1)
I "The Elements
of Reasoning"
r "Preparingfor Thinking in Actioni A MasterTemplate"(Chapter2,
pages2I-23)
r "GettingStarted:KnowYourPurpose"and"Tfiresof Questions"
(Chapter3, pages30 and31)
r "ActiveListeningModel'(Chapter ,page 43),
on pages35-37in Chapter3
Visit aswell "QuestioningTechniques"
"Delivery
"Performance
Anxiety" and"Review
TechniquesJ'
including
and
of Oral AdvocacySkills,"on pages69-71and72 in Chapter6.

srrrEuElfrs:
dlrunre
.MAY

IT PLEISETIIECOURT-

Opening statementsshould be compelling and concise.They set the context in which exhibits and testimony will be understood. Long opening
statementsare counterproductive to this purpose.
Your opening statementshould also take into accountyour audience.In
a trial court, you will be addressingeither a judge and jury or just a judge.
In a trial being tried by a judge and jury think of your opening statement-as a short, persuasivestory.Your story is about people and the reasons they acted the way they did, and it's supported by evidenceand told
by.credible witnesses.Imagine that your audience doesn't know anything
about the case(evenif they do)-this will force you to keepthe story simple
and clear.
In a trial being tried by a judge alone, your opening statement should
focus on the legal issuesthat the judge must decide.
In short, your guiding principle in deliveringyour opening statementis to
present the theoryof your case,an overviervof the evidenceand the witnesses
you plan to introduce,and what the evidenceand witnesseswill demonstrate.

OrganizingYour Opening Statement

storybasedon a theory.
tr Startwith a persuasive
you
tr Previewthe evidence will present.
n Outlinethe orderof crediblewitnesses.
tr

Yourtheoryshouldbe a compellingcounter-story
to rebut
pointsthat youexpectopposingcounselwill make.

ttr
C h a P t e r gM o c k T r i a l s 1 2 7 ' " '

\-

The defendanthasthe right to know the chargesand the casebrought

againsthim or her. Therefore,the prosecutionmakesthe first opening
statement.

Presentlng Your Openlng Statement

Standand beginyouropeningstatementwith the words:
O

"Mayit pleasethe court'.."

Waitfor the presidingjudge to acknowledgeyou before

say:
continuingwith youropeningstatement.Then
..." (dependingon the numberof judges
tr "YourHonour(s)
presiding)
or
tr

"Ladiesand gentlemenof the jury ..." (if thereis a jury

presiding)

and proceedwith youropeningstatement.

:@

TlpsPonDellveringan OpeningStatenent
r Delivery and technique (eyecontact, voice,volume, pacing):
r Make eyecontact with the judge and/or jury.
r"Speak slowly and clearly so that you can be heard and understood.
r Use simple language.
r Bring an outline of key points with you to refresh your memory'
r Breathe.Pauseat the end of sentences.
r Use body languageselectively.For example' you may indicate
through hand movementsthat you're moving along to another
important Point.
r Tailor the statement to the audience.For a jury trial, begin with the
story. For a bench trial, cut to the chase<utline the legal issuesthe
judge must decide.
I Summarize the indictment. What are the key legal issues?
r Outline the order of witnesses.What do you anticipate they will testifr?
r Indicate what the evidence will be and-more important+xplain
what the evidence will show.
r In previewing your evidence, try to deal with what you anticipate will
be tpposing counsel'stheory. For example,"It is anticipated that you
will hear . . ." or "My client disputesthe following issues. .. "
r Connect the facts and supporting details to the relevant issuesin the
case.
t Organizethe facts in a persuasiveand logical sequence.
t'

128

SPEAKING
WITHA PURPOSE
Build your case.Prioritizethe evidence.Demonstratecontinuityof
evidence.Demonstratehow evidencewill be corroboratedor
confirmed.
a Askfor the verdictyou seek.
I Thankthe judgeand/orjury for listening.

Thingsto Ayoidin YounOpeningStatement

r Do not try to advancean argument. You may havea theory, but
nothing has been proven yet. At this stageof the trial, you are
theorizing, giving an overview of what you intend or hope to prove
through the evidence.Saveyour argument for the closing.
r Do not outline opposing counsel'stheory of the case.Through carefirl
preparation, you will undoubtedly have a good idea of what that
theory is, but let opposing counsel deliver it. Focuson your evidence
and your theory.
r Do not repeatthe indictment verbatim (word for word). The clerk has
already read it aloud.
r Do not object to statementsby opposing counsel in their opening
statement.Objections are not permitted yet.
r Avoid repeating the samepoint in slightly different language.To a
sharp observer,repetitious material will seemthin and weak.
r Avoid using loaded, biased, or controversial language.
r Do not mock, sneerat, or make fun of others.
r Do not read your statement.
r Do not chew gum.
I Do not tell the judge how you "feel" about the case.The judge is
interestedin what the evjdencewill prove, not your personal feelings.
-in

DIRECTEXAMINITIOII
-;t$--

KnoulYourPurposeandHoulo BeEFFective
Direct examination (also known as examination-in-chief) is your opportunity to call witnessesto prove the facts on which your theory of the case
rests.since the most important factsin the casewill probably be those that
are in dispute, your task is to persuadethe judge and/or jury, through the
testimony of credible witnesses,of the accuracyof the facts.

BasicRulesFonDireetExamina[ion
t During direct examination,you may not lead the witness.A leading
question contains or suggeststhe answer sought. Allow the witness to
?

Chapter9 MockTrials

r
r
r
r
r

129 '

tell his or her storyin the witness'sown words.Seepage135laterin

this chapterfor examplesof leadingand non-leadingquestions.
your questions.Knowyour PurPose.
Carefullydesigna4d sequence
What do you haveto prove?
Prioritizethe legalissuesyou needto coverwith eachwitness.
thewitnessnot to beoverlywordy.IG.p him or her focused
Encourage
and the evidencethat will be revealedby the answer.
question
on the
Do not interrupt the witness.Allow him or her to givea full answer.
Ask the witnessto clarifr or confirm importanttestimonyin orderto
reinforceyour point.

Example
is that ... Correct?"
Q. "So,Ms.Clark,your evidence
A. "Yes"or "No" with an explanation.
arenot allowedto offer
r Witnesses,
other than expertwitnesses,
laterin this chapter).
opinions(see"ExpertWitnesses"
or
r Avoidclutteringyour witness'stestimonyby askingunnecessary
irrelevantquestions.
I Getto the point. Beprecise.What will the witnesshelpyou prove?
r Explainwherethe testimonyis headed,then go thereby using
headlineor transitlonalstatements.
Example
talk aboutthe morning afterthe prom.What
Q. "Now,Mr. Yates,let's
injuriesdid you sustain?"
r Endwith a "clinc[sJ"-4 singlefactthat supportsyour theoryof the
case.
Example
Q. "Ms.Verkerk,did you know that thedrugswerein thepool tablepocket?"
A. *No.'
Q. "Thank you. No morequestions."
I Startstrongand end strong!
(Adapted from Steven Lubet, Sheila Block, and Cynthia Tape' Mo dern Trial Advocacy:
Canada,p.64.)

PonDinectExamination
Techniques
Questioning
Note: As you plan your questionsfor direct examination' you may want
to visit Chapter 3 to understand the different types of questions and
questioning techniques.

r1

130

WITHA PURPOSE
SPEAKING

;df:
I

Useshort,open:endedquestions.Let the witnesstell his or her story.

Usedirectiveor transitionalphrasesto direct thewitness'sattentionto
a topic you want to examine.
Useheadlinequestionsto alertthe judgeand/orjury that you're
"shiftinggears."
Usequestionsto focustlp attentionof the judgeand/orjury on your
keypoints.

r Ask a seriesof questions to break down the whole testimony into

digestible and logical chunks.
r Use reflective questioning to createa verbal image.
r Usevisual aids such as drawings, models, or photographs.
r Review and re-evaluateyour sequenceof questions to ensure that you
have not missed an important point.

Exanination
Thingsto AuoidDurlngDlEecE
r Do not askconfusingquestions.
Fxample
Q. "Did you seethe defendant,not when you enteredthe lunchroom
at lunchtime when you werewith your debategrouPfriends,but
when you enteredthe litrary when )'ou werealonewhen classeshad
ended?"
r Do not askdoublequestions.
Eximple
Q. "Is it true thatyou skippedclassyesterdayandstole$20.00?'
r Do not interrupt the witness.

A TgpicalDireeEExamina[ion
Q. "What happened on March 2,2005?"
'I
A. was attackedby a dog."
Q. "What kind of dog was it?' (Instead of: "Was it a pit bull?')
A. "A pit bull."
Q. "How big was the dog?" (Instead of: "Was it a big dog?")
A. "It was very large."
Q. "What happened next?"
In this way, you are getting the witness to say what you want, but you are
not leading the witness.

'

,lt
Chapter9 MockTrials 131 . .
1,1

Eloss-EXAMIlf[Ttorl
ln cross-enamination,1ou askquestionsof lour
opponent's witnesses. Cross-examination
can posea challengefor even the most experienced advocate.your opponent's witnesses
may not cooPeratewith you and may resist
your line of questioning. Their attitudes can
range from uncooperative to hostile.
One of your goalsin cross-examination is to minimize the damagecaused
by a hostile or argumentativewitness.The challengewill be to decidehow
brief or extensiveyour questioning should be. Consider the purpose of
cross-examination and then review some tips on how to be effective.

"If [direa examination]isyour bestopportunity

mayprovide
to win yourcase'cross-acamination
you with thechanceto loseit."
-steven Lubet,SheilaBlochand CynthiaTape,
Modern Tial Ailvocacy:Canada,p. 79

ThePunpose
of Cross-Examinatlon
To repairor minimizedamagethat the witnessdid to your theoryof
the caseduring your opponent'sdirectexamination.
To enhanceyour case.Are therepoints that will advanceyour theory
of the case?
To exposethe weakness
in your opponent'scaseby revealing
contradictory evidenceor inconsistenciesin the witness'stestimony.
r To discredit the witness by suggestingthat he or she is not reliable or
credible. (Seealso "Impeaching Witnesses"later in this chapter.)
r Toexpose inaccuraciesor lack of certainty in the evidence.
Example
Q.'You sayyou saw the driver of the car,yet you also sayyou were in the
basementwhen you heard the car drive by. How could you have seen
the driver?"
r To raisedoubt about the plausibillty or loglc of the witness'stestimony.
If the testimony doesn't make sense,it's not believable.
r To demonstrate where the witness's testimony conflicts with the
testimony of other, more credible witnesses.
r To raise doubt about the witness generally.Is the witness biased?
untruthful? not credible?

ThneeConsidenatlonr
to GuideYour
Cross-Exanination
1. Know what you want to coverduring cro$-xamination.
2. Know the order in which you want to coverit.
3. Designthe questionsto get the answersyou wanl

132

SPEAKING
WITHA PURPOSE

GeneralGuldelines
to Gouenn
Cnoss'Examination
Note: In Canada, unlike in the United Statesand on popular TV shows,
cross-examinationcan include questionsabout mattersthat were not raised
during direct examination.
r Carefully design and sequenceyour questions.Know your purpose.
I Prioritize the legal issuesyou need to cover with eachwitness.
r Tirkecontrol of the witness through a well-prepared,sequencedset of
questions.Don't allow the witness to take you hostage!
r Eveqrquestion should be a leading question.
r Start by asking the witness friendly, non-threatening questions.
Thesewill put the witness in a cooperative frame of mind.
r With eachsubsequentquestion,lead the witness down a narrowing
path, to the point where the witness is compelled to give the answer
you seek.
r Know or anticipate the answerto every question you ask.
r Through leading questions,you may suggestanswers.
r Through leading questions,you may assertpropositions.
Example
Q. "You would agreewith me, Ms. Moniz, that you own a pit bull, yes?"
A. "Yes."
Q. "You would agreewith me that a pit bull is a large dog?"
A.'Well, I guessso."
Q. "You would agreewith me that a person might be frightened of a pit
bull?"
A. "Maybe."
r You have the right to insist on an answerto your question.
Example
Q. "Mr. Harman, you haven't answeredmy question. Can you please
answeryesor no?"
Q. "Perhapsthe question wasn't clear,Mr. Harman. Allow me to rephraseit."
r You have the right to ask for clarification of the witness'stestimony to
reinforce your point.
Example
Q. "So your evidenceis that ... Correct?"
A. "Yes"or "No" with an explanation.

'jl
ill

:,il

ri,f l

Chapter9 MockTrials 133

,\a
\z

dj

rfl

r,fi

/.h.f

Thingsto luoid DuningCross-Exaninatlon

/MD

{,hooseyotrr
l;irrtles.
r
r
I
r
.

r
r
r

ii

rfi

of a stubbornor cleverwitness,you may

During cross-examination
getanswersthat you don't want.Whenthis happens,it maybe in
to another
}our bestinterestto concedethe point and moveon
questioning.
the
of
control
will
regain
you
topic.By doing this
Neveraska witnessto explainanythingduring cross-examination.
Yourisk beingtakenhostageby a verbosewitness.
Youmay not physicallyintimidatea witness.
bully,or badgerthe
Youmaynot shout,makethreateninggestures,
witness.
Youmaynot misleadthe witnessor usetrick questions'
questions.
Do not askopen'ended
I Do not ask,"Do you havean opinion aboutthis or that?"
I Do not ask,"Whatdo you think about... ?"
Avoidlong questionsthat givethe witnessmore oPPortunityto
disagree.
Do not interrupt the witness.Youwill aPPearrude.Allow the
witnessto givea full answer.
the questionor moveon
Do not arguewith the witness.Rephrase
to your next Point.

i1

tlII
ii

ri
I

'

Genden
Remember
t i i

tn botil direct examination and cross-examination,take care not to get

confused about the gender of a witness sitting directly in front of you. For
example,don't refer to a mqle defendant as"she."
To avoid making this mistake,write an identical seriesof questions for
each gender using the appropriate Pronoun references(he, she). Observe
the oiher team'switnessesand, dependingon the gender of the person testifring, take that seriesof questionswith you to the podium. Or put a sticky
,rot. ott the podium to remind yourself of the witness'sgender'

' I

l
i

UECTIOI{S
Avoid being a jack-in-the-box, popping uP every time opposing counsel
asksa question.A timely and appropriate objection will make a better impressionwith the judge and jury. Only objeA if doing so advancesyour case.

FiueSinpleRulesAboutObjeetions
Rule#I
Objections arepermitted during the examination of witnessesbut not during opening statementsor closinlarguments.

l
I

134

SPEAKING
WITHA PURPOSE

Rale#2
Only one lawyerfor eachsidemay objectduring the questioningor testimony of a witness.This lawyeris the one conductingthe direct examination or cross-examination
of the witness.

Rule#9
Both the Crown and the defencemay object to questionsor to the admissibility of an exhibit. The judge may either sustain (agreewith) or overrule
(disagreewith) an objection. The judge sayseither "Sustained,"meaning
that a question cannot be askedor answeredor that the exhibit cannot be
introduced, or "Overruled," meaning that a question can be asked and
answeredor that the exhibit can be introduced.

Eule#4
A lawyer makes an objection by standing and stating, "Objection, Your
Honour," and then speciffing the grounds for objection. For example, a
question may be irrelevant or leading or may call for hearsay or an opinion. There are two basic categoriesof objections:
1. Objections to the phrasing of questions or the way in which they are
being answered.
2. Objections to the scopeof examination-for example,the relevanry
of a question or the characterof a witness, unlessit's an issuein the
case.

Rale #5
Before the trial begins, the Crown must disclose to opposing counsel all
evidenceand exhibits thatwill be introduced during the trial. If the Crown
attempts to introduce evidenceor an exhibit that was not previously disclosed,defencecounsel may object. The defencedoes not have to disclose
any of its evidenceor exhibits to the prosecution.
(Adapted
fromJohnkYile, Pleasing
theCourt,pp.50-53.)

Objectione
to the FormoFthe Queslion
Objections can be critical in excluding evidenceor testimonyfrom the trial.
Before the trial begins,you should know and understand the range of objections availableto you and opposing counsel.Before the witness has an
opportunity to answera question, an objection may be raised to the form
of the question. The following examplesillustrate objectionable questions
and explain the grounds for objgtion.

e5
Chapter9 MockTrials 135

I. LeadingQuestlons
\.

On direct examination, counsel may not ask leading questions.A leading

question is one that suggeststhe answer desiredby the examiner.Examining counsel should allow the witness to tell his or her own story through
the testimony. The expected answer cannot be indicated by the wording
counselis encouragedto ask leadof the question.On cross-examination,
ing questions.

Non-leading
Q.

'Tell us,what, if anything,you saw"

Leading
Q. "Did you seethe lady in red strike
the man in green?"

Q. "What happened next?"

Q. "ls that when she hit him?"

Q. "How fast was the car travelling?"

Q.

'Would you say the car was

speedingat 160 km/h?"

How to phrasethe objection: (Stand) "Objection, Your Honour. Counsel

is leadingthe witness"or "Objection, Your Honour. Leadingon a contentious issue."

2. llarrative Qaestions
The purposeof direct examination is to getthe witnessto relatethe relevant
facts.The question askedmust not seeksuch a broad range of information
that the witness is allowed to narrate the entire story with one or two
fashion.
answers.Proper examinationsproceedin a question-and-answer
How to phrasethe objection: (Stand)"Objection,Your Honour. The question calls for a narrative answer."

9. llarrative Answers
At times the witness'sanswer may go beyond the scope of the question,
even though the question itself called for a specific answer.
How to phrasethe obiection: (Stand)"Objection,Your Honour. Witness's
answerwent beyond the scopeof the question. I askthat the portion of the
answerfollowing the word'X'be strickenfrom the record."

4. Protecting the Witness

If, on cross-examination,the opposinglawyeris treating the witnessroughly
or askingthe samequestion severaltimes in an effort to harassthe witness,
the other lawyer may object to protect the witness.
I

136

WITHA PURPOSE
SPEAKING
Howto phrasethe objection:(Stand)"Objection,YourHonour.Counselis harassing
thewitness"or "Objection,YourHonour.Counselis being
argumentative."

5. Ashedand Ansuered
If a questionhasbeenpreviouslyaskedby examiningcounselandanswered
by the witness,opposingcounselmay raisethis objection.Generally,the
court may allowsomeleewayin ruling on this objection.
Howto phrasethe objection: (Stand)"Objection,YourHonour.Asked
and answered."

Answens
6. Non-Eesponsive
The witness'sresponsedoes not addressthe question asked.
How to phrase the objection: (Stand) "Objection, Your Honour. The
witness is unresponsive."

7. Character
Evidence about the character of a witness may not be introduced unless
the characterof the person is an issuein the case.For example,evidenceof
a person'stemper may be relevant to an assaultcase,but not in a civil contract case.However,questions about a person'sability to tell the truth are
alwaysadmissible.
How to phrase the objection: (Stand) "Objection, Your Honour. The
witness'scharacteror reputation is not an issuein this trial" or "Objection,
Your Honour. Only the witness'sreputation for truthfulness is at issuein
this trial."

8. Opinion
A witness who is not an expert may not testi4' to any matter unless the
witness has personal knowledge of the maffer. Only qualified expertsmay
offer their opinion when askedby examining counsel.Expert witnessesmust
be qualified or recognized by the judge before their testimony is admissible.
How to phrase the objection: (Stand) "Objection, Your Honour. The
witness is not an expert. These matters are not the proper subject of lay
[non-expert] opinion testimony."

9. Speculatlon
A witness may not testifr about the reasonsbehind the actions of another
or guessabout the meaning to be attributed to the actions of another.
How to phrase the objection: (Stand) "Objection, Your Honour. The
question calls for speculation."
a

J7
Chapter9, MockTrials 137
\..

IOt Relevaneo
Only exhibitsand testimonythat relateto the issuestt trial shouldbe adrnittedinto evidence.To beadmissible,
evidencemustbe relevant;reliable,
andfair. Irrclevantinformation is not rclatedto an issuein dispute.
'fhe
How.to phrasr thcobJcctlonr (Stand)"Obiection,Your Honour.
tcstimony(cxhibit) is irrelcvantj'

II. Ilearsag
Witnessescan only testiff to lvhat they know tfom personal knowledge.
They usually calmot repeat what they heard somcone else say.Any evidence of I stiltement that was made by someone who is not testifring in
court, and that is rlf'fcrcd to show thc truth ot'x statement, is hcirsay.
Esample
Hearsay: "Bill said he saw o gun."

Not hearsay: "l saw a gun."

How to phrasctho obiectlonr (Stand) "Objection, Yotr Honour. The

qumtion callsfor heursaylot "Obrection, Your Honour. Although the question itself did not call firr hcarsay,thc ilnswcr is henrsayand I iuk that the
hearsavrrortion of the ilnswer be strickcn trom the record"

Inpeaehlngi
llltnersor
Witnessessruearan
oathor affirmationto tellthe tnrth.Awitnesswhowill.
ingly.makerup evidence,inventstestimonybe)'ondthe scopcof thc case,
offersinconsistcnttestimony,or commits perjury risks beingimpeachcd.
A lawyer impeachesa witnesswhen he or shodirectly challengerthe
witness'scredibility or honestyby exposinginconsistenciesin the witness's
testimonla

)ffi

InpoachnonJ'Tlpr'for Latgce*

t Impeuh o winass on$ton signifeantissu*. Don t wastclour timo

on insignificanBnon:relqnnt, or,trivial iirconsistenciesu
t Imperchonly whm' succank probablaTrying and failng to impeach
canbc embarrassing.
aad leavapu looking foolish or ill prepared.
Bcprcpared In your note4 cross'referencethc.sourceof the
witness'stestimonyagainstprior statementr Havethc exactwords
readily,availablcu
Dont rely on )'our memorf,

Exanpl*
(L "You testifiedtodaythatpu wercstandingon the northeastcorlri
correet?.. . But you told,thc policeofficer that pu werestandingon
the southeastcornerididrit youS'

e'|
140

WITHA PURPOSE
SPEAKING
A. "I wasa professorin the EconomicsDePartmentat,Dalhousie
Universityfor sixyears.ThenI left to startmy own consultingfirm,
which is calledScallen& Associates."

Q. "Do you havea specialtywithin the field of economics?"

A. "Yes,my specialtyis businessvaluation."
Q. "What is the field of businessvaluation?"
A. "It is the studyof all componentsthat contributeto the fair valueof a
receivables,
includinganticipatedfuture profits,assets,
business,
potential."
goodwill,and investment
(Adapted from StevenLubet, Sheila Block, and Cynthia Tape,Modern Trial Advocacy:
Canada,p.20l.)

This exampleoutlines and confirms the expert qualifications substantiated by the witness'seducation and experience.Dr. Scallenshould now be
able to give his expert opinion as to the projected profits of a business
involved in the case.
If there are no objections from opposing counsel, the lawyer asks the
court's permission to have you qualified as an expert. This step is significant, becauseonly an expert witness may offer an opinion in his or her
testimony to the court.

WitnesseE
Inpeaehing
Witnessesswearan oath or affirmation to tell the truth. A witness who willingly makesup evidence,invents testimony beyond the scopeof the case,
offers inconsistent testimony, or commits perjury risks being impeached.
A lawyer impeachesa witness when he or she directly challengesthe
witness'scredibility or honestyby exposinginconsistenciesin the witness's
testimony.

,}{.
W

Inpeaehnentflps 9or Lawgerc

t Imp.eac.h
a witnessonly on significantissiles.Don't wasteyour time
on insignificant, non-relevant, or trivial inconsistencies.
t Impeachonly when success
is probable.Tiyrng and failing to impeach
can be embarrassingand leaveyou looking foolish or ill prepared.
Be prepared.In your notes,cross-referencethe sourceof the
witness'stestimony againstprior statements.Have the exact words
readily available.Don't rely on your memory.
Example
Q. "You testified today that you were standing on the northeast corner,
correct? ... But you told the police officer that you were standing on
the southeastcorner, didrt't You?"

Chapter9

MockTrials

141

Q. "You told the jury that you sawthe accidentwhile you werewaiting
for the bus?... But in your earlierstatement,you saidthat you were
out fbr a walk."
Q. "Tbdayyou saidthat you wereon your way to work that day.... In
your earliertestimony,though,you saidyou weregoing to the beach."
testimonywas that you werethe only personon the
Q. "Toclay's
corner.... You told the police,however,that therewasa jogger
standingright next to you."
(Adapted trom StevenLubet, SheilaBlock, irnd Cynthia Tape,Mttdern Trial A,lvocttcy:
Ctnula, p. 144.)

a Witness'sMemorg
Refreshing
Human memory is fallible and full of gaps.Most of us can't remember,
minute for minute, where we were last week or what happened earlier in
the day. A witness may honestly have a memory lapse or unintentionally
change his or her testimony. It may be necessaryfor the lawyer to help
refreshthe witness'srecollection.
Example
Q. "You testifiedduring direct examinationthat you went directly from
the sceneof the accidentto the hospital."
A. "Yes,that'sright."
Q. "In fact, you went to the telephone and called your office first."
A. "l'm not surethat I did."
Q. "Let me refreshyour memory."(Referto prior statement.)"You were
askedthis Questionand you gavethis answer."(Readword for word.)
A. "I see."
Q. "Does that refreshyour recollectionasto whether you did anything
beforegoing to the hospital?"
A. "Yes,it does."
Q. "In fact,you went to the telephoneand calledyour office first, didn't
, you?"
A. "Yes,I did."
(Adapted from Steven Lubet, Sheila Block, and Cynthia Tape,Modern Trial Advocacy:
Canada,pp. la5-146.)