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Friday, November 29, 2013

Model Witnesses -- a review of a trial strategy book.

This is a different Blog approach. For my posting this week, I thought I would review a book I recently purchased. I have several upcoming jury trials, and thought I would see if there were any good resources on trial tactics that perhaps I had not seen before. Never hurts to pursue new reading material!

I decided on Model Witness Examanations, by Paul Sandler and James Archibald (Third Edition -- 2010). Not sure if there was a fourth edition, however, this work was recommended to me by a fellow practitioner so I thought I would give it a go.

This is a very interesting work -- first, it provides concrete examples of how to conduct a direct (and cross) examination of a witness under different circumstances and for different purposes. Secondly, it sites rules and cases heavily, providing a strong basis for the example and supporting "reasons" for the rules.

However, there are two significant detractors, and I am unclear why the book does a poor job of addressing them. They seem fundamental to the topic. First, the author makes no attempt to explain what a practitioner should expect if he/she actually used one of the sample approaches in trial. While the examples are generally sound, you ought to bet that opposing counsel will protest and object vigorously -- and Mr. Sandler does little to address what these objections will be. Oh, there are half-hearted attempts to indicate what might be said, and how a judge would rule, and there are some warnings (for example, "Whether the police officer in this pattern can testify to a hearsay declaration by an absent witness might present a problem." - pg. 8), but truly little is discussed about the "jam" effect of opposing counsel objecting and completely throwing the questioning line of thought. And to think a judge would actually site to Rules is just ridiculous. They (judges) rarely do --and often judge get's it wrong, too. For example, helpful might be: "When you use this line of questioning, you should expect objections in the form of objection...."

Tied closely to the first detractor, I did not like how the author brought forth various forms of testimony on one hand, but failed to give examples on how opposing counsel might rehabilitate a witness (or challenge an expert) on the other. Essentially, there are two sides to every case -- and there was not enough examples of for/against positions and how to guide questions on each side (on the same topic). That would have really assisted in developing good case management strategies. As we often teach new associates -- take the position of the opposite side -- thus will you be ready for any argument.

Overall, the work was intelligently written, clearly well researched, and helpful. It will find a nice place in my litigation library. However, with just a few more tweaks, it could truly have stood out as an exceptionally useful training tool.

Do you need a book, article or paper reviewed? Would you like a seminar or class on a particular legal topic? Let us know! We've been doing this for a few years, and would be glad to share our experiences as trial attorneys.

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

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