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November 10, 2016 by Steven J. GreenfogelDownload PDF

Musings from a TrialSteven J. Greenfogel

Over the past three weeks, I have had the pleasure of monitoring an antitrust case in the Southern District of New York that is very similar to a class action antitrust case in which Lite DePalma Greenberg Afanador, LLC is co-lead counsel. Aside from the fact that I have to travel from South Jersey to Lower Manhattan and arrive before 9:30 AM (which is no easy task), I get to sit back and watch two excellent teams of lawyers put their skills on display before a very competent jurist.

Being able to watch a trial, as opposed to actually doing one (as I have so often done), offers a totally different perspective as to what is going on, and the preparation necessary to do a proper job of laying out a very complex matter so that a jury can understand exactly what is being conveyed. Some of the lessons that I have learned from hard experience, and are being reinforced by watching the trial are:

1) Direct examination – Make sure that your witness has been carefully schooled in his or her direct testimony, and responds to the prompts that you give. That way, you never have to ask a leading question, which can draw an objection or, in extreme cases, a rebuke from the judge. I remember, many years ago, Judge Stern in Newark threatening a Department of Justice attorney with calling his boss in Washington and having him removed as trial counsel if he couldn’t ask his witnesses non-leading questions. In the USAir case, Judge Schofield sometimes rephrases the question in a non-leading fashion. However, counsel for plaintiff has been most effective in preparing his witnesses and hasn’t had to lead very often.

2) Cross-Examination- In watching two different defense attorneys to this point, I would say that one has been terrific and the other has been very good. The cross-examinations have been very carefully scripted so that when the attorney gets an answer that doesn’t fit his line of questioning, he can call up testimony or a document that will directly refute the witness’s assertion. This takes a lot of preparatory work, but it is a cardinal rule of cross-examination that you should never ask a question to which you don’t know the answer. Every once in a while an attorney may make that leap and, more often than night, will get smacked in the face by the response.

Another “don’t do” is to go on too long with your cross-examination. That is my only real criticism of the attorneys in the case that I’ve been observing.

Firstly, you should take your best shots and wrap it up within an hour or less. Leave the jury with the impression that the witness doesn’t know what he or she is talking about or, even better, is a total liar. Small points will have no impact on the average juror. Secondly, when you have a witness (such as an expert) who refuses to give a “yes” or “no” answer and insists on giving long explanations, you should try to get the judge to instruct the witness to answer the question. If that doesn’t work, your best bet is to cut your cross-examination short.

In sum, I have had a great learning experience and would advise any attorney who tries cases to sit and watch adept trial lawyers practice their craft. It gives one tips on what to do and what not to do when in front of a jury.