The Trial – Part II

IMG_8717By Justin O’Dell



Thus far, Dick has been served with a lawsuit for breach of his employment contract, but has prevailed in avoiding an interlocutory injunction shutting down his new company.  We have discussed the discovery process, mediation/arbitration and are now on to a final trial.  Recall that employment contracts are unique in that a Judge decides whether or not the contract can be enforced as a matter of law.  If the Judge decides that the contract is not clearly in violation of public policy, the matter can proceed to a jury on damages.  In our last discussion, we outlined the pre-trial motion and opening statement phase of a final trial.  This month, we will look at the presentation of evidence from the Plaintiff and Defendant.  Recall that the general outline of a jury trial is as follows:

  1. Pre-trial matters outside the jury;
  2. General Instructions from the Court;
  3. Opening Statements;
  4. Presentation of the Plaintiff’s Case;
  5. Motions for Directed Verdict by Defendant;
  6. Presentation of the Defendant’s Case;
  7. Presentation of Rebuttal Evidence by the Plaintiff;
  8. Closing Argument by the parties;
  9. Jury Charges and Instruction
  10. Jury deliberation & verdict

The presentation of evidence by the Plaintiff and the Defendant is done generally by the examination of witnesses and introduction of documents into evidence.  Both testimony and documents are considered as evidence for the jury.  The jury decides all issues related to the weight and credibility to allow the testimony of each witness and to give various documents.

When a witness is presented by a party, that witness is called for “direct examination.”  During direct examination, the attorney is limited to asking non-leading questions.  Leading questions are those which are suggestive of the answer.  Following direct examination, the opposing attorney is entitled to “cross examination” of each witness.  During cross examination, the attorney may use leading questions and, most trial experts agree, should only use leading questions.

An example of a non-leading question, appropriate for direct examination in our case would be:

Q:  “Now Dick, can you tell the jury about how this new contract containing the disputed covenant came to be signed?”

As you can see, the question is open-ended and calls for Dick to do the majority of the talking and tell the story.

An example of leading questions on the same subject matter, appropriate for cross examination, in our case would be:

Q:  Now Sir, isn’t it true that this is your signature on the contract?

A:   Yes.

Q:  And isn’t it true that you signed the contract on Friday, June 24, 2011?

A:  Yes

Q:  And when you signed the contract, you were allowed to read it first?

A:  Yes.

Q:  And if you chose not to read it, that is not the company’s fault, correct?

A:  Correct.

Q:  And you are here today to try and get this jury to get you out of the document that you freely read and signed back in June of 2011, aren’t you?

A:  …..

As you can see, at the point of the last question, the Witness’ answer no longer matters.  The attorney asking the questions is doing the testifying and telling the story.

Proper examination and the introduction of evidence takes volumes of knowledge and years of practice.  The best trial lawyers are able to be completely invisible on direct examination and become the center of attention on cross examination.  Maintaining the balance between the two roles is essential to a trial.

As the evidence is introduced and each side presents their case to the jury, the only item remaining is deliberation and a verdict.  Next month, we shall see what happens.