1. Organize your thoughts and points in advance. Identify the strengths and weaknesses in your position and decide in advance how you will handle the weaknesses. Your strategy will differ depending on the type of proceeding and the type of weakness, of course. For example, a. When making a presentation in a non-adjudicatory context to a planning board or conservation commission, or a meeting with the state environmental department or the like, you need to anticipate the questions the board members or agency officials will ask and have answers ready. Sometimes it’s powerful to raise the issues in your opening presentation and address them directly to show that your client has considered the concerns of the board/community/agency. It can also be effective to do it somewhat more subtly by weaving the answers (e.g., suggested mitigation measures) into your opening presentation or indicating that you’ll be presenting a witness to address the issue. Sometimes you have answers ready, but you wait until the question is posed. In a non-adjudicatory proceeding, you only need to address the law as to points in dispute. b. By contrast, when making an opening statement in a trial or adjudicatory hearing, your job is to lay out your entire case in a logical and interesting way and identify how you will address all of the applicable legal requirements. You are presenting a roadmap of sorts (not an argument!). You also need to be explicit about what you want from the judge, officer, and fact finder and why you are entitled to have the result you seek. For example: “The evidence will show that each and every one of the criteria set forth in [statutory or regulatory citation] is met and the permit should be granted.” During your opening statement, you must relate the facts to the law. You will need to present direct or rebuttal evidence on each and every one of the elements of a case in which your client bears the burden. In a case where the burden rests on the permit applicant, for example, the applicant’s lawyer should acknowledge the burden up front and explain how the evidence will demonstrate that the burden is met. To make it interesting, a few graphics are helpful but not so many as to be distracting. A map is a good item for showing the distances between the activity at issue and the nearest residences, wetlands, water wells, etc., if that is relevant. A large pad of paper is useful for doing calculations the decision-maker(s) will need to see and understand. A couple of power point slides can be powerful. Bear in mind, however, that this is your chance to establish your credibility and to create a relationship with the hearing officer/judge and fact finder(s), so you want the attention focused on you and your client, not on slides or maps. c. When preparing for a trial or adjudicatory hearing, you need to have a well-thought out plan for direct and cross-examinations. You are doing two jobs at the same time. You are establishing credibility (yours, your client’s and your witnesses’) with the fact finder(s). At the same time, you are creating a written record for the immediate decision-makers and for the appellate body in the event of an appeal. As you prepare, you should be focusing not just on your case but on the case to be made by the other side. 1. Direct Examinations: The direct examination of your witnesses is the mechanism for proving the elements of your case (or defense) and getting most of your exhibits admitted into evidence. In energy and environmental cases, you will typically use a combination of fact and expert witnesses. Different rules and techniques apply for fact versus expert witnesses. Direct examinations are difficult because you are not allowed to use leading questions (with a few exceptions), and because you must establish a foundation for your questions (you can’t assume anything not already testified to). As a result, direct examinations can be very boring. The trick is to spend a lot of time working with your witnesses so that the answers flow smoothly and tell a compelling story. A witness cannot leap to a conclusion or an opinion without first laying the groundwork or foundation for the conclusion or opinion. For class on April 24, the direct examiners want the expert to testify to her opinion about X. First, the direct examiner needs to establish that she is an expert who is qualified to render an opinion on the subject matter at issue. That will happen during the direct on her qualifications. You will elicit her training, licensing and experience with X subject matter. After the expert witness testifies about her credentials and qualifications, you will make an oral motion for the witness to be “qualified” as an expert. Then, the judge or hearing officer will offer an opportunity for cross-examination and render a decision. (Be aware that when an expert witness has a spectacular and unimpeachable resume, opposing counsel may try to preempt the testimony about qualifications by offering to “stipulate” to the qualifications of the witness thereby avoiding the testimony about qualifications altogether and avoiding the chance to impress the fact finder. Also, when there is no jury or lay fact finder to impress, the lawyers and the hearing officer/judge may all agree to qualify the witness based on the resume and without live testimony. ) Occasionally, it turns out that a witness is disqualified and does not testify about his/her opinion at all. If the witness is qualified, then direct examination resumes to walk the witness through the work she did on the project in order to develop her opinion. Before the direct examiner (you) can ask her what her opinion is, you have to establish what she did to develop her opinion. So, you need to have her speak about how she came to work on this project, what she did, what she observed, and whether she developed an opinion. You’ll explore with her generally what she did to arrive at her opinion. Direct observations? Literature reviews? Samples? Other? There are lots of questions to pose to the witness before she is “ready” to announce her opinion. Those are the foundation questions. Only after establishing her credentials and the foundation for her opinion, does the direct examiner ask whether she formed an opinion and, if so, what that opinion is. Then you go through it in painstaking detail (that is the explication of the opinion – you will dissect and rebuild the opinion). There are many ways to organize the flow of these questions. You will suggest a flow in your outline and then you may need to revise it based on what the witness is comfortable saying. Time permitting (it is not here), the direct examiner would meet with the witness at length to talk through the issues before you develop your outline. Then you would meet with the witness many more times to practice and refine the testimony. You and the witness both need to be comfortable with the flow. You will have time for one or two short, focused meetings with your witness. You develop oral cues with the witness since you can’t ask leading questions. 2. Cross Examinations: The cross-examiners will look for and attack weaknesses in the witness’ credentials/qualifications, in the foundation and in the opinion. Think about the statements you need the witness being cross-examined to make in order to undermine his/her credibility or have him/her make a statement that supports your case. Seldom is a prepared lawyer surprised by the case presented by his/her opponent. Obviously, you need to be flexible in order to respond to occasional surprises (occasionally a witness lies and hence catches you off guard because you were expecting the truth), but you always need to get back to your own case, to your own points and plan. Your job as a cross-examiner is twofold: to undermine the other side’s case and also to try to score positive points for your case – all on the record so that it is preserved for appeal. You need to think about how your questions and the witnesses’ answers will be read by an appellate body (which must work with the transcript). You must keep control of the witness at all times to ensure that the statements on the record are phrased exactly as you need them to be phrased. Don’t let a witness ramble on cross-examination. Frame your questions to force the answer you want – usually it’s a very short answer, like yes or no. d. Re-direct is meant to rehabilitate your witness. It’s short and focused, a bit like a cross-examination. It is also used to allow a witness to embellish and explain an answer that was cut off during cross-examination or that needs context. When working with your witnesses, you should anticipate the likely cross-examination questions and either deal with them on direct or be prepared to deal with them on re-direct. I always enjoy a good, crisp redirect. It can make a big impact. It’s akin to doing a rebuttal argument. It can also be very powerful to decline to do a re-direct if you believe no damage has been done to your witness or your case. e. In closing arguments, you bring all the threads together. You tell the story of why and how the evidence supports the law and how they both favor your position. You use the evidence that was presented during the trial or hearing to argue for the outcome you desire. You showcase the failings of the other side and the successes on your side in meeting burdens and satisfying the criteria/elements of the applicable laws. You make compelling arguments. f. There are numerous reference books on trial advocacy out there that explicate these points in detail. Please let Professor Jacobs know if you have any questions.