Preparing questions for examining witnesses beforehand

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Preparing questions for examining witnesses beforehand

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From the beginning of my practice, whenever I prepared for a trial, which meant the examination of witnesses, I wrote down all my questions beforehand.

Whether it was an examination-in-chief or a cross-examination, I wrote down every question for every permutation of answers I anticipated from a witness.

Preparing questions for examination is a feat of imagination which requires creativity, empathy and anticipation. I like preparing early to allow opportunities for new or better ideas to arise before I have to use them.

It sounds tedious. But I take pleasure in preparing my line of questions. It is fun to craft a line of questions that leads to my desired objective with a witness, question by question to discover whether it played out as I planned at trial.

I don’t necessarily use all the questions I prepared or their original arrangement. Often, I take leave of them. Always, the questions constantly have to be tweaked or departed from on the fly to suit the moment and the evolving strategy.

I have, many times, jettisoned pages of prepared questions and had to come up instantly with a fresh line of questions. We can prepare as much as we can, but we need to be ready to dispense with all our plans to adapt to the situation. That ability to formulate questions on the fly leads me to believe I can do without preparing written questions. But I think of my list of prepared questions as a lighted path I constructed for myself to reach my destination. So, if and when I decide to step away from it into the darkness of seeming opportunity, I have no trouble returning to the lighted path.

Preparing my questions beforehand ensured I was ready for trial even if I didn’t have time to review the case the day before, as is my practice. It is a great memory jolt on how to approach the witness and what I had planned to do.

Setting down my questions allows me the ability to craft the question as precisely as I can since I have time to experiment with them. Some questions require a sense of delicacy I do not trust myself to fashion on my feet. Some lines of questions benefit from a lengthier consideration to find their optimal arrangement.

I still prepare that way for all my cases, large or small, money or no money, like it or not.

Even though I enjoyed preparing that way and found many advantages to doing so, when I started my legal practice, and for a long while after, I was embarrassed about my trial preparation.

I felt great lawyers simply got off their arses and fired off questions nonchalantly from the hip. The greats didn’t need pages of scribbled or printed questions to refer to. Or even if they did refer to something, it was most likely a clean white sheet of paper with three or four elegantly yet illegible words written on it. That sufficed for a great lawyer.

I felt only losers wrote down all their questions the way I did.

It was my participation as a trainer with the Advocacy Training Committee of the Bar Council that first exposed me to a diversity of approaches to preparing for witness examination. I met those that wrote down answers they wanted instead of questions, that only wrote the headings and preferred to come up with the questions on their feet, and that could do it just by referring to the pleadings and witness statements, for example.

Best of all, I met many who prepared as I did. It was pleasing to know I was not a loser for doing so. Yay. I was just like everybody else. Yay.

I have come to realize that each of us has our own way of achieving optimality in how we go about our preparation, some seemingly more tedious or time-consuming than others.

What is important is not how efficient or nonchalant we look when we prepare for trial. It is whether our preparation aligns with our way of doing things which makes us effective in achieving our objectives at trial.

If it does, then we shouldn’t care what other people have to think or say about it. If it doesn’t, then we should consider how to better our preparations.

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