direct and cross examination, opening/ closing statements · pdf filedirect and cross...

Direct and Cross Examination, Opening/ Closing

Statements

July 20, 2016

Adam Samansky, Member

IP Summer Academy 2016


Boston, Massachusetts

July 11 – 22, 2016

Direct and Cross Examination, Opening/ Closing Statements

© 2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Trial is Theater

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July 11 – 22, 2016



Overview of Trials

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•Opening Statement (The narrator sets the stage)

•Presentation of Witness Testimony and Documentary Evidence (The characters make their

appearances and conflict develops between the main characters)

•Closing Statements (The climactic scene)

• Judge’s instructions on the Law (If trial is to a jury)

•Verdict by Jury/Findings of Fact and Rulings of Law by Judge (The conflict is resolved and

everyone goes home – or to the Court of Appeals)



July 11 – 22, 2016



Opening Statements

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• Lawyers explain the case to the jury (or Judge)

– Introduce witnesses they will meet

– Explain the technology at issue

– Highlight important documents

– Familiarize jury with important factual disputes and legal issues they will have to decide

•Not evidence to be considered by the jury

•No argument – legal or factual – during opening statements

• Sometimes skipped in Bench Trials



July 11 – 22, 2016



Presentation of Witness Testimony

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•Direct Examination

– The witness tells the story through open-ended questions

– No leading questions



July 11 – 22, 2016



Leading Questions Call for Yes or No Answers, So Lawyer is Telling the Facts

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• Examples:

– Did the defendant steal your trade secrets?

– Does the accused device copy your invention?



July 11 – 22, 2016



Non-Leading Questions Ask Witness to Tell Facts in His or Her Own Words

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• Examples:

– Please describe your invention?

– How does your invention differ from the prior art?

– How does the defendant’s device compare to your invention?



July 11 – 22, 2016




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•Direct Examination

– Witness tells the story through open-ended questions

– No leading questions

– Use the order of witnesses and issues covered by each to present your story as persuasively as possible

– Use direct testimony of your witnesses to present and explain documentary evidence



July 11 – 22, 2016



Presentation Of Witness Testimony

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•Direct Examination (continued)

– Visual evidence assists witnesses’ testimony and it presents information to Jurors/Judges in the way they are

used to learning

– With good preparation you can use direct examination to undermine or respond to the opposing party’s

arguments before it even has a chance to fully explain them to the Jury

– A party can bring out and respond to weaknesses in its own case during direct testimony before the

opposing attorney brings them out in Cross-Examination



July 11 – 22, 2016



Choose Witnesses Like You Would Choose Actors for Your Play – They Must

Fit Their Roles

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July 11 – 22, 2016




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•Cross Examination

– Cross-Examination is often called the trial’s great crucible in which the truth is discovered

– Lawyers keep control of testimony with leading questions

– The goals are to undermine the opposition’s direct testimony and begin presenting facts to support the

responsive case



July 11 – 22, 2016




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•Cross-Examination (continued)

– The credibility of the witness is just as important as any factual issue about which he or she testifies

• Cross-Examination is often designed to show the witness is a liar, even if the lie concerns an issue that was not the

topic of direct testimony

– Lawyers must be careful not to go too far in Cross-Examination, because their own credibility is at stake



July 11 – 22, 2016



Closing Statements

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• The Closing Statement is the Lawyer’s opportunity to bring the drama of trial to a close by

explaining the play to the audience

• The Closing Statement is an argument

•Closing Statements rely on the evidence and fair inferences from the evidence



July 11 – 22, 2016



Closing Statements (continued)

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• Information that was not admitted in evidence during trial and the Lawyer’s personal

beliefs/knowledge are inappropriate to include in the closing

•Visual aids or other tools may help make persuasive arguments

• Lawyers often write their closing arguments long before trial in order to make sure the

important themes supporting their arguments are identified early and repeated often


Thank you!

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