This week I am in Lansing Michigan for a trial competition hosted by the Michigan State University College of Law in Lansing Michigan. As is the case every year, the team I have taught for Creighton University School of Law is comprised of four third year law students. The team has spent five nights per week for over a month preparing this year’s case problem. My “co-coach,” Amy Zacharias, a Pottawattamie County Attorney, and I have appreciated their hard work and dedication. Each student will deliver either an opening statement or a closing argument. Each will also direct examine a witness and cross examine a witness. There is also brief pretrial practice of making and responding to motions in limine.
The team has worked hard to grasp concepts that are not always intuitive. The best example of their struggle, which has happened every year I have taught, centers around simply asking questions of witnesses; particularly on direct examination. I think it’s pretty safe to say that when people interact on a “normal” basis they rarely, if ever, have to ask themselves if they have laid proper foundation for what they are asking. They do not always worry about whether the person they are talking to has “personal knowledge” about what they are saying. Yet when conducting a trial these things matter.
While most Judges allow a certain amount of leading questioning during direct examination they typically will draw the line, at a minimum, when the questioning hits the central theories of the case. In fact, this is also when most opposing lawyers also draw the line and begin to object. When that happens a lawyer must understand how to lead the witness on direct without actually leading the witness on direct. Obviously, the best way to avoid any problems is to make sure your witnesses are prepared for what you need to ask them. Just as obviously, that cannot always happen. In my opinion, this is why having a basic understanding of foundation is important to smooth trial delivery with your witnesses on direct examination.
I will touch more upon the importance of laying foundation when I get back from the trial competition next week.