Litigation 101 for eDiscovery Tech Professionals: Trial, Part 4: Presenting the Case
March 13, 2013
** This blog series is intended to introduce new eDiscovery professionals to the litigation process and litigation terminology. Click here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here and here to go to the first twenty posts in the series.**
In last week’s post we covered the different types of witnesses that can be called upon to testify at trial. Regardless of what type of witness is brought to the stand, the process for testifying is the same. Here are the steps:
- Swearing In: A witness is called to the stand by one of the parties and is sworn in.
- Direct Examination: The party that called the witness to the stand questions the witness. In some cases, this may be the only testimony a witness provides. More often than not, however, the process continues with more testimony described in the steps that follow.
- Cross Examination: After the direct examination is completed, the opposing party is given the opportunity to question the witness in cross examination. The topics that can be covered in this step are limited to the topics that were discussed in direct examination. The opposing party cannot raise new topics for discussion in cross examination.
- Re-Direct Examination: The party that initially called the witness has one more opportunity after cross examination to ask the witness follow-up questions.
- Re-Cross Examination: And, after re-direct examination, the opposing party has one last chance to ask follow-up questions.
- Dismissal: After the attorneys are finished asking questions, a witness’s testimony is complete and the witness is dismissed.
There are a few principles regarding testimony of which you should be aware. The first is Objections. An attorney can object to a question asked by opposing counsel or to an answer provided by a witness. A proper objection is based on a legal rule about the propriety of the question or response – for example, an attorney may object because something is irrelevant, that it is privileged, that the witness is not qualified to answer it, and so on. The judge makes a ruling on the objection, usually on the spot. The judge either overrules the objection (rules that the question or answer is permitted) or sustains the objection (rules in favor of the attorney that made the objection and therefore disallows the question or answer). Objections are very important for a couple of reasons. First, it is a tool that attorneys can use to keep testimony out of the official record of the trial. But second – and very significantly – an objection “preserves” the issue for appeal. We’re going to cover appeals in another post, but for now, let me just mention that if something is objected to and overruled, if the case goes to an appeals court, that court can review whether the judge’s decision was correct and based on the law.
In next week’s post, we’ll cover a few more topics regarding testimony and presenting a case at trial. Please let us know if there are specific litigation topics that you’d like to see covered in this blog series.Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.