A business trial lawyer’s case lives and dies on getting communications and records into evidence. While injury cases may focus on accident or surgical reconstruction, photos and videos, medical records and lost wages, business evidence weighs toward communications, contracts, financial statements and expert damage calculations. The challenge is getting those records into evidence over objections that they constitute inadmissible hearsay.

Let’s start with hearsay basics: Hearsay evidence is a statement made other than by a witness testifying at the trial offered to prove the truth of the matter stated. Cal. Ev. Code § 1200(a).

Statement of independent or operative significance

Certain statements may have independent legal significance and are therefore not offered for the truth of the matter stated. read more

Some years ago, I blogged about “Effective Cross-Examination at Trial.”  I stand by those comments, but my technique has evolved. 

Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic.  I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right.  Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more

Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words. 

Advance Planning

Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury.  This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.

I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.”  The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture.  read more

Trying cases is a lost art in the business world.  Supposedly 95% of business cases settle prior to trial.  That may be so, because I consider 95% of my business law colleagues to be litigators, not trial lawyers: those who exclusively use pleadings, discovery and motions to posture a case for settlement and who have little to no trial experience. 

If a reasonable settlement can be achieved, I advise my clients to take it.  Trying cases is expensive and uncertain.  But if you’re not eager and able to try the case if necessary, how are you going to get the best settlements?  read more

My favorite part of any actual or fictional trial is the cross-examination. Who can forget the climax of the cross-examination in the “Caine Mutiny” of Captain Queeg, played by Humphrey Bogart, where the question was whether he had lost control of his ship? Under the heat of the examination, Bogart/Queeg reaches into his pocket, acting palpably shaken, begins to roll marbles in his hand and demonstrates his instability in a long-winded answer. (See “Caine Mutiny Queeg on the Stand.”) Some of my favorite cinematic cross-examinations occur in “My Cousin Vinny,” in which Joe Pesci’s inexperienced Brooklyn lawyer conducts hilarious but effective examinations while defending a family member concerning a murder in a convenience store. read more