Practice Pointers for Administrative Hearings Examination of Witnesses

This article gives advice for lawyers who are representing clients in hearings with judges at the Division of Administrative Hearings (DOAH). It focuses on how to question witnesses effectively. The article says that it’s important to prepare well before questioning a witness and suggests making a list of questions to ask. This will help the lawyer make sure they cover everything they need to during the hearing. The article also mentions that the judge has some control over how the hearing is run, but having a plan for questioning witnesses can help the lawyer stay organized and focused. Different attorneys use different styles of outlines when preparing for a hearing. Some use complete sentences, while others use key words and material facts. Outlines can also be used to anticipate objections and include citations to support arguments. Direct examination should be conducted with nonleading questions, avoiding compound or open-ended questions. It’s important to be well-prepared and have thoughtful responses to objections raised by opposing counsel. When attorneys want to ask about a statement in an exhibit, they should just include the statement in their question instead of asking a witness to find and read it. If they want to point out something in an exhibit to the judge, they can do it themselves. Expert witnesses don’t have to be officially recognized as experts in a certain field, as long as they are competent to answer questions. But if their expertise is in a very narrow area, it might not carry as much weight in the case. Some people who work for government agencies or as consultants might claim to be experts in agency rules or licensing processes, but their opinions may not always be reliable. When trying to get an expert to give their opinion in court, a lawyer needs to first establish the facts or data that the opinion is based on. For example, if an expert is giving an opinion about whether a piece of land is suitable for building, they need to explain the studies or investigations they did to come to that conclusion. This is important because it helps the judge or jury understand where the expert’s opinion is coming from. In a court case, the lawyer can ask an expert witness questions to show their opinion is reliable. They can also try to get evidence accepted by the judge if the other lawyer objects. They may do this by having the witness say what they would have said or by describing what the evidence would show. Cross-examination allows an attorney to ask a witness about anything brought up in their testimony, including their motives and credibility. To get helpful answers, the attorney needs a plan and should use leading questions. This can be especially important when dealing with difficult or expert witnesses. Asking nonleading questions might actually help the witness strengthen their original testimony. When questioning a witness in court, it’s usually not effective to try to get them to admit they were wrong or lying. Instead, focus on finding inconsistencies in their testimony or in the evidence. Consider what evidence you already have and what you expect to get from your own witnesses. Build your questions around this information rather than trying to get the witness to change their mind. It’s unlikely they will admit to being wrong, so focus on finding ways to discredit their testimony using the evidence you have. Lawyers sometimes question a witness in a way that may not be fair. They might bring up something the witness said before that doesn’t match what they are saying now. But just because a witness said something different before doesn’t mean it’s true. The lawyer needs to have other evidence to prove what they are saying. They also need to give the witness a chance to explain why their statement is different. Sometimes, lawyers might ask a question that is not fair, like saying “Would it surprise you to know that. . . ?” This is not allowed because it’s not relevant to the case. During a trial, witnesses don’t have the right to explain their answers unless the judge allows it. Sometimes, lawyers waste time asking witnesses to remember what they said before. Instead, they should just ask the question. If a lawyer thinks a question is not relevant, they can object, but they need to keep it short and to the point. If the judge doesn’t understand, the lawyer will have to explain more. Attorneys must respond to objections without talking about things that the witness hasn’t said yet. If they can’t do that, they can ask for the witness to leave the room. If the other attorney thinks a question is making the witness uncomfortable, they can ask the witness to leave. Yelling at the witness is always wrong. Objections should only be made when they really matter. In a legal case, the petitioner has a chance to present rebuttal evidence after the respondent’s case. Rebuttal is when the petitioner refutes new evidence presented by the respondent, not repeating evidence already given or introducing new evidence. It’s important to stick to the facts and stay focused on addressing the new evidence presented by the respondent. Following these practice tips can help attorneys build a strong case and gain valuable experience in the courtroom. These tips are important for attorneys to consider in order to present the best evidence and arguments.

Source: https://www.floridabar.org/the-florida-bar-journal/practice-pointers-for-administrative-hearings-examination-of-witnesses/