Professor Wes Porter, Director of the GGU Litigation Center at Golden Gate University School of Law in San Francisco, presents this lecture about how to impeach a witness with their prior inconsistent statement. Visit www.ggulitigation.com for the companion handout.
For other trial advocacy and litigation lectures and demonstrations, check out our other videos and materials on GGULitigation.com, follow Professor Porter on Twitter (@WRPspdADVOCACY), and subscribe to our YouTube Channel (wporterable).
Professor Wes Porter (constantly) talks about "hard skills" versus "soft skills" in the context of trial advocacy (see Daniel Coyle's "The Little Book of Talent" for more explanation). The three clearest examples of "hard skills" in trial advocacy - skills that you should just hard wire into your brain PRECISELY - are:
1. refreshing recollection (of your forgetful witnesses) 2. impeaching by prior INconsistent statement (for their witnesses) 3. laying the foundation for EXHIBITS (to RE-tell the story)
Professor Porter emphaiszesTHREE key concepts for effective closing arguments:
1. RE-hooking the jury with your 1st few minutes 2. using the LAW (elements, burden, jury instructions, etc.) to frame your arguments 3. An 90/10 Rule - spend 90% of your argument on YOUR case, YOUR theory, YOUR witness and why YOU should prevail, as opposed to recapping your OPPONENT's case.
Professor Porter preaches about crafting SHORT, CLEAR, AIMING FOR "YES" QUESTIONS organized into BLOCKS on cross examination. When the witness gioves an answer OTHER than "yes," then the advocate must listen and react with witness control devices.
Professor Porter also urges advocates to consider the following MODES OF IMPEACHMENT as permissible PATHWAYS to explore a witness' credibility on cross examination. If opposing counsel on cross examination is NOT properly on one of these PATHWAYS, then "objection IMPORPER character evidence."
The modes of impeachment:
- memory (no FRE - other than 602) - perception (no FRE - other than 602) - bias (no FRE) - prior convictions (FRE 609) - specific acts of UNtruthfulness (FRE 608(b) - *favorite rule*) - prior inconsistent stanements (FRE 613 & 801(d)(1)(B))