APPENDIX D: Testimony guidelines

Introduction

In trials before the Board, uncompelled direct testimony is almost always presented by affidavit or declaration. 37 C.F.R. § 42.53(a). All other testimony (including crossexamination, redirect examination, and compelled direct testimony) occurs by oral examination.

Consistent with the policy expressed in Rule 1 of the Federal Rules of Civil Procedure, and corresponding 37 C.F.R. § 42.1(b), unnecessary objections, “speaking” objections, and coaching of witnesses in proceedings before the Board are strictly prohibited.

Cross-examination testimony should be a question and answer conversation between the examining lawyer and the witness. The defending lawyer must not act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness formulate answers while testifying.

The testimony guidelines that follow are based on those set forth in the Federal Rules of Civil Procedure, supplemented by the practices followed in several federal district courts.
 

Examination and cross-examination outside the presence of the Board

1. The examination and cross-examination of a witness proceed as they would in a trial under the Federal Rules of Evidence, except that Rule 103 (Rulings on Evidence) does not apply. After putting the witness under oath or affirmation, the officer must record the testimony by audio, audiovisual, or stenographic means. Testimony must be recorded by the officer personally, or by a person acting in the presence and under direction of the officer.
2. An objection at the time of the examination -- whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the testimony, or any aspect of the testimony -- must be noted on the record, but the examination still proceeds; testimony is taken subject to any such objection.
3. An objection must be stated concisely in a non-argumentative and non-suggestive manner. Counsel must not make objections or statements that suggest an answer to a witness. Objections should be limited to a single word or term. Examples of objections that would be properly stated are: “Objection, form”; “Objection, hearsay”; “Objection, relevance”; and “Objection, foundation.” Examples of objections that would not be proper are: “Objection, I don’t understand the question”; “Objection, vague”; “Objection, take your time answering the question”; and “Objection, look at the document before you answer.” An objecting party must give a clear and concise
   explanation of an objection if requested by the party taking the testimony or the objection is waived.
4. Counsel may instruct a witness not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the Board, or to present a motion to terminate or limit the testimony.
5. Unless otherwise agreed by the parties or ordered by the Board, the testimony is limited in duration to the times set forth in 37 C.F.R. § 42.53(c). The Board may allow additional time if needed to examine the witness fairly or if the witness, another person, or any other circumstance impedes or delays the examination.
6. Once the cross-examination of a witness has commenced, and until cross-examination of the witness has concluded, counsel offering the witness on direct examination shall not: (a) consult or confer with the witness regarding the substance of the witness’ testimony already given, or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a Board order; or (b) suggest to the witness the manner in which any questions should be answered.
7. An attorney for a witness shall not initiate a private conference with the witness or call for a break in the proceedings while a question is pending, except for the purpose of determining whether a privilege should be asserted.
8. The Board may impose an appropriate sanction -- including the reasonable expenses and attorneys’ fees incurred by any party -- on a person who impedes, delays, or frustrates the fair examination of the witness.
9. At any time during the testimony, the witness or a party may move to terminate or limit the testimony on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the witness or party. The witness or party must promptly initiate a conference call with the Board to discuss the proposed motion. 37 C.F.R. § 42.20(b). If the objecting witness or party so demands, the testimony must be suspended for the time necessary to obtain a ruling from the Board, except as the Board may otherwise order.