A perspective on direct examination

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Direct examination is the heart of the trial. It is also your greatest challenge. You must avoid leading questions used in cross-examination, and ask open-ended questions, meaning that unlike other parts of the trial, you have no control.

The interchange between attorney and witness, no matter how well prepared, can go off track, with the utterance of one undesirable answer or question. At any moment, the exchange can be interrupted by the judge or opposing counsel. Add to this the use of exhibits and visuals — and there is a lot going on.

Notwithstanding its challenges, many consider  direct examination to be  the most important part of the trial in most cases. Its purpose is to develop the case, advancing the theme and story of the case one witness at a time for the judge or jury to consider. It is important to consider not only the content and structure of the examination, but also the order of the witnesses called to testify.

Structure

As you plan your direct examination, keep in mind that listeners remember best what they hear first and last. Begin and end with strong witnesses, putting less-desirable witnesses in the middle. Each individual witness examinations should begin and end forcefully, according to the concepts of primacy and recency.

Remember that direct examination is a way to argue your case, so avoid a string of disorganized questions and answers. Plot the direct as you would your opening statement or closing argument, with a clear introduction, presentation, and conclusion. Consider the following organization of your examination:

Introduction: Establish the credibility of the witness and attempt to predispose the jurors to believe the witness. Humanize witnesses by asking a few questions about their background.  Demonstrate sincerity, honesty, and veracity. Example: Mr. Smith, before we delve into the reason you filed this lawsuit, I would like to ask you a few questions about your background.  Please tell us, what is your occupation?

Context of the witness’ testimony: Demonstrate that the witness is qualified to present credible testimony on the topics upon which the witness is called to testify. Examples: Were you present at the scene of the motor vehicle collision? Where were you in relation to the collision? Could you see the collision clearly?

Main substance of the testimony: Advance the points you wish to argue or assert. Ask the questions that relate the facts you will be arguing to the judge and jury in closing argument that match what you promised to prove in opening statement.

Immunization: Ask questions about what you expect to hear from opposing counsel, if appropriate, to obtain answers in your case with the goal of taking the wind out of the opposing party’s sail, conveying the correctness of your case.

Conclusion: Drive home your most important points.

Prepare yourself and the witness

You can never overprepare. Know your case and the opposing case inside and out.

Practice with the witness, if appropriate.  Remember the rules of ethics relating to truthfulness of testimony; explain to the witness what it means to avoid objections based on hearsay and leading questions. Consider a mock trial where you can present the witness, and hear what others have to say about the testimony and credibility of the witness.

Precise, short questions asked in plain English are most useful. You will lose your audience with convoluted queries, and if you allow your witness to drone on and on about irrelevant matters, you forsake control of the argument you need to make in a thorough direct examination.

Establish a rhythm of short questions and answers to help jurors follow the development of your argument.

Make it memorable

Looping, using the answer to the previous question in the subsequent question, and incorporation are effective means of impressing the jurors with important facts:

Q: What concern did you have as you observed his symptoms?

A: I was afraid he was having a heart attack.

Q: Why were you afraid he was having a heart attack?

A: Because of the symptoms he was having.

Q: What were the symptoms he was having, giving rise to your concern about a heart attack?

These techniques can help imprint certain testimony in the minds of jurors. Also take advantage of transitional sentences: “Let’s talk about what happened after you left the bar that night.”

Authentication of exhibits

When introducing exhibits during trial, understand the rules governing admissibility. The document itself is not evidence unless it has been introduced and authenticated. The basic principle in document authentication is to obtain testimony that the document accurately represents what it purports to depict, and of course, the document must be relevant and devoid of inadmissible hearsay. Familiarize yourself with applicable rules of evidence.

In conclusion, always end on a high note. Never overstay your welcome.

Paul Mark Sandler, trial lawyer and author, can be reached at [email protected].