The real purpose of direct examination

The real purpose of direct examination is to “argue” the case via questions from counsel and answers from the witness. Trial lawyers asking the questions must be skilled in not only posing the right question, but also asking it well.

Also important are knowledge of the rules of evidence governing the particular questions and ethical rules, as well as an appreciation for the art of persuasion.

Understating the basic elements of persuasion is the doctrinal underpinning of every phase of the trial including direct examination. In this central feature, adopt a tone and demeanor appropriate to the case. For example, in “Rhetoric,” Aristotle suggested cardinal principals to consider in persuasion: ethos, pathos, and logos.

Ethos is the listener’s perception of you the lawyer. Are you likeable, competent, professional? Pathos is emotion. Phrase your questions to bring forth emotion consistent with the subject involved. Sometimes the power of understatement can be very effective. Logos, or logic, is important as well.

Appreciate the difference between deductive and inductive reasoning. Deductive reasoning flows from general to the specific: “Everyone in the car was a member of the gang. Mr. Jones was in the car. He surely was a member of the gang.”

Inductive reasoning flows from specific to general: “All specific times the new model was struck by another vehicle, it shattered into small pieces. Hence the new model was not constructed properly.”

One challenge of direct examination is to avoid asking leading questions, which are a cornerstone of cross-examination. (In limited circumstances, leading questions are permitted on direct examination, e.g., questioning minors.) Leading questions are questions that suggest the answer: “It rained that night?” Examples of nonleading questions include: “What was the weather that evening?” Or “Please tell us what was the weather that evening?”

One effective technique of phrasing the question to enhance your argument is to use “looping,” also known as “incorporation,” in the phrasing of the question. The technique involves including the answer to the prior question in the next question:

Q: Mr. Beckley, did you go to the Kingston Inn at 10 p.m. on June 7, 2023?

A: Yes I did.

Q: When you went to the Kingston Inn at 10 p.m. June 7, 2023, what if anything did you observe?”…..

Another challenge of direct examination is that posing open-ended questions offers little, if any, control over the witness. One answer to an open-ended question can throw your case off course. Hence, careful preparation and practice, when appropriate, are essential.

An important aspect of direct examination is the authentication of documents including electronic evidence, often referred to as electronic or social media evidence. Consider there are two types of electronic evidence:

• Evidence that derives from electronically stored declarations of individuals, such as electronically generated bills, accounting records, charges, and summaries, and email.
• Electronic evidence that includes output generated automatically by a programed process without input from individuals, such as automated telephone call records, simulations, or enhanced photo images.” See Md Rule 5-901(b)(4).

It is important before trial to have in mind exactly how each document intended to be introduced in evidence will be authenticated. Another important aspect of direct examination is posing questions to expert witnesses—in particular, the proper questions to ask to qualify them, and to offer opinion testimony.

Every great direct examination has a structure or organization:

Introduction: Helps the witness begin establishing credibility and likeability with the judge and/or jury. For example, perhaps extreme, is when counsel in a trial in California years ago called Stan Lee, the creator of Spider Man and Marvel Comics to the witness stand, and began questioning as follows:

Q: Good morning, Mr. Lee. Before we roll up our sleeves and go to work, I have a few preliminary questions for you. Is that OK?

A: Yes.

Q: Are you familiar with a character known as Spider Man?

A: Yes.

Q: How are you familiar with that character?

A: I created him.

The jury, fully aware of Stan Lee, launched into hysterical laughter. Even the judge was smiling. Stan Lee in his day was a public treasure in California. But the judge then said, “OK Counsel, do roll up your sleeves, and go to work.”

Context of the witness’s testimony: Shows that the witness is credible, e.g., the witness observed the auto collision or signed the contract.

Substance of the testimony: Demonstrates the reason for testifying and advances the theme of the case.

Immunization: Anticipates any vulnerabilities on cross-examination and tries to explain them away during direct examination: “Tell us please, Mr. Smith, is your testimony a few minutes ago in contradiction to your testimony in your deposition?” “Yes.” “Can you explain this?” “Yes.” “Please do.”

In conclusion, preparation is key to success in all phases of trial including direct examination.

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