By Hon. Robert Trentacosta
The following is a checklist to help you prepare and execute a persuasive Direct Examination. In your first few trials, be sure to review the list until the items become familiar and habitual.
1. Personal Preparation
- Review all transcripts, reports, statements or other writings regarding the witness.
- Plot your trial story line: Where does this witness fit into the story? What is the overall significance of this witness’s testimony?
What are the most significant points to be made during this witness’s testimony?
- Outline the specific areas to be covered on direct examination.
- List the documents to be introduced through the witness or shown to the witness and discussed.
- Make sure you outline the foundational questions needed to introduce the documents.
- If the witness will be discussing a specific site, strongly consider visiting the scene (best practice) or viewing the scene photographically or by video.
2. Witness Preparation
- Meet with the witness in person. If this is not feasible, meet remotely through a video platform where you can personally observe the witness. Telephone preparation is better than nothing, but only barely.
- Provide the witness with all transcripts, reports, statements, or other writings pertaining to the witness. Discuss the specific areas to be covered during the witness’s testimony and do a “walk-thru” with the witness so they will know what is coming (I realize that there are situations when you need a spontaneous reaction from the witness to a particular question. Keep those questions in reserve during witness preparation).
- Emphasize that you want the witness to tell the truth at all times.
- Explain the process of cross-examination and the potential areas to be explored by your adversary on cross-examination.
- Make sure the witness is familiar with the documents you intend to authenticate through the witness and those you intend to show the witness while on the stand.
- Practice laying the foundation for documents you will introduce through the witness so they will understand the questions you are required to ask.
- Assess the strength of the witness’s testimony (your subjective belief in the persuasive power of the witness).
- Assess the presentation of the witness (demeanor, dress, gestures, manners, ability to articulate and explain, emotional buttons that may be pushed by your adversary).
- If the witness is unfamiliar with court procedure and protocol, explain the process and mitigate the witness’s fear of the unknown.
- Confirm the date and time for the witness’s testimony and discuss how witness timing is typically not an exact science.
3. Conducting the Direct Examination
- Stand at the podium at the end of the jury box (nearest the spectators) while questioning the witness.
- Once the witness is sworn, introduce the witness by asking open-ended questions to elicit the background and context of the witness to the case. Remember, as to each witness, the jurors want to know who the witness is; how the witness fits into the story; and why they should care what the witness has to say.
- Ask open-ended questions: “Who, What, When, Where, Why, How, Please describe…, Tell us about…”
- Listen to the witness’s answers.
- Use transitional phrases as you move to a new subject area: “I will now invite your a>en?on to the morning of the traffic collision. Do you have that day in mind?”
- If the witness uses acronyms, abbreviations or terms of art, have the witness define or explain the terms: “Doctor, what do you mean when you say the patient had COPD?”
- Use concise, bite-sized questions to make the questions understandable to both the witness and the jurors.
- When using a diagram, map or drawing, first have the witness set the scene, then describe the action.
- Be prepared to refresh the recollection (memory) of the witness as a failure to remember all the facts is common.
- Do not end the examination until you have checked your (preparation) list to make sure you have covered all the points you need to drive home to the jurors through the witness.
- Do not end the examination until you have admitted all the documents you intended to admit into evidence through the witness.
- Always end with strength.
- Never end on a sustained objection.
Direct Examination requires personal preparation, including having a clear vision of what you want to prove with each witness. In order to maximize your chance of success, meet with the witness and prepare the witness for trial. Always emphasize that you want the witness to tell the truth. When conducting the direct examination, keep the questions open-ended and simple. Remember, the jurors are hearing the facts for the first time. They will be grateful if you present a clear, understandable and believable story of your case.