By Hon. Mark T. Cumba

A twelve-by-twelve foot room.  A metal table, bolted to the floor. Cigarette smoke wafting upwards towards a single, dimly lit overhead lamp hanging from the ceiling.  This is the image many of us recall from old, black and white detective shows.

“Where were you on the night of the shooting?”

“What were you doing?”

“Who were you with?”

We can all remember the detective peppering an eyewitness or suspect with these open-ended questions.  While all these “W” questions are appropriate for direct examination, the manner in which these “W” questions are delivered is, simply put, akin to an interrogation.  Unfortunately, all too often, many new attorneys (and even experienced attorneys untrained in the art of advocacy) treat direct examination like an interrogation.  This is a mistake.

Instead, an effective direct examination should be more like friends sitting in a living room, with the sound of crackling logs burning in a warm fireplace, catching up and telling stories.  Direct examination is not an interrogation; it is a conversation.  This article will provide three tips that will turn any direct examination into a friendly conversation that tells a story and will be easier for jurors to follow and understand.

What’s the Goal?

Before discussing the tips, it is important to understand what the goal of direct examination is.  Direct examination is your chance to affirmatively present evidence to satisfy the elements of the case (plaintiff/prosecution), or to defeat the elements of the case (defense).  It is also your opportunity to advance your theory of the case.  In doing so, it is important to remember that direct exam is not just about asking questions.  Rather, the questions are the means to the end.

Direct exam is about using questions to elicit answers that will make specific points; showing the jury different parts of the case through different witnesses. It is like a puzzle. The different pieces of the puzzle – the evidence – is presented through witnesses.  The complete picture is then shown at closing argument.  If the pieces of the puzzle are not clear and believable during direct examination, then the complete picture will also be unclear and unbelievable. Thus, the importance of making your witness believable, credible, likeable.

In addition, an effective direct examination will allow the focus to be on the witness, not on you.  The colloquy between you and the witness should work to create an emotional connection between the witness and the jury.  In presenting evidence, this is not a time to simply tell the jury what happened; instead, it is a time to recreate what happened through the point of view of the witness.

This is what makes the “conversation” important.  Jurors will remember more when they feel connected with, or part of, a conversation, as opposed to simply watching an interrogation from the outside.

Tip #1 – Choose Your Words Wisely

Direct examination should be easy for the jury to follow.  It should have a certain flow to it; a back and forth between you and the witness with the witness doing most of the talking.  Again, the focus should be on the witness, not on you.  A very general rule of thumb is the 10%:90% rule – 10% of the exam should be you asking questions while 90% of the exam should be the witness telling the story through their eyes.  Even when employing this 10%:90% rule, it is most effective if you use short, simple questions that will elicit answers that lean more towards sound bites rather than long-winded narratives.  Always think about what is going to be the easiest for jurors to understand and to remember.

To maximize the power of persuasion, it is necessary to strategically choose words that bring the facts to life.  You do this with the use of sensory language.  Consider the entirely appropriate open-ended question, “What happened next?”  Used sparingly, this can help move the examination along, but if used excessively, it may result in the jurors feeling disconnected and losing interest.

Instead, you should use sensory language to enhance the impact of your questions and elicit responses that “paint the picture” for the jury: “What did you see next?” or “What did you hear next?”  Again, using sensory language allows the witness to focus on that particular sense and also makes it easier for jurors to understand and remember testimony by creating a vivid image to take back with them to the deliberation room.

Another way to make it easier for jurors to understand and remember testimony is to use plain, simple language.  I often refer to this concept as “no cop talk” or “no lawyerspeak.”  This should apply to both your questions and the witness’s answers.  For example:

Removing cop talk from your examination could be difficult, particularly if your witness is, in fact, a law enforcement officer.  Or, using plain, simple language could be a challenge when dealing with issues that are complex or involve specific terms of art commonly used in a particular industry or profession. Nevertheless, you as the attorney control the examination and the witness, and should facilitate the translation of terms and phrases into easily understood testimony for the jury.  For example, consider the following answer by a police officer and the follow-up question by the attorney:

A. I had the individual exit the residence and relocate to the rear of my vehicle.

Q. When Mr. Jones came out of the house, why did you have him go to the back of your car?

Presumably, there will already have been questions laying the foundation that the individual the officer refers to is Mr. Jones.  So the attorney simply translates the cop talk into plain simple terms in the follow-up question.

Consider also the following answer by a medical expert and the follow-up question by the attorney:

A. The patient sustained a bimalleolar fracture.

Q. What do you mean by bimalleolar fracture?

A. It’s a broken ankle where both the tibia and fibula are broken.  The tibia is basically the shinbone and the fibula is the smaller bone that runs parallel to the shinbone.

Here, the attorney asks the doctor to translate the technical medical terms into lay terms that the jury can easily understand and visualize.  In both scenarios, plain and simple language is used to communicate the story to the jury, much like you would do in any everyday conversation with a friend.

Tip #2 – Use Your Voice

Communication is not only what is said; it is also what is heard.  How you use your voice can either capture and maintain the jury’s attention, or lose them.  The latter can be fatal to your case because if the jury does not follow your direct examination, then it will not persuade them.  Make it easy for the jury to follow along by engaging them in your conversation with the witness.

Using your voice appropriately is an easy way to help the jury feel connected.  You can use inflection to make what the jurors hear easier for them to follow along.  Inflection is referred to as the modulation of intonation or pitch in the voice. In other words, it is the change in the sound of the voice.

Contrast inflection with what is commonly known as monotone.  We have all heard someone speak in a monotone.  The lack of expressiveness coupled with the unchanging pitch and tone likely made it difficult to maintain focus and pay attention.  This must not happen during direct examination, or during any part of your trial for that matter.

Consider the following questions, or better yet read them out loud, in a manner that corresponds with the provided punctuation:

“How did you feel after the defendant’s car hit you.”

“How did you feel after the defendant’s car hit you?”

The two sentences above have identical words, but the first is said like a statement while the second is said like a question.  The question mark requires the inflection in your voice.  Conducting a direct examination where a majority of the questions, if not all of the questions, are said like a statement results in a very cold, stilted, and impersonal examination, much like an interrogation.  On the other hand, using more inflection and a natural conversational tone, shows the jury you are engaged with the witness and that you care what the witness is saying.

Another way to use your voice effectively during direct examination is raising and lowering, or softening your voice at the appropriate times.  Remember, trial is storytelling and the jury can be more absorbed in the story based on how it is being told through your questions and the witness’s testimony.  For example, many may believe that if there is a significant part of the testimony being told, you have to increase the volume and raise your voice so that the important testimony will be heard by all.  But consider the following question and answer if delivered in a lower, softer, slower voice:

Ms. Smith, as you were lying on the ground clutching your purse [pause], please tell the members of the jury what the defendant did next.

He punched me the face, yanked my purse from my hands, and ran away.

Lowering and softening our voice can be just as impactful communicating a significant point as shouting at the top of your lungs.

Tip #3 – Don’t Be Scripted – Listen!

One of the benefits of direct examination is that you will have had an opportunity to prepare your questions or outline in advance and meet with your witness for trial preparation sessions.  It is important to remember, however, that this does not excuse you from having to listen to the answers.  So many attorneys will have questions scripted and will read the question, check it off, then move on to the next question on the list without truly hearing (or worse yet listening to) the answer.  This is a pitfall that occurs far too often.

Being tied too tightly to a script inhibits your ability to listen.  As a trial attorney, you have to be prepared, and even expect, to go off script.  Listening to the answers will allow you to clarify, follow up, and redirect to a different topic as necessary, much like everyday conversations you have with friends, family, and colleagues.

Aside from the obvious substantive reasons to listen, there is also a non-substantive, yet just as important, reason to listen.  Conversations are a two-way street that requires both speaking and listening.  Being in a conversation where the other person is not listening can result in irritation, disinterest, and a breakdown in trust.  We have all experienced that one-sided conversation and it is not a pleasant experience.  So, if a witness feels he or she is not being listened to, their demeanor may shift, they may close up and not share as much, and they may even look angry with you.  All this being observed by a jury only a few feet away will not bode well for you or your case.  If a jury perceives that you are not listening to your own witness, then why should they?

The Takeaways

Remember, direct examination should not be like a scene from the 1950s TV show Dragnet with Sergeant Joe Friday interrogating witnesses in an accusatory, monotone voice.  Choose your words wisely – make it easy for the jury to follow, understand, and remember by using sensory language and plain, simple words.  Use your voice in a manner that will capture the jury’s attention.  Trial is persuasive storytelling and monotone simply will not get the job done.  Finally, always, no matter what, always listen to the witness’s answers.  Turn your direct examination from an interrogation into a conversation and the witnesses and jury will thank you.