By Hon. Robert Trentacosta
A successful Direct Examination tells a compelling story to the jury. Since trials are typically won by the side that has the most provable and convincing story, conducting an effective direct examination is critical to success. This article will explore five essential principles of an effective direct examination.
1. Plot Your Story Arc
Every good novelist or screenwriter plots their story so the audience will be enthralled. Trial lawyers should do the same. As the witnesses are the characters in your trial story, care must be taken to decide when the witness should appear; what part of the story will be told by the witness; and how you can make the testimony impactful to the jurors.
In deciding when the witness should testify, an important criterion is what order of witnesses will make the story easier for the jurors to follow? A strong presentation usually involves a lineup of witnesses whose individual testimony confirms the previous testimony and adds new, helpful facts. The order of witnesses should ineluctably lead to a climactic finish consistent with your opening statement.
2. Prepare Your Witnesses
A critical component of a good direct examination is witness preparation. Lawyers should meet with the witness in person prior to trial and outline their line of questioning for the witness. Make sure the witness reviews his or her pre-trial statements including: deposition or preliminary hearing transcripts, statements made in police or investigative reports, and any writings generated by the witness related to the case. This is also the opportunity to share with the witness any photographs, drawings, diagrams or written exhibits you intend to introduce through the witness. Take some time and explain the process of authenticating documents before admission so the witness will understand the nature of your foundational questions.
The pre-trial meeting is also the time to assess the persuasive power of the witness. Does the witness understand your questions? Does the witness have any distracting habits, dress or gestures? How articulate is the witness? How believable is the witness? In essence, decide how the witness might present to the jury and craft your examination accordingly. You may decide that one witness who is strong should tell the initial story and the second witness (less strong) merely confirm the first witness without prolonging the poorer witnesses’ s time on the stand.
3. Use Open Ended Questions
Use open ended questions on direct examination such as: “Who? What? When? Where? Why? How? Please describe? Tell us about…” Keep your questions short and simple. This will make it easier for the witness to follow your line of questioning, and for the jurors who are hearing the case for the first time. Remember, always try to view the testimony through the eyes of the jurors. If there are acronyms, abbreviations, or terms of art, as part of the direct examination, take a moment and ask a clarifying question (e.g. “Doctor what does the term COPD mean?”).
There are times, however, when you should not use open ended questions. Sometimes a firm and final denial is necessary (e.g. Did you kill your wife?” “No, I did not!”).
4. Use Transitional Phrases to Introduce New Subject Areas
Jurors take their oaths seriously. I have seen jurors strain to understand a direct examination while counsel is either oblivious to the jurors’ dilemma or worse. Counsel’s disorganization, lack of preparation, or an inability to read the room, exacerbate the situation.
When preparing your direct examination, try to visualize how the jurors will perceive the onslaught of facts they are hearing for the first time. Help the jurors by giving them signposts as to where the examination is heading. One way to assist the jurors is to use transitional phrases when moving to a new subject area (e.g. “Mr. Jones, I want to direct your attention to the day of the collision. Do you have that day in mind? Or, “Ms. Williams, I would like to invite your attention to the medical care you received after your fall.” When did you first seek medical attention? Who did you see?”
As with all parts of the trial, jurors appreciate when counsel makes the case more understandable for them. The ability to follow your story is foundational to the jurors finding for your side.
5. End Strong
Always strive to have a strong ending to your direct examinations. Never end on a sustained objection. For a story to be satisfying, it must have an ending that is compatible with the jurors’ attitudes, values and beliefs, e.g. The bully should lose. The criminal should get his comeuppance. The victim should receive justice. As in a good movie, a satisfying ending is pleasing to the audience. Always try to finish strong so the final direct examination answer is consistent with your case theory and the promises you made to the jurors in your opening statement.
A successful Direct Examination tells a compelling story consistent with your theory of the case. Keep it understandable, interesting and finish strong. It takes time to properly prepare a powerful direct examination; invest your time and talent. Your effort will be rewarded.