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Direct Examination During Trials

A successful direct examination can be accomplished by controlling the witness without

hampering her ability to testify freely, truthfully and honestly. This balance can only be reached
by thoroughly preparing for the questioning.
Preparing For The Direct
To prepare the direct examination, you should: review the law; determine what essential
elements must be proven through each witness; and list the facts and elements that will be
established through the witness. Next, you should outline all of the ey points that must come out
through the testimony of each witness that you are presenting at trial. The outline should set up
the foundation necessary for additional testimony, expert testimony or the introduction of
!ou should prepare a file for each witness. The file should include your outline, copies of the
exhibits that will be used with the witness, the relevant deposition, trial subpoena, return of
process, and any woring notes that you may have that relate to the witness.
"repare to meet with the witness at least one wee before the trial in order to evaluate the
witness#s personality, ability to spea, and manner of dressing. "rovide the witness with some
suggestions on how she should dress at trial, and how she should handle herself before the $ury.
%o over the expected testimony with the witness so that you may cover the ey points, the
evidentiary foundations necessary to be established at trial as well as any problem areas that may
be encountered during the case. &f the deposition of the witness has been taen, give the witness
an opportunity to read the deposition well before she taes the stand.
&f you are going to as a witness to wor with an exhibit, chart, or other demonstrative aid, allow
the witness to see the chart or model before the trial so that the witness will appear comfortable
with the exhibit by the trial date. 'ae sure you show the witness any exhibits that will be
introduced to her well before the witness taes the stand.
(stablish a good relationship with the witness by being considerate and pleasant to wor with.
'ae arrangements to meet with the witness again right before the witness taes the stand.
)uring this second pre*trial meeting, you should briefly go over the essential points and answer
any questions that the witness may have.
Anticipate evidentiary ob$ections to your direct examination and research the law so that you
may present a solid argument to defeat them. +e prepared to proffer the excluded testimony on
the record outside of the presence of the $ury if the ob$ection is sustained.
Direct Examination at Trial
)uring the trial, develop the direct examination through the use of conversational language.
Avoid reading questions to the witness. This will bore the $ury and leave them with the feeling
that the presentation was rehearsed. !ou may have your outline present, but use it only as a
reference and not as a script. ,emember to guide the witness through the testimony so that she
does not ramble.
-onsider mentally placing yourself in the shoes of a news reporter or investigator at the scene of
a breaing story. .ipe out the nowledge that you have of the case and attempt to become
educated on the issues through the witness on the stand. As the types of questions that a reporter
or investigator would as to become fully informed of what happened in the case. This technique
will allow you to view the case from the $ury#s perspective. ,emember you may now everything
about the case, but the $ury is hearing the testimony for the first time at trial.
The $ury#s focus of the direct examination should be on the witness and not on you. /nlie cross*
examination, you should limit your use of leading questions during a direct examination. The
ma$ority of questions should be open*ended allowing the witness to provide the answer. &f you
are having a hard time formulating a proper question, start your question with, who, what, why,
when, where and how.
Although leading questions are generally not permitted on direct examination, there are many
exceptions to this rule. 0ee 1lorida 0tatute 234.56789:8a:. ;eading questions may be used during
a direct examination in the following situations: 86: preliminary matters such as a person#s name,
address, and bacground; 87: undisputed facts, for example: <& would lie to direct your attention
to =ctober 79, 633>, you were in "aris on that day were you not?<; 89: an adverse or hostile
witness ,ule 6.@>4 1la.,.-iv."ro.; 8@: when a witness has difficulty in speaing; 8>: when
necessary to refresh a witness#s recollection 1la.0tat. 234.569; and 85: when encountering an
unwilling, reluctant, or recalcitrant witness. 0ee, D.R.P. v. Carrol, @9A 0o.7d 96 81la. 9d )-A in
Avoid repeating the witness#s answer, as well as the use of <habit< utterances such as <uh* huh<,
<oay<, <alright<, etc. Try not to $ingle your eys or pocet change when questioning. )o not
play with your pen, curl your hair or create any other physical distractions that will tae the
$ury#s attention away from the witness. 0tay focused on the questions, listen to the answers and
appear very interested.
)o not use a monotone. &nstead, change the tone of your voice based upon the importance of the
testimony. Bighlight the ey points of the testimony with the use of voice inflection. Avoid
legalese, spea clearly and to the point. /se action words and <word pictures,< ad$ectives and
adverbs in presenting your questions. Attempt to establish a rhythm with the witness and vary
your pace so that the testimony is interesting to the $ury. This will mae your presentation
powerful. =pen and close the direct examination with the strongest testimony. Cury psychologists
have established that $urors remember best what is heard first and last. Anticipate and isolate the
troubling testimony in the middle of the presentation. "lacing the difficult part of the testimony
in the middle allows you to diffuse your opposition#s anticipated cross*examination.
At the end of the examination, than the witness and sit down. Attempt to appear confident
during the entire cross*examination.
A direct examination must appear fresh, interesting, flowing, and conversational. This sounds
easy, but requires a lot of wor, research and preparation. Never underestimate the importance of
the direct examination. 0et aside enough time in your trial preparation to properly prepare for an
effective direct of each witness you anticipate to call at trial. A strong direct examination is an
important building bloc that will lead to your success at trial.