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A Direct Examination Primer

The heart of most trials is direct examination, through which you persuade the judge or jury of your case. My
previous blog focused on the art of avoiding leading questions when conducting direct. This post discusses
other essential aspects of direct, including preparation, organization, and immunization.

Lawyers talented at direct examination are well prepared, as are their witnesses, and they appreciate how to
elicit vivid testimony. Much of the work transpires well before a lawyer calls the witness to the stand. Of course,
you should master the law and facts of the case your case and the opposing sides. You should also be
cognizant of your overall theme and the core elements you need to establish.

As you organize individual examinations and the lineup of witnesses, assure yourself that you are proving each
necessary element. For example, if the case is breach of contract, make sure the witnesses will allow you to
establish the elements of contract and breach, as well as the appropriate damages.

You should also prepare for what may happen on cross-examination. If your witness is vulnerable on a
particular subject, consider immunizing him or her by raising that very subject on direct.

Of equal importance is your preparation of the witness. To ready your witness for the courtroom, you may want
to ask practice questions, explain the pertinent themes and discuss your goals. You can also review documents
with the witness and even videotape mock testimony. Whatever you do, avoid calling a witness before you
know what his or her answers will be.

Once you and the witness are prepared, how do you proceed? Generally, its best to start and end an
examination with the strongest testimony. Judges and juries tend to remember best the beginning and
conclusion of a given experience. During an examination, strive for short, clear and precise queries. Seek
fluency between question and answer. Develop a rhythm to capture the attention of the listener.

Establish the dialogue with the witness so that questions vary from open-ended to closed-ended to transitional.
An open-ended query might be: Mr. Smith, tell the jury what you observed when you arrived at the scene.
Here is a closed-ended question: Mr. Smith, when you arrived at the scene, did you actually see the
automobile collision? And a transition: Mr. Smith, I would like to turn to the subject matter of your health on the
day of the collision. Such variety helps stimulate your audience.

You can also vary and support your testimony with the use of exhibits and demonstrative aids. For example,
after asking a witness if he saw Mr. Smith hit Mr. Johnson on the head with a chair in a bar, you could ask that
witness to diagram the position of the two men within the room. The ensuing sketch will accentuate and affirm
the testimony.

Similarly, it is helpful to use corroboration and repetition to delve into the details of a given event. For example,
if you want to emphasize the viciousness of an alleged assailant, here is how you might heighten the jury or
judges attention to the matter:

Q: What happened after you saw Mr. Smith hitting Mr. Johnson over the head with the chair?
A: Mr. Johnson fell to the ground unconscious.
Q: Could you see Mr. Smiths hands clenched around the legs of the chair during this incident?
A: Yes.
Q: How tightly was he holding the chair?
A: He was gripping the chair hard with both hands.
Q: How could you tell?
A: I could see his knuckles bulging.
Q: Could you see his face at the time?
A: Yes.
Q: What did you observe about his face?
A: His teeth were clenched and he had an angry facial expression.
Q: When he was hitting Mr. Johnson over the head with the chair, how high did he raise the chair?
A: Smith raised the chair over his head the full length of his arm.
Q: Can you demonstrate to us how Mr. Smith was swinging the chair without actually using the chair?
A: I believe I can.
Q: With Your Honors permission, may the witness stand up?

COURT: No, lets move on.

Such dramatic testimony doesnt happen by accident. The lawyer in this example has probably prepared the
witness for those questions and determined that such imagery would aid the overall case. An effective direct
examination, then, presents credible and vivid testimony that develops the right themes, using a variety of
evocative questions

July 11, 2012

Beware of leading questions in direct examination

Direct examination is considered to be the most difficult part of a trial, even more difficult than most cross-
examinations. My years as a Baltimore trial lawyer have taught me that one of the main challenges of direct
examination is the prohibition against asking leading questions. The reason leading questions are prohibited on
direct is that the jury must hear evidence from the witness and not from the lawyer.

Such questions can be posed only in limited circumstances, for example, when confronting a hostile witness,
reviewing uncontroversial matters, questioning children or senior citizens, or introducing new topics in your
examination with a topical oral sentence.
What then is the distinction between leading and non-leading questions? Simply stated, a leading question
suggests the answer. A non-leading question does not. It rained last night? is a leading question. Did it rain
last night? or Do you recall whether or not it rained last night? are both non-leading questions.

Asking non-leading questions creates difficulties in controlling the testimony and the witness. When you ask
skillful leading questions, as permitted on cross-examination, you control the testimony by almost testifying for
the witness: It rained last night? You came home after midnight? When you must ask non-leading questions
(Can you tell us what the weather was last night? you could get more explanation than you want. (Well, I
cant recall, but I do remember that the road was very slippery and cars were skidding all over the place.)
Many lawyers have been stunned by a witnesss response to an open-ended question on direct exam.
Frequently even the most careful preparation of a witness is no safeguard against the witnesss desultory
response to your questions.

As you ask questions during direct, beware of the distinction between prohibited leading questions and leading
questions that may be tolerated. These include questions that are used to save time and do not relate to
important facts, or that refer to facts that are generally in evidence. You attended the Spago tea is leading,
but it is more efficient than Did you attend the Spago tea at noon on June 11, 2000. If the record is saturated
with testimony that the witness was at the Spago tea at noon on June 11, the shorter, leading question will
probably be tolerated by opposing counsel and the court.

Sometimes in the heat of trial you may have trouble asking a non-leading question after an objection is
sustained. This predicament is not unusual, especially for young trial lawyers. Dont panic. Try rephrasing the
query using the word whether. For example: You then went to the bar after the reception? could be
rephrased: Can you tell us whether you went to the bar after the reception?

Generally, however, leading questions should be avoided on direct and saved for cross-examination, where you
can use your questioning to greater control the testimony.