Direct examination at trial is often overlooked because it is not thought of as exciting or glamorous. There is no better opportunity, however, to sell your case and convey the harm your client has suffered then on direct examination.
These tips are meant to be a beginners guide or overview of sorts. I have written on this subject before and those posts can be found here.
I hope this helps – good luck.
This post covers the basic elements of direct examination from a plaintiff attorney’s perspective.
One of my early mentors once told me, “…trials are won on Saturdays.” What he meant was that there is no substitute for thoughtful meticulous preparation before trial. Thus, spend as much time as possible preparing the examination of your witnesses and your witnesses for examination.
During direct,as the trial lawyer, be a helpful guide, not the star. The focus should be on the witness and on your case. Because juries and jurors have inherently short attention spans effective direct examinations mix introductory and transition questions. Use focused non-leading, open-ended questions. You goal is to effectively guide the witness and control the pace.
The specific steps and techniques employed in your direct will depend in part on whether you are directing liability witnesses, harm witnesses, or experts. Experts will be addressed in a different post; therefore, let’s look at witnesses regarding liability and harm and some basic rules for your direct examinations for each.
Rule number one: keep it simple. Your goal is to advance your case. If a line of questioning doesn’t get you closer to your goal, you don’t need it. Organize your questions logically. A standard outline for a liability or fact witness should follow this pattern:
• Introduce the witness and her relevance
• Personal background
• Scene description
• Action description
• Use exhibits and visual aids throughout the examination to highlight and illustrate key points
• End with a point or summary that you want the jury to remember
Rule number two: your case is always about your client’s harm, even when you are working to prove liability. Search for opportunities in the witness’ background and perceptions to remind the jury about the harm involved in your case.
Rule number three: use each witness to illustrate your themes. Do not simply walk through a witness’ background and what they saw or heard but use every opportunity to emphasize your case themes. For instance, work place safety may be very important at the witness’ jobsite. If your case involves a work place injury, get the witness to discuss this issue when going through her background. But do not linger, or you will risk an objection being sustained.
Rule number four: control the pace by moving one fact at a time using present tense. Move faster to keep up with the action and move slower to emphasize. Using present tense allows the jurors to experience the event and become more involved in the story.
Special rules for harm witnesses
Harm witnesses play a vital role in a personal injury case because they substantiate, amplify, and provide credibility to the claims of harm alleged by your client. If they are believable and well received by the jury these witnesses can do things for your case that a $500 an hour expert cannot begin to do. Great care and thought should go into who will be used as harm witnesses as well as the substance and nature of their testimony.
• Who should testify
Effective harm witnesses can include spouses, neighbors, coworkers, friends, clergy – anyone able to testify about the before and after picture of your client or the process your client has gone through. Make every attempt possible to rely on witnesses other than your client as a source of testimony about her harms. And the first witness called should not be your client or his/her spouse if possible.
• The substance and nature of their testimony
Remember, what you are trying to do is convey the harms that your client has experienced. And the best way to convey anything is with a story. So, work with witnesses before trial to develop examples that illustrate how things are now different for your client, the extent of her disability, and what she has gone through. The effectiveness of short stories on each aspect of your client’s harm cannot be overstated. And, just as with a liability witness, use introductory and transition questions – tell the jury what you are about to talk about and where the testimony is going.
There are additional techniques that can be employed depending on the type of case and the specific nature and background of the witness. However, these basic rules and elements should provide for an effective direct examination. Good luck!
