Dan Small: At least in theory, effective direct examination should be one of the easiest things to accomplish in court. Witnesses are almost always friendly. Testimonials are almost always predictable and the goals are usually very simple. That means telling the stories you've worked so hard to unify. In fact, it's the opposite. A good direct is both challenging and extremely important. Too many direct tests are not as clear or convincing as they should be. Perhaps it's because too many lawyers view direct billing as a simple, almost mechanical task. Just put your witness on the stand and press play. However, truly effective direct tests cannot be processed or created on the fly. It requires careful organization, planning, and discipline.
There are six basic elements to effective direct questioning. 1) Introducing the witness, 2) Setting the scene, 3) Telling the story, 4) Presenting the evidence, 5) Diffusing the issue, and 6) Effective conclusion. The order may vary slightly depending on the case and witness, but let's look at them in order.
The first is the introduction of witnesses. Most attorneys will ask a few questions beforehand to introduce and humanize the witness. Some questions about the witness's background, even if not strictly relevant, such as occupation, family, education, etc., which are normally allowed. However, be careful not to overdo this. If you spend too much time on a witness' background, the jury will become impatient. Also, if you spend too much time on unrelated matters, it may seem like you're insulting the other person's intelligence. Meanwhile, think about what parts of the witness's background are relevant to understanding him or her and the case, and find ways to keep them in mind.
The second thing is the setting. Before diving into the story, take some time to set the stage. Everything in life happens in context, and the jury will likely need to know what context applies here. And without context, you can't fully understand the story. The context can be as simple as a physical location, such as a dark alley, or a temporal location, such as Christmas 2023. More likely is a combination of time, location, and background events. For example, Wall Street during the 2008 financial crisis. Whatever it is, context is almost certainly important and you will need to have the witness explain it.
Third, tell your story. With rare exceptions, testimonies must follow a chronological narrative. It's easiest for the jury. If you start at the beginning and end at the end, have the witness walk you through the story step by step. Divide the testimony into digestible pieces. Don't put too much into one question or her one answer. Make sure you're explaining things. But try to be smart about it. Be clear when leaving or returning to the main story. For example, “Mr. Smith, let me stop you right there. What do you mean subcutaneous?” “Mr. Jones, let's go back to the night of April 20th. What happened next?”
Fourth, provide evidence. I've said it before, and I'll definitely say it again: too many lawyers say too much and show too little. Use anything from charts, photos, diagrams, graphs, etc. to present a visual depiction to the jury. Of course, don't forget that you're making a recording with or using a demo. Witnesses tend to use short-sighted words such as this, that, there, and here. I will follow up and explain. “Please reflect on the record who the witness is” or “Could you please mark that spot on the diagram” or “What are you referring to?” Anything is fine.
Fifth: The problem of proliferation. All witnesses are flawed in some way. Bring them out in person and try to spread them as much as possible. You don't want the jury to know about them because it might be exaggerated by the fact that they hid them on the cross. Usually you want to put the bad stuff in the middle. Neither the first nor the last. But if your witness has a very serious problem, like he's a serial killer or something, especially if the jury already knows about it from opening statements or something like that, It is better to clarify this up front.
Sixth: Conclude effectively. Too high a proportion of direct examinations results in lawyers asking questions of the judge for a while, followed by a long pause, reviewing notes, consulting with co-counsel, and possibly asking frivolous questions. Please don't do that. Ideally, your direct message should end on a strong and persuasive note. That's a challenge. Unlike cross-examination, it's often difficult to end a direct trial in a dramatic fashion, but that doesn't mean it has to just meander toward a confusing and disorganized ending. Find a way to finish strong.
Effective direct examination is an important trial skill that is too often overlooked. Maybe you can avoid a direct with poor planning or poor execution, but you don't want to just do the bare minimum, you want to win. Improving your direct screening will significantly increase your chances of winning.
