Direct Examination
American Bar Association Young Lawyers’ Seminar
Nashville, Tennessee
May 3rd, 2012 2 PM
Hilton Nashville, Downtown
David L. Deehl
Deehl & Carlson, P.A., Miami, Florida
Richard L. Vanderslice
Richard L. Vanderslice, P.C
Philadelphia, Pennsylvania
Making your case come alive through effective direct examination
Effective direct examinations begin with the first impression the witness has of you, and your first impression of the witness. Showing the witness respect is the beginning of a good direct examination. Meet with the witness on their turf, and their convenience, if possible. Meet in their homes or offices. We can learn much, very quickly about them and their habits, businesses and families by seeing where they come from, literally. Go to the scene with them for accident cases. Tell them your theme of the case, and why justice is important to you and your client. Let them know how much you appreciate their cooperation.
Preparation is the key to success for all trial lawyers. When you care enough about your client’s cause to know all the facts of the case, the witness will understand innately that you are being professional. Listen carefully to the witness as they describe who they are and what they know. Trial lawyers tend to multi-task and think about what is next. What will the next question and answer be? How long will the meeting last? What is our next appointment? What about the other cases we think about? What about our families and personal matters? We must discipline ourselves.
Prepare for the witnesses’ depo, long in advance, and again later. The last minute deposition preparation can be bewildering, and some witnesses have better long term memories relative to their short term cramming capacities. Problems or documents can be identified and obtained, with enough lead time. The cross examination is usually based on what is transcribed at a deposition, so proper preparation of the witness for deposition leads to less things to have to defuse or correct in direct.
For trial, consider taking the witness to the courthouse when another trial is in the same courtroom. A comfortable witness is an effective one. Have them sit in the chair and make eye contact with staff or the chairs. If you are not able to spend the time with the witness in the courthouse, try using a sofa with people sitting on it as the jury. Practice with the witness to make sure their eye contact with the jurors is direct and loving, rather than shifty and furtive.
Touch Witnesses to Touch the Jury
Touch your witnesses. Touch them with your sincerity, and your commitment to justice and the truth. Touch them with the injustice to your client. Touch them physically (try a shoulder, arm or hand, but avoid certain sensitive spots) as you look in their eyes. Tell them that it is easy to tell the truth. That the truth is what actually happened. That the words will come right off the tips of their tongues. That they will keep looking the jurors in the eyes and connect with them deeply, from their hearts. This comforting approach will make them more effective witnesses.
Calm, confident witnesses
A nervous witness is a witness a jury may think is lying. Trying to cover for their lies. The nervous testimony is a disconnect from what they are saying. Jurors quickly take in disconnects of behavior. The words and the body language should all be working together for your case. A confident witness will have facial gestures match their mood and testimony. Have the witness lean forward towards the jurors while making eye contact, if possible. A slumping witness does not make the best impression. The witnesses should be comfortable using their hands to describe their testimony, and standing up makes it easier. All your preparation is designed to make the jury know that the witness with your testimony have the quite confidence that is worthy of credibility.
Counter Cross
To counter cross-examination strategies, fully inform your witness and prepare for how to respond to cross and unfair questions and exhibits. Let them review their deposition transcripts, statements and documents, including medical records and employment files repeatedly. Have them point out issues of concern. Take the time to get to know the documents. Keep a detailed timeline to practice going through the facts in chronological order.
Bring out the adverse testimony your opponent is likely to utilize, in the most favorable terms. Bury it in the middle of the testimony of the witness. Prepare to defuse by preparing as if you were cross examining your witness. Then practice with the witness the right word choices.
Position Pays
Position is so important. Whenever possible, position yourself in the courtroom so the line of sight from the witness to the jurors’ eyes. Have them keep eye contact with jury during direct. Remember all jurors need to see and hear them. Get out of the center of the courtroom and get over to the audience area near the jury box, if possible. Check with the judge to make sure you are free to move about the courtroom. Even in Federal Court, or should the Judge be particular, explain why it is you want the witness to be the focus of jury scrutiny, and to be in a position to make sure the farthest juror from the witness is able to hear and see. When you are far away, and the jury is looking at the witness, the jury will not be scrutinizing your actions in flipping through documents or reading, as much. Hopefully, you should be able to do a direct examination without notes. Have your secretary, paralegal, or co-counsel use the checklist for you. You can check with them as you are finishing. Avoid saying “I just have one more question”, as it inevitably becomes a series of questions and your credibility is diminished. Be polite, unobtrusive and quiet as you question.
Story telling
Direct examination is story telling. A pause before starting, and in transitional areas, allows silence to bracket the testimony and grab the attention of the panel. Start with a label to describe them, qualify – humanize, show the witness’ opportunity to know what they testify about and tell the story clearly.
Grab the jury’s attention
Here are some suggested labels you can create from the very first question. You are the independent eyewitness? You are the widow of Mr. Goodman? You are the family friend of the Goodman’s? You are them medical examiner who did the autopsy of Mr. Goodman? You are the economist who figured out the economic losses from the untimely death of Mr. Goodman? You are the engineering expert how was at the scene of the crash within 24 hours, and who reconstructed the crash from your measurements and observations? Or, you found the Defendant was still speeding at impact, after laying down 40 feet of skid marks, from your reconstruction of the physical evidence?
Make it clear to avoid confusion
You need to make sure the story flows clearly. You may run the witness’ story by others and ask what they remember. Outline the key points, and find out if you are getting them across. Have your themes and variations on your themes resonate through the testimony of multiple witnesses.
Keep the language simple. Remember that it is your job is to be invisible on direct. Just gently guide the testimony, when needed.
Charlie Rose is an excellent interviewer on PBS and for CBS 60 minutes. More than most, he lets his guests tell their stories. Watch his show and analyze how much time he spends talking as opposed to him talking himself. You should be talking less than Charlie Rose, as you do not need to editorialize or make observations during direct. Save that for closing argument.
Make sure your witnesses step down and teach with visual evidence wherever possible. They can communicate with their full body language. Jurors were once students, and subliminally are geared to learn from the teacher at the blackboard. Use a flip paper chart where possible, though to preserve the visual testimony. Have the witnesses draw on photos and exhibits, so it can remind the jury of the testimony during deliberations.
Remember to not put documents in the hands of the jurors while you are bringing out crucial testimony. Publish later, and use a large exhibit or projected, enlarged exhibit where possible to have the jury focus on what you are presenting at the moment. That avoids JADD – Juror Attention Deficit Disorder. You want to keep them focusing on your themes and evidence during your direct presentation.
Self-praise is no praise. The witness should be descriptive in direct examination. Done effectively, that descriptive testimony will make jurors like your witness, relate to the witness on a personal basis, feel empathy for the witness, learn from the witness, respect the witness and find the witness credible. It is for you and other witnesses to praise her or him.
Repetition, Repetition, Repetition
Do repeat key testimony at the end. Consider finishing with the three top points, but use slight variations to avoid objections. A strong finish is important. Remember to publish key exhibits by handing them to the jury. Hand them to the juror you want to be the foreperson. It is a subtle way of acknowledging their leadership, which may result in their selection as foreperson.
Effective direct examination should look easy, and confident. It is the cornerstone of your case. Teaching and winning the jury over through direct examination requires hard work and planning, but will pay off for you. It is the witnesses who shine. The jury will be subtly impressed with your professionalism, as well, adding to your credibility.