Direct Examination Preparation

  1. Inclusion v. Exclusion – Using your knowledge of applicable law. Identify the most critical information that this witness will testify about for both the plaintiff and defense. Underline these in different colors, make flashcards, or whatever.
  2. What are the 3-5 absolutely most important things the jury must here from this witness? What is the one thing you do not want them to hear?
  3. Undisputed Facts – What undisputed facts can this witness testify to? EX: Even though it may seem obvious, somebody has to establish that publication took place. Who can testify to this? Who can’t? Remember that witnesses can only testify to what they ACTUALLY saw. (this is especially important for the plaintiff since they have more to prove).
  4. Exhibits -What exhibit “goes along” with this witness? What will you gain by introducing this exhibit with this witness? Perform inclusion / exclusion for this document.
  5. Credibility – Is there anything that really detracts from this witnesses credibility? How will you deal with this? Should you “draw the sting”?

Direct Examination Writing Tips

  1. No leading questions.
  2. No narrative questions.
  3. No narrative responses.
  4. No questions that elicit opinion.
  5. No questions that speak to the ultimate issue.
  6. Focus should be on witness, not attorney.
  7. No question should be longer than the answer, unless done for effect.
  8. Don’t interrupt action.
  9. Use circular questioning to emphasize most important information.
  10. Structure as a narrative. Use chronological and topical organization.
  11. Start strong and end strong (contemplate objections).

Direct Examination Outline

  1. Upfront: What’s your name and why are you here?
  2. Write questions designed to establish your witness’s relation to the case.
  3. Establish witness as a person. Where do they work? Went to school? Etc…
  4. Write a list of questions you will use to introduce your witness to the jury and provide background on the witness.
  5. Expert witnesses must be established as experts. Talk about their credentials.
  6. Tell the story
  7. Write a list of questions that will elicit from your witness a description of the “scene.” The questions should evoke only one small piece of information at a time. Write questions that provide a vivid description of what the witness observed about the place, the people, and the atmosphere of the day/night that is the focus of the testimony
  8. Write a list of questions about the actions your witness observed. Focus on open-ended questions, beginning with the words who, what, when, where, why, and how. Start at the beginning. Avoid jumping around in time and instead design questions that get the witness to tell the story chronologically, one step at a time.
  9. End Strong
  10. What is the information you want the jury to hear last, in order to make a lasting impression? Write a question designed to drive home the main thing you want the jury to learn from this witness.