Being a good trial attorney requires an ability to prepare for and produce something in the courtroom that appears easy and uncomplicated but in practice is both difficult and challenging—how to make something that has the real possibility of being boring enough to put the trier of fact to sleep and can actually harm your case into a production that will be well received by the judge (if you are trying your case to a jury, this article is very applicable as well). If the judge, during your direct examination of a witness, is tempted to balance and clean up their check register, you have a big problem getting your point across.
There are rules to follow with doing anything well. A lot of seasoned trial attorneys have opinions on direct examination techniques, but let’s break it down so you can develop effective direct examination for your next courtroom encounter.
Organize—Outline Your Objectives
This topic seems pretty basic, but it is where you should be starting in your preparation for a hearing or trial. Without a good road map that shows where you are headed, you are likely to lose your way during the process, and this can be very problematic.
No one witness is going to normally carry you to victory in a contested matter. If you know what you need to get into your record and want it heard and understood, it is always a good start to make sure you have down everything you need to get across to the judge. Identify what witnesses can get your points into evidence so nothing is overlooked or omitted. You may be able to drive a point home with more than one witness, which can be very helpful as long as it is not taken too far. Beating a dead horse is rarely a productive exercise in court.
Attorneys are very comfortable in court. Witnesses are normally not comfortable in court. You need to make sure your witness knows what to expect before they get on the stand to testify.
It is important to point out that I am not talking about making sure they know the exact answer you want to every question in your outline. What is important is that your witness understand the mechanics of successfully getting their testimony heard and considered by the judge. An example of mechanics is that it is rude and annoying to start responding while the person asking the question is still talking. That person may in fact be the judge in some instances. A person called in to testify in court is expected to be nervous and may very well make this type of mistake innocently unless you have worked with them to understand what is going to happen, how long it will last, what the rules in court are, and how objections work, to name a few. There are many styles and techniques for training witnesses, and you can find articles devoted to just that topic. What is important is that you make sure this is on your preparation agenda.
Exhibits and Summaries
It is very helpful to include exhibits and summaries as part of your delivery of direct examination. Several things are accomplished if this subject is included in your preparation. First and foremost, you normally are going to have written documents that you need to make part of the record. You should have an exhibit list, and you need to make sure which witness will be sponsoring which exhibits. This process can easily drift into the boring category, so make sure you do the important steps of having your exhibits remarked and organized with the proper number of copies made and available. Wasting time on the offer of exhibits is unwise and annoying. Don’t go there!
In addition to organizing your exhibit offers, do not overlook the preparation of summaries to underscore and emphasize the testimony of your witness. Besides making a point that something is important, it also puts that evidence in written form in the record, and if the judge takes the matter under advisement for a later ruling, that item in the record could be something that is reviewed again before the ruling is made. It is a step with little downside and tremendous upside. Don’t overlook this possibility as you are preparing your direct testimony.
Animate—Volume and Speed Changes
Remember, you are preparing to do something that can easily become a form of sleeping pill in the courtroom. Direct examination, to be something that keeps the attention of the judge, should be something interesting and compelling. Many attorneys have been in court where the direct examination of a witness continues well after the points for which they are needed are elicited, but the examination continues as if someone has left instructions that the direct examination must be very lengthy and boring. This process can leave the pertinent facts produced in the testimony lost in the boredom.
There are a few steps to avoid the boredom calamity and turn your direct examination into a crisp and compelling part of the proceeding: (1) Keep your examination organized and pertinent to the case; (2) moderate your tone and volume in your questioning; and (3) use different speeds in your delivery to keep things moving in a way to hold the attention of the judge.
Move Around in the Courtroom
When you can create an opportunity to leave the counsel table and move around the courtroom, make sure to do so. Any type of movement will alter tempo and keep things more interesting. Approach the witness when appropriate to clarify something if you can. Be demonstrative and creative in your questioning. Any break in the routine, as long as you control it, is helpful to your presentation.
Consider a Chart or Whiteboard
If it works with your witness and the subject matter, consider adding a flipchart or whiteboard to your presentation. This type of prop will alter the normal courtroom flow and give you something to walk to during your examination of the witness. Don’t try putting a square peg in a round hole, but if it can work, go with the prop.
Stay Off Thin Ice
Don’t push your direct examination farther than you can with a particular witness. If you venture on to thin ice, you will eventually fall through and give your opponent ammunition to use on cross-examination to discredit your witness and the proffered testimony. If it is too much of a stretch on your direct with a particular witness, either water it down and stay safe or get another witness to bring it home. You need to know your case well enough to recognize this type of danger in testimony.
Get to the Point and Finish
Get organized in the preparation of your direct examination outline. Know what your witness can support and keep it interesting. Once you have scored the most possible points with that witness, end on a very defensible point and pass the witness. Knowing when to finish and pass is a skill and will avoid the unnecessary holdover atmosphere when a witness is kept on direct too long.
Go through your testimony outline enough that you really know it and are comfortable with the content as well as the flow of the testimony. Be willing to make changes as you make dry runs so the product improves under pressure. Make your witness aware of what you are going into, although you need to avoid the risk of having them come across as too scripted. Avoid going through the specifics of the testimony too early in the process to keep the feeling of spontaneity in the courtroom if possible.
Plan Your Ending
Make sure to have your direct examination of your witness end on a strong and interesting point. It needs to be defendable and strong enough that your opposition will avoid latching onto it at the beginning of their cross-examination. Don’t leave a weak point hanging out when you pass your witness. It will look like a gold-lined invitation for a hard cross and can do significant damage to what you tried to accomplish on direct.
Plan your direct with the ending in mind so you can find and deliver a strong point that cannot be easily damaged on cross. It is not easy to do, but it is worth the effort to find the appropriate place to end your examination.
Direct examination is entirely under your control, as opposed to cross, which can take many forms in a trial or hearing. Use that control to your advantage, while understanding the challenges to making it interesting and compelling in the delivery.