Witness examination is the “meat and potatoes” of a jury trial. Contrasted with the flexibility of opening statement, witness examination is more rigid, often more mundane, but also more precise. These qualities are both strengths and weaknesses. Countless cases have been lost by lawyers who have blockbuster opening statements but who failed to appreciate adequately the purpose of direct and cross-examination.
Direct examination is your turn to put your money where your mouth is—to let the jury hear from the witnesses you’ve said will prove the case or see the documents you said will set your client free. Cross-examination, on the other hand, is where you limit damage by pinning the witness down with very specific questions—and by knowing when to stop asking questions for the sake of your case.
Direct Examination
Regardless of the brilliance and eloquence of voir dire and opening, the jury is eager to meet the people they’ve been hearing about, to listen to real evidence, to go to work.
For good or bad, jury members are confident their impressions of the litigants are correct and complete. The introductory moments of direct examination are a valuable chance to show jurors there is more to be heard, learned, and assessed. Although the trial to date has centered on the lawyers, now both spotlight and style shift to focus on witnesses and testimony. That shift in no way implies an attorney’s abdication of courtroom command, however. In fact, the style shift underscores command as it yields the starring role and assumes the vital function of facilitator. The jury, therefore, sees a new and comforting facet of attorney competence, confidence, and mastery of the case.
Instead of narrative teaching, direct examination shifts to short, crisp bursts of inquiry that invite attentive listening and satisfy curiosities. The staccato style quickly is perceived as a juror service, almost instantly voicing questions as they pop into the jurors’ own minds. For example, if a witness finishes an answer by stating, “I was shocked,” the greatest jury service (and highest drama) is performed with a prompt and simple “Why?”
Qualities of a good direct examination. After analysis of the available evidence, the next most important decision is how testimony will be “packaged.” If the witness will tell a story, the best form is a chronological line of inquiry, beginning as early as is pertinent and ending in the courtroom. Example:
- When did you first lean about Timmy's condition?
- What happened after that?
- Then what happened?
On the other hand, a witness whose testimony supports a case theme or lists reasons why the event in question might have occurred will be showcased better using a “logical” line of inquiry. Example:
- Please list for us all the reasons why the machine was dangerous.
- Why don't you stand up and write them on the blackboard as you explain them to us.
A combination of the two approaches, when appropriate, will add variety and make the examination more interesting.
Accrediting the witness. Early on, probably first, explain how this witness fits into the big picture. Using and annotating the visual aids (storyboard or checklist) used in opening works well here. Example:
- Now you actually saw the accident?
- Let's discuss everything you saw.
- What did you see first?
Framing questions. The trial’s purpose is to connect the jurors’ minds and hearts to the facts of the plaintiff’s case. Common, straightforward language enhances the connection; “lawyer talk” is static on the line. A question that begins with a stuffy “Tell the ladies and gentlemen of the jury” isolates the jury and impedes communication. Better is a simple “tell us.” Instead of the formal “state your name,” an informal “introduce yourself to us” moves things forward more gracefully.
A greater threat is that the impact of a key witness can be diminished if defense counsel’s barrage of objections interrupts testimony. Careful question construction—with special attention to first words—can avert most “leading” objections:
- Who
- What
- Where
- When
- Why
- How
- Describe
Using eye-lines. After a witness is sworn in, a well-prepared lawyer need never consult notes or look away from the faces of the witness and (occasionally) the jurors. It is similarly wise to avoid looking to the judge for feedback or reaction. Doing so risks missing a facial expression that calls for pause, a grimace that needs response, or a reaction that suggests an important point requires clarification. Undivided attention to the witness emphasizes the importance of the testimony for the jury; the lawyer’s capacity to respond to the moment underscores the exchange’s spontaneity and the advocate’s command.
Don’t lead, but tag the question. Before a parade of “What happened next?” questions becomes tiresome, one should capitalize on a favorable witness response with a “base-tagging” technique. A repetition of the favorable response to tag the next question (“After you saw the defendant’s face, what happened next?”) amplifies importance and varies the pace while it offers a sense of logical and unrehearsed dialogue between examiner and witness.
Using vocal inflections. In normal conversation, questions end with an upward vocal inflection. Rote intonation implies that witness and testimony are dull and unworthy of attention. A vocal rise, on the other hand, segues attention to the witness and piques the jury’s curiosity.
Styling: A three-way conversation. A perfect opening statement sounds exactly like we are talking to a trusted friend about something that might change her life. Similarly, the perfect direct examination sounds like two interested people having a normal conversation about an exciting subject; the jury is welcomed as the conversation’s third party. No matter how tempting it might be to mimic the successful, compelling approaches of mentors and heroes, a lawyer’s most effective trial style is consistent with the mood and tone established in voir dire and opening—competent, helpful, decent, and real—with honor and confidence enough to reveal the contents of the attorney’s head and heart to the jury.
Programming for primacy and recency. Most memorable data come first and last in a presentation. Keep this in mind when planning and outlining any witness’s testimony. A wise examiner often kicks off by positioning the witness in the case, then builds to the questions for which the witness was called for a final flourish of testimony that reinforces case themes.
Cross-Examination
Cross-examination’s role is damage control. If it is done well, the hostile witness will not gain much ground. If it is done poorly, however, cross-examination can result in a turning of the tide. An important, and obvious, goal during cross-examination is to avoid assisting the witness with being persuasive to the jury.
The two most difficult tasks facing us in cross-examination are eliminating wiggle room in our questions and knowing when to stop. Wiggle room is available to the hostile witness whenever the question asks too much. We should avoid wiggle room by asking questions that can be answered only “yes” or “no.” A string of “yes” answers implies that the witness has been won over; a string of “no” answers implies some kind of weakness or failure on the part of the witness.
Q: You’re not a medical doctor.
A: No.
Q: You never studied toxicology.
A: No.
Q: You don’t know the scientific theories that support Breathalyzers.
A: No.
Q: You don’t even know how a Breathalyzer works.
A: No.
Q: So you have no opinion about how the Breathalyzer registered 0.20 after you were pulled over by the policeman.
A: No.
Superb cross-examinations have been compromised when the examiner did not know when to stop. An advocate who gets greedy or compulsive after scoring big points sometimes pursues untested or equivocal answers that risk both momentum and the dramatic “high note.” Gauging when to sit down is often the most important power tool in the cross-examiner’s tool box.
