Effective direct examination of a witness requires a multifaceted plan. Counsel who devote the time and effort to methodically develop and then implement such a plan effectively at trial will deliver evidence that is compelling and entertaining, enhancing their likelihood of success.
Preparing and Following an Outline
First, counsel must prepare an outline of the topics and the questions he or she plans to use to elicit direct testimony. These topics must support the purpose for which counsel is offering the witness. Counsel should be prepared to provide an offer of proof to the court for the witness. Accordingly, that witness must understand the relationship of his or her testimony to the overall case, something witnesses often fail to comprehend.
Counsel’s outline must include all exhibits that will be introduced through the witness. Pre-marked exhibits must be placed before the witness, who must be able not only to identify each exhibit promptly but also to highlight the important points of each exhibit. While being responsive, the witness should be able to present the exhibit to the court and jury in a way that provides context. Counsel should always give the court reporter and opposing counsel a list of the exhibits no later than the day of the examination. This avoids unnecessary interruptions in the examination while people scramble for exhibits, and it allows objections to be handled prior to testimony. In fact, counsel can highlight that level of disclosure to the court so the pressure is on the opponent to be prepared. Should opposing counsel raise an objection during the course of an examination, counsel questioning the witness can point out to the court, at sidebar, that counsel could have saved the jury’s and the court’s time by raising the issue earlier.
If feasible, always move for admission of the exhibits at the completion of the direct examination. Then counsel can determine what, if any, issues exist with respect to the documents.
Preparing the Witness
When preparing the witness to testify, counsel should go over exhibits in detail. Provide examples of the types of evidentiary objections opposing counsel may raise and, more precisely, what the witness should do if an objection is raised, whether in front of the jury or at sidebar. In explaining evidentiary obstacles, counsel should also clarify exactly what occurs at sidebar and what jurors are likely to do during a sidebar. Make clear to the witness that, while sidebar occurs, the witness must appear patient and pay attention to whatever instruction the court gives at the conclusion of sidebar.
Counsel should recommend that the witness visit the courtroom the day before testifying to observe not only the courtroom itself but the court, jury, opposing counsel, and the ebb and flow of direct and cross-examination. Such a visit will enhance the presentation of testimony and calm the witness’s nerves.
The witness’s outward appearance also matters. Extensive literature confirms that much of a person’s communication is nonverbal. Therefore, in addition to testifying effectively, a good witness should appear appropriately dressed without any wardrobe-related distractions, such as expensive jewelry or accessories. Making eye contact with the jury, court, and even opposing counsel is important. After all, every witness serves a purpose, and in many cases, that purpose is to function as a teacher on a particular topic.
Language matters. Have the witness avoid such phrases such as “honestly,” “to be honest,” “I don’t recall,” “I believe,” or “I think.” These words undercut a witness’s credibility. If it is difficult to adequately prepare a particular witness, whether that is due to the witness’s inability to communicate substantive comments or simply aspects of the witness’s appearance, counsel should consider taking video of the witness for the witness to review. This allows witnesses to see for themselves precisely how they look and sound.
It’s also important to prepare a witness for cross-examination. Take time to go over all likely areas of questioning. Depending on when in the trial the witness is testifying, you may need to update the witness on the points on which opposing counsel or the court has focused. Sometimes even the court signals from whom it is eager to hear. If that is the case, letting the witness know that makes perfect sense. If counsel practices effective cross-examination before trial, cross-examination in court should go smoothly. When practicing, be candid as to what the witness is doing effectively and where the witness needs to improve. Remember to explain that “practicing” is simply to help the witness to do the best possible job at trial. If the witness gave a deposition in discovery, make sure he or she has read that deposition testimony and understands it in terms of questions, answers, and the context in which it was given. Then, if a witness is questioned about deposition testimony during cross-examination, the witness will be prepared to fairly and accurately respond to any questions that are raised or points that are made in an attempt to distinguish the testimony during deposition from the testimony at trial.
Cross-Examination and Redirect
In preparing the witness for cross, make sure the witness understands that the process includes redirect examination. Then the witness will know that he or she may later be able to explain an answer given during cross-examination. In fact, practice redirect after practicing cross. If the court as a matter of practice allows a witness to explain an answer, make sure that the witness understands the court’s practice so that, where appropriate, the witness explains his or her answer. However, if the court’s preference is to wait until redirect examination, make sure the witness knows that so the witness appears responsive at all times during cross-examination. Remind the witness during practice that the exercise is meant to also build his or her confidence and that the witness must not be distracted by the questioner’s tone, facial expressions, or hand gestures. The witness should block these out. Further, remind the witness that cross-examination requires stamina and that, if necessary, the witness can always ask to take a drink of water to catch his or her breath.
Rehearsing redirect makes a difference because it helps the witness understand that after cross-examination is over, he or she may have an opportunity, through brief and pointed redirect examination, to explain answers given in cross-examination. Counsel must be prepared with redirect to address any concerns that were raised as a result of cross-examination. However, sometimes it is simply better to let an item go.
Remember to explain to the witness that if cross-examination has not been effective, redirect may be short or nonexistent. Counsel should explain to the witness during practice how a redirect examination will occur so that the witness follows the technique used in a way that affords the witness the opportunity to credibly address any concerns. Make sure the witness understands that simply repeating what occurred during direct examination can bore a jury and annoy a judge.
Finally, the witness must be prepared for recross—yet more questions. It is at this point that counsel really needs to emphasize to the witness in advance that waiting to answer makes perfect sense because recross frequently involves obvious objections with the potential to shortcut the recross. The witness should address the court’s questions with the same level of directness and comprehensiveness as the questions posed by his or her own counsel. Make sure the witness understands that once the court has asked a question and received an answer, which should always be very responsive, counsel for both sides will typically be permitted to follow up. The witness should never appear agitated or preoccupied but rather fully engaged in the proceeding in which he or she is taking part.
Remind the witness before he or she testifies that the use of pronouns can create confusion. If the witness uses pronouns in his or her answers during direct examination, counsel may have to clean up the record by going back and asking the witness to explain what he or she meant by a given pronoun, to avoid confusion or an incorrect record. Courts and juries expect a witness to be prepared. There is no reason to create doubt by using unclear pronouns, a common occurrence in everyday dialogue outside the courtroom.
The final portion of the plan requires counsel to remember to listen carefully to each of the witness’s answers. Sometimes the witness gives more testimony in answer to a question than the questioner anticipated. That may lead the questioner to skip one or more follow-up questions. If it helps make the direct examination more effective, make the adjustment. Further, explain during practice that sometimes adjustments like that matter.
Following a plan for direct examination remains critical to success in the overall case. Direct examination must be organized, concise, and entertaining. In fact, in many respects, it is harder to prepare for a direct examination than it is for cross. However, through proper preparation, the witness can do a great job and help enhance the prospect for success.
Ron Williams is a litigator and cochair of Fox Rothschild’s Construction Law Group. Outside of the office, he regularly volunteers his time to serve on arbitration panels for the Chester County Court of Common Pleas.
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