December 18, 2017 Practice Points

Tips from the Bench: Direct Exam

The first part in a new series asking experienced trial judges to provide insight regarding certain aspects of trial

by Eric R. Harlan with Hon. J. Mark Coulson

This bar year, the Trial Evidence Committee is asking experienced trial judges to provide their insight regarding certain aspects of trial. We begin with comments on direct examination by the Honorable J. Mark Coulson, U.S. Magistrate Judge for the District of Maryland, and Fellow of the American College of Trial Lawyers.

What are some recommended ways to prepare for a direct exam?
Direct exam is often viewed as something to "get through." However, direct exam is one of the few times that one has a large measure of control over how the client's story gets told to the jury in the most compelling way, in a logical and uninterrupted fashion. Think of it more as an "interactive opening statement." That means preparing a detailed outline on points to make (and in what order) and, in some cases, working out the exact verbiage for key questions for the witness. It also means, where possible, preparing the witness as to what kinds of things will be asked and making sure the witness is also aware of the points to be made (and avoided) to the extent possible.

This sounds so obvious, but remember that witnesses (like exhibits) are there to help convey your client's story. Focus your direct exam on facilitating the witness's part of that story. Every question should be drafted towards that end, otherwise it potentially detracts. So, for example, spending time on the witness's educational or employment background is only helpful to the extent it is important to the story. If Sally Jones' role in the story is as an eyewitness to an accident, it probably does not matter so much where she went to school or what her full employment history is. For experts, highlight only those credentials that will resonate most with jurors (since the expert's c.v. is likely coming into evidence as well). So, going through five articles that the expert wrote in the International Journal of Endoscopic Investigation (that no juror has ever heard of) is less important than highlighting one that was written for the New England Journal of Medicine (that almost every juror knows).

If it is a witness whom you will not be able to adequately prepare, then have contingencies in your outline for different potential answers that the witness might give. Using the "eyewitness" example, if you are going to ask about whether the witness has any issues with eyesight, be ready for both a "no" and a "yes" answer. If yes, then have the appropriate follow-up ready: "Notwithstanding your near-sightedness, do you wear any type of lenses to correct for that."

What is the most effective way to begin a direct exam to get the attention of the jury? How do you maintain jury attention during direct, particularly a lengthy or technical one?
The jury needs to understand the role of the witness in the storytelling and why the witness is credible and should be listened to. Asking the witness to introduce him or herself to the jury with a one- or two-sentence synopsis is a good way to begin.

"My name is John Smith. I'm a certified public accountant and have been the comptroller for the plaintiff, Acme Widgets, since 2006, overseeing all aspects of Acme's accounting and bookkeeping."

"My name is Sally Jones, and I witnessed the accident of September 15, 2017, on my way home from work."

In terms of keeping attention, where possible, the "conversation" should be directly between the witness and the jury. Also, where (and as much as) possible, get the witness out of the box and in front of the jury using some sort of audio-visual. The goal is to move them from "witness" to "teacher." For example, "Dr. Hobson, explain to the jury how the heart works."

The lawyer should then be prepared to jump in should the witness lapse into jargon. To avoid the danger of talking down to the jury, make yourself the "Lil' Abner" rather than them. For example, "Dr. Hobson, you used the word 'myocardium.' What in the world does that mean?"

What are the most and least effective methods of introducing important exhibits in direct examination?
Obviously, there is some choreography that the rules require. I actually used to write "mark it; show it; ID it; foundation; move to admit" on my witness outline next to each exhibit. Don't provide the other side with an easy opportunity to object and mess up the rhythm.

Along the same lines, it is always best to get agreement before trial on exhibits to the extent possible, and if there is a significant objection, to raise it as a matter in limine prior to the start of trial.

If the witness is going to sponsor an important exhibit, make sure that the witness is prepared to engage with the exhibit so that the jury understands its importance. For example, getting the witness out of the witness box and in front of the exhibit with a pointer is one way to accomplish this. If you have a cranky judge, getting the witness to use a laser pointer from the witness box can also work.

Do you recommend preemptively addressing potential weaknesses or trouble areas in direct that you suspect opposing counsel will bring out on cross? If so, when do you do so, and how?
I think it is very effective to play "devil's advocate" with one's own witness, to ask the questions or explore the potential criticisms that the jury is thinking about or that the opposing side is likely to bring up. Try to anticipate the natural skepticism that a juror might have regarding testimony that might not jibe with conventional wisdom or a common misperception and take it head on.

Question: "Dr. Hobson, how could [your client, the defendant ER doctor] miss something as obvious as an appendicitis?"

Answer: "Even though having an appendicitis is pretty common, the symptoms are very subtle and often mimic less serious conditions."

This is preferable to staying quiet and hoping your opponent doesn't bring it up.

What do you do when a witness goes "off script" and ventures into other areas?
Preparation hopefully makes this a less common occurrence. But don't be afraid to jump in to refocus the witness. For example, "Let me just stop you there for a moment. We may get to [off-topic area] a little later, but I want to get back to [on-topic area]." Another example is, "Thank you for explaining that. But before we leave [on-topic area], I have a few more questions." As a final example, "I'm sorry, my question wasn't very good. Let me try a better one."

The witness (even a professional witness) is looking to you to protect them and make them look good in front of the jury. Don't be afraid to do that by keeping them focused and stepping in as necessary.

What suggestions can you offer regarding redirect? Whether to do it, how long or short it should be, etc.?
I think it is rarely necessary, unless the witness really has been beaten up. Even then, less is more. The more the witness has been beaten up, the less confidence I have in the witness's ability to right the ship, even with a friendly questioner. So pick one or two things that are softballs to let the witness end on an "up" note.

If the witness did well on direct and did well on cross, don't tempt fate unnecessarily.

Eric R. Harlan is a partner at Shapiro Sher in Baltimore, Maryland.

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