In his unprecedented campaign for president, Donald Trump responded to allegations of sexual misconduct by bringing up the names of women who accused Bill Clinton of sexual misconduct—as well as those who did not. Quite suddenly, Monica Lewinsky’s name was in the papers again. For reasons I can hardly explain, I found myself on YouTube watching Barbara Walters’s interview of Monica Lewinsky on March 3, 1999. In doing so, I realized it is this interview that lawyers should watch to learn how to conduct an effective direct examination.
Ms. Lewinsky was not on trial, of course. But in a way, she was. She was testifying before the court of public opinion in an attempt to save her reputation. At the time of the interview, a CNN/USA Today/Gallup poll showed found that 70 percent of the public did not feel sympathetic to her. “Poll: Public Remains Unsympathetic to Lewinsky,” CNN.com, Mar. 5, 1999. Much like a defendant in a criminal case, she exercised her right to tell her side of the story to strangers who had heard bad things about her but had not heard from her. She told her story, not by giving a speech or submitting a press release, but by answering questions from Ms. Walters.
During the interview, Ms. Walters covers all of the hot-button topics that one would expect: Ms. Lewinsky’s initial flirtation with the president, their physical relationship, the stained blue dress, her disclosures to Linda Tripp, her feelings toward Hillary and Chelsea Clinton, her rejection by the president, and her testimony before the grand jury. Interview by Barbara Walters with Monica Lewinsky on 20/20, Mar. 3, 1999. But it is how Ms. Walters plans, structures, and executes the interview that merits attention. The interview is notable for its dedication to four principles: (1) positioning, (2) preparation, (3) presentation, and (4) pushback. It is these four principles that make for an effective direct examination at trial. (This is not to say that Ms. Lewinsky’s account was credible—I take no position on the merits of her story, which is not relevant to an article about the technique of direct examination.)
During the interview, Ms. Walters and Ms. Lewinsky sit across from each other on separate couches in what appears to be a person’s living room. They are on the same level and in close proximity. At one point, they sit on the same couch, coffee in hand, looking at magazine covers on a table in front of them. They look directly at each other when they talk, not at the cameras. In sum, they position themselves to create the appearance of a private conversation between two people, even though the whole point of the interview is to connect with millions of viewers. The audience, meanwhile, is like a fly on the wall, observing the interaction of these two individuals.
Ms. Walter’s positioning vis-à-vis Ms. Lewinsky is the opposite of how lawyers are taught to position themselves vis-à-vis a witness during a direct examination. According to the conventional wisdom, the witness is the “star” of the direct examination and the lawyer is a “visual distraction” and should be out of the jury’s line of sight. See, e.g., Thomas A. Mauet, Trial Techniques 113–14 (Aspen Law & Business Publ’g, 5th ed. 2000). The lawyer should therefore position himself or herself at the far end of the jury box, which “forces the witness to look at the jurors, thereby maintaining critical eye contact with them.” Id. at 114 (emphasis added).
The conventional wisdom misses the mark. In my experience, jurors do not want eye contact with the very person they must judge. They prefer to be a fly on the wall, observing the witness’s interaction with the lawyer, whom the jurors have gotten to know and trust over the course of the trial. By positioning himself or herself out of the jurors’ sight, the lawyer keeps the jurors from witnessing the lawyer’s relationship with the witness. Ms. Walters was not a “visual distraction” during the interview of Ms. Lewinsky. To the contrary, she enhanced Ms. Lewinsky’s credibility by showing her apparent closeness with Ms. Lewinsky. The audience intuits that Ms. Walters empathizes with and even trusts Ms. Lewinsky.
The lawyer’s goal during the direct examination is to create the appearance of a private conversation between the lawyer and the witness, even though the whole point of the examination is to connect with the jury. Admittedly, this is not easy to do in the formal setting of a courtroom, where rules sometimes limit mobility. Still, a lawyer can take certain steps. First and foremost, the lawyer should maintain eye contact with the witness at all times and should advise the witness to maintain eye contact with the lawyer, not the jurors. Second, the lawyer should try to close the typically large distance between lawyer and witness by positioning himself or herself in the well of the courtroom rather than behind the podium or at the far end of the jury box. The lawyer should also seek the court’s permission to invite the witness into the well to do demonstrations or make markings on a photograph or map. This will get the lawyer and the witness on the same level. Finally, the lawyer should remain visible to the jurors at all times. The witness may be the “star” of the direct examination, but the lawyer plays an important supporting role.
Although the interview has a casual feel to it, there is no question that Ms. Walters is exceptionally well prepared. This is evident from both the quality of her questions and the order in which she asks them. She does not begin with mundane or foundational questions such as “What brought you to Washington, D.C.?” or “How did you first meet President Clinton?” Instead, her first question to Ms. Lewinsky, whom the audience has heard much about but never from, is: “Monica, you have been described as a bimbo, a stalker, a seductress. Describe yourself.” Walters Interview with Lewinsky at 3:25. She then asks Ms. Lewinsky if there is “something” she “want[s] to say at this point” and then follows up Ms. Lewinsky’s apology by asking, “Do you take responsibility for what happened?” After starting with those three big-picture questions, Ms. Walters proceeds in chronological order, beginning with questions about Ms. Lewinsky’s prior affair with a married man, her arrival in Washington, D.C., and her initial flirtation with the President. As she moves from one topic to the next, Ms. Walters makes every question count. There are virtually no throwaway questions. And she never asks Ms. Lewinsky, “What happened next?” Instead, she asked mostly non-leading questions of Ms. Lewinsky that clearly indicate the information sought, such as “Why did you turn the dress over to [Ken Starr]?” and “How did you feel when you learned for the first time that [Linda Tripp] taped you?” Finally, she ends with three simple but bold questions: (1) “If you had to do it all over again, would you have had the relationship with Bill Clinton?”; (2) “Monica, are you still in love with Bill Clinton?”; and, finally, (3) “What will you tell your children, when you have them?”
The importance of preparation in conducting an interview or a direct examination cannot be overstated, as Ms. Walters has acknowledged. In reflecting on her career in 2014, Ms. Walters said, “Well, the first thing I tell anybody who’s going to be doing interviews is homework. I do so much homework, I know more about the person than he or she does about himself.” “Barbara Walters: The Art of the Interview,” ABC News, May 25, 2016. She added, “Then, I write—I can write fifty or a hundred questions, on little three by five cards, I put them in order. Then I throw some away. Then I put others in.” She continued, “I can spend hours, days, changing the order of questions. But here’s the important thing. You’ve got to know your questions, so you can throw them all away, if you have to.”
Too often, lawyers think that direct examination does not require much preparation. They think they can essentially wing it by simply asking the witness “what happened next?” over and over again. But “what happened next?” may be the worst question a lawyer can ask on direct examination. Why? Because everything happened next—the dog barked, the car honked, the rain fell, the phone rang, and so forth. The question does not provide any guidance to the witness as to which particular event that happened next the lawyer is seeking to elicit. As a result, a witness will often, through no fault of his or her own, provide irrelevant or even damaging information in response to the question. Good questions, in contrast, clearly communicate to the witness and the juror the very specific information sought without suggesting the answer. This is not easy to do and requires significant preparation. Determining the order of questions also takes some thought and reflection. Ms. Walters saved her best questions for first and last because she was aware of the primacy and recency effect—that the audience will best remember what they hear first and last. The same is true for jurors during a trial.
ABC’s presentation of Ms. Walters’ interview of Ms. Lewinsky is much more than the interview itself. It begins with an opening monologue from Ms. Walters—sitting in the studio and outside the presence of Ms. Lewinsky—to the audience. The presentation then cuts to the interview, but only for so long, as it periodically returns to Ms. Walters in the studio. In each monologue, Ms. Walters summarizes the interview up to that point and then whets the audience’s appetite with what is to come. For example, midway through the presentation, Ms. Walters states the following directly to the audience:
What had begun as a relationship of intimate encounters and amorous phone calls was now turning sour. The president, it seems, was trying to find a way out. You will hear an amazing admission Monica says he made to her about his marriage. And you will learn now how the unraveling of the romance turned into the most terrifying year of her life.
Walters Interview with Lewinsky at 48:06.
The presentation then returns to the interview, at which time Ms. Walters asks Ms. Lewinsky about the end of the relationship. Meanwhile, the presentation regularly shows images and videos of whatever subject Ms. Walters and Ms. Lewinsky are discussing. For example, when Ms. Lewinsky talks about the first time she saw President Clinton during a public ceremony, a video of that ceremony is shown. When Ms. Lewinsky is asked about her disclosures to Linda Tripp, photographs of Ms. Tripp are shown.
A lawyer, too, should think of direct examination as much more than just questions and answers—it is a presentation to the jury. A lawyer, of course, cannot interrupt the direct examination periodically to give mini-opening statements to the jury. But the lawyer can—and should—break up the presentation into discrete parts or chapters. Most lawyers already do this during cross-examination—they simply need to apply the same principles to direct examination. The lawyer should then preface each part or chapter of the examination with a headline, such as “Let’s turn to May 24, 1997, and talk about how the relationship with the President ended.” Another strategy is for the lawyer to move to a different part of the courtroom when he or she begins a new area of inquiry. Furthermore, a lawyer can loop answers into questions, which has the effect of highlighting important parts of the witness’s testimony. Finally, the lawyer should supplement his or her questions with photographs, videos, and other tangible objects that help bring the testimony to life.
Although she exhibits empathy with Ms. Lewinsky, Ms. Walters also challenges Ms. Lewinsky to explain conduct or explanations that might strain credibility. She does not “cross-examine” Ms. Lewinsky, but she does provide some pushback. For example, after discussing how Ms. Lewinsky and the president were able to keep the affair a secret, Ms. Walters asks, “Did you ever say to yourself, I’m doing something wrong, this is bad for the president, this is bad for the country?” Later, after establishing Ms. Tripp’s opinion that Ms. Lewinsky did not write the so-called talking points she gave to Ms. Tripp to cover up the affair, Ms. Walters asks, “How were you able to use those legal terms? I mean, you’re not that informed. You’re not that smart. Did anyone help you with these talking points?” Finally, when Ms. Lewinsky claims that testifying before the grand jury about the intimate details of her relationship with the president was “very, very violating,” Ms. Walter shoots back, “There is the question of why you offered so many intimate details to the prosecutor. I mean, why, for example, tell them about the cigar business? They would never have known, would they?” In each of these examples, Ms. Walter asks questions that a reasonable but skeptical outsider might ask. In the end, Ms. Lewinsky’s credibility is enhanced, not undermined, when Ms. Walters pushes back in this manner. For example, when challenged about why she told the grand jury about the “cigar business,” Ms. Lewinsky provides an explanation—that the grand jury already knew about this fact from the prior testimony of Ms. Lewinsky’s friends.
A lawyer, too, should challenge the witness, including his or her own client, when the witness’s conduct or explanations strains credibility. Lawyers are typically taught to elicit only bad facts on direct examination, such as a prior conviction, so that the bad fact is not elicited on cross-examination for the first time. But they are not taught to challenge the witness’s conduct or explanations. This is a mistake. First, a witness’s credibility will usually be enhanced, not undermined, when the witness is pushed to address the questions and concerns on the jury’s mind. Answering those questions on direct examination not only takes the sting out of the cross-examination but also provides a relatively safe space within which the witness can explain himself or herself. Of course, the lawyer and the witness should moot the questions and answers before the witness testifies live before the jury. Second, the lawyer’s credibility will be enhanced by challenging his or her own witness. In doing so, the lawyer communicates to the jury that he or she is a reasonable person who understands their concerns. Put another way, the lawyer signals to the jury that he or she is not a partisan who is out of touch with how reasonable people view the evidence. In the end, the jury will trust the lawyer if the jury sees that the lawyer brings a comparable level of skepticism to the evidence. That trust is essential in persuading the jury to decide the case in favor of the lawyer’s client.
It would be easy to count the differences between Ms. Walters’s interview of Ms. Lewinsky and a lawyer’s direct examination of his or her client at trial. To name a couple obvious ones, Ms. Walters was not defending Ms. Lewinsky, and many of her questions would never survive an objection in court because they lack foundation, call for hearsay, and assume facts not in evidence. Still, her interview is instructive in thinking about what makes a direct examination interesting, engaging, and compelling. The ingredients for an effective direct examination are not what lawyers tend to think (e.g., stand behind the jury box and ask the witness, “What happened next?”); they are what they see when they watch Barbara Walters interview Monica Lewinsky: (1) positioning, (2) preparation, (3) presentation, and (4) pushback.
That Ms. Walters has much to teach us about direct examination does not mean that we are one step away from being replaced by journalists. A lawyer’s job, first and foremost, is to advise his or her client on whether it makes sense to testify at all. Perhaps what Ms. Lewinsky needed most of all was a lawyer to advise her to remain silent. And as for what Hillary Clinton needed in the election, I’ll leave that for another day.
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