December 03, 2012 Articles

Nailing Your Direct Examination

Successfully pulling off a compelling witness examination may require turning conventional wisdom on its head.

By Marsha Hunter

Direct examination is pivotal to the outcome of your trial. Your client's story unfolds on direct [examination], at the pace you desire, and with the characters you gather to tell it. Your witnesses get the chance to testify about the facts of your case. The substance of their answers, the relationship they develop with the fact finder, their credibility and demeanor—all can make or break a case. There is no shortage of war stories confirming it, no scarcity of articles and textbooks dissecting it.

Direct examination is also deceptively difficult. Far from being a natural activity, it is counterintuitive to ask questions to which you already know the answer, and only questions to which you already know the answer. Asking questions that hold no mystery can be dull for the examiner and sound boring to a jury. Instinct leads to formulating questions in an arbitrary fashion. Reading a scripted list of questions might seem like the safest path to a successful direct, but it leads to serious pitfalls: falling into an monotonous rut, asking every question with the “singsongy” (and boring) tone, and the most hazardous—failing to listen to the answers being given by your witness.

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