January 01, 2015

How Not to Regret Your Direct: Exploring the Human Story

If you truly listen to and mentor your witness, it often makes their testimony more persuasive.

Benjamin K. Riley

Regret. How often do we look back and wonder whether we could have done things better, worked harder, been clearer, obtained a better result? Especially with those trial skills we don’t often get to practice. Presenting a powerful and persuasive direct examination is one of the most challenging parts of a trial. In our discovery and pretrial work, we get to practice argument and deposition-style cross-examination, but rarely do we get the chance to prepare a witness thoroughly and then present him or her to a judge or jury. And how hard it is for most litigators to step back after all the hard preparation and let the witness be the star! To avoid regret after direct examination, listen to the witness, get to know the witness, and weave your examination around his or her human story—the interesting and unique aspects of the witness that best highlight and teach about the issues in the case.

Direct examination, at its best, is mentoring. If you listen to and get to know your witness, break down some of the witness’s insecurities and concerns, offer pointed and sometimes tough suggestions and criticisms, and become a teacher in an unfamiliar area, your witness will testify confidently and persuasively on the subject matter. When you say “No more questions,” you can take pride in your witness’s testimony and performance and be confident that the witness will hold up on cross-examination.

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