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June 01, 2019 Feature

Old Dogs and New Tricks for Direct Examination

Dennis P. Rawlinson (originally published Spring 2005)

View downloadable PDF of article.

An eerie silence fell over the courtroom. The air seemed suddenly heavy. Time stopped. For the first time, all 12 jurors were on the edge of their seats. They were fully alert. They seemed to be straining their senses, like bird dogs after prey, to absorb the testimony that was about to come.

It had been quiet in the courtroom before, but nothing like this. It was as if everyone was afraid to breathe lest the movement distract attention from the questions about to be asked and the answers about to be given. Some were reminded of old Western movies where two cowboys riding through hostile Indian territory would rein in their horses to a stop and one would whisper to the other, “Slim, it’s quiet . . . too quiet.”

The memorandum in the hands of the witness was important. First, it was addressed not to just anyone but to the president of the tobacco company. But more importantly, the original had never been produced. In the hundreds of thousands of documents the company had turned over, it was nowhere to be found. And yet, like a miracle, here was the file copy—carried to court by its author, clearly revealing to all why the original had been destroyed.

The plaintiff’s counsel, sensing the drama of the moment, waited for the lengthy and unnatural silence to draw the attention of all present in the courtroom to the witness stand. In his opening, the plaintiff’s counsel had described the witness in glowing terms, but the cold truth was that the witness was a turncoat former employee. Everyone knew this meant a witness who was not beholden to the company, whose job, reputation, and future income were not on the line. His testimony would not be tainted by an employment relationship with the tobacco company.

The plaintiff’s counsel cleared his throat to ensure that the questions he was about to ask would be clear, crisp, and well enunciated:

Q: Did you read the third paragraph of the memorandum? A: Yes. Q: What was the subject of the third paragraph? A: Nicotine. Q: What about nicotine was discussed? A: The nicotine levels in cigarettes. Q: Did the paragraph suggest that the nicotine levels be increased or decreased? A: Increased. Q: If the nicotine levels were increased, would that have any effect on anything? A: Yes. Q: What? A: The number of smokers. Q: Would increasing nicotine mean more smokers or fewer smokers? A: More smokers. Q: More smokers than if the nicotine levels were not increased? A: Yes. Q: Would this mean more or fewer sales? A: More. Q: Would this mean more or less profit for the company? A: More. Q: Would the increased profits be substantial or insubstantial? A: Very substantial.

The stake had been driven into the vampire’s heart. No one in the courtroom missed the importance of these few questions and answers. In the minds of most of the jurors, the case was over.

The Difference Between Routine and Powerful

But the impact came from more than just the information that was delivered, and it included the manner in which counsel had conducted the examination. He understood the difference between routine direct examination and powerful direct examination.

To give power to this key testimony, he departed from the traditional method of direct examination that would have the witness do the work. The lawyer would simply ask the witness what the memorandum disclosed, leaving the witness to “dump” all the incendiary, high-impact information into a single answer, which might be easily missed by an inattentive or daydreaming juror. Compare the following exchange, which uses standard direct examination techniques, with the Q&A detailed above:

Q: What was in the third paragraph of the memorandum? A: I suggested to the president that the company take a serious look at increasing the nicotine levels in its cigarettes. More nicotine would mean more smokers, which would mean more sales and more profits.

Although this approach produces exactly the same information, it lacks the dramatic effect and persuasive power that counsel achieved in the first example. What he did in the first example was to borrow from the techniques of cross-examination to make the direct examination come alive in a way the jury could not miss and would not forget. This alternative technique is not novel. Two proponents of this approach are trial-technique instructors: retired Judge Herbert Stern, a former U.S. attorney and district court judge in New Jersey, and Judge Ralph Adam Fine of the Wisconsin Court of Appeals. Indeed, Judge Fine uses this example, based on a paragraph from John Grisham’s The Runaway Jury, in his book The How-to-Win Trial Manual (2d ed., 2001), to show the effectiveness of this direct examination technique.

Cross-examination techniques can often turn a pedestrian direct examination into a compelling one. Counsel therefore should consciously consider whether to embrace certain techniques for a brief interlude—or even for an entire direct examination—when power and persuasiveness are critical. To do this, counsel must understand the elements of both techniques.

During a typical direct examination, the examiner uses short, open questions that invite a narrative or explanation from the witness. This allows the fact finder to focus attention on the witness, not the examiner, which leaves the witness unfettered to develop credibility.

In contrast, in cross-examination, the lawyer typically does the work and neither invites nor allows the witness to talk very much. Traditional cross-examination uses short questions and short answers. The witness is limited to choosing among alternatives offered by the lawyer and usually can say no more than a word or two. Cross-examination questions are not only short but also closed-ended to control and limit the adverse witness’s response. Thus, the emphasis is on controlling the witness. By inching along and adding only one fact at a time, the lawyer also limits the amount of each “bite” of information given to the fact finder, improving the likelihood that the fact finder will understand and retain the information.

In the first example above, although a direct examination, the plaintiff’s counsel used closed questions calling for short answers to highlight and argue key points in the case. This technique left the witness very little to do but affirm the lawyer’s points. It also allowed the examiner to control the examination tightly by giving the witness little or no leeway and keeping the jury’s attention on the lawyer, not on the witness. Counsel avoided leading the witness, however, by framing questions in terms of choosing between two alternatives. This allowed the lawyer to focus the flow of information and avoid the possibility that the witness might ramble, become sidetracked, or bury key facts in a long narrative.

Another advantage of using this cross-examination technique is that the lawyer can argue the case through the witness because the fact finders often mentally answer the lawyer’s questions before the witness can answer. Their answers are compelled by common sense, regardless of the witness’s answer. Such an answer is not subject to impeachment by any adversary.

This approach also makes for a more comfortable witness. Consider the pressure on a witness under traditional direct examination techniques. He is told that he will be asked to describe what happened and is then expected to tell his story in the way that is most persuasive, articulate, and memorable. He is told, Be sure to cover this, be sure to cover that, and don’t forget the other thing—and, by the way, you can’t use any notes.

Is it really fair to place these burdens on the witness? Is this really the most effective approach to direct examination? Shouldn’t the lawyer be doing the rowing? But it is actually much easier on a witness if the lawyer asks a series of short questions, each calling for an answer of only a word or two, then leads the witness to the next point. The witness can then relax, assured that the lawyer will take him where he needs to go and not let him forget to mention important details.

When a Lawyer Does the Work

A lawyer who does the work and coaches the witness to give short answers has a full array of persuasive techniques available. The first is repetition on the points most important to the lawyer’s case and most damaging to the other side. The direct examiner can make the same point several times by rephrasing the question to ensure that the fact finder not only gets the point but also remembers it. Second, the lawyer can remove from the direct examination testimony tangential and irrelevant side points that obscure the information the fact finder needs to receive. Third, as in cross-examination, the lawyer can control the witness and argue the case through the window of the direct examination witness.

In traditional direct examination, it is up to the witness, whether fact or expert, to be persuasive—to be the salesperson. In my experience, however, most fact finders are suspicious of such hard-sell testimony and often discount it as unreliable.

In contrast, the fact finder expects a lawyer to be a salesperson. As a result, if the lawyer argues through the direct examination witness who simply provides short, accurate, and thoughtful answers, the witness’s credibility is not undercut or tainted by an active effort to sell the point. Any “argument” that comes through the testimony is attributed to the lawyer, not to the witness.

Here is an example of how this would work in a simple intersection-collision case. Assume that you represent the plaintiff and there is no dispute as to fault. You have had the good fortune to learn that the defendant had three beers before the accident.

You call an eyewitness who was present when the defendant drank the beers at a local tavern. Your direct examination simply can set the scene and ask the witness what he saw, but this approach risks losing the point and impact of the testimony in long narrative answers. Or you can transform the examination by having the lawyer do the work:

Q: Did the defendant have a beer? A: Yes. Q: Did the defendant have a second beer? A: Yes. Q: Did the defendant have a third beer? A: Yes. Q: So the defendant had a total of three beers? A: Yes. Q: The three beers that the defendant drank—were they imported or domestic beers? A: Imported. Q: The three beers that the defendant drank—were they light beers or dark beers? A: Light. Q: The three beers that the defendant drank—were they bottled beers or from the tap? A: Bottled. Q: The three beers that the defendant drank—did he drink them out of the bottle or from a glass? A: Out of the bottle. Q: The three beers that the defendant drank—did he drink them slowly or quickly? A: He drank the first two quickly and the last one slowly.

With the lawyer doing the work, limiting the answers and emphasizing the key point through repetition, it would be hard for the fact finder to miss that the defendant had three beers. Whether the beers were imported or domestic, bottled or tap, light or dark, and so on is irrelevant. But these questions allow the lawyer to keep repeating the key point, to guarantee that the fact finder not only will not miss it but also will not forget it.

When you stop and think about it, the potential advantage of using cross-examination techniques to argue your case during direct is obvious. If one of the lawyers spends 80 or 100 percent of all cross- and direct examination arguing her case through the window of the witnesses, and the opposing attorney, using traditional methods, does so only on c, the first lawyer will have the advantage.

The “Sponsorship Theory”

Another variation on traditional direct examination techniques is the “sponsorship theory” of introducing evidence, advocated by Robert H. Klonoff and Paul L. Colby in their book Sponsorship Strategy: Evidentiary Tactics for Winning Jury Trials (1990). Their premise is that by offering any item into evidence, the offering attorney endorses, or sponsors, the significance of that evidence to the case. Thus, contrary to traditional thinking about trial strategy, attorneys applying the sponsorship theory do not bring out the weaknesses in their own cases but instead select witnesses and subject areas that elicit only favorable evidence. This means planning direct examination with an eye to what doors may be opened on cross.

Because the sponsorship theory dictates using only strong evidence, an advocate should not call even a potentially helpful witness without anticipating the questions on cross and measuring whether the favorable testimony outweighs the potential costs of calling the witness. Advocates applying the sponsorship theory also must consider the relative strength of multiple witnesses who may testify favorably on a single point. If the testimony of one witness is stronger than that of the others, the lawyer must consider carefully whether to call the less-than-strong witnesses. Although some commentators suggest calling multiple witnesses to corroborate key facts regardless of the strength of each witness, the sponsorship theory counsels against this tactic.

Klonoff and Colby provide an example of a burglary case in which two people witnessed the burglary from their apartment windows. After apprehending a suspect, the police asked the two witnesses to identify him. One witness positively and unequivocally identified the suspect; the other said that the suspect “looked like” the burglar but also pointed out differences in clothing and appearance. The prosecutor introduced both witnesses.

During closing argument, the defense counsel focused his attention on the weaker witness. The jury acquitted the defendant. Klonoff and Colby suggest that the error was that the prosecutor’s decision to introduce both witnesses appeared to concede that the strong witness alone was not sufficient to convict.

The sponsorship theory would have counseled introducing only the strong witness, letting the defense introduce the weaker witness if it chose to do so. Then the prosecutor could have attacked the equivocal nature of what would have been the defense’s evidence.

The sponsorship theory also counsels skipping warm-up questions. Many attorneys begin direct examination by eliciting neutral points: asking lay witnesses about their education, employment histories, and personal backgrounds, which rarely are relevant to the substance of the testimony. The rationale for this tactic is that asking the witness these warm-up questions before asking substantive questions lets the witness relax and get used to testifying in the courtroom environment.

This technique actually may be hazardous to an otherwise effective direct examination. For example, seemingly innocuous questions may in fact open a door for cross-examination that the direct examiner had not anticipated, or they may provide opposing counsel with information or material to include in closing argument. Thus, rather than asking the witness warm-up questions to help with relaxation, the attorney should conduct pretrial practice examinations, preferably in a courtroom setting. The attorney then can focus on eliciting only helpful information.

It often is suggested that lawyers should disclose weaknesses in their own cases rather than let opposing counsel expose the flaws. The sponsorship theory rejects this technique. The usual rationale for exposing weaknesses in the advocate’s own case is that it earns credibility with the jury, although the jury may dismiss this as self-serving. Further, lawyers who elicit damaging information on direct examination to bolster their own credibility do so at the expense of their witnesses’ credibility.

Although counsel should avoid eliciting damaging testimony on direct examination, the responsible and ethical advocate must be sure to instruct witnesses to answer all questions truthfully. Thus, witnesses asked about damaging matters on cross-examination must answer directly and honestly.

Although some attorneys may feel uneasy about the sponsorship approach after having been taught to expose the weaknesses in their own cases, the benefits may very well outweigh any initial discomfort. For example, one experienced defense attorney decided to apply the sponsorship theory and declined to bring out the defendant’s prior conviction on direct. Instead, he allowed the prosecutor to elicit the information. This attorney later reported: “The first time I followed [the sponsorship philosophy] in court, I was terrified. It was against everything I had been taught. It worked like a charm. The jurors all stated that they thought the impeachment by the prosecutor on the prior was a ‘cheap shot.’”

Most litigators like to think that they become more skilled at direct examination over time. One of the keys to improving our skills is to continue to consider alternative forms of direct. Whether we adopt them in all cases, only with particular witnesses, only in particular cases, or not at all, the process of challenging, rethinking, and revalidating or modifying our direct examination techniques will make us better trial lawyers.

Dennis P. Rawlinson

The author is with Miller Nash LLP in Portland, Oregon.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).