Direct Examination: Your Witness’s Chance to Talk

Direct examination is an opportunity few lawyers embrace because it is often viewed as a boring regurgitation of predigested facts. To make matters worse, the lawyer and client have practiced the direct so frequently that they end up racing through direct examination. In fact, direct examination is a meaningful opportunity for both client and counsel, but you have to let your witness talk.

To avoid having direct be a rote recitation of facts, I offer the following advice for your consideration. 

Break the Fourth Wall: Make Jury Part of the Play

If you talk to trial lawyers or read about trial practice, you will hear the concept that the lawyer is a ringmaster, a theater director, a storyteller, or a professor. It is true that trial is an artificial world akin to a play, so many trial lawyers posit that lead trial counsel is the director of the production. Others advise that the trial lawyer is a professor or storyteller, using witnesses and exhibits to bring the material or story to life.

If you treat trial like a play, however, you must consider what actors call “the fourth wall”—that is, an invisible wall that separates the actors on a stage from the audience. In trial as in a play, there is US (lawyers and your client) and THEM (the judge or the jury). Consider bringing the jurors into your play or movie so that you think of your client and the jury together as “us,” rather than thinking about the plaintiff and the defendant and the jury each separately.

Perhaps an example will help. Many lawyers stand behind their table or lectern and ask the witness on direct to tell the jury about the accident. Instead of hiding behind the lectern, try standing near the jury box so that you begin to blend into the jury (but not so close as to offend the jury members), and ask your client to explain to “us” (you AND the jury) what happened that day. Consider not using your lawyer voice from across the room but instead getting close enough to the jury and the witness to have a real discussion as the witness discusses the matter with the jury. If you are one with the jury, the trier of fact is less likely to view you with suspicion as a mere advocate.

Speak Plainly and Confidently

We go to law school; we become adroit at our craft. We learn the elements of contract (offer, acceptance, consideration). We are brainwashed with res ipsa loquitor, proximate causes, breach, and fiduciary duty. And the end result is that our professors make sure that we sound like lawyers.

Unfortunately, the very thing we were trained to do—that is, sound like lawyers—also alienates us from the jury. That is the bad news. The good news is that we can make the same points and establish the same elements but do so in a more convincing way by speaking plain English. Imagine that you are sitting at a bar after work and the bartender asks you what you are working on. How would you explain the story to the bartender? You would speak plain English with truthful and simple phrasing to establish the elements of the claim.

Speaking plainly takes more practice than you think. Speaking clearly and powerfully is not merely about the language you use but also about your pacing, timing, tone, and transitions.

In terms of pacing and pauses, it is your witness’s time to shine—so forget the clock. Consider what will highlight the different chapters of your witness’s testimony. Use pacing and pauses to emphasize what is critical. You will be pumping with adrenaline during a direct examination, but you must control the urge to rip through your questioning. It takes practice—and confidence—but pacing and pauses project power and honesty.

By the same token, if your witness is speaking too quickly, slow down your pace. Most people will naturally match your pacing: if you slow down, they will slow down. If your witness is too nervous or too excited, consider “freeze framing” to get the witness to pause and slow down. This is a simple but effective technique: “You just testified that X was a fact you considered. I would like to freeze on that moment/event. Can you explain to us why that was important to you?” Freeze framing is a great way of controlling the pace—and of controlling a witness who is running off the rails.

Timing is important, too, to emphasize the points that count. You know what is important to your case; make sure that the structure of your questioning highlights those facets of your case. You can use speed when appropriate because that speed highlights what is critical when you slow down your pace.

Have a Theme, Embrace the Theme, and Make It Memorable

Theme is the precious glue that keeps the narrative together. What is a theme? A theme can be as simple as “a promise made, a promise broken.” (Or, more infamously, “if it doesn’t fit, you must acquit.”) At its best, a theme is developed when witnesses tell their story of the events and discuss the matter with the jurors like they are friends or colleagues.          

What makes a good theme? In my view, this is far more difficult than you may think. The theme needs to be truthful, accurate, and memorable. Give the theme some serious thought because your case will likely depend upon it. One way of deriving your theme is to think backward—that is, start with jury instructions because that’s what you are going to prove. But you then need to think about how to get the trier of fact or jury to be singing your theme.

Let Your Witness Shine

Consider letting your witness take center stage. In other words, take a step back, bring your client’s story to life, and join the jury in watching the production.

Please give the following some serious thought: What will make the jury like and, more importantly, want to believe in your witness? If you are fortunate, your witness is likable. If that is not the case, then focus the jury on the cause or rights that your client represents or on what your witness—bumps and warts included—represents.

Regardless, include some biographical information when your witness is taking the stand. Chapter 1 of your direct examination is introducing the witness to the jury. Witnesses with no color are forgettable stick figures, i.e., weak props to support your arguments. Witnesses who have a discussion with the jury about who they are and their values, experiences, and family become people the jurors can believe and with whom they can empathize.

What should you do if your witness is nervous and sweating? Remember, the jury members see everything, so they will definitely notice if your client is nervous—but do not hide it. You can ask witnesses on direct why they are nervous, and a candid answer is an acceptable one: "Because this case is important to me."

Looping Is the Next Best Thing to Leading

As we are told in law school, you cannot lead a witness on direct. Of course, lawyers are control freaks, so they often try to lead; but leading on direct makes witnesses look weak because jurors will have a hard time believing people who don’t even know what they are testifying to but rather have to be led by the hand. Moreover, lawyers won’t look good in front of the judge or jury if they’re constantly getting slapped with the objection, “LEADING!”

Although it is true that you cannot lead on direct, there is no rule against looping. What is looping? Looping is grabbing a piece of the last answer the witness gave and then using that as your transition to the next question:

Question:        What happened that night?

Answer:          I had dinner and a few drinks at Lilah’s Bar and Grill, and afterward I left to get to my car and was going to drive home. That’s when I slipped in the parking lot and hurt myself

Question:        You had “dinner and a few drinks.” [This is not leading because you’re not suggesting the answer—the witness just gave that exact statement.] Over what period of time were you at Lilah’s?

Looping can be helpful to bring the witness back to the point you need to establish, to highlight an aspect of testimony that was glossed over, or to make sure that the jury members understand where to place their attention.

Headlines Help the Jury Follow the Story

If direct goes on too long, the jury can become confused with the purpose of (or completely miss the relevance of) direct examination. Use chapter headings, just like in the books you read as a child, to keep the jury focused. When the witness has finished testifying about personal background and history, use a transition to clue in the witness and the jury about where you want the testimony to go next. A simple “I’d like to turn now to what you saw on the day of the accident” is not leading and will immediately transition you from chapter 1 (Background and History of the Witness) to chapter 2 (The Contract). Then you can segue into chapter 3 (Defendant Breached the Contract), etc.

Within each “chapter,” use graphics or have your witness literally draw a picture or use the courtroom furniture to bring the picture to life. Show, don’t tell.

Active Listening: Listen to the Witness

If you are seriously preparing for trial, both you and your client have spent a great deal of time preparing. You have honed, refined, and polished your argument until it is absolutely infallible (at least in your mind). Preparation is, after all, essential to success. However, one real risk of this honing, refining, and polishing is that you’ve managed to convince yourself of your own story—that is, “drinking the Kool-Aid” and hearing only what you want to hear.

You need to learn the skill of detachment so that you can hear what is actually said, not merely what you want to hear. It is helpful to have someone who is a critical, independent thinker listen to your witness. (If you’re lucky, you have a spouse like mine, an intelligent, independent thinker who has no difficulty telling me when I’m hearing what is not there.) Alternatively, have someone on your team listen critically to what the jury is hearing and reacting to because that may be very different than what you believe transpired during your direct examination. A trusted independent listener is invaluable because even the best trial lawyers need to make sure that their story will really get through to the jury.

Time Is Elastic

Direct is not a race. You do not win points by running your witness through the elements that you intend to establish through that witness—you win by convincing the trier of fact. If direct takes time, then it takes time.

In contrast, as sometimes happens, you are able to establish an element of your claim much more quickly than you had thought during preparation. What do you do? Move on. The jury understood and saw.

You must be flexible because despite the best-laid plans of mice and men, plans change. This is one of the more difficult skills to develop—paying attention to the witness and to the jury.

Want to Go to Broadway (or to the Jury)? Practice, Practice, Practice

Practice is critically important. Don’t take direct for granted: despite the best of intentions, things can easily go off the rails. Why do direct examinations fail? There are many reasons: (1) the witness is simply too nervous, (2) the witness is carrying too much weight, (3) the witness couldn’t figure out where to park and is frazzled, or (4) you name it.

Your witnesses need to understand that they are part of a team of witnesses, and, therefore, they do not need to reach out of their own area of competence. Do not stretch your witness into covering areas that they are simply incompetent to handle.

Addressing Your Witnesses Bumps, Warts, and Blemishes

If you identify a weak spot in your client’s testimony, consider curing the venom (stealing the thunder) of your adversary's upcoming cross-examination by bringing out that testimony on direct and giving your client the opportunity to discuss and explain. Stealing the thunder works because it is better to have the ugly parts come out of your mouth on direct than to have them coming out of your adversary’s mouth. On direct, your witnesses will often look stronger and more trustworthy if they address some tough questioning on their own. Do not cure every little flaw because there is often value in letting your witnesses fend for themselves against some trivial point or a weak line of cross-examination.

A mock cross-examination is beneficial for keeping your witness on the same line of thought as the one you’re trying to develop for the jury. If you’re a defense lawyer, consider asking a plaintiff’s lawyer friend to come in and cross your witness. At a minimum, have one of your colleagues take a run at being the adversary. There are many “rent-a-jury” consulting services online whereby you can actually put witnesses through the paces in front of a mock jury. Merely going through direct again and again as if the witness were rehearsing for an acceptance speech is simply not good preparation.

End with Some Flare

People remember best the first thing they hear and the last thing they hear. Organizing direct takes time because you are trying to create a forum in which your witness is engaging with the jury by discussing what the witness observed. End with something memorable and true—not with a whimper.

Conclusion

If you set the stage for your witness to perform, you can guide the witness through the elements and let the witness shine. By using verbal pacing, headlining, looping, and pauses, you can focus the witness and the jury on the points that you wish to establish. Direct is the opportunity to tell your story, but developing good direct examination skills takes time and practice because you and your witness have to work as a team.