Let The Witness Be the Star
Let the witness tell their own story—do not micromanage them. Jurors trust authenticity. The more natural the testimony, the more compelling it will be. Your job is to guide, not control.
During direct examination, your role is to provide a framework for the witness to communicate with the jury. Instead of strictly guiding the witness, you should encourage the witness to speak naturally and present their version of events in a conversational style. This is crucial for building a connection between the witness and the jury. The jury will often view the witness more favorably if they feel like they are hearing the witness’s story from the proverbial horse’s mouth. A witness who speaks directly and candidly to the jury helps build credibility and trust.
Unlock the Full Story with Open-Ended Questions
The key to strong examination lies in simple, open-ended questions that allow the witness to explain or describe events in their own words. The classic who, what, where, when, how, and why approach encourages the witness to give a full, nuanced account of their story without being overly restricted. Other examples include questions like “What happened next?” or “Can you explain how that felt?” Such questions allow the witness to fill in the blanks, and as such, their story flows naturally in their own voice.
By avoiding leading questions (except where necessary), you allow the witness to present information that feels spontaneous and unrehearsed. This technique avoids the pitfalls associated with spoon-feeding answers to the witness. Some jurors, for example, may interpret such a back-and-forth between you and the witness as an attempt to manipulate the truth, whereas the open-ended approach often enhances the witness’s credibility in the eyes of the jurors because it allows them to tell their story in a genuine and unscripted manner.
Actively Listen
Too often, lawyers miss opportunities to follow up on key details that emerge during a witness’s testimony because they are too focused on their next question and not the witnesses. Active listening requires the lawyer to be fully present during the examination, allowing them to adapt and adjust based on the witness’s responses. It is therefore critical that you not just hear what the witness says, but maintain a state of alertness that allows you to rapidly respond to unexpected details or even omitted information that can add layers to their testimony
If a witness inadvertently skips over important details, you should immediately follow up on any points that need more exploration or clarification to ensure that the jury receives a complete and accurate story. Following up on missed points or surprising revelations can also prevent opposing counsel from exploiting those gaps during cross-examination.
Ruthlessly Revise Your Examination Structure
A well-structured examination is easier for the jury to follow and comprehend. To provide a logical flow of information, you should organize a direct examination either chronologically or by specific topics and signal transitions between different timeframes or subtopics. When the testimony is organized and coherent, jurors are better able to retain important details and understand how the witness and their testimony fits into your trial theme and/or overarching story.
Disjointed or scattered questioning can confuse jurors and make it more difficult for them to follow the core narrative. Thus, you should use verbal cues, such as “Let’s now turn to . . .” or “Can you explain what happened next?” to mark transitions clearly for the jury.
Additionally, cut the clutter from your examination. Focus the testimony on the critical facts that matter most to the jury. Too much detail can drown out the core message—stick to what is significant and impactful.
Make the Jury Part of the Story
Encourage the witness to address the jury directly when answering questions. It is a powerful way for the witness to build rapport with the jury, as it engages the jurors, making them more invested in the witness’s story. When the witness speaks directly to the jury, they become more of a storyteller, and jurors become engaged listeners. A witness who connects with the jury on a human level can create empathy, making it easier for jurors to side with their version of events. It also makes the jury feel like they are active participants in the trial, rather than passive observers.
Keep the Spotlight on the Essential Facts
During direct examination, it’s tempting to go overboard with details in an attempt to be thorough. But too many minor or insignificant details will dilute the witnesses’ testimony and bore the jury or, worse, lead to cognitive overload that causes the jury to miss important points. The key, therefore, is to focus on the events and details that matter most and eliminate superfluous and distracting details that do not advance the story. Stated differently, the witness’s testimony should focus on impactful, relevant testimony to ensure engagement and comprehension. Overloading the jury with unnecessary information makes it harder for them to comprehend and retain the critical facts that matter most to your trial theme or theory of the case.
Confront Vulnerabilities Head-On
Don’t hide the cracks in the story. Rather, confront any vulnerabilities head-on during direct examination. This technique is key because part of maintaining witness credibility is acknowledging any weaknesses in their testimony upfront. The witness should disclose unfavorable facts during direct examination rather than allowing opposing counsel to exploit them later.
Additionally, this allows the witness to explain the context around those facts, mitigating their potential harm. A witness who openly discusses negative aspects of the case is seen as more forthright and believable. Trying to hide or downplay weaknesses can backfire, as jurors are often adept at picking up on perceived attempts to avoid difficult truths.
Humanize the Witness
Jurors respond more favorably to witnesses they can relate to. Before the testimony begins, work with the witness to ensure they present themselves in an authentic, relatable manner. Encourage the witness to humanize their answers by including personal anecdotes or insights that reflect their sincerity. Jurors are more likely to empathize with a witness who appears honest and grounded, rather than overly polished or rehearsed. This does not mean abandoning professionalism, but rather balancing it with a sense of realism and vulnerability that allows the jury to connect with the witness on a personal level.
Speak Volumes Without Words
Jurors don’t just listen to what the witness says—they see about how the witness says it. Non-verbal cues like body language, eye contact, and facial expressions play a critical role in the jury’s perception of credibility. A witness who maintains calm and composed body language and uses appropriate facial expressions when answering questions is more likely to be viewed as trustworthy and believable. Make sure your witnesses therefore avoid negative non-verbal cues, such as crossing their arms, looking away, or fidgeting, as these can signal discomfort or deception. Coaching witnesses on their body language can make a significant difference in how their testimony is received.
Pause for Effect
A well-timed pause can be as powerful as a spoken word. Encourage your witnesses to strategically use pauses and moments of silence when answering difficult or emotionally charged questions. Pauses give the jury time to process the significance of a point, and can also emphasize the weight or importance of certain testimony. It also gives the witness a chance to gather their thoughts and provide a meaningful response, rather than rushing into an answer that could be misinterpreted. Effective use of pauses helps ensure that the witness’s testimony has an impact. Thus, encourage the witness to take a breath, gather their thoughts, and let the silence drive home important points.
Conclusion
By incorporating these techniques, trial attorneys can ensure that their witnesses communicate effectively, connecting with the jury and presenting a clear, compelling, and credible narrative. This focus on clarity, engagement, and relatability enhances the overall strength of the witness’s testimony and helps guide the jury toward the desired outcome.
