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January 31, 2019 Feature

Lights, Camera, Action: Examination of Fact Witnesses

By Kathryn A. Pryor

Frank Capra was a producer, director, and writer of notable films of the 1930s and 1940s, including It’s a Wonderful Life, Mr. Smith Goes to Washington, and It Happened One Night. His theme-driven films focused on the triumph of good over evil. His dialogue was crisp and fast-paced. He told “do the right thing” stories in an entertaining fashion that were fully embraced by his audience.

Capra’s style is a valuable tool for every lawyer preparing for trial and trying a case. Your goal is to present an easily followed case that the trier of fact will embrace as the right side of justice. In order to achieve this goal with fact witness examinations in particular, you should be aware and be prepared.

Direct Examination

Be aware. Be aware that you have been living with the facts of your case for months to perhaps years, while the trier of fact is hearing the facts, sometimes complicated facts, for the very first time.

Be aware of the attention span of your trier of fact. Do not put the trier of fact to sleep. Maintain the interest of your audience with each question.

Be aware of potential preconceived notions that the trier of fact might have about your client that were not verbalized during voir dire. Use your direct examination to personalize your client and discourage unspoken negative opinions.

Be aware that most fact witnesses are petrified about testifying.

Be aware of the strengths and weaknesses of the witness so that the examination will showcase the strengths.

Be aware of the negative aspects of your case. Own up to the “bad” facts. When possible, present the bad facts in a manner that shows the trier of fact that they do not have any bearing on the ultimate decision.

Be aware of you. In a direct examination, your witness is the star, not you. Be aware of your volume and movements. Remain behind or near the podium unless you are offering evidence or using a demonstrative aid.

Be prepared. Be prepared to present your direct examination in a manner that can be easily followed and understood by individuals with varying backgrounds and having no knowledge of the facts before the day of the trial. Write down each question in order to tell a story in a concise, interesting, and compelling manner.

Be prepared to make strategic determinations as to the order of the direct examination. Do not let the important facts get lost.

Be prepared to spend time with your witness preparing for both the direct examination and the cross-examination. Conduct and repeat a mock direct and cross of the witness to build the confidence of and alleviate any uncertainty felt by the witness.

Be prepared to explain your case themes and your defenses to your client. After all, it is your client’s case. This will make your client a better witness and will assist the client in responding to direct examination and cross-examination questions.

Be prepared to listen to all proof at trial and to tweak your direct examination depending on the evidence. Trials never go fully as expected. Your direct examination must evolve with the case.

Be prepared to avoid evidentiary objections during your witness’s direct examination. But also be prepared to make necessary objections while your witness is being cross-examined, although meaningless objections should be avoided.

Be prepared to keep a poker face while any witness is testifying, especially your witness. The jury is watching you. Do not react, do not react, do not react.


Be aware. Be aware of the purpose of the cross and best approach to attack the witness’s credibility. Do not let your cross-examination backfire.

Be aware of the purpose of the direct testimony of the witness and how the jury responds to that witness to determine whether you should cross-examine the witness. There will be sympathetic witnesses whom you should not cross-examine.

Be aware that if you cross-examine a witness, the trier of fact expects to hear helpful information about witness credibility or your case, not unnecessary dialogue.

Be aware of the length of your cross-examination. Get in, make your points, and get out. You do not want to risk important points being forgotten.

Be aware of your body language. Do not hover over the witness if showing the witness a piece of evidence. Take command by standing up straight and moving with confidence, not arrogance.

Be aware of the judge or jury. If you are allowed to move away from the podium, do not block the trier of fact’s view of the witness or any evidence.

Be aware of your demeanor. Do not be a bully. There are times when a robust cross-examination is appropriate, but not with every witness and never to the point of being a jerk. Maintain civility.

Be prepared. Be prepared to keep the cross-examination crisp and purposeful. Do not put your audience to sleep. Do not allow your audience to wonder why you are wasting its time with questions that go nowhere.

Be prepared to write down all points that you would like to make, and create a simple outline of inquiry before trial. Then, be prepared to tweak the outline during trial depending on the direct testimony of the witness and evidence. The cross-examination also must evolve with the case.

Be prepared to evaluate the order of the points that you want to make on cross. Placement of the most important point depends on the facts of the case and on the direct examination. Never put the most important point during the middle of the cross-examination.

Be prepared to write down the page numbers of deposition testimony on which you are basing your cross-examination in the event that you must refer to those pages in order to impeach the witness.

Be prepared to take command of the examination. Your outline is only a guide. Never read from a script. Step away from the podium if allowed, use variety in your voice, emphasize certain words, and speak softly when appropriate. Cross-examination is your stage.

Be prepared to use discretion and not always ask a question just because it is allowed by the rules of evidence. While a felony conviction might satisfy Rule 609, it could have an unsatisfactory effect on your case depending on the sympathetic qualities of the witness.

Be prepared to ask mostly leading questions, to never ask a question to which you do not know the answer, and to know when you are about to ask one too many questions.


Presenting your fact witnesses on direct examination and cross-examining the opposing side’s fact witnesses are two of the most important aspects of framing your case. The trier of fact is hearing the facts of your claim or defense through these witnesses.

Attention spans vary. Jurors have their own lives. Judges are balancing crowded dockets. Each witness examination, and each question asked, should have a specific purpose that supports your case and overall theme; and the purpose should be clear to the trier of fact as the witness is being examined.

Preparation involves more than just what you plan to ask. It is truly an art form with many moving parts and players of which you must be aware and for which you must be prepared. It involves strategic planning and practice, maintaining composure, understanding human nature, thoroughly knowing your case and the goals you must achieve, and striking that balance between your role as an advocate and your call to be a decent and respectful human being.

Whether you are a plaintiffs attorney or a defense attorney, you wear the hats of a producer, director, and writer, presenting a themed set of facts to a judge or jury in a manner that hopefully can be fully understood and that can compel the trier of fact to conclude that a verdict for your client is a just verdict. While you are not making a Capra movie, you are making your client’s case and presenting it to your most important audience—the individuals deciding the outcome. Be ready for your close-up.

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By Kathryn A. Pryor

Kathryn A. Pryor is a partner in the Little Rock, Arkansas, law firm of Wright Lindsey & Jennings LLP, where she focuses her practice on insurance, product liability, and trucking/transportation defense. She is a past president of the Arkansas chapter of the American Board of Trial Advocates and a fellow in the International Society of Barristers. Pryor is a four-time faculty member of the TIPS/ABOTA National Trial Academy and may be reached at [email protected].