When we think of the most exciting moments in Hollywood’s version of a trial, direct examination isn’t among them. The act of putting on your own witness in order to establish the elements of your case has none of the drama we associate with a courtroom battle. Instead of offering the conflict of one side against the other, as we see in cross-examination and in dueling opening statements, the direct examination is more predictable, calm…and boring. Instead of an exciting game, it’s like one team’s coach tossing softballs to one of his own players. Legally, however, the direct examination is critical. Proving up your case is about pulling together the facts, and the direct examination is where many to most of those facts are established. But that legal importance doesn’t always translate into juror attention. I’ve seen jurors who had just been sitting at the edges of their seats to watch the end of a cross-examination visibly slump back and disengage when they see that the process is moving back to direct examination for the next witness.
I believe, however, that the dramatic failings of the direct examination aren’t inherent in the process itself, but rather stem from the ways that attorneys approach direct examination. The direct outline is often seen by attorneys as something they prepare on their own, and treat as a simple matter of moving through the claim elements or the checklist of facts they need to establish. That approach may serve your case’s legal needs, but won’t fully engage the jury. To be persuasive, a great direct examination of either an expert or a fact witness requires as much planning and attention to strategy as a great cross-examination or opening statement. In this post, I’ll share five rules for making that direct engaging and effective.
1. Have a Narrative Arc
A good examination should be received by the jury or the judges as a story. That means that it follows a narrative arc including all of those time-honored components that say, “story.” As I’ve written before, those pieces include setting, character, conflict, resolution, and a moral. Naturally, the direct examination still needs to hit all of the necessary elements, including the legal claims, the expert conclusions, and everything else on your checklist. But these required elements should be fit into the familiar outline of a story. Ideally, that story should also be told in present tense to make it even more exciting (With a question like “So what do you see as you’re standing there?” helping to visualize more than…what did you see…”).
2. Break It into Chapters
Your story is easier to follow if it is broken into chunks or chapters. The bite-sized pieces help to give the story a sense of progress, and help to convey the purpose behind each segment. Importantly, these segments shouldn’t just be obvious to the person reading or writing the examination outline, but should also be clear to listeners and to the witness as well. Using headlines for each section, like “Early Contract Negotiations” or “First Notice of the Breach,” potentially with the aid of a demonstrative exhibit timeline or a flip chart, can help keep the witness and the jurors oriented toward the focus and the purpose of each section.
3. Don’t Begin with the Tedious stuff
As with all situations for persuasion, the opening moments can be key: That is where listeners decide if this is important enough and interesting enough to be worth their time. Unfortunately, though, too many directs pack some of the most objectively boring and tedious material into the first few moments: “Tell me where you grew up, where you went to school, how long you’ve held your current job, what certifications do you have,” etcetera. As I have written before, there are better ways to begin. For either an expert witness or a fact witness, it is more engaging to begin with something like, “What are you here to tell this jury?” That focuses immediately on the relevance and the role for the testimony.
4. Be the ‘Voice of the Jury’
Ultimately, the interaction between counsel and witness in direct should come across like a conversation. To promote that, it helps to model what you expect the jury’s thought process would be, asking yourself, “What would they like to know at this point?” “What are their reactions likely to be?” One way to keep the questions simple and focused is to begin each question with one of the journalistic cues: who, what, when, where, how, or why. In addition, make frequent use of “the reason I am asking” statements as part of the question in order to keep it audience-focused. Where you expect that your listeners might be skeptical or might disagree, briefly shift into cross-examination style in order to voice that skepticism and to provide your witness with a safe opportunity to respond prior to the actual cross-examination.
5. No Dogs and No Ponies
From a juror’s-eye view, the main liability of direct examination is that it can come across as a bit of a dog and pony show as attorneys walk their own witnesses through the facts that build their case. As a result, it is important to avoid the perception of being staged or rehearsed. That doesn’t mean that direct should be spontaneous or unprepared. In contrast, it should receive as much preparation as cross-examination. Witnesses and attorneys should work on the outline together so both know what to expect. At the same time, the main emphasis should be on the witness telling their own story in an organized fashion. Avoid leading questions, keep questions simple and short, and use preparation sessions to emphasize a knowledge of the structure, but not for any attempt to script out any answers.
By Dr. Ken Broda-Bahm
Image credit: 123rf.com, used under license