Learning to Love Direct Examination
By Sara E. Kropf – December 14, 2012
Cross-examination at trial gets all the glory. Maybe this is because television dramas focus on it. Maybe this is because of the hope that the lawyer will catch a hostile witness lying on the stand. Or maybe this is because trial lawyers' war stories seldom begin with "I was in the middle of this brutal direct examination when ... " Whatever the reason, direct examination is generally viewed as less interesting and therefore less worthy of lengthy preparation.
The fact of the matter is direct examinations can be more difficult to prepare and effectively execute. Trials are nearly always won based on what happens during the direct examination of witnesses. Seldom does the other side's case collapse because of cross-examination, no matter how skillful. A case is won when one side's presentation is more persuasive than the other side's presentation. Direct examination is the party's chance to tell its story, to explain its defense—in short, to win over the jury. The lawyers cannot tell the story as persuasively as the witnesses themselves, and even if the lawyer is a gifted speaker, nothing the lawyer says is evidence anyway. The jury will relate to the witnesses in spite of their faults and nervousness and imperfect memory.
Development of effective direct examination skills is therefore crucial to trial lawyers. Cross-examination may always be sexier and more fraught with tension, but if your goal is to win cases, then you must learn to love direct examination. This article returns to the basics. None of the advice is rocket science; most of it, in fact, is common sense. But honing strong direct examination skills will elevate direct examination above its staid and predictable reputation. It will lessen the burden of jury duty by making trials more interesting and engaging. And, most important, perfecting these skills will win cases.
A few caveats about this article: First, although this article applies to both plaintiffs’ and defense counsel, there may be some nuances particular to each side to consider. Second, a large part of effective direct examination is witness preparation. This topic is beyond the scope of this article, although the article does refer to it at times. Third, this article focuses on direct examination of fact, rather than expert, witnesses. With all that said, below are the basic rules and practical advice to improve your next direct examination.
All Eyes on the Witness
The first element of effective direct examination is to understand that the witness—not the lawyer—is the star. During direct examination, all of the jury’s focus should be on the witness and not on the lawyer. To make sure the jury stays focused on the witness, the lawyer needs to be aware of his or her physical presence. There should be some physical distance between the lawyer and the witness so that when the witness is answering, the jury is not distracted by the lawyer. Some lawyers prefer to stand at the end of the jury box during direct examination while others stay behind the lectern. Witnesses tend to look at the lawyer when answering questions, forcing jurors to act as observers of, rather than participants in, the trial. Standing at the end of the jury box—thus forcing the witness to look at the jury—helps to remind witnesses to make eye contact with the jury and tell their story to the jurors directly. On the other hand, standing at the end of the jury box could cause jurors to suffer from “tennis head” as they look back and forth between the witness and the lawyer. Either way, jurors do not want to look at the back of the lawyer’s head or have the lawyer block their view of the witness. So some distance is a must.
Understanding Why Each Witness Is on the Stand
The trial lawyer should develop a clear picture of how every single witness fits into the facts to be proven and the theme of the case. It is incredibly helpful to create a trial outline that lists each element of the claims (from the plaintiff’s side) or each element of affirmative defenses or attacks on the plaintiff’s claims (from the defense side). The outline should specify which witness or witnesses will establish each element or key fact. Some witnesses may be put on the stand to testify to key facts; others may be put on the stand to help humanize an unsympathetic client, such as a multinational corporation. But each witness needs to fit clearly into the case or defense and help advance the theme of the case. If the lawyer is not sure how the witness fits into the case theme, then—rest assured—the jury is confused as well.
The Legal Requirements
One part of the lawyer’s evaluation of which witness to put on the stand is the limitations imposed by the Federal Rules of Evidence.
First, the witness must be competent to testify. Fed. R. Evid. 601. This is rarely a problem because the rule declares that “[e]very person is competent to be a witness unless these rules provide otherwise.” For civil cases involving state law claims, state law will govern whether a witness is competent to testify. The question of competency usually arises only in situations where the witness is very young or there are issues regarding the witness’s mental capacity.
Second, the witness must testify based on personal knowledge. Fed. R. Evid. 602. In other words, the witness must have firsthand knowledge of the matter and not know about something through a source other than his or her own knowledge or experience. The testimony may properly include the witness’s inferences as long as they are based on firsthand knowledge.
Rule 602 is generally straightforward. The pedestrian who witnessed an automobile collision can testify about what each car was doing at the time of impact. In a medical malpractice case, the operating room nurse who assisted the surgeon can testify as to what she saw happen during the surgery. But Rule 602 can raise complicated issues. For example, in a complex accounting fraud case against a corporation, can the chief executive officer (CEO) testify that she knows that the company’s financial statements are accurate? The CEO did not oversee the preparation of the financial statements—the chief financial officer (CFO) did—and the CEO likely did nothing personally to double-check the calculations or assumptions underlying them. However, the CEO may have ensured that the statements were audited by a reputable accounting firm and may know that the company’s internal audit department recently examined the process by which the financial statements were prepared and gave the process a clean bill of health. Most likely, the judge would allow the CEO to testify that she believed the statements to be accurate, once the lawyer has laid the proper foundation for that conclusion during direct examination.
Asking Nonleading Questions
The federal rules prohibit lawyers from using leading questions on direct examination. Fed. R. Evid. 611. As a practical matter, though, effective trial lawyers do not need a rule to tell them to let the witness do the talking. Leading questions naturally result in the lawyer doing most of the talking and the witness merely saying “yes” or “no.” Nonleading questions, however, let the witnesses take center stage and will strengthen the case.
The practical way to ask nonleading questions is to start every question with who, what, where, when, why, or how. In the heat of trial, though, following this simple rule can be difficult, particularly when dealing with a recalcitrant or forgetful witness. One practical tip is simply to write on every page of your notes for a witness the words “who, what, where, when, why or how.” Then, if you get stuck or draw a leading objection, you can use this list to reformulate the question. After several trials, it will become second nature.
There are a few situations where leading questions are extremely helpful and not likely to draw a sustainable objection. For example, it is appropriate to use leading questions to lay the foundation for an exhibit (“Is this record one that is kept in the regular course of business?” “Is this photograph a fair and accurate representation of the accident scene?”). It is also appropriate to use them for background issues. And it is helpful to use a leading question as a bridge to a new topic (“Turning to the evening of March 21, were you at the intersection of Main and Locust Streets?”). Finally, if the court has limited key testimony in an evidentiary ruling, using leading questions will allow you to get a precise answer to a question without violating the court’s ruling.
The Power of Short, Pointed Questions
Strong, effective direct examination questions are short and to the point. They do not use big words. Less experienced trial lawyers often draft all of the questions they expect to ask at trial. There is nothing wrong with doing so. However, a question that is readable on the page to a trained lawyer familiar with the case differs greatly from a question that is understandable to a lay juror unfamiliar with the case. Keeping questions short and focused on one fact at a time allows the jury to follow the testimony better. In many cases, a chronological retelling of what happened is most effective. (A demonstrative timeline may also assist as well.)
Short questions also keep the witness on track. Witnesses will be nervous about appearing in court and may be unfamiliar with the legal system. Asking complicated questions will only exacerbate this nervousness, and the jury may equate nervousness with lack of candor. Asking short questions, particularly at the beginning of the testimony, makes it much easier for the witness to follow along with the lawyer. As the witness gains confidence during testimony, the witness will garner credibility with the jury. If the witness looks confused about a question on the stand, it is entirely appropriate to take a moment to restate the question or to break it down into several questions. If the witness whom you prepared is confused, then the jury is too.
Simple words are much more effective than complicated ones. A trial lawyer should take care not to use a longer word when a shorter one will do the trick. For example, “before” is preferable to “previously”; “see” is preferable to “observe”; “car” is preferable to “vehicle.” Trial lawyers sometimes fall into the habit of using phrases that complicate questions, such as “I direct your attention to Exhibit A” or “did a time come when you started working at Acme Corporation?” It is much more understandable to the jury (and witness) to say “take a look at Exhibit A” or “did you ever work for Acme Corporation?”
Listening to the Witness
This may be the most-violated rule of direct examination. Only by listening to the witness will the lawyer know whether the witness has testified to the facts needed to prove a claim or defense. It could be fatal to a lawyer’s case for evidence to close and only then realize that a witness did not testify to a key fact. Once the evidence closes, there are no second chances. Assuming the lead lawyer has at least one support person at the trial, someone else on the team should be charged with taking notes of each witness’s testimony for later reference before the evidence closes. Nonetheless, every trial lawyer should listen to every answer to every question and keep track of it as well.
During direct examination, the lawyer should be looking at the witness and appear interested in what the witness is saying. The lawyer may nod where appropriate and use subtle facial expressions to suggest to the jury how important this testimony is. It is important to keep in mind that this is your witness. If you cannot be bothered to look interested in what he or she is saying, then you are sending the jurors a strong signal that they need not pay attention either.
The physical component to listening to a witness has an important, though subtle, side effect. Jurors often watch lawyers during trial to gauge their reaction to an answer or to take a break from watching the witness. If a juror looks at the lawyer and the lawyer is looking at the witness, jurors will naturally follow the lawyer’s gaze and watch the witness as well. This is not as easy as it sounds. Often, the trial lawyer has heard the witness’s story so many times, he or she is no longer very curious about the answer. In addition, the lawyer may be thinking about the next question to ask or how he or she will respond to a possible objection by opposing counsel, or checking his or her notes while the witness answers. All of these naturally distract the lawyer from listening to the witness and should be avoided. If you need to look at your notes, wait until the witness has finished his or her answer, glance at your notes to find the next question, and then ask it. Do not be afraid to allow a few seconds of silence in the courtroom while you process what the witness has just said, verify in your head that the witness has articulated all the salient points you were looking for in the question, and then formulate—or locate in your outline—the next appropriate question.
Strategic Follow-Up Questions
A corollary to listening to the witness is asking follow-up questions. Asking follow-up questions can keep the lawyer focused on what the witness says and also keep the witness on track during the examination. It also makes the testimony more of a conversation than an interrogation—think Oprah rather than 60 Minutes. Imagine being on a jury watching a lawyer read a question from notes and the witness giving a practiced answer—over and over and over again. This pattern will, at a minimum, suggest to the jury that the version of events being presented is entirely manipulated, or it may even put the jury to sleep. Spontaneous follow-up questions break this pattern.
Follow-up questions can effectively draw the jury’s attention to a key fact in the case or defense. For example, consider a case in which a critical part of the defense is to establish that the CEO learned of the need to restate revenue during a board meeting rather than before it. If the witness describes what happened during the board meeting in narrative form, interrupting her will help emphasize certain facts for the jury, as in the example below:
Q: Ms. Duran, what was talked about during the board meeting of June 23, 2011?
A: We discussed the recent acquisition of a small competitor in Cincinnati. The CEO Jack Redstone asked a lot of questions about possible antitrust issues and how we resolved them, and then Sandra Cook, a director, asked about how the acquisition would streamline our Midwest operations. There was a long discussion about shipping efficiencies because of the acquisition. The next topic was the upcoming financial statements which were due the next week. The CFO, Mr. Beem, gave an overview of the financials, including revenue and expenses. He then pointed out that $50 million in revenue needed to be restated because of the recent change in the accounting rules. Jack wanted to know …
Q: [gently interrupting] Ms. Duran, let me stop you for a second there. Who brought up the change in accounting rules?
A: Mr. Beem.
Q: And he’s the CFO?
Q: What exactly did he say?
A: He explained in some detail about what the change was and how it changed the amount of revenue we could report that quarter.
Q: Did Jack Redstone say anything in response to Mr. Beem’s explanation?
Q: What did he say?
A: He said he was very surprised to hear about the need to restate revenue and asked Mr. Beem why he had not told him earlier about it.
Q: How did Mr. Redstone appear when he said this?
A: He appeared very surprised and very angry. His face was red and his voice was kind of loud when he asked Mr. Beem about the change. I’ve never seen him so angry before.
Q: Thank you. Returning to the board meeting, was anything else discussed?
These few, simple follow-up questions turn a dull narrative about a board meeting into effective testimony highlighting the memorable fact of when the CEO learned of the need to restate revenue. Had the lawyer allowed the witness to meander through her answer and describe the whole meeting from start to finish in one answer, it would have been very difficult for the jury to pick out the important fact. The follow-up questions fix that problem.
Follow-up questions usually cannot be planned ahead of time. Asking such questions requires that the lawyer listen carefully to the witness and continually evaluate what would help the jury understand the testimony. Personally preparing your witness—and not relying on others in your firm to do so—will improve your follow-up questions because you will get a better sense of how the witness will behave on the stand.
In addition to highlighting key facts, follow-up questions are helpful in a few specific circumstances. First, they are helpful when the witness refers to a name or place that is unfamiliar or that has not been identified recently. For example, if the witness mentioned that Ms. Smith was her supervisor at the factory early in her testimony, and then refers to Ms. Smith an hour later, it may be helpful to ask a quick follow-up question, even in a leading form, to help the jury remember who Ms. Smith is (“And Ms. Smith was your supervisor at the factory, right?”). Second, if the witness describes surprising or unusual actions, gently asking “Why did you do that?” will help the jury understand what happened. Third, if the witness uses technical terms or other terms of art, it is helpful to ask for a definition of the word. Expert witnesses will be skilled at explaining technical terms, but many fact witnesses will not and will lapse naturally into workplace jargon and acronyms. It is the trial lawyer’s job to make sure the jury understands what is being said.
The Structure of an Effective Direct Examination
Effective direct examinations manage to be conversational, yet have a tight structure. Balancing those two characteristics is not easy. A tightly structured direct examination does not mean a boring one. Rather, it means that the lawyer has thought carefully about what questions to ask and in which order to ask them. The examination will not waste anyone’s time and will advance the party’s theme. The following suggestions about structure are far from absolute and do not take into account each lawyer’s style. Yet, for many witnesses, the following structure will be helpful for the jury:
Most direct examinations should begin with a brief discussion of the witness’s background. Background questions calm a nervous witness and give the jury a way to identify with the witness. All of this increases the witness’s credibility with the jury. Such questions may include questions about where the person is from, what he or she does for a living, and his or her family, education, job history, and so forth.
The direct examination should then transition, or bridge, to why the witness is there and how his or her testimony will help the jurors. The bridge may be as simple as “Ms. Jones, you witnessed the accident between Mr. Jackson and Ms. Jefferson, right?” or “Mr. Grant, were you involved in Acme Corp.’s hostile takeover of ABC Co.?”
Telling the Story
This is the longest part of the testimony and the most important for both the plaintiff and the defense. In many cases, a chronological structure makes the most sense. This structure also makes for an easy conversational style because many of the questions will be something along the lines of “what happened next?” During this section, the lawyer will elicit the key facts and introduce exhibits necessary to support the party’s claim or defense. When a chronological approach will not work and the testimony must cover many different topics, frame each new topic for the witness and jury (“Mr. Harding, I’m now going to ask you a few questions about your company’s marketing practices.”).
Addressing Weaknesses in Direct Examination
The trial lawyer will need to decide how to handle known weaknesses in testimony or troubling information about the witness’s background. One option is to cover those topics during direct examination and “take the sting out” of them before opposing counsel jumps on them in cross-examination. The second option is to prepare the witness to handle these topics on cross-examination and leave any clean-up questions for redirect.
As a general rule, if you know the other side will raise the issue and it is directly relevant to the matters at hand, it is safer to bring up the issue during direct examination. The questions will be gentler and the answers discussed in advance, which may ease the witness’s mind about the testimony.
If, however, trial counsel is not sure whether opposing counsel knows about the weakness, then there is no reason to raise it during direct examination. Raising it may only alert the other side to a weakness of which it was not previously aware. When making this decision, the lawyer should evaluate how well prepared the other side will be and how difficult it is to uncover the weakness or negative information. If the harmful testimony is elicited during cross-examination, then the lawyer should be prepared on redirect to minimize its effect.
Either way, part of witness preparation should include some practice answering questions on direct or redirect, and cross-examination, about the topic. The witness should have clear, matter-of-fact answers to avoid sounding defensive about the topic. If asked on direct examination, the questions should be short and to the point: Elicit the problematic testimony, give as plausible an explanation as possible, and then move on to another topic. The topic should be buried in the middle of the examination so as to limit the attention given to it.
How to Handle Specific Problems During Direct Examination
Even though direct examination is the time when the trial lawyer has the best idea of what will happen, trial would not be trial if there were not a few surprises or unexpected difficulties. Here are tips for how to deal with the most common ones:
Adverse or Hostile Witness
In limited circumstances, a trial lawyer may need to put an unfriendly witness on the stand. A plaintiff, for example, may put the defendant on the stand during the plaintiff’s case-in-chief because only the defendant can establish an element of the claim. A corporate defendant may need to call a terminated employee to testify to certain events that occurred while he or she was at the company. Trial counsel should try to use any witness other than one who is hostile or adverse. However, if it cannot be avoided, the federal rules allow direct examination by leading questions. Fed. R. Evid. 611.
The first step is to establish that the witness is, in fact, hostile or adverse. Counsel should then ask the court to allow leading questions. Adversity is sometimes obvious, such as when the plaintiff calls the defendant as a witness. But when it is not obvious, the trial lawyer will need to ask some simple, non-leading questions to establish the hostility. In the example of the terminated employee, the line of questioning could be as follows:
Q: Ms. Stanford, where did you work from 1995 to 2006?
A: Acme Corporation.
Q: When did you leave Acme Corporation?
A: Around 2006.
Q: Why did you leave?
A: I was fired.
A: My supervisor hated me so she got me fired for no reason.
The risk with this line of questioning in open court, of course, is that it opens the door for the witness to tell the jury all sorts of terrible things about your client. For this reason, you may make such a request at the bench and explain why the witness is hostile. If opposing counsel agrees that the witness is hostile, the court will likely allow leading questions without the need to lay the foundation in front of the jury. If the witness dislikes your client for reasons that may severely prejudice your case, then you could ask to conduct the preliminary questions outside the jury’s presence. If the judge requires the questions in front of the jury, you should keep these questions short and ask the judge as soon as possible for permission to use leading questions.
Once the trial lawyer has permission to treat the witness as hostile or adverse, this does not mean there is free rein to attack the witness. The jury will likely be somewhat confused as to why the lawyer is asking pointed questions of his or her own witness, so the safest approach is to ask only the most necessary questions and finish the examination quickly. Trial counsel should foresee the need to use this witness early in the case and use discovery, particularly depositions, to pin down the witness to helpful answers.
In rare circumstances, the witness will surprise the lawyer with an answer on direct examination. It may be a good surprise—the answer is better than expected. In that case, accept the gift and move along. More often, though, it is a bad surprise—the witness does not remember a key fact or, for some reason, is not truthful in answering. If this happens, the trial lawyer’s first approach should be to try to fix the problem with a simple follow-up question, such as “Are you sure the other car was blue?” or “Did you mean Mr. Smith made that statement or Mr. Jones?” Every nervous witness will get a name or date wrong, and the jury will understand. However, if it is a critical fact that the witness cannot recall, the lawyer may need to resort to the other two options: refresh the witness’s recollection or impeach the witness.
Another, but least favored, option is to impeach your own witness. This should rarely be done for the obvious reason that the jury will be left wondering why you are doing so. However, if you are dealing with an adverse or hostile witness who will not cooperate with mere refreshing of his or her recollection and if it is a key fact, then impeachment may be your only option.
The best approach to handling potentially surprising testimony is to refresh the witness’s recollection under Rule 612. Before showing anything to the witness, the trial lawyer must establish that the witness does not remember a fact, that the witness knew the fact at some point, and that there is something that would refresh the witness’s memory about it. This foundation can be established through leading questions. Once this foundation has been laid, the trial lawyer can show the witness a document (such as a deposition transcript) for review. After the witness has reviewed the document and the lawyer retrieves it, the witness can answer the question. It is always good to prepare a witness for what will happen if he or she forgets a key fact and walk the witness through this process at least once so that the questions are familiar.
Witnesses You Could Not Prepare Before Trial
In most circumstances, the trial lawyer will have met with and thoroughly prepared all witnesses for direct examination. Sometimes, though, such a meeting may not be feasible. For example, in a dispute between two business partners, the lawyer for the partnership may need to testify but does not want to favor either side by meeting with either partner’s lawyers. If this is the case, the trial lawyer should seriously evaluate whether to call the witness. It is a massive risk to call someone you have not met because that person could give testimony that is harmful to your case, even if he or she does not mean to do so.
Nonetheless, if the witness is crucial, the lawyer should first establish the background and relationship to the case in the same way as any other witness. The trial lawyer may wish to establish that the witness is testifying because of a subpoena, not voluntarily, and that the trial lawyer has not met with the witness before trial. Relying heavily on previous testimony or exhibits to develop questions, the lawyer can limit the witness’s wiggle room for giving unexpected or harmful answers. As in questioning a hostile witnesses, a short examination is best. The trial lawyer cannot use leading questions but should, where possible, limit the nonleading questions limited to questions with straightforward answers (“What time was it when the accident happened?” “Where were you standing when you saw the accident?”), rather than open-ended questions (“Why didn’t you report your colleague to his supervisor?”).
Redirect can be wonderfully effective to clear up the jury’s confusion over a key issue. It can also bog down trial, frustrate jurors and the judge, and reopen areas of questioning better left closed. There is not much time for careful reflection to decide whether to redirect a witness; the judge will turn to counsel after the cross-examination ends and ask for any redirect. The best preparation is to (1) know before trial what key facts must be obtained for each witness, and (2) keep careful notes during cross-examination of the areas on which clarifying questions need to be asked.
Redirect is limited to the topics raised on cross-examination and, like direct examination, must be conducted using non-leading questions. After listening to opposing counsel ask leading question after leading question, it is tempting to do the same on redirect. Sharp opposing counsel, though, will object to these leading questions and can quickly throw off the flow of redirect.
The effective trial lawyer will keep redirect short—very short. The best redirect will cover a few key topics, perhaps three or four. The easiest way to orient the witness and jury to a question is to begin by asking whether the witness recalls answering a specific question asked by opposing counsel. Consider the example of the witness to a board meeting. During cross-examination, opposing counsel suggested that the witness was absent from the meeting for a long time and therefore did not hear a lengthy discussion between the CEO and CFO about financial statements.
Q: Ms. Jackson, do you recall when Mr. Washington [opposing counsel] asked you some questions about when you left the board meeting on March 19th?
Q: How many times did you leave the board meeting?
A: Just once.
Q: When did you leave the board meeting?
A: I left it around 11 am or so.
Q: Why did you leave?
A: The chairman had asked me to find a specific operations report that was on my desk in my office.
Q: How long were you gone?
A: Maybe 3 or 4 minutes.
Q: How do you know you were only gone for 3 or 4 minutes?
A: Because I had emailed my secretary from the board meeting to find the report in my office for me. All I did was walk to my office, which is just down the hall from the board room, get the report from my secretary, and walk back.
Beginning each topic with an opening question like the one above ensures that the trial lawyer avoids introducing a new topic on redirect. It also makes it much easier for the witness and the jury to follow the questions. Nothing will destroy an excellent direct examination faster than a badly conducted redirect. So if cross-examination did no damage or if asking more questions will not fix any damage that was done, then there is no need to conduct a redirect at all.
How to Prepare for Direct Examination
An effective trial lawyer spends considerable time preparing for direct examinations. Obviously, a large part of the lawyer’s preparation is meeting with and preparing witnesses to testify. Every trial lawyer will have a different method to prepare for direct examinations, but the list below includes the main parts of preparation.
Reread the witness’s prior testimony. Prior testimony will offer a preview of opposing counsel’s topics for cross-examination. It is also critical for the witness himself or herself to re-read his or her testimony before trial to avoid impeachment.
Review key documents related to the witness. This review will include documents to or from the witness, documents that were used during the witness’s deposition, and documents that you intend to use during the direct examination as exhibits. The witness will also need to review these documents carefully to understand how they will be used at trial by both parties.
Draft a list of topics or questions. Very experienced trial lawyers may use only a list of topics for each witness. But there is nothing wrong with drafting the questions you want ask a witness, understanding that spontaneous follow-up questions are necessary to avoid sounding too rehearsed. Although it is impressive to watch a lawyer examine a witness without consulting notes, there is nothing impressive about examining a witness without notes and then forgetting to elicit a key fact. Having at hand a list of key topics or questions ensures that the lawyer does not forget something critical in the heat of trial.
Prepare for objections. The trial lawyer can anticipate most of the objections to testimony or exhibits before trial. In civil cases, counsel will have exchanged exhibit lists and likely had a meet-and-confer about objections, and possibly a hearing to resolve them. As a result, the trial lawyer can anticipate objections from the other side on grounds of relevance, hearsay, lack of foundation or personal knowledge, and undue prejudice. The lawyer should then craft a response to each possible objection to be ready at a moment’s notice and may even jot down notes about it (such as what exception to the hearsay rule applies). Too much preparation on this front will never be harmful.
Select exhibits. A key part of any direct examination is what exhibits must be introduced by a specific witness and what exhibits should be explained by a specific witness but need not be introduced through that witness. For example, a confidential memo to the file written by Ms. Madison in the human resources department could likely be authenticated only by Ms. Madison. Unless the other side has agreed to the memo’s admissibility before trial, trial counsel must authenticate and introduce that exhibit when Ms. Madison is on the stand. However, an email sent by Ms. Madison to six other employees could be authenticated only by any one of those seven individuals. Yet, trial counsel may need Ms. Madison to describe why the email was written. The email should be included as an exhibit for Ms. Madison’s direct examination, even if she may not be the one to authenticate it. In addition, consider using witnesses to highlight positive documents for your side. Emphasizing helpful documents numerous times will remind the jury of them.
Consider demonstratives. Although demonstratives and other physical evidence are routinely used for expert witnesses, they can be a persuasive way to present fact testimony as well. For example, a witness to a car accident can use a map of the intersection to describe what happened, perhaps even stepping down from the witness stand to point to where certain events took place. A defendant-doctor in a medical malpractice claim may use a model of the human body to describe the surgery. Demonstratives and physical evidence can dramatically increase the effectiveness of a direct examination, but they are also expensive to develop and take additional preparation time with the witness to use. For example, if the lawyer intends to have the witness step down from the stand to explain something, this needs to be practiced in advance to make sure the witness is very comfortable with it. These days, juries expect to be entertained, and computerized demonstratives are becoming ever more common.
This article may not immediately convince a trial lawyer to start telling war stories about great direct examinations, but with any luck, it will have provided helpful practical advice to improve them. As any courtroom observer would attest, there is much room for improvement to avoid dull recitations of a lawyer’s questions and a witness’s answers. All trial lawyers share one goal: to win cases. Skillful direct examination—bringing the testimony to life and hammering home the case’s theme—is one crucial key to doing just that.
Keywords: litigation, trial practice, direct examination, Federal Rule of Evidence 601, Federal Rule of Evidence 602, trial preparation, testimony, witness
Sara E. Kropf is a partner in the Washington, D.C., office of Baker Botts. She would like to thank Jamie Kilberg for his helpful comments and suggestions on this article.