The art of the direct examination

ART OF THE TRIAL

Trial attorneys are storytellers. We win or lose based on our ability to weave key facts together into a persuasive narrative for the factfinder. That story, bolstered by evidence and delivered in a compelling way, convinces a jury to agree with our client. Although a rousing opening statement and forceful closing argument bookmark a case, what counts most is the narrative we craft throughout the trial, chapter by chapter, through the direct examination of witnesses.

The Harmony of Witness Selection

My strategy for direct examination begins long before the witness takes the stand. My witnesses are my client's surrogates, charged first and foremost with telling the truth, and I choose them with care. Whenever possible, I identify trial witnesses before discovery begins and work with my witness through depositions and thereafter.

Every piece of evidence I need for my closing comes from direct examination, so each witness has to have a purpose and the jury needs to understand it. I never want a jury to think, after my direct examination, "what was that about?" or "why did I have to listen to that person testify?"

To that end, my witnesses have to have two qualities: The first is an ability to "write" a chapter in my client's case that is being revealed to the jury. What is the key message and the exact point of the case they support? If a witness doesn't fulfill that "chapter" requirement, he or she doesn't need to take the stand. Sometimes it's tough to cut a witness. I have had witnesses that are articulate and charming but do not have any meaningful purpose in the case and so have not taken the stand.

The second quality is a bit more elusive. It's chemistry. What makes a particular witness uniquely suited to tell the story? What are their strengths and weaknesses as a storyteller? Can he or she connect with a jury? Sometimes it's readily apparent. But not always. It requires taking time with your witnesses. I usually have at least three face-to-face meetings with each witness before they take the stand. The first is high level, reminding the witness to tell the truth and nothing but the truth, helping them understand what testifying looks and feels like, and just getting to know them. Understanding their cadence and them understanding mine will help present a seamless exchange at trial. The second meeting is more detailed, discussing the claims and defenses, getting them comfortable with the types of issues they will likely face. And the third is a final refresher and an opportunity to answer questions or give the witness a final boost of confidence.

You're a Conductor, Not an Usher

I try to remember that I am not an usher, escorting the witness to the stand and then taking a backseat to the show. I'm guiding it. The tone of my voice, my body language, my facial expressions, all signal something important is happening - or not. Sometimes, even a good witness needs a little help.

The first expert I examined in a jury trial had a compelling and interesting set of opinions. He was an expert in the Koch v. Greenberg case, a case about counterfeit wine. The expert told the jury the rich history of wine, how are bottles made, why corks looks the way they do, why vintages and provenance matter. The jury was receiving it well - when they could hear him. On the stand, he spoke in a near whisper. So I raised my voice, elevating the pitch of the examination and forcing the jury to pay even more attention to the dramatic highlights. My witness responded in kind, raising his voice, and following my direction to turn to the jury ("Sir, please tell the jury why you find it notable that this bottle purports to be from 1945 but the bottle has an odd shape?)

The Jury Is Paying Attention to You

This leads to my next point - direct examinations look deceptively simple. In fact, they're a bit unnatural. Trial lawyers stand up to ask questions to which we often know the answers, doing so in a way that is both informative and engaging. Although my primary focus during direct is helping my witness "write their chapter", I am simultaneously doing a mental checklist - ticking off key points I need for closing, and staying aware of how my jury is reacting. I have curtailed lines of questioning that appeared to lose the jury's attention and expanded on those I could see piqued their curiosity. I am always aware that the jury is reacting mostly to the witness but also to me. That means the lawyer should be aware of their demeanor, their tone, and their facial expressions.

Born This Way

Respect your witnesses just the way they are. If they naturally use polysyllabic words, let them (the irony of that last sentence is not lost on me). If they refer to arcane scientific principles, that can also be fine. I try not to "dumb down" my witness's testimony, but I always insist that they explain complicated principles.

Another example from the Koch v. Greenberg case. I called an expert on paper, ink and glue to the stand. He was there to show the jury that the materials on the wine bottles didn't exist until years after the date stamped on the labels - a strong indicator of fraud (how could a bottle of wine that purports to be from 1920 have a label that uses ink that wasn't available until 1960?). The very first time my witness explained this principle, he said that the materials were "anachronistic." It was a powerful and descriptive word, but one that is rarely used in common parlance. So, I followed up with a rough explanation: "So is this like a photograph of Babe Ruth holding an iPhone?" He chuckled and said "yes." The jury chuckled as well. They immediately got it.

Show and Tell

Sometimes the most important elements of your case can also be a slog to get through. Especially for longer examinations, I try to determine at what point the jury will get bored. So I find ways to bring the testimony to life. That means being creative about demonstratives to use with the witness. Can they hold up an example, show a video, use engaging graphics to drive home their point? I had one jury passing around an exhibit while my witness was explaining its significance.

Be Flexible

The best laid plans can go awry. You don't want to sweat. I once had a witness who worked for a third party and with whom I spent virtually no time. I went in to the examination hoping he would help lay a broad foundation for a series of examinations to come. As the questioning began, it was clear to me that he went into the examination with a different aim: namely, to get off the stand as quickly as possible. So, I had to pivot. I narrowed my examination considerably, I asked him only those questions that I needed to have answers for, and I asked the questions in a way that played directly to his ego and his expertise. He was off the stand quickly and I had the key testimony I needed (even if not all the frills and embellishments I had hoped).

Conscious Uncoupling

Once a witness is off the stand, I have a tremendous sense of fulfillment (if things have gone well). It's over. No more years of discovery, no more weeks of depositions, no more hours and hours of preparation. You go your way and they go theirs, with a deep appreciation for the opportunity to vindicate your client in this system we have. It's challenging and engaging, and there's something righteous about it.

So my best advice for direct exams comes down to a few simple rules: connect with your witness, connect with your jury, connect with your story, and try to enjoy the experience.