Podcast - The Basic Elements of Direct Examination

Dan Small: In theory at least, an effective direct exam should be one of the easiest things to accomplish in the courtroom. The witness is almost always friendly. The testimony is almost always predictable, and the goal is usually pretty straightforward: telling a story that you've worked intensely to pull together. In fact, it's just the opposite, isn't it? A good direct is both challenging and critically important. Too many direct examinations are neither as clear nor as compelling as they ought to be. Maybe that's because too many lawyers view direct as a simple, almost mechanical task. Just put your witness on the stand and press play. But a truly effective direct examination can't be treated or created on the fly. It requires careful organization, planning and discipline.

There are six basic elements of an effective direct examination: 1) introducing the witness, 2) setting the stage, 3) telling the story, 4) showing the evidence, 5) diffusing problems and 6) concluding effectively. Let's take them in order, even though the order may vary somewhat from one case to another and one witness to another.

Number one: introducing the witness. Most lawyers ask a handful of questions up front to introduce and humanize the witness. A few questions about a witness' background such as occupation, family, education, whatever are normally permitted, even if technically they aren't always relevant. But be careful not to overdo this. If you spend too much time on the witness' background, the jury will become impatient. And if you spend too much time on irrelevant matters, it may seem like you're insulting their intelligence. On the other hand, think about what parts of your witness' background are relevant to understanding him or her, to understanding the case, and find ways to linger over those.

Number two: setting the stage. Take time to set the stage before plunging into the story. Everything in life happens in a context, and the jury will likely need to know what context applies here. And without context, they won't be able to understand the story completely. The context may be as simple as a physical location, for example, a dark alley, or a location in time, for example, Christmas 2023. More likely, it will be a combination of time, place and background events. For example, Wall Street during the financial crisis of 2008. Whatever it is, the context almost certainly matters, and you'll need to have your witness explain it.

Number three: telling the story. With rare exceptions, the testimony should follow a chronological narrative. It's easiest for the jury to follow. If you start at the beginning and end at the end, take your witness through the story one step at a time. Break the testimony into digestible pieces. Don't try to put too much into a single question or a single answer. Make sure you're explaining things, but try to be sensible about it. Make it clear when you're leaving or coming back to the main story. For example, "Mr. Smith, let me stop you there. What do you mean by subcutaneous?" or "Mrs. Jones, Let's go back to the evening of April 20. What happened next?"

Number four: showing the evidence. As we've said before, and will no doubt say again, too many lawyers talk too much and show too little. Use charts, photographs, diagrams, graphs, anything to put a visual depiction before the jury. Don't forget, of course, that you're making a record in a demonstration or using a demonstrative. It's easy for a witness to fall into using shorthand words — this, that, there, here and so on. Follow up with a clarification. "May the record reflect that the witness is," or "can you please mark that spot on the diagram with" or "are you referring to" whatever.

Number five: diffusing problems. All witnesses have flaws of one form or another. Try to diffuse them to the extent you can by bringing them out on direct. You don't want the jury finding out about them on cross, where they may be exaggerated by the fact that you hid them on direct. Normally you want to put the bad stuff in the middle. Neither first nor last. But if your witness has very serious issues like being a serial murderer or something, and particularly if the jury already knows about it from opening statements or elsewhere, you might as well get that out right up front.

Number six: concluding effectively. Too high a percentage of direct examinations end with a lawyer asking the judge for a moment, followed by a long pause, a review of the notes, a consultation with co-counsel and maybe an inconsequential question. Don't do that. Ideally, your direct should end with something that has a powerful and persuasive impact. It's a challenge. Unlike cross examination, it's often difficult to end a direct on a dramatic note, but that doesn't mean you should just meander your way to a confused and muddled end. Find a way to end strong.

Effective direct examination is an important trial skill that's far too often overlooked. You can probably get away with a poorly planned or poorly executed direct, but you don't want to do just the minimum, you want to win. Improving your direct examinations can dramatically improve your odds of winning.