Podcast - Direct Examination: Controlling a Friendly Witness

Dan Small: It's important to avoid leading questions on direct examination. But many lawyers assume that giving up on leading questions means giving up on control. Of course, that isn't true. You still get to ask the questions, and the witness is usually friendly. But you are the captain of the ship. You have to make sure that the direct examination goes the way you want it to. That requires both preparation beforehand and attention during the trial.

Preparation. First and foremost, prepare your witness. I wrote the ABA's Manual on Preparing Witnesses, now in its fifth edition, and it's the subject of a whole separate podcast series, "Powerful Witness Preparation," so I won't spend much time on it here. Suffice it to say that includes going over not only the anticipated testimony, but how you expect it will be delivered by the witness and what might go wrong. Make sure the witness understands that you are in charge, and that the witness has to take his or her cues from you. Tell your witness you may need him or her to stop talking, or to go back over something, or even to be interrupted. As part of my witness preparation, I sometimes use the analogy of sports broadcasters who use slow motion replays. Why do they do that? Because you can't always follow the story in real time. Often real life happens too fast and you have to stop, slow it down and go over it frame by frame. That doesn't mean that the witness did something wrong. On the contrary, it often means they did something right, and we want to linger over it and make sure the jury is following.

Second: Mistakes. All witnesses are people, and as people they make mistakes. Prepare your witness for that likelihood. They're not ready for it. Tell them that it's OK. Tell them that jurors don't want robots talking to them. They know that witnesses are human, they know that witnesses will make a mistake, and they're OK with it. Tell them that when they make a mistake, you're going to stop and try to fix it. Explain to them how you can use a document to refresh their memory, for example. Of course, you need to be listening carefully to make sure you catch the mistakes, especially ones involving numbers, dates and times, which may be easy to miss. Stop the train and make sure it's going in the right direction.

Number three: Pace. Whether out of nervousness, eagerness or both, witnesses often talk too fast. By doing so, they risk confusing jurors or losing them entirely. It's up to you to recognize the problem and to slow things down. You probably can get a sense in your preparation whether your witness is likely to be one of those people. If it happens in the courtroom, don't be shy about trying to stop it. There's nothing wrong with saying something like, "Mr. Witness, I'm going to ask you to slow down a bit to make sure we can follow," or "Mr. Witness, the court reporter has a difficult job to do. She's got to write down every word. So can we try to slow this down so she can take everything up?" or "Mr. Witness, or Madam Witness, let's stop and back up for a moment." There are also more substantive reasons to vary the pace. If there's an important piece of testimony, you almost always want to slow down and spend time on it. The whole case might turn on those answers. Don't just rush to the next set of questions, linger.

Number four: Pieces. Tell your witness in preparation that you want the answers to contain one thought at a time, usually expressed in one sentence, one phrase or even one word. Witnesses will often jumble things together in a way that might make sense to them, but not to the jury. Don't try to put the whole case in one answer.

Number five: Narrative. Avoid long narrative responses. Most of the time, you don't want your witness to be giving a narrative answer of any kind. It may be objectionable, and it's not likely to be effective. The jury may not follow the story, and important points will be buried among minor ones. Break the answers up if you have to by saying, "Let me stop you there." Put the testimony forward in manageable, bite-sized pieces, or the jury will be overwhelmed.

Number six: Listen. Listen, listen, listen. Remember to listen to what the witness actually says. It's not going to be exactly as you prepared. It's not going to be exactly what's in your notes. And if you're too busy looking at your notes, you're going to miss what happens in real life. Be prepared to react to a wide range of unexpected testimony, including mistakes, missed facts, new issues and unexpected opportunities.

Direct examination can be a somewhat deceptive environment for both the witness and for counsel. Because the witness is usually friendly, the lawyer and the witness may wind up in sync with each other, but leave the jury behind. It's your job to control a witness, even a friendly one, and to make sure that the testimony is clear and effective for the jury. Make sure your witness isn't just answering questions, but they're bringing the jury along with them.