Podcast - Direct Examination: Getting Rid of Clutter

Dan Small: Trials are plagued by verbal clutter. Unnecessary words spoken by lawyers and witnesses and yes, sometimes even judges. These words obscure the purpose and power of the testimony. They frustrate and confuse the jury, and they unnecessarily prolong the trial.

Your questions should be as short and simple and clear as possible. You can't always control what your witnesses will say, but you can control what comes out of your mouth and hopefully your witness will follow your example. The jury's job is hard enough. Don't make it more difficult by adding extra words to your questions. Don't make them have to be the janitors to clean up your mess.

One of the many things that lawyers do is to attach pointless phrases to the beginnings of their questions. A phrase like "Can you tell us?" doesn't do much harm all by itself. But those small instances of extra words add up, especially in a long trial, and especially if they are repeated over and over again. And sometimes the extra words are not just pointless, they're actually detrimental to your case. Don't undercut your good questions with a bad opening phrase.

There are lots of ways to begin a question. Here are four common bad examples:

Number one: Don't begin questions with "Do you remember?" Of course they remember. Witnesses are by definition testifying from their memory. But the real problem is that the question is inherently ambiguous. Strictly speaking, the question calls for a yes or no answer. "Do you remember?" "No." "Do you remember?" "Yes." But what does that answer mean? "Do you remember being in Dallas?" "No." Are they denying they were in Dallas? "I was never there." Or are they saying they're not sure? "I might have been, but I don't remember." The problem is compounded when the question has more detail. "Do you remember being in Dallas on April 22, 2004, with John Smith?" "No." Wait a minute. Which part don't they remember? "I was in Dallas with John Smith in April, but not all of it. I don't remember the exact date." Instead, break it up into bite-sized pieces and just ask the question. "Were you in Dallas, Texas?" or “Were you in Dallas, Texas, in April?" or "Do you remember the exact date you were in Dallas, Texas?"

Number two: Don't begin questions with "Can you tell us whether?" Again, what are you asking? This technically calls for a yes or no answer and thus creates ambiguity. "Can you tell us whether…" "Well, maybe I can, maybe I can't." That's not what you're trying to do. Here are two real life examples: "Can you tell the jury whether you reported that income on your tax return?" "Can you tell the jury whether any taxes were withheld from your paycheck?" Suppose the witness answers no to the first question. Does that mean the witness did not report the income, or does it mean they can't tell the jury whether they did or not? Just ask it directly. "What income did you report?" "Were taxes withheld from your paycheck?"

Number three: Don't begin questions with "Would you have?" That kind of question is almost always improper. Among other things, it's unclear if the questioner is asking the witness whether he did something or whether it's a hypothetical. For example, "Would you have reviewed this document?" Is the lawyer posing a hypothetical question, or are they asking what the witness actually did? Ask instead, "When did you first see this document?" "What did you do with it?" And on from there. Likewise, don't accept answers using the phrase "I would have." "Did you mail a letter that day?" "Well, I would have put it in the mailbox on my way home." Are they saying they did put it in the mailbox? Or are they saying it was their practice to put letters in the mailbox on their way home? Or are they just guessing or speculating? Follow up with a question that forces the witness to clarify. "Did you put it in the mailbox?"

Number four: Don't begin questions with something like "Did you have an understanding as to…" Witnesses are usually limited to testifying about their perceptions and their actions. A witness' subjective beliefs or understandings are sometimes relevant but under fairly limited circumstances. Nonetheless, lawyers often ask witnesses for their understanding as to what happened, instead of just asking the question directly. "What happened?" "Did you come to an understanding as to where the company was incorporated?" There's rarely any reason for this. Normally, it's just a convoluted and incorrect way of asking the real question. "Where was the company incorporated?" If it actually matters how or when the witness learned something, ask that question. "Did you learn where the company was incorporated?" "How did you learn that?" "When did you learn that?" "Who told you?" Of course, if their subjective understanding actually matters — and sometimes it does — go ahead and ask that.

A good rule in life is to get rid of the unnecessary stuff that fills your house and only serves to get in your way. The same rule applies to trials. If it doesn't help, it's probably in the way, and you should get rid of it.