Direct Examinations #1
Introduce the witness
Have you ever testified? Well, I have and can assure the reader that it’s an out-of-body experience. The witness focuses on the questioner. This focus is so intense that the witness may forget who else is watching! Go ahead and ask someone who has testified. If they deny that point about focus, ask someone who has testified recently. They will recall the experience vividly.
You can prepare the witness all you like, just like you can prepare to give a speech or play a role on stage. Once the preparation stops and the action starts, well, that’s a whole different kettle of fish.
In Direct Examinations Preparation #1, we introduced the technique of presenting the witness to the decision-maker. In story-telling, the narrator places the characters in the setting to orient the reader. Remember that witnesses tell the story in direct examinations. These witnesses create a solid foundation for litigators to build a persuasive edifice of points and elements.
The introduction plays a second important role. It orients the witness to the stage of the witness box. Even if you had the chance beforehand to show the witness the courtroom, sit the witness in the box and ask a few sample questions, the live-action experience is very, very different.
What are your first words after the clerk has named the witness and conducted the customary preliminaries? Please don’t thank the witness for attending. The chances are substantial that the witness is a party, is related to a party by family or employment or service contract, or is subject to a Summons to Witness, attending under duress.
If the witness is very young, infirm, has trouble with the language of the examination, or is visibly nervous, it is polite to put the witness at ease as much as possible. Acknowledge how difficult it is to testify and appear willing to moderate the ordeal as much as possible. Still, stay authentic.
Your first questions will encourage the witness to speak in an authentic voice, as confidently as the witness can manage. It is authenticity you seek, not perfection. If the witness regurgitates lawyer-language, it will become apparent who scripted the testimony. That won’t play well for the decision-maker at all, at all.
The introduction launches the teamwork between witness and examiner. It sets the pace of the Q&A that should persist throughout the direct examination. Most litigators try to use a friendly voice and demeanour. They try to speak more slowly than may be their regular habit. They want it to appear that the lawyer and witness are chatting amiably on a couch outside the courtroom. Maybe in the decision-maker’s den. Beware that this attitude may come across poorly as inauthentic for the lawyer.
In some jurisdictions, the Court expects a formality between barrister and witness, so please consider local custom as you consider your own performance.
By all means, address the witness in a way that suits the occasion. But don’t deviate dramatically from who you are. It will add stress to your performance, especially as you gain experience. You don’t need another consideration as you stumble your way through your written outline.
And, there’s that ‘O’ word. ‘O’ is for outline. May it sit unread on your podium or desk as the trial proceeds, save for glances as you complete each sequence of questions. Do you consult notes as you chat with friends? No, you don’t. Pay close attention to what the witness says and follow up with questions that get you where you want to lead the testimony. And there’s the teamwork on display. You lead, and the witness follows, trusting you know what you are doing. You won’t inspire much trust if you keep eye contact with the notes on your desk.
Behold the magic of the Five-and-out Technique! Your notes show you what you want to accomplish in that brief sequence. Get through that sequence without looking at your notes again, except to put tick marks beside what you accomplished or circle where you plan to follow up. Once you have ticked all the lines in that sequence, move on to the next one in the outline. Rinse and repeat!
To appear fluent, you should rehearse alone, gaming how the examination will proceed. To continue the Mike Tyson analogy to boxing, you should have a plan. But don’t be locked into reading it aloud. Be prepared to deviate, improvise, and ‘go with the flow’. Witnesses aren’t robots.
The introduction section of the direct examination takes the witness from a bystander sworn in by the court clerk to a participant in the story unfolding on the witness stand. To put the witness’ story into context. What does the decision-maker need to know to place the witness in the case? What skills, attributes, or relationships does the witness have that will help you persuade the decision-maker to accept this testimony?
Glance at your notes before you launch a sequence of questions. Then state your headline and ask the broad, open question to launch that sequence. Follow up on the answers until you complete the intended subject of the sequence.
For paid subscribers, we are starting a new format for the podcast. In it, I will discuss the technique in the context of a demonstration that I conduct, examining Mr. Minchella, the owner of the Wellmeadow Café. The role of witness is played ably by a 1L student who has taken the Zoom version of the Boot Camp. Instead of the detailed PDF showing the technique applied to the case study, I provide the outline of my direct examination notes.
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If you want more detail and exercises, consider Examinations in Civil Trials – the Formula for Success, available from Irwin Law here, or the self-published handbook, Outlining: How to Structure Examinations in Civil Litigation, available from Amazon here.
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