Direct Examinations #2 - Apply the 5-and-Out Technique to Make Your Points

You are speaking to the witness, but also to the decision-maker

OK, you’ve got your witness to the stand. Whew! Then you introduced your witness to the decision-maker. Double-whew! You’re on a roll, so it’s time to get things done. Make things happen.

The witness is telling a story. Your preparation will get you through the next part - remember way back in Direct Examinations Preparation #1? You created an outline with a series of Five-and-Out sequences to take your witness through the whole story. Maybe it was chronologically. Perhaps it was broken down by discrete issues (e.g. what happened in the incident, what preceded it, what the damages were, etc.).

This post will not re-hash what you already planned in preparation. Now, we will deal with the practicalities of the Five-and-Out Technique: headlines, broad open questions, and follow-ups.

Let’s start with the proposition you have practiced – rehearsed – with your witness. You can’t do this with cross-examination, where the witness likely won’t speak with you, so this is a significant difference.

Another difference lies in the format of allowable questions. You ask open questions in a direct examination. Civil procedure rules may permit closed questions, but you should let the witness tell the story in most cases. It’s more persuasive and makes for better theatre. You lead, and the witness follows.

Your headline sets the fence around the subject area. It might be “the meeting of May 3” or the “dining room in Bert’s house”. Whatever. Get the witness and the audience grounded in what you are talking about. Remember the commandment from the Open Questions series. Headlines shall be neutral. No controversies allowed. It’s best to avoid descriptive language unless the witness has already used it earlier in the direct examination.

A:      The meeting dragged on for an awfully long time.

HL:   Let’s discuss that long meeting.

Q.      Tell me about it.

The typical first question in the sequence should be as broad as possible. The exception would arise where the sequence is part of a progression of headlines dealing with the same overall subject.

HL:    Let’s discuss the meeting of May 3.

Q:      Tell me about it.

…

HL:    Now, let’s focus on what you said at the meeting.

Q:      When did you first speak up?

Q:      What prompted you to do so?

Q:      What did you say?

…

In the demonstration podcast available to paid subscribers, I show a sequence of Five-and-Outs designed to lead the witness through several important points. The witness is not reciting from a script, and my questions follow up until the witness covers the point to my satisfaction.

In a subsequent post, I will discuss and demonstrate inoculation – how to deal with the Bad Facts.

For paid subscribers, I have a podcast to demonstrate a direct examination of David Stevenson, the bottler, using the Five-and-out Technique, a conversational tone and a typical inoculation question. The outline of my examination notes is also provided, along with a DIY exercise.