Direct Examinations #3 - Apply the Scenes Technique

Scenes let you lead the witness from subject to subject

The Advocacy Club Boot Camp on Substack introduced the Scenes Technique to complement the Five-and-Out Technique applied in the previous episode of this Substack. Effectively, Five-and-Out is about how you organize your questions. The Scenes Technique focuses more on content and how you use the interview or examination to present the story you want the witness to tell.

This episode will apply the Scenes Technique to a direct examination. Note that it applies equally to all interview situations. You may recall that the Scenes Technique consisted of four components:

·                    Break each event into component scenes, keeping the relevant ones for your examination.

·                    Consider the 'before', 'during', and 'after' aspects of the scene from the witness' perspective.

·                    Introduce relevant exhibits (usually records or photos) to support the oral testimony.

·                    Introduce the standards of conduct that should apply to the conduct of the players in the scene. What should or should not have occurred?

In each case, you will try to spin the evidence to support your position or attack the position of the opposition.

As you create and modify the outline, the preparation stage is where the heavy lifting takes place. But a great deal of the Scenes Technique applies to the live testimony from your witness, too. Only in the courtroom can you gauge how persuasive the story is. You can read the decision-maker, especially if there are questions from the Bench. Your witness may omit something important, or your outline may have done so. By paying close attention to the answers, you can follow up to lead the witness to correct these omissions.

You must pay attention to the answers and follow up instead of simply asking the next question in your outline. The more experience you have, the less you will rely on the printed page.

The downloadable PDF contains a very concise outline of the questions. This is my personal technique for outlining, although I recognize most subscribers will have very different outline techniques. Note how I improvise rephrasing the questions to adapt to what the witness says. The task at hand is to put clear evidence before the decision-maker.

If you want more detail and exercises, consider Examinations in Civil Trials – the Formula for Success, available from Irwin Law here.