Direct Examinations #4 - Asking the hard questions

Bad facts won't disappear if you ignore them

In the previous episode, we presented the technique examiners use to make their points. Each Five-and-Out sequence, or set of sequences, has to make or set up a point to advance the narrative.   To use a sports analogy, let's call this the offence. You move the ball, puck, or frisbee toward your objective. 

But, as we saw in the preparation stage for both direct and cross-examination, there is another dimension – defence. A careful examiner must always ask what could go wrong. Your opponent has an agenda, too. How will their agenda get in your way concerning this witness? This scene? Every witness has some weakness. 

There is a balance between offence and defence. Great sports teams have both. Offence-only teams can still lose even when scoring many points just because the other team scored more. On the defensive side, a team must fear losing by failing to score enough points.

Most of the heavy lifting occurs during the preparation stage. The examiner considers what points the opposition will make or challenge and how. But during the direct examination, the witness may say something that results in exposure to attack. The careful examiner pays close attention to what the witness says instead of blissfully marching to the following question in the outline.

So, when conducting your direct examination, pay attention to the essentials of each scene:

·        How did the witness start or approach the scene?

·        What happened during it that matters?

·        How did the witness conclude the scene and prepare for the next one?

·        What other witnesses were or might be involved?

·        What records or other exhibits might pertain to the scene?

·        What standards apply, and how did what the witness said impact those standards?

These questions apply equally to the actual examination and the preparation stage. The difference is speed. You have lots of time to prepare, but the live-action examination occurs at lightspeed.

The text of this post continues with an explanation of the technique to deal with the hard question during the direct examination and then contains not one but two demonstrations. Ask yourself, doesn’t even one new, helpful technique justify the modest cost of a paid subscription?