Direct Examinations Preparation #1 - A Five-and-Out Refresher

Examinations are really structured interviews

Direct Examinations - Preparation #1

Direct examinations – also called Examinations-in-chief – are just controlled discussions with someone friendly to your case. After all, you chose to call the witness to testify.

You usually have the chance to prepare the witness for the event. That is a considerable difference from cross-examination, where the witness is typically unfriendly, and you don’t get the chance to prepare as a team.

Start with the proposition that the witness and not the lawyer tells the story, the exact opposite of cross-examination. Remember the Open Questions Technique? Yes, you should ask open questions to encourage the witness to tell the story.

Back in the day, we asked witnesses to tell the story ‘in their own words’, whatever that meant. Today’s decision-makers want spontaneity (in the sense that the witness is authentic) but also efficiency. There is no court or tribunal time to waste with unprepared witnesses wandering all over the waterfront. And that requires that you prepare both the witness and yourself for the task at hand – to tell a story that assists the decision-maker in reaching a just conclusion that favours your client. Of course, ‘assist’ means ‘persuade’ from your point of view.

Witnesses can blow up in the face of the lawyer who called them. They may say things differently than you planned. They may concede points in cross-examination that wreck the edifice you created in the direct. We will deal with this contingency (the possible ‘bad facts’) later in this phase. For now, let’s focus on how to get our witnesses to tell a compelling story.

This brings us to the Five-and-Out Technique. Why? Because we want our witnesses to speak more than we do in our questioning. We also want them to stay on the message we plan. Five-and-Outs shine at accomplishing both goals.

1.     Start a sequence of questions with the headline. That is the subject you will pursue for the next short period. It sets the context for the message the witness delivers. No controversy. No adjectives or evocative language unless the witness has already adopted it.

a.      Bad: Let’s discuss the boring meeting.

b.     Good: Let’s discuss the meeting.

2.     Ask a broad open question so the witness can describe the event or topic. And don’t repeat the subject of the headline in your questions. If the headline identifies a place, time or person, you don’t have to repeat those in your questions. The headline served to focus the attention of both the witness and the decision-maker.

a.      Bad: When did you attend the meeting?

b.     Good: Tell me about it.

3.     Follow up with short, targeted open questions to complete the thought. If the answer to the broad question was, “The president spoke at length, describing all the risks the company faced.”

a.      Bad: When the president described all those risks, what did she highlight?

b.     Good: What risks? [or What were those risks?]

4.     Ask a few follow-ups to complete the thought. If you can’t complete the thought in a few questions, introduce another headline within the same topic.

a.      Good: Still on the same meeting, let’s discuss the reaction of those in attendance.

5.     After the thought is concluded, move on to the following event or subject with a new headline, much like you would use a transition or segue in a story to get you from one scene to the next. Resist the urge to ‘conclude’ the topic with a summarizing statement.

a.      Bad: So the meeting went well. Now let’s talk about …

b.     Good: Now, let’s talk about…

This post aims to get you back into the spirit of the open Questions series of posts. With that in mind, let’s pretend that Mama Bear is your witness. The scene is her returning home from a day trip with her spouse, Papa Bear, and her child, Baby Bear. With her acute sense of smell, she detects that a human has invaded the privacy of her home. Let’s pick up the story in Five-and-Out style. Remember that you are in preparation mode, not live in a courtroom. You get to practice these questions with your witness.

HL (your headline): So now, I’d like you to bring us to your return home.

BOQ (your broad open question): Tell me about it.

A (the answer you expect): I was holding Baby Bear’s paw as we came through the last of the trees. I could sense something was wrong. There was a human scent, although the house was quiet. I was apprehensive.

FU1 (follow-up #1): How far were you from the house?

FU2: How did you know the scent was human?

FU3: What was wrong with that?

FU4: What precautions did you take as a result?

New HL: So, now let’s discuss what happened as you entered the house.

The sequence shows several techniques in play.

·        The HL was short and non-controversial.

·        The BOQ allowed the witness to set the scene.

·        The FU questions were also short, targeted, stayed within the HL subject, and looped on the keywords of the expected answers.

·        There were five questions in all. This number is a guideline, not a rule.

·        This example was not a thorough coverage of the whole scene. Consider the before, during & after technique and the roles of the other witnesses who were present.

Exercise: Finish this scene by covering the Before, During & After technique. Continue this outline for the next scene, as Mama Bear enters the house to see her kitchen in a mess with the bowls in disarray. How would you deal with them using the three possible strategies?

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