Direct Examinations Preparation #2 - Introduce your Witness

Boost credibility and put your witness at ease.

Every journey begins with a single step. This aphorism applies to direct examinations. The ‘first step’ is to introduce the witness to the decision-maker. By the time trial begins, your opponent and you know all about the case. But the decision-maker doesn’t. Just as a novelist starts a story by placing the reader in the setting (who, where, and when), so does the trial lawyer with each witness.

The background of the witness sets the context for the testimony to follow. But, just as the lawyer wants to put the best foot forward for each scene, the same is true for the background. Some witnesses are more credible – more reliable – than others. The background presentation is your chance to establish that relative high ground.

For every opportunity, however, there is a risk. Just as you want to present the witness as a credible source of the evidence you propose to lead, so, too, does your opponent want to show that the decision-maker shouldn’t rely on the witness. Occasionally – rarely – the cross-examiner will try to co-opt the witness to lead positive evidence to support the cross-examiner’s case. You, the directing lawyer, should prepare for those contingencies.

This, then, is the core technique of Direct Examinations. Prepare two sets of five-and-out sequences for each scene. The first will cover what you need to shore up the witness. The second will try to foil your opponent’s plans by inoculating your witness against the weaknesses that your opponent may try to exploit. Offence and defence.

If you treat the context part of the direct examination as one or more scenes, you will see how the technique works well to introduce the witness to the decision-maker. You might break the introduction into three scenes: the who, the when and the where. There are other choices, too. Different witnesses require different introductions, as is the case with the parties and their related witnesses and experts.

Who are you? This sequence will identify the witness and attributes that you want to emphasize. Your opponent may try to establish that the witness is too young, too old, too short-sighted or whatever.

What connects you to the case? This sequence will place the witness into the facts. Your opponent may try to establish that the witness is biased or has no clue about the facts.

Where were you? This may be the convenient transition to begin the witness’s story about the case. Your opponent may try to establish that the witness was too remote to observe the events or that another witness was better situated to do so.

As you consider your witness’s introduction, ask yourself this simple question. Why did you choose to call the witness to testify? The answer goes a long way to establishing the parts of the background that matter. Just as the facts that matter become the points that establish your elements, there are attributes of the witness that matter to strengthen the reliability of that testimony. That is the offence part.

For each witness, there should be an opposite but equally simple question. What can go wrong? How can your opponent exploit this witness to detract from credibility or shore up your opponent’s case? The weaknesses give rise to the defence part, as you try to offset these as if they were the bad facts we discussed in Scenes.

Suppose the witness observed the event in question, possibly a meeting or an accident. In that case, the critical context features of the witness may be the witness’s observation skills and independence from the parties. The cross-examination may focus on the opposite attributes – the relationship between the witness and the parties and features that cast the observation skills into doubt.

Remember that what the witness observed will form part of the main body of the testimony, to be covered by five-and-out sequences to establish each scene leading up to the incident the witness observed. For now, we are focused on introducing the witness to the decision-maker.

With that in mind, let’s introduce Baby Bear to the decision-maker.

Who? The witness is a party, underage, and related by blood to Mama Bear and Papa Bear.

What can go wrong? Underage witnesses may be unreliable, as is true for those biased by close relationships with other parties or witnesses. Of course, parties stand to gain or lose from the outcome of the decision.

HL: Hello, Baby Bear. First, I’d like to introduce you to the Court.

BOQ: Tell me about your family.

A: I am 5 years old. I live with my parents, Mama Bear and Papa Bear, in a house in the forest just outside town.

FU1: How old are you in human terms?

FU2:What have you learned about the importance of telling the truth?

FU3: What have your parents told you to say in Court today?

New HL:  Now, I’m going to ask about your house.

The sequence shows both offence and defence in play.

Exercise: Create an outline of the direct examination of each of the Three Bears to establish who they are and how they fit into the facts of the case. How can you bolster their credibility despite being parties to the lawsuit?

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