Direct Examinations Preparation #3 - It's all about the points.

Have a point. Make the point.

You introduced your witness to the decision-maker. Now what? The Five-and-Out technique lets you proceed effortlessly through the story, right? Yes, but first, you need a list of the points you want to make. Consider that the technique is a bow, and the points are arrows. Acute analogy, right? In preparation for the direct examination, you should develop a quiver of arrows to score all the points you need to make to support your theory and want to make to support your theme. It could be a pretty large quiver!

Here is where direct and cross-examinations part ways. In direct examinations, you want to tell the story in a manner the decision-maker can follow easily. As collateral benefits, the witness and you can follow the plot easily. And you can practice as many times as required (time and budget permitting). In cross-examination, you only want the decision-maker to understand the point because you will place it in the proper sequence later in your final argument.

That understates the difference somewhat. With a direct examination, you usually have a prepared witness who is willing to cooperate. That means you can score big points with full explanations from a witness who practiced with you. But in the cross, you only try to score little points that the witness who wants your client to fail concedes grudgingly. There is often a contest for control, as the witness tries to hijack your cross-examination to give the explanation you try hard to avoid. This may be an oversimplification, but the principle remains valid.

Another difference is risk. In the direct, the witness should testify as planned and practiced, with the main risk arising from the cross-examination to follow. In the cross, the risk is that the witness disagrees with your question’s assumption or tries to explain why your assumption fails for some reason.

All of the above should play out in your mind as you decide what points the witness should make, in what order and at what risk. Fortunately, you usually have time to plan this, practice alone and with your witness, and revise your outline as more facts arrive from both practice and the trial as it progresses.

The first draft of your direct outline should proceed this way:

1.    Start with the elements from your case analysis. Which ones can the witness discuss?

2.    What is your theme? How can this witness support that?

3.    For each relevant element, identify the scenes that will lead the witness through the element. Again, some scenes may not involve the witness at all.

4.    Identify the points you want the witness to make within each scene, keeping your theme in mind. These should be short and lead you to the conclusion(s) you want from that scene. Each point will typically have its own five-and-out sequence. Points can be somewhat broader in scope than is the case in cross-examination. By way of example, in the direct examination of one of the Three Bears, the scene may be when they arrive home. Your point might be, ‘They could readily see that a human had entered their home.’ In the cross-examination, there would be several small points, including, ‘The front door was ajar,’ ‘The lights were on,’ ‘They could detect a human scent,’ etc. From this, you can see that the witness can state the point you want in the direct examination, but the witness’s concessions connect the dots between the facts and the conclusion with a series of ‘yes’ answers. Therefore, the lawyer tells the story in the cross, supported by a witness who cannot avoid agreeing with each little point made.

5.    Still within each scene, identify what your opponent may want to accomplish through this witness. What admissions could a cross-examiner extract? In most cases, you are far better off raising these questions in direct so that the witness can explain. Rarely – very rarely – you can set a trap for the cross-examiner because the witness is primed and ready for the question with a zinger answer. Such traps often fail because the question comes out differently than expected, the witness fails to score with the ‘zinger’, or the cross-examination never raises the question at all.

6.    Proceed through the scenes until you have completed the element.

7.    Proceed through the elements until you have concluded your theory.

8.    Revisit each element to ensure the sequences bring out your theme and are not inconsistent. Try hard not to paint your client as sophisticated in one sequence and naïve in another!

We will create an outline of the direct examination of Papa Bear using the formula above. Within this, we will only break one element into scenes and one scene into points.

1.    Elements:

o   The Three Bears are a nuclear family that lives in a secluded house in the forest.

o   One day, they left their house for a family activity.

o   On their return, they found a human had broken into their home.

o   Suspicious of the danger, they entered to track down the invader.

o   They found a human in Baby Bear’s bed.

o   They roused the human and chased it away without physical harm to anyone.

2.    Theme: This case concerns citizens’ right to repel a home invasion. The Bears are the righteous homeowners defending their turf.

3.    Scenes in Element 3:

o   The activity over, the tired and happy family emerges from the forest to the clearing where their house stands.

o   They see an open door and lights blazing.

o   They check out the exterior and detect a human scent.

4.    Points in Scene 3:

o   Papa Bear did not know what or who was inside.

o   He was on high alert.

o   The scent was human, but he did not identify the extent of the danger - who or how many had been inside.

o   He did not know if the dangerous invader remained on the premises.

o   It was Papa Bear’s duty to protect his family.

o   It was Papa Bear’s duty to protect his home.

o   It was Papa Bear’s instinct to chase away or neutralize dangers.

5.    Opposition’s points:

o   Papa Bear was the leader of three Bears, a formidable force.

o   Just as the ‘invader’ may have been dangerous, it may have been benign, as was the case.

o   The Bears could have stayed outside.

o   The Bears could have raised a ruckus to flush out the ‘invader’.

Exercise: Create an outline of the direct examination of one of the other Bears. Create your own theme

If you want more detail and exercises, consider Examinations in Civil Trials – the Formula for Success, available from Irwin Law here, or the self-published handbook, Outlining: How to structure Examinations in Civil Litigation, available from Amazon here.