Direct Examinations Preparation #4 - How to make your points
Build your final argument during the examinations.
We have thought of the direct examination of a witness as a logistical exercise. That’s because it is. You set your goal of accomplishing a series of points that lead to a persuasive story. Check. Now, let’s focus on how to make those points. If a journey starts with a single step, then each point is another step you make to your destination.
Again, a huge difference exists between how you make a point on direct examination and cross-examination. This difference results from the inherent difference between the two forms of interview. So, how do you make a point in a direct examination? Because that’s what an examination is, whether direct or cross. It’s a process of making points to persuade the decision-maker.
We start this discussion by defining just what a point is. Facts are a dime a dozen. There are tons of them in any story, but most are irrelevant. Consider two parties negotiating a contract. Does it matter what time it was? What was the lighting? What brand of coffee did the parties drink? All are facts. None is relevant. If you pare away the irrelevant, you are halfway done. The next step is to suss out what facts are material – or what facts matter. Those are the points in your case.
If you have broken an element of your case into its component scenes, then you can break each scene into the points you want to make from that scene. As previous posts have warned, you should also consider the points your opposition wants to make from that scene and plan a strategy to deal with that risk.
Now let’s focus on making one single point. In the Goldilocks v. The Three Bears case, your scene is the bears returning home from their day trip. You plan to lead the evidence from Papa Bear about what he did and observed. Along the way, you want to make these points, as discussed in Episode 3 of Direct Examinations Preparation:
1. Papa Bear did not know what or who was inside.
2. He was on high alert.
3. The scent was human, but he did not identify the extent of the danger - who or how many had been inside.
Using the Five-and-Out Technique, you prepare some sequences to deal with each.
HL1: Now, I want to discuss your return home that day.
BOQ: Tell me about what you sensed as you approached your home.
FU1: What did you suspect had been in your house?
FU2: How did you sense that?
FU3: How serious was the danger?
FU4: Where was that danger as you approached the house?
HL2: Now, I want to discuss how you felt about all this.
Discussion: Note that the sequence is short. Each question contributes to making the point described in the list and not much else. All questions are open so the witness can tell a compelling story.
In a future episode, we will discuss ‘inoculation’. Inoculation is the process by which we anticipate what the opposition will contend in respect of your witness, and you give your witness a chance to explain.
Exercise: Create the sequences of Five-and-Outs to make the points you listed in the exercise in the previous episode. Remember to deal with what the opposition wants to accomplish.
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.
For paid subscribers, here is the 10-minute audio podcast of this presentation.
A sample Q&A of the direct examination of Mr. Minchella (witness for the defence) from the case study that identifies the points being made appears here.