Direct Examinations Teaser

Introduction to the series of posts about live-action issues of direct examinations.

Talk about reaching a milestone! We have prepared our outlines to examine and cross-examine the witnesses. We’re ready for whatever happens, right? Not so fast, Counsellor!

Mike Tyson, heavyweight boxing champ, famously said, “Everyone has a plan ’til they get punched in the mouth.” This maxim applies to litigators, big time! Ask an experienced trial lawyer about their best direct examinations and pay attention to what they say about what didn’t work out as planned. Litigators constantly second-guess their performances.

In this series of posts, we will look at what goes right and wrong with many direct examinations and how to accent the former and mitigate the latter. Remember, this is not science so much as it is technique and art. When your choices, words and conduct are under the microscope of analysis, there is often much to improve. But add the words and conduct of the witness to the mix, and you have lots squared to analyze! Remember that the direct examination is a team sport. 

In the Direct Examinations Preparation series, we discussed techniques to get the most out of this relationship and to tell the story as persuasively as possible.

In this series, we will discuss how to react as your ‘best-laid plans’ go astray (is ‘aglay even a word in Scotland?) from the outline – when the witness goes off script. And it happens often.

A litigator can only game out an examination so far. Once the witness answers the first question, the litigator must rely on the techniques discussed in this upcoming series of posts.

This next series will feature something new. I will practice what I preach! I will examine or cross-examine one of the Donoghue v. Stevenson witnesses (a law student volunteer), provide a commentary on what I did, and my outline notes for the examination. Subscribers will be able to see precisely how the sausage is made!

The new format commences in a week - April 24 at 9:00 am (EDT), to be precise. If you have not taken on a paid subscription, here’s your opportunity. Click here to qualify for an immediate 15% discount for 90 days. You will get unlimited access to all 26 substantive posts to date and each new post as it reaches the Substack. Each post has the written technique of the week, complete with examples and exercises, a podcast to provide more detail and colour (‘color’, for our American subscribers), and a detailed, written example using the facts of Donoghue v. Stevenson.

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.