Direct examination is a Q&A session between a lawyer and a friendly witness during a courtroom trial or pretrial deposition. The object of a direct examination is to get the facts of the case to the jury in a manner that is most favorable to your side. The opposing party’s lawyer will have the opportunity to cross-examine the same witness seeking to elicit damaging testimony or simply to discredit the witness.
Direct examination is an art that requires subtlety and skill. Following is a description of how a lawyer should conduct this form of questioning.
Sometimes it’s not so much what you say as how you say it. You should avoid the following question forms so that you don’t give the defense an excuse to register an objection with the judge.
- Don’t ask leading questions such as, “Isn’t it true that you were visiting San Diego on July 17, 2022?” This will draw an immediate objection. “Where were you on July 17, 2022?” should be OK.
- Don’t ask questions that call for an answer based on inadmissible hearsay. Hearsay is an out of court statement, spoken or written, used to prove the truth of the statement (the contents of a police report, for example). There are many exceptions to the hearsay rule, however, and a skilled personal injury lawyer will know all of them.
- Don’t ask questions that call for the witness to state a conclusion that they are not qualified to make. “The defendant was intoxicated” is probably inadmissible unless uttered by a doctor or an expert witness. By contrast, a non-expert witness can state that “The defendant appeared to be intoxicated.”
The foregoing is only a very abbreviated list of improper question forms. The purpose of presenting it is to illustrate the complex nature of direct examination.
Tips for Effective Direct Examination
Observe the following tips when preparing and executing a direct examination.
When in doubt, rely on the following words to formulate your questions:
- Who,
- What,
- Where,
- When,
- How,
- Why
- Describe,
- Explain,
- What happened next,
- Proceed,
- Go on, and
- Continue.
Note that these questions are open-ended, meaning that they invite the witness to respond with long answers. The question forms in direct examination are very different from the ones used in cross examination.
Ask Questions to Tell a Story
The human mind responds to stories more readily than it does to facts. Exploit this by observing the following tips:
- Write down your story in advance. You won’t be able to present it that way to the jury, but writing it down can help you organize your thoughts.
- Carefully scrutinize your questions for logical consistency. Each question should lead smoothly to the next one.
- Ask non-leading questions that call for a narrative (storytelling) response.
- Minimize the use of “yes or no” questions.
- Your witnesses’ story should make the jury want to find in your favor.
Above all, aspire to simplicity and clarity, to the extent possible given the set of facts you are working with.
Don’t Ignore Weak Points in Your Case
Almost every case has its weak points. If you ignore weak points in your case, you are inviting the opposing party’s lawyer to seize upon this failure to create their own narrative. Ignoring your weak points makes it look like you have something to hide.
On the other hand, dealing with weak points head-on makes you look confident. It also gives you a chance to explain these weaknesses in a manner that is appealing to the jury.
Organize Your Questions Chronologically
In most cases, your questions should take the jury from the beginning to the end chronologically. Chronological organization is easy to keep up with, and you don’t want the jury getting lost. In some cases, a chronological organization might not work. Use your common sense—your goal is to make sure the jury understands the story you are trying to tell.
The Witness Should Be the Star
Whether you are testifying yourself or another witness is testifying, the witness should be the “star of the show” while the lawyer fades into the background.
Rehearsal
Rehearse the cross-examination with the witness. You should never ask the witness a question that you don’t already know the answer to. Your witness should know their testimony inside and out before they offer it.
If you are rehearsing for trial and the witness has already testified in a deposition, make sure during rehearsal that you don’t contradict themselves at trial
During rehearsal, cross-examine the witness as a hostile lawyer would. This will help your witness keep their testimony straight during both direct examination and cross examination.
Special Case: Expert Witnesses
An expert witness is someone with professional qualifications or profound knowledge of a particular field. Lawyers call on expert witnesses to deliver expert opinions in complex cases involving:
Direct examination of an expert witness works differently than direct examination of an eyewitness.
The lawyer should divide the examination into the following four stages and prepare questions accordingly:
- Qualifying the witness as an expert in the relevant field (medicine is the most common).
- Establishing the basis for the witness’s opinion.
- Eliciting the opinion from the witness.
- Prompting the expert to explain the opinion.
Your lawyer should spend a significant amount of time studying the subject matter of the witness’s testimony so that they will know what questions to ask.
Questioning witnesses is a deceptively complex undertaking. Unless you are an experienced lawyer, you should not attempt to question witnesses. The defense knows a thousand ways to make the truth look like a lie. Instead, contact a personal injury lawyer for help at (877) 300-4535. M&Y Personal Injury Lawyers offers free consultations.
