A Direct Examination Tip from Geoffrey Fieger

You can find background about trial lawyer Geoffrey Fieger in my last post. Meanwhile, here's another tip Fieger gave at the presentation last weekend, this one about direct examination. According to Fieger, he's always careful not to overprepare his client for direct examination. Why? Because the moment that the jurors think your client's answers have been scripted, they'll tune the testimony out. Instead, the testimony should be spontaneous and authentic. Not only will the jurors pay more attention, but they'll be more likely to find your client credible. This spontaneity and authenticity can be achieved, according to Fieger, by keeping your client partially in the dark about what you're going to ask until you've actually ask it.

To me, this tip seems a little dangerous. Direct examination is known to be a particularly difficult area even for skilled trial lawyers, since they're not in control as they are when cross-examining. This control can be reestablished, in part, through preparation with the client.

If you're aiming for spontaneity, what I'd recommend is to spend time preparing at least the most important parts of direct, but keep from rehearsing questions in the order you'll ask them at trial. At trial, you can vary both the order of the questions and the questions themselves. Hopefully this will make the direct seem conversational without allowing your client to inadvertently volunteer something that will undermine the case.

Comments

[Aaron]

If you temper this advice with the maxim, "Don't ask a question unless you already know the answer", it becomes a lot less dangerous.

[Eh Nonymous]

As always when I see that maxim, I want to correct it:

It's, "Don't ask a question unless the answer can't hurt you." Which includes as a subset most of the ones in your advice, but is not coextensive with it.

Some open-ended questions are fine. Some open-ended questions where you don't know the answer are fine. Some blind but narrow questions are fine. It depends on what's involved.

And as always, be prepared for the answer to go wrong, and either interrupt (if it's allowed), make an objection, ask for help from the judge, or change the subject. The best trial lawyers are never caught off guard, even when they're caught off guard.

Also: Aaron, why the blog name? You're right more than twice a day, right? Oh, I see, you don't always post more than once a day. Well, once a day is par for the course... for a twenty-four hour clock.

A digital clock that's wrong is always wrong. After all, it is *never* Blinking 12:00, Blinking 12:00 o'clock.

[Yeoman]

There is something to Fiegler's advice in that witnesses that are rehearsed sound rehearsed. I usually address the topics with witnesses, and how testimony is presented, but don't actually give too many sample questions. I want them to sound natural.