Here is a basic blueprint for putting together a direct examination. The tips are basic, but worth remembering--
- Find out what information you want to elicit. The rest of these tips deal with technique; this tip deals with substance. You're presenting the witness at trial in order to prove facts you need to make or defend your case. Knowing which facts will be presented through a particular witness is the key to a good direct. You can't pull it off without a thorough understanding of your case. Make a checklist of the facts you're using the witness to prove. Keep the checklist handy when you're presenting the witness; don't hand the witness over for cross-examination until you've checked all the items off the list.
- Prepare the witness. Make sure you're on the same page about the facts you want to elicit; make sure that the witness is going to say what you expect him to say. But don't commit yourself to particular questions, and don't let the witness develop scripted answers. If the direct examination seems too stiff or practiced, the witness will lose credibility. You want the direct to seem spontaneous. See "A Direct Examination Tip from Geoffrey Fieger."
- Think about the questions you'll ask. If you're experienced enough, it will be sufficient to simply assemble the checklist mentioned above. Keep your questions short, and make sure they'll allow the witness to tell his story in a logical and clear way. Except for preliminaries, you can't lead. Make use of headline-type questions that announce both to the witness and the jury where you're headed next, e.g., "Now I'm going to ask you a few questions about the morning before the accident, okay?"
- Be prepared to handle objections from your opponent, both to the form and substance of your questions. If your opponent objects to a leading question, use the tip found in "An Easy Way to Fix a Leading Question." You should also be prepared for objections about admissibility. Run the direct examination through in your mind and try to figure out when the objections will come and how you are going to deal with them.
- Think about your opponent's cross-examination. If there are bad facts that worry you, consider revealing them yourself during your direct.
- When the time comes for direct, give the witness enough room in the way you develop the testimony that he'll seem like a person, not a robot. The witness is the star during direct, not the lawyer. But if the witness is having trouble keeping on point, reel him in. "Thanks for your answer, but I'm asking a slightly different question. . . " Look for signs that the witness is confused; if it happens, back up and begin again.
For other tips about direct examination, see the posts on this weblog in the "Direct Examination" category.