The Illinois Trial Practice Weblog

Six Tips for Improving Your Direct Examinations

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.

Where and How to Stand During Direct and Cross-Examination

Assuming the trial judge gives you the freedom to move around the courtroom, does it matter where and how you stand during direct and cross-examination?

During direct examination, many lawyers recommend standing near the far end of the jury box, which forces the witness to look at the jury when answering.

Is cross-examination any different? According to Steven Puiszis, President of the Illinois Association of Defense Trial Counsel, it's best to move around during cross-examination. That's according to Helen Gunnarsson's "Cross-Examination: Beyond the Perry Mason Moment," in this month's Illinois Bar Journal--

Puiszis says that he paces around the courtroom during his cross-examination so that the witness will look at him and not at the jury. Doing so not only emphasized Puiszis's role as star but also further diminishes the witness's opportunity to gain credibility with the jury through eye contact.

What's the "role as star" business? During cross-examination, the cross-examining lawyer should be the main focus of the jury's attention. It's the complete opposite of direct, when the witness plays only a supporting role. During cross-examination, the jury's attention should be squarely on the questioning lawyer, who asks leading questions to which the witness can only answer yes or no.

To read Gunnarrson's entire article about cross-examination, look here (ISBA members only).

An Easy Way to Fix a Leading Question

Before I did my first direct examination of a real witness in a real trial, the partner I was working with gave me a bit of advice about leading questions that turned out to be very helpful. He told me that if the opposing lawyer objected that one of my questions was leading, I could probably fix the problem simply by asking the same question with the phrase "whether or not" tacked onto the beginning.

Here's an example. Say your question is "The light was green, right?" and it gets an "objection, leading" from the opposing counsel. Using the partner's method, the new question becomes "Can you tell me whether or not the light was green?" In some cases, the resulting question will still be deemed leading, but if the lawyer objects again, you're already on the right track to fixing the problem. That's important because in the heat of trial, it's often very difficult to figure out how to rephrase questions when met with repeated objections that are repeatedly sustained.

In my example, if the new question is met with another objection, it won't take much thinking to replace it with this one: "What color was the light?" The "whether or not" method is not only a handy crutch, but it also forces you to automatically think about what is was that made the question leading in the first place. While the leading nature of the questions I used as examples in this post is easy to see, in a real trial, things are often much more complicated.

Testifying at Trial: Don't Let Your Client Make These Disastrous Mistakes

Can you take steps to make your client more likeable to the jury? While some people are inherently unlikable, even these sorry cases can be taught how to avoid a few mistakes that will guarantee their unlikability:

• Being Discourteous to Counsel or the Court Most people know not to talk back to the judge, but they shouldn't talk back to opposing counsel either. When answering questions on cross-examination, it usually pays to keep one's cool. Becoming angry is almost always a mistake.
• Failing to Answer Questions Directly Proper questions put to your client by opposing counsel should be answered directly. It's a mistake to answer a different, imaginary question that wasn't asked. Not only does it amount to volunteering, which is never a good idea, but it makes your client appear to be evasive.
• Trying to Explain Too Much Explaining too much also makes your client appear evasive. Clients should be instructed that you will have a chance for rebuttal after the cross-examination is over. This will give them a chance to explain.
  
• Exaggerating Small Details Clients often want to exaggerate small details. If your opposing counsel is skilled, however, it won't be hard for him to turn this small exaggeration into a big lie. Warn your client against exaggerations.
• Refusing to Yield on Uncontroverted Facts There are bad facts in every case. While you undoubtedly have a plan to minimize these bad facts, it won't help if your client draws undue attention to them by refusing to admit the truth on cross-examination. Let your client know ahead of time why the bad facts won't destroy the case.
  
• Failing to Look at the Jury Looking at the jury doesn't come naturally to most people. You can help by standing at the corner of the jury box when asking questions. When answering, your client will be facing the jury in a way that won't looked forced.

Presenting an Expert Economist at Trial

"Tips for Making Damages Testimony Come Alive," by Paula E. Litt (pdf), was presented at the 2005 ABA Annual Meeting and contains twelve tips for presenting an expert economist at trial--

• Speak plainly;
• Establish credentials wisely;
• Tell a good story;
• Play from higher ground;
• Show pictures;
• Get the expert moving;
• Use examples;
• Keep it simple;
• Be enthusiastic;
• Don't get caught short;
• Know your expert; and
• Don't underestimate the jury.

The tips are oriented towards the plaintiff's case but many of them would apply equally to the defendant's economist.

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.

Tips for Improving Your Direct Examinations

From Ervin A. Gonzalez comes "Direct Examination," where you'll find these tips:

During the trial, develop the direct examination through the use of conversational language. Avoid reading questions to the witness. This will bore the jury and leave them with the feeling that the presentation was rehearsed. You may have your outline present, but use it only as a reference and not as a script. Remember to guide the witness through the testimony so that she does not ramble.

Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on the issues through the witness on the stand. Ask the types of questions that a reporter or investigator would ask to become fully informed of what happened in the case. This technique will allow you to view the case from the jury's perspective. Remember you may know everything about the case, but the jury is hearing the testimony for the first time at trial.

For more, see the complete article.

The Scope of Redirect

After witnesses are cross-examined at trial, the lawyer who offered the witness is allowed a chance to conduct "redirect" examination. During redirect, the lawyer can ask the witness questions that will allow him to explain any troublesome answers he gave during cross-examination.

As in most jurisdictions, the scope of redirect in Illinois is limited. The lawyer conducting redirect is not allowed to ask questions about issues that were not covered in cross-examination. In fact, the scope is even more limited than that: the lawyer may only ask questions about new matters that were covered in cross-examination. The witness, in other words, must do more than simply repeat answers he already gave during direct examination.

The judge conducting the trial has discretion to vary these rules and can allow a lawyer to ask new questions on redirect that the lawyer forgot to bring out on direct. One author suggests that a judge in this situation should forbid the questions, but allow the lawyer to recall the witness after the examination has been completed for the purposes of going into the new matters. See Hunter, Trial Handbook for Illinois Lawyers (7th ed.), at Section 31.1. According to Hunter, such a procedure "increases the orderliness of the proceeding by adherence to the rule that the examination is limited to the scope of the preceding examination, without restricting counsel in his right to bring out relevant testimony."

Questioning a Witness as Chinese Water Torture

In the book Trial Advocacy, James W. Jeans writes about the way "the repetition of question and answer too often simulates the Chinese water torture as the soporific rhythm rolls relentlessly on and on."

Q. What is your name?
A. Sylvester Brown.
Q. Where do you live?
A. At home with my wife.
Q. What is your job?
A. Inspector of parts.
Q. Da da da da?
A. Da da da da da.

Jeans suggests varying the questioning in three ways: (a) by moving around the courtroom if the rules permit it; (b) by varying your approach to questions by using phrases like "state your name and address," "tell the jury," and so on; and (c) by giving "dramatic impact to those features of the case which you feel are important," for example, by referring to the police report as "the official police report" and to the dangerous widget that caused the injury as "The Safe Tee Widget," which is the name the manufacturer gave it (while saying it, of course, with a sarcastic sneer).

A Trial Primer

On his firm's website, Connecticut lawyer Thomas J. Riley offers "Getting Evidence in at Trial or Keeping It Out" (.pdf format). I particularly liked Riley's tips for preparing witnesses for direct examination. He also discusses cross-examination, exhibits, and several other topics.

Even the headings contain some critical information, applicable to lawyers in every state, e.g., "Know What You Need to Prove and Make Sure You'll Remember to Get It All In."