I. Direct Examination: Conveying Your Vision of the Case to the Jury.
If a trial is theater, your witnesses are the actors – the main characters by which you tell a story to the jury. Other parts of the trial – voir dire, opening, closing, cross examination – are important, but they do not have the capacity to convey your vision as direct examination does. Through direct you have the ability to create a feeling – an aura – which will subtly persuade the jury to accept your vision.
Your direct examination should not be a haphazard afterthought that occurs simply because you have a witness on the stand. To be clear, concise and compelling, you must carefully plan and control every aspect of the testimony of each witness you put on the stand. Direct examination provides you with a unique and powerful opportunity to persuade the jury. Sure, you persuade during opening and closing, but the jury knows that is what you are doing. They are, to some degree, alert to your motives. Witnesses, while not above suspicion in the eyes of the jury, provide an opportunity for you to control the proceedings more subtly.
Planning direct examinations to convey your vision requires you to consider, far in advance of trial, your overall case. What is your theme? What facts support your theme? Which witnesses can provide those facts? And, to maintain the all-important aura, you must plan for every possible pitfall.
Witness selection should follow the theme. Do not use a witness you do not need. Remember that every witness has the potential to help the other side. (The best direct in the world is helpful to you only if the witness holds up well on cross). If the witness does not further your case, why risk helping the other side? Each witness warrants a cost-benefit analysis before he or she is put on the stand.
Your witnesses must understand the theme of the case. Some will only grasp a rudimentary approach. Others will understand fully. But, each witness must understand his or her role in the big picture of the trial. Keep it simple. For lay witnesses in a personal injury case, for example, explain that they are testifying so that the jury can understand how Sally was before the accident and how she is now. Tell the witness, “The insurance company wants the jury to think that the accident made little difference in her life. Your job is to help the jury see how she was before and how she has changed.”
II. Part of Being Compelling Is Holding the Rhythm – Avoid Jarring Notes.
A. The Cast.
As you plan the trial and select your witnesses, do not choose one that will provide an off-key note in an otherwise smooth rhythm. Here is a checklist to consider when planning the use of witnesses in your trial:
• Will the witness further your case?
• Might the witness backfire and hurt you?
• Will the witness appear honest and trustworthy?
• Might the defense exploit him or her?
• How will this witness reflect on your client?
B. The Witness.
Once you have chosen which witnesses to use, consider how he or she will present to the jury and make sure all issues are addressed. Make sure you cover the following topics:
• Appearance: Is the witness physically presentable? Make sure that aspects of the witness which the jury might be distracted by, or may dislike, are hidden. This includes tattoos, which should be covered as much as possible, long hair and excessive facial hair on men, and excessive make-up or wild hairstyles on women. You must also advise your witnesses how to dress. An injured victim in a suit, or a lay witness in a profane t-shirt, will surely undo the aura you have worked to create.
• Trustworthiness: The witness must be prepared to be seen as honest and trustworthy. This means they must be very familiar with prior testimony, statements and anything else that could be used to create an impression of lying. The witness must be coached not to “go out on a limb” on direct because that will create difficulties on cross. Tell them that exaggerating is lying and downplaying is lying. The facts are what they are and the witness must stick with them.
• Likeability: The witness must be liked by the jury. This means no fighting with the defense lawyer, no “wise-guy” comments, and no sarcasm. Some people are not aware of the sarcastic tone of their comments and you must educate them.
C. Who Is this Witness?
Do not wait until your witness is on the stand to find out what kind of person he is. Is he shy or assertive? Does he think he is an attorney? Is he a whiner? It is part of your job to know if the witness is willing to do things your way, or if he wants to “save the day.” It is disaster to find out – while the witness is on the stand – that he thinks he knows what is best for the case and is disregarding everything you told him.
III. The Learned Skill of Testifying Effectively.
Almost everyone can learn to testify effectively. You have to assess the type of person your witness is – a talker, quiet, shy, aggressive, emotional – and provide guidance accordingly. Some witnesses need several sessions, others will catch on more quickly. Don’t be afraid to use examples to illustrate the pitfalls of certain types of mistakes. You cannot maintain the aura you want with ill-prepared witnesses. Here are some examples of ways to help your witnesses testify well:
A. Look at the Jury!
This small, simple tip is so often overlooked. Demonstrate for your witness how distracting it is to be spoken to but not looked at. This is how the jurors feel when the witness does not look at them. Teach them to turn their chair slightly toward the jury when they take their seat in the witness stand. Instruct them on cues you will use to remind them, such as “Please tell the jury…” or “Explain that to the jury…” I also tell the witnesses that if they are not looking at the jury, I will get up and stand near the jury and that is a sign that they have not done what they should do.
Remind them that they only have one chance to talk to the jury. There is only one precious opportunity to communicate with the jury. Wasting it by directing their comments to the attorney, who is already on their side, and already knows the information they are sharing, is of no help to the case.
It is also helpful, for those witnesses who will be present for jury selection, to tell them to pay close attention to the responses of the jurors to voir dire questions. This helps the witness be less frightened of the jury because instead of fearing “THE JURY,” the witness sees the jury as a group of individuals that he or she knows information about. This helps the witness to talk to some of the jurors more easily.
B. Just Answer the Question!
The talkative witness will glow in the spotlight of the witness stand and begin volunteering information that is not only not relevant, but not part of your theme and definitely not conducive to the “aura” you are trying to create. Remind the witness that he or she should not do the defense counsel’s job. He or she must answer the question truthfully, but does not have to answer questions that are not asked. For the particularly chatty witness, devise a way to remind that witness that she is going beyond what is necessary to answer.
C. Be Yourself (to a point)!
Some witnesses will become stilted and excessively formal once they are on the witness stand. Remind them to follow your lead, and then be conversational and comfortable yourself. Witnesses visibly relax when you talk to them in a normal tone. If they are very nervous, and it is obvious, ask them if they are nervous, ask them to take a deep breath, give them a glass of water – anything to let the jury know that the witness is frightened. The jury will not hold this against the witness and, in fact, it may help the testimony be received more favorably.
D. Witnesses Are Not Expected to Be Clairvoyant!
Make sure your witness knows that he or she can ask for clarification of a question. They can say, “What do you mean?” or “I don’t understand what you are asking” or “Do you mean before the surgery or after the surgery?” or even “What?” It is also okay to answer “I don’t know,” or “I am not sure, but I estimate …” or “I don’t remember.”
E. Be Liked … on Direct AND on Cross!
It is amazing how often witnesses, even experts, are charming and likable on direct and then become annoying and unfriendly “jerks” on cross-examination. This ruins the aura just as sure as a pin prick explodes a balloon. Witnesses must be courteous, open, honest, and responsive on cross-examination, just as on direct. There is no distinction in the jurors’ minds when determining if they like the witness or not. In fact, a witness who changes dramatically from direct to cross will engender suspicion from the jurors – they will feel mislead by the witness who fooled them into thinking he was nice, when in fact he clearly is not.
IV. Tell the Truth (and Nothing but the Truth…)
It is not uncommon for a witness to ask me what I want him to say. Unfortunately, it is a sign of our times that some people believe lying is acceptable, or even desired, in litigation. Therefore, sadly, it is important to actually tell witnesses that they must be honest. Impress the importance of the oath. Remind them of this numerous times during preparation. If you are not careful to do this, sooner or later one of your witnesses will lie on the stand.
The jurors will know. Despite our grumbling about our system, it often works very well. Jurors are perceptive. If the jurors find one of your witnesses to be dishonest, your entire case is in trouble. The aura is gone. Nothing you say will fix this problem.
Warn your witnesses not to be evasive. The truth is what it is. If they will eventually be forced to answer “yes,” it only causes more harm to fight a battle on the point and lose. Many times, on cross, the jury is losing interest and listening only half-heartedly. If a battle ensues between the questioner and the witness, the smooth flow of question and answer is disrupted and the jurors become alert and focused. This turns what could have been a simple bad answer into something much more noticeable.
V. Practical Aspects of Conducting Direct Examination.
Most of your preparation time is spent with the witness – making sure he fits in the case, that he understands his role, and that he testifies well. All of this is so the witness does not destroy the aura. Equally important, however, is ensuring that you do not depart from the theme or detract from the aura.
Here are some potential problems you can avoid:
A. No Leading!
The easiest way to ruin a direct examination is to lead the witness. Leading is very bad because:
• It sounds like you, (and not the witness), are testifying.
• The jury wants to hear what the witness has to say.
• This is not subtly controlling the trial – it is as obviously your influence as opening or closing.
• It looks like you are afraid of what the witness will say.
• There is no opportunity for the witness to develop rapport with the jury.
• The story simply does not get told, the theme does not come through, and the aura is destroyed.
B. Speak in a Conversational Manner.
The aura demands that the witnesses speak to the jury and convey the facts and the truth in a manner that makes the jury like and believe them. This is best accomplished when the witness looks at the jurors and talks to them. Much of this depends on preparation, but your questions are important. A conversational tone by you calms the witness and helps him focus.
Witnesses tend to follow your example. You are striving to have your witness converse with the jury for a few minutes. Ideally, the jury is interested in the testimony, can follow what is being said, and develops a general feeling of good will toward the witness. You want the jurors’ questions to be answered. Anticipate what the jurors are wondering about. If your witness testifies that after the accident the first thing she did was call her office, the jury will probably wonder why. So, your next question should be, “Why did you do that?” or “Could you explain to the jury why you did that?”
Part of the conversational style is speaking in simple language and asking short and simple questions. Do not put too much information in a question – even to an expert – because even if you and the witness understand, the importance of the answer will be lost on the jurors if they are either still trying to figure out what the question meant, or the answer makes no sense because they did not understand the question.
C. Do Not Write out Your Questions.
Writing out your questions is the kiss of death to a nice, conversational direct. One problem is that you will sound stilted. The witness, therefore, will sound stilted. There is no opportunity for rapport. And, you will miss opportunities to further the conversation because you will not be listening. By merely moving on to your next written question, without regard for what the witness said, you miss the chance to develop (or fix) what was said.
Instead of writing out questions, make a check-list of points you must cover with this witness. As I prepare for trial, I scribble notes to myself on scraps of paper and stuff them in each witness’s folder. Then, when I prepare for that direct, I transfer them to one list and use it to be certain I cover every point for which I need this witness. (Your list should include any exhibits that will be put in through the witness).
D. Announce Your Transitions.
Do not hesitate to let the witness (and the jury) know when you are switching topics. This helps the jury follow the testimony, and keeps your witness from getting confused. You need not be particularly fancy about it. You can say, “Now I want to talk about what happened after the accident.” Or, you can say, “Let’s talk now about how the injuries have affected her ability to work.” Anything that keeps the witness from being confused, and keeps the direct moving smoothly, is acceptable.
E. Do Not Drag it Out!
Nothing kills the aura of the trial as fast as dragging out a witness’s testimony. When the witness is done, stop. When your points have been made, sit down. Jurors know when you are killing time. They know when you are re-asking topics already covered. They do not want to be bored. They will begin to dislike your witness, you, your case, and your client.
F. Re-Direct is Dangerous.
Sometimes, of course, re-direct is necessary. Other times, you have questions you would like to ask but they are not critical. Before you undertake re-direct, force yourself to go through a cost-benefit analysis which includes these points:
• How strong is the witness?
• How important are the points you wish to address?
• How likely you are to elicit the testimony you want?
• How relieved were you when the defense lawyer sat down after cross?
Only redirect if the risk of exposing your witness to additional cross is outweighed by the importance of your questions.
VI. Other Small Details that Can Loom Large.
Your carefully-orchestrated aura can be destroyed in more ways than those discussed here. In fact, the aura can be severely affected by actions off the witness stand as much as on it. Add these reminders to your trial check list of things to tell witnesses:
A. No Comments from the Gallery.
All witnesses must be quiet and stoic observers of the trial. No gasping, moaning, or eye-rolling gestures are allowed. No giggling, no loud talking, in short, nothing that draws attention to the witness is allowed. The jury is always watching.
B. Beware the Eavesdropping Juror.
In some counties, jurors are free to wander the courtroom on breaks. Even in courthouses where jurors are kept separate at breaks, they are in and around the courthouse before and after trial each day. Jurors can overhear a small part of a conversation and extrapolate it to sinister motives, a “plot,” or any number of wrong ideas that can be very harmful to the outcome of your case. Impress on your witnesses to be careful in the bathroom, the hallways, and anyplace they may come in contact with jurors or friends of jurors. The man you are talking about the case in front of may not be one of your jurors, but he might be the husband of a juror, waiting to pick her up at the end of the day.
C. Take Nothing for Granted.
I once had a lay witness do a wonderful job on the stand and then stop at counsel table and say, brightly and loudly, “Was that what you wanted?” A little preparation can go a long way toward avoiding embarrassing moments.
D. No Interacting with Jurors.
The judge will touch on this topic as well, but you must make sure the witnesses all know that they are NOT to talk to the jurors. Some witnesses think it will be helpful, and do not understand the ramifications – mistrial – of their actions.