Direct examination is one of the most important parts of trial. It is your vehicle for establishing the key facts in your case, laying the foundation for your evidence, and connecting with a jury. An effective direct examination doesn’t happen by accident. As Gerry Spence notes, it must be part of a bigger narrative:
If we haven’t spent the necessary time preparing out direct examination will be of little value. And most assuredly, if we can’t tell the story effectively, our direct examination will be more confusing than enlightening. The direct examination is also storytelling—telling the story through the lips of the witness. Our job is to help the witness tell the part of the story the witness knows.
—Win Your Case, pg. 149
In the James Holmes theater shooting case, his counsel set out to prove that James Holmes was legally insane when he opened fire on an Aurora, Colorado theater audience and booby-trapped his apartment with explosive devices. Here’s a snipet (ending at 1:06:20) of his lawyer’s direct examination of an expert witness:
The direct could be much better. What went wrong? His questions are long, leading, and they tend to squash the expert’s ability to display his expertise. Notably, the lawyer uses almost no who/what/when/where/why questions. Here’s what a much better direct examination looks like, followed by an analysis of how it could be even better:
What’s the difference? Some of Terry MacCarthy’s Rules of Trial Advocacy illustrate why Ms. Wilson’s direct is better:
- The lectern is for putting things on not for standing behind: she doesn’t stand behind the podium;
- Body language is essential to effective communications: she has open body language that effectively communicates her message, and she often looks at the jury;
- Speak in a courtroom the way you would speak in a bar: she uses plain language;
- The importance of eye contact: she continually looks at the witness and the jury, never looking down;
- Do not use fillers—“and”, “like”, “ah”: she never uses these;
- Your stories should paint pictures: she allows the witness to tell her story without getting in the way;
- Appeal initially to emotions—a granular reaction: she starts with the accident that killed the plaintiff’s children;
- No legalese: jurors can understand every word she uses;
- No powerless words—hedges, qualifiers: most of the time she avoids these, except when she uses the word “little” at the beginning;
- The transition is a wonderful tool: her question “did you ever hear from Rebecca Hartwell herself” is particularly good;
- When you get something good in direct “loop it”: she loops wonderfully when she says “when you saw the child laying in the street, what did you do?”; and
- When something good happens on direct, “milk it”: her question “Did you ever hear Ms. Hartwell apologize herself” was a great way to milk the plaintiff’s testimony about Ms. Hartwell’s non-apology.
Don’t you wish more lawyers were this good at direct examination?
For more great trial advocacy material, check out Professor Charlie Rose’s YouTube channel.
Featured image: “Justices of the Peace, Thomas Ryan, William Young and Frank Davis sit on the bench at the Drouin Courthouse,Victoria” by National Library of Australia is licensed CC. The image has been modified.