Sometimes, despite careful preparation by counsel and the witnesses, direct examination unravels. But if you’ve reviewed these crisis control techniques, you’ll be ready when a problem presents itself during your direct.
Certain problems seem to recur in direct examinations. If these problems come up for you, try these suggestions to catch your nosediving direct before it crashes and burns:
Problem #1: Forgetful Witness. The witness can barely remember his own name, much less the detailed events of April 23, 1982. You should:
Jump to more routine parts of the examination, hoping the witness will relax.
Ask the witness about nervousness. A witness who admits he’s confused because he’s terrified and has never testified in court before strikes a responsive chord with the jury.
Ask for a recess. The judge may be sympathetic.
Ask leading questions to refresh memory. This is permissible if a witness has exhausted his recollection of a topic. If the judge doesn’t believe leading questions are called for, try asking “whether or not” a described fact is so. Some judges think this form is not leading.
Use past recollection recorded. If the witness has subscribed or ratified a contemporaneous writing accurately stating the facts sought, introduce that writing into evidence in lieu of the witness’s evaporated recollection.
Problem #2: Mistaken Witness. Ask the witness immediately after repeating the question if the witness meant to say “yes” when she said “no.” Follow up by establishing the witness’ nervousness or other reason for error (fatigue, confusion, carelessness).
Problem #3: Nonresponsive Witness. Sometimes even your client won’t answer your questions forthrightly. If your client is eccentric, curmudgeonly, high-strung, or otherwise uncontrollable, keep calm and don’t hesitate to treat the client as hostile. Direct your client to listen closely to the question and to answer that question and not another question. Tell the client not to argue his or her own case but to trust you to do that. The jury will understand that you want to get facts to them fairly and succinctly and that the client’s passions need to be checked to do this.
Problem #4: Unsympathetic Judge. Some judges are patient all of the time, but many have occasional lapses from grace. The attorney, client, or one of the witnesses, may rub the judge the wrong way. Spot this problem before it develops, and take damage control measures:
Prepare the witness for questioning by the judge. Tell your witness to swivel around and answer the judge’s questions directly eye to eye.
If the judge begins to actively examine, it’s often a signal that the witness is testifying nonresponsively. Tell the witness to listen very carefully to questions from the judge and answer those questions precisely.
If the judge is unfairly taking over the examination, act. Politely and firmly—and out of the jury’s presence—point out how the court’s examination, comments, or tone of voice jeopardize a fair trial.
CEB’s Effective Direct and Cross-Examination covers all aspects of witness examination and offers practical advice for the inevitable hitches that come up. You can also learn techniques for effective courtroom performance in CEB’s program Developing Your Basic Evidence Skills: Relevance, Hearsay and Direct Examination, available On Demand.
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