When preparing for trial testimony, often the focus is on what opposing counsel is going to do. You prepare for cross, naturally enough, because that is an adversarial moment. But my own view is that direct examination should get the same amount of preparatory attention. The questioning by friendly counsel, even as it seems “safer,” can be just as critical, or even more so: It is an opportunity for the witness to tell their story through their own perspective. That testimony should be clear, credible, interesting, and engaging. It has to be organized and pointed toward particular goals. Examining attorneys need to be comfortable in the knowledge of what answers they will get, and not be reduced to guessing or hoping or hinting with their own witnesses. And by the same token, the witnesses need to be comfortable that they know where the examination is going, unburdened by the feeling of wondering “What do you want?” or “When do you want me to cover that?” in response to their own attorney’s examination.
The way this mutual comfort is achieved is through solid and purposeful preparation of direct examination. The witness should know the steps, and should allow their attorney to lead them through it. And, of course, I mean “lead” in the practical and functional sense, not in the legal sense, since an attorney typically cannot ask leading questions during direct. However, through clear and strategic open-ended questions, the attorney can guide the overall message like a conductor guides an orchestra. This takes preparation on both sides. In this post, I will share a few thoughts on how this should happen.
Plan the Steps
Ideally, a savvy witness should be a full and collaborative partner in the development of a plan and an outline for direct. That plan should be guided, not so much by the questions you want to ask, but by the messages you want to seat with the jury — your goals for the testimony. While you have a plan, I think it helps to think of it as a map for a road trip you are planning to take: It is general guidance, but it is not an absolute or inflexible itinerary. A savvy attorney will adapt and emphasize on the fly. Playing to the jury, you might decide in the moment that a given point needs greater explanation or emphasis. If the cross-examination came earlier, you would also want to adapt to anything that occurred in that phase that you did not expect. The more knowledgeable and practiced the witness is in this process, the better. And the more that counsel understands the likely answers, the better as well.
Then Let Counsel Lead
In direct examination, the witness is the center of attention: the witness is the narrator, the storyteller, the ultimate source of information for the jury. But the witness’s attorney should be the director of that production. That means that the witness should know the plan — the map discussed above — and should follow and not fight the attorney’s lead. It is still okay to have some back and forth between counsel and witness: If a cue is missed, the attorney can try again. If a question isn’t clear, or gets something wrong, it can even add credibility to correct or to ask for clarification. Ultimately, the attorney is there to play the role of a “voice of the jury,” by asking the questions that will be on their minds: What did you do next? Why did you do that? Is that how it normally works? The witness is the source of the information, but counsel should be directing the sequence that lays out the story.
Don’t take advice to the point of scripting or over-reversing to the level that it seems too “canned.” A witness should never feel like they’re trying to remember the “right” answer. But a well-planned and generally practiced series of questions can make for a much more interesting and effective direct examination.
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