Tips from the Masters: Direct Examination

Posted on Monday, February 29th, 2016 at 1:00 am    

The Massachusetts Academy of Trial Lawyers recently asked Liz Mulvey to contribute to its Tips from The Masters series.  Liz penned the following suggestions, which were published in a supplement to Massachusetts Lawyers Weekly on February 8, 2016:

Let’s face it. Direct examinations aren’t glamorous.  Perry Mason never won a case on direct examination.  Television news generally doesn’t showcase direct examinations.  And jurors don’t look up and lean forward in their seats when a lawyer stands up to do a direct exam.

And as a result, many lawyers make the mistake of viewing direct examinations as boring and unimportant. After all, they know exactly what (they hope) the witness will say, the exam can be scripted and rehearsed before trial ad nauseam, and the sense of confrontation, surprise and drama that accompanies a cross-examination just isn’t there.  And too often, the lawyer’s attitude that direct examination is a just a formality to be endured, a box to be checked, is both obvious and contagious to the jury.

We’re all taught that trials are stories, and lawyers are story tellers. But truly, the witnesses who testify on direct exam are the principal story tellers—or at least they should be. Lawyers do enough talking, and jurors do enough listening to lawyers.  There is no reason to pass up an opportunity to allow a witness to participate in telling the story. 

Good direct examination involves three steps: 1) figure out what the jurors want to know; 2) listen to the witness; and 3) more witness, less lawyer.

In a good direct examination, the lawyer stands in the jurors’ shoes, asking the questions that the jurors want answered. Sometimes those questions elicit the pertinent facts, but just as often, the answers to direct questions may show the jurors that something isn’t important, or needn’t be considered.  Often, the lawyer may know that an issue is irrelevant, or that there is a reason for a gap in the evidence—but the jurors won’t know unless some witness tells them.  Showing the jury why something doesn’t matter, or why a piece of evidence isn’t available, can eliminate unnecessary confusion and unanswered questions that could sidetrack the deliberaitons.  Once I’ve had the witness tell the story, I usually address issues raised by the defense, to allow the witness to give the answers to questions that are probably on the jurors’ minds.  Allowing the witness to answer a direct question without interruption is usually much more effective than hoping the witness can explain under cross examination.

It’s easy to assume that a witness on direct examination has given the same answer he gave in a deposition or conference room, and that the jury understands the answer. But that’s not necessarily true.  Unless the lawyer is listening carefully to the answers, and watching the jury, it’s impossible to know if the testimony is clear, correct and comprehensible.  This means looking up from the legal pad and really thinking about the answers coming from the witness, asking questions to clarify an answer where necessary, and being quick to follow up an unexpected response.

Finally, it’s important to remember that the witness should be the star on direct exams. The lawyer’s questions should be short and easy to understand.  There’s nothing wrong and everything right about questions like “What happened next,” “Describe what you saw,” “Who was there?” or my all-time favorite, “Why?”  The lawyer’s role is not to testify, or even to suggest answers, but simply to prompt the witness to tell the story.  The witness’s words may not be perfect, but they’re likely to be much more persuasive than the lawyer’s.

More than once, I’ve had a judge look quizzically at me as I quietly allow a defense lawyer to lead a witness through a “direct” exam full of leading questions where the lawyer does much more testifying than the witness. The truth is I would much prefer to have the jurors listening to a lawyer drone on than risk that they might be persuaded by an interesting, articulate and credible witness.