Direct Examination: Be Brave and Let Your Client Talk

May 8, 2017Articles New Jersey Law Journal

Direct examination is often neglected, perhaps because that is one of the few points of the trial counsel is least able to control. Rather than embracing direct examination as an opportunity to have the witness discuss her story with the jury, most direct examinations are, unfortunately, a tepid, forced, death march of testimony. To overcome this problem, I share some thoughts on how to have your witness meaningfully engage with the jury. Beware: direct examination can turn sour in a second, so always be on your toes. Recognizing that trial is all about dealing with surprises, here are some thoughts that may help you and your client in your next direct examination.

Theater Director, Professor, Story Teller

Trial is an artificial world, akin to a play, so many trial lawyers posit that lead trial counsel is the director of the production. Others advise that the trial lawyer is a professor or story teller, using witnesses and exhibits to bring the material or story to life. Although there is some truth to each of these concepts, they miss one core idea—the idea of engaging in an actual discussion with the jury. If you treat the jury as what actors call "the fourth wall' then there is the play and separately the audience. Consider bringing the jurors into your play or movie so that you think of your client and the jury together as "us," rather than plaintiff, defendant and separately the jury.

Perhaps an example will help. Many lawyers stand behind their table or lectern and ask the witness on direct to tell the jury about the accident. Consider, instead, standing near the jury box so that you are beginning to blend into the jury (but not so close as to offend them), and ask your client to explain to "us" what happened that day. Consider not using your lawyer voice from across the room, but getting close enough to the jury and the witness to have a real discussion as the witness discusses the matter with the jury.

We all love stories. From childhood on, we learn through stories. Too often, direct examination becomes a regurgitation of too-well digested testimony. Direct testimony should not be mindless regurgitation. At its best, a witness is telling his story of the events and discussing the matter with the jurors like they are friends or colleagues.

By the same coin, if direct goes on too long, the jury can become confused with the purpose of (or completely miss the relevance of) direct examination. Consider using chapter headings, just like in the books you read as a child. When the witness has completed testifying about herself and her background, use a transition to clue in the witness and the jury where you want the testimony to go next. A simple "I'd like to turn now to what you saw on the day of the accident" is not leading and will immediately transition you from Chapter 1 (background and history of the witness) to Chapter 2 (the bad accident).


Before having a witness testify regarding the meat of his observations or understanding, take a few moments to have the witness discuss with the jury who he is (education, work, family, pets, hobbies). A witness with no color is an incredible stick figure put up as a weak prop to support your argument. A witness who has a discussion with the jury about who they are, their values, experience and family begins to become someone the jurors can empathize with and believe.

Every witness has some blemishes that your adversary will likely exploit on cross-examination. If you identify a weak spot in your client's testimony, consider stealing the venom of your adversary's upcoming cross-examination by bringing out that testimony on direct and giving your client the opportunity to discuss and explain. I do not recommend trying to cure every little flaw because there is often value in letting your witness fend for themselves against some trivial point or a weak line of cross-examination. Lawyers like to be in control so there is a strong urge to try and address everything. On direct, your witness will often look stronger and more trustworthy if they address some tough questioning on their own.

Listen to the Witness

If you are seriously preparing for trial, both you and your client have spent a great deal of time preparing. Preparation is the key to success. Remember, while you've been in the court room many times, most clients have rarely been there. Most likely you're both anxious because trials are expensive and the risk of losing is significant. The jury sees everything, so they will definitely observe that you are nervous and that your client is too—so don't hide it. You can ask your witness on direct why they are nervous and a candid answer is an acceptable one: "Because this case is important to me."

Listening to the witness is important because if you are at trial you've spent months, perhaps years with the exhibits, the law and the deposition transcripts. You know the facts. Because of this baked-in knowledge, trial lawyers often fail to hear the actual answers given on direct by their own client because the lawyer is too busy thinking about the next exhibit to use or the next chapter of testimony. You really have to listen and make sure that you and the witness "are on the same page."

How can you keep your witness on the same line of thought as the one you're trying to develop for the jury? First, practice before hand. Second, use simple plain English. Do not suddenly use lawyer words to show that you really earned your law school diploma. One major problem with trial lawyers is that once they get in the courtroom they suddenly feel a compelling need to sound like lawyers. Suppress that instinct and encourage a discussion with the witness just as you would have if you were sitting over coffee or a beer. If you suddenly start using "proximate cause" as opposed to "what caused the accident," you sound elegant but you risk distracting your own witness. They are under great pressure and are likely distracted by the jury, the judge, the bailiff, being in court, etc. You need to diffuse this tension so they can recover and discuss with the jury the facts they observed. This approach of giving the witness some time to acclimate and using plain English usually does the trick.

What do you do if the witness nonetheless goes "off the rails" and testifies inconsistently with his deposition or sworn statements? One option is to refresh the witness's recollection with his prior testimony. If that fails, and as a last resort, you can cross-examine the witness with his own interrogatory answers or prior testimony.

Laying the Foundation

Think of putting together your case before the jury as you would a brick building. Build a solid foundation and then add one brick at a time. Too often a witness (particularly the client) feels the need to tell the entire story because otherwise the jurors will not understand. This temptation to tell too much of the story through one witness often leads to disaster. Your witnesses need to understand that they are part of a team of witnesses and, therefore, they do not need to reach out of their own area of competence.

Organizing direct takes time because you are trying to create a forum in which your witness is engaging with the jury by discussing what the witness observed. At the same time, you have committed in opening that you were going to establish a series of facts proving the truth of your position (and likely why your adversary's position is not credible). Finally, if you've retained expert witnesses, you need to lay the factual foundation for your experts (and, if you can, also undermine the facts assumed by the opposing expert).

Calling an Opposing Witness on Your Main Case

Some of the best testimony may be from an opposing witness. One strategy here is to read-in the opposing witness's testimony on the presentation of your case. If you intend to do this, you must provide the deposition excerpts to the court and to your adversary in advance so that they can review the transcript and determine if, under the doctrine of completeness, other portions of the testimony must be read-in as well. Judges hate delays but are particularly irked if the delay causes the jurors to become anxious. If you don't work out deposition excerpt designations and counter-designations well in advance, you are inviting just such delay.

Stealth Expert Testimony

Although we routinely think of fact witnesses and expert witnesses as completely different types of witnesses, it is often ambiguous whether a particular witness is a fact witness or also serving as an expert witness in disguise. A simple example suffices to make this point. Ornithology is the study of birds and is typically treated as an area of expert testimony. Pigeons are a common species of bird and nearly everyone recognizes a pigeon when they see one. Because pigeons are common knowledge, a fact witness can testify to the number of pigeons they see everyday when that witness is eating lunch in the park.

The line between fact and expert becomes even hazier when your fact witness is an expert, such as a plant engineer. This can be an opportunity if you are presenting the witness to develop a number of observations and findings of the engineer as an employee or fact witness. If the questions are presented as factual ones: (1) what steps did you take; (2) why did you take those steps; and (3) what did you understand was happening—each of these sound like fact questions, and they are. The interesting problem that arises is that this also would otherwise be expert testimony. How you or your adversary frames the question in this scenario will likely determine whether the testimony solicited is fact or expert testimony.

Reprinted with permission from the May 15 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.