"Just the facts, Ma’am" – Sergeant Joe Friday in Dragnet, a popular television program in the nineteen fifties
Examining witnesses looks easy on television and in the movies. Whether direct or cross examination, it is always very brief, entertaining and successful. It looks so easy, until you do it in a court room with a real live witness. Your own client can become your worst witness or your expert lose all credibility. Your carefully prepared cross examination can become an experience you wished had never have happened. That’s the real world of trial lawyers .
What can you do to make the examination of witnesses less painful and perhaps even successful? One good start is to apply some time proven concepts to the process. From the hundreds of books and articles written about this subject there are some fundamentals that seem to apply to most witness examinations and which we should learn.
In addition, there are two axioms that have universal application to not just examination of witnesses, but the entire trial. One of these is to keep in mind at all times that a trial is a battle of impression and not logic. It is not the merely the weight of evidence and logical reasoning that controls the outcome of a trial, but rather unconscious impression about the case. This is particularly true when it comes to witness examinations.
Another is the importance of theme in the presentation of the case. Themes capture a line of thinking and assist people to arrive at a conclusion in a few words. It is important to always weave your trial theme into the examination of witnesses.
The phrase is more then the Boy Scout motto. It is the first and must fundamental rule of planning any examination of a witness. Even experienced trial lawyers need to plan for the examination. To do otherwise, will inevitably result in a rambling, confusing and worse, boring examination whether it is direct or cross examination.
The first rule in becoming prepared for the direct or cross examination of witnesses is to understand your client and their case as if it was yours. You need to be able to put yourselves in their shoes, know their thinking, their suffering and their personal background. Spend time learning about your client. How can you bring out the key facts in examining witnesses if you don’t know your client and the story of their case? In the examination of witnesses you need to know not just who your client is, but you also need to put yourself in the shoes of the witness as much as you are able to do so. Ask yourself: Who is this person inside? What does this witness fear most? What is driving the testimony? To prepare for direct and cross examination, try to put yourself in the witnesses position and think the way the witness is likely thinking. Do the same for your client. This "mental transference" should also be made with regard to the jury as well as the judge throughout the trial. During the direct and cross examination of witnesses you should be asking yourself: What is the jury thinking right now? Your examination can be much more effective if you mentally try determine what is going on in the minds of the witness, the jury and the judge.
In addition, have a plan before you start any examination. Don’t just get up and start talking without a road map of where you are going and how you intend to get there. Know what you want and how to get it. In the Wizard of Oz, each of the characters knew what they wanted. Dorothy wanted to go home. The lion wanted courage, the tin man wanted a heart and the Scarecrow a brain. They knew what they wanted and they knew how to get there, by following the yellow brick road to the great Wizard of Oz. We need the same kind of planning in preparing to examine witnesses.
How do you create such a plan? In most cases under modern discovery rules, we are aware before trial of the general nature of the evidence, the witness testimony and the information each witness will offer. Make an analysis to determine the essence of what is important and significant to your case. You need to establish what is legally required to prove your case. But you also need to bring out the facts that are compelling or important to jurors as well. Everything else is secondary. For cross examination, an analysis of what is really relevant to undermine the credibility of the witness and the defenses as well as bringing out information the witness has that supports your case should be made. In both cases, the issue is, how can this witness assist in telling the story about my client’s case?
How do you determine what is really relevant and important from what is not? The first consideration is what is legally necessary to lay a foundation for offered testimony and evidence as well as to establish the required proof for your case. This is a legal analysis The second, is to decide what should be selected from all the available evidence to be brought out with the witnesses. Determine what is important from a listener’s standpoint in either proving your case on direct or in cross examination. What are the controlling and important issues from a jury point of view? What do they want to know?
Even experienced lawyers recognize that they are not always capable of making a correct evaluation of what is important and significant to jurors from all the evidence in the case. It requires input and consultation with non lawyers. People who have no connection with the legal system, who think like "normal people" and not lawyers will provide you with the most accurate information on this important subject. Usually this takes the form of a focus study in most major cases, but it can be as uncomplicated as talking to as many people as will listen about your case. All that’s involved is a review of the facts of the case, good and bad, by ordinary people who are not involved in the legal process nor lawyers. From this feed back, you can select the subject matter that these people identify as most significant to them and therefore are most likely to be significant to jurors in your case. You also create your theme from this feed back by reviewing what these ordinary people think and say about your case. The facts and issues are then organized in the order of priority based upon the importance these people have indicated. From this outline you create both your direct and cross examination points, the case theme and the key issues in the case.
Staying focused in both direct and cross examination is very important if you want to maintain interest and persuade the jury. It’s been said that if you are hunting rabbits, you need to concentrate on only one rabbit at a time and not try to chase after everyone you see. Trying to cover every possible issue and subject is a sure way to conduct an ineffective examination of any witness. By using the outline you create from the review with non lawyers, you are in a position to prepare a direct and cross examination which is focused and relevant to what the jury is interested in hearing. It is supplemented by any legal requirements for establishing your case or the introduction of evidence.
To help stay focused throughout the trial, it’s helpful to have a single sheet of paper in front of you at all times to remind you of the need to keep it short and simple, to stay on the subject and to focus on your what you know are the significant points in your examination of witnesses. In fact, the title of the paper might be in bold print: "Keep it short and simple." Below that briefly state the theme you are following. Then outline clearly and briefly the key trial issues. Use this for a quick reference and continuous reminder. By referring to this sheet regularly during examination of witnesses you are reminded to always stay focused upon your story of your client and the fundamental issues in the case rather then be distracted.
Jurors and judges become bored with long rambling examinations of witnesses whether on direct or cross. To persuade we need to capture and keep interest. If the jurors aren’t listening you are not going to convince them of anything. To keep interest means, in part, being brief and to the point. Focus your case. Evidence is like an iceberg. The bottom below the surface may be enormous, but only the tip is can be seen above the water line. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.
Remember, you are telling a story, wether it is direct or cross examination. Telling a story involves not only organization, but also brief interesting facts, keeping it short and to the point. Years ago, match book advertising was very popular. The message had to be brief, but communicate a clear message in a small space. Today all we need do is to watch the evening news to see the same method of communication used. Note the time devoted to major television news stories. Usually less then two minutes with photos is all that is required to communicate a great deal of information. Another example is the print media such as USA Today or People Magazine which limit stories to very short articles but which convey a full message. A message does not have to be long and complicated to tell a complete but interesting story. As the late Bishop Fulton Sheen once said "a sermon is like drilling for oil. After the first ten minutes, if you haven’t struck oil, don’t bore any longer." The same is true in trial when we examine witnesses.
A well told story requires work. If we are not prepared and not focused in our examinations we will always ramble and provide irrelevant as well as unnecessary details. It is this kind of detail that cause boredom in our listeners. We reason to conclusions by general impression, that’s what counts to the jury. To create favorable impressions in our examinations we need to eliminate facts which are not important and only clutter up the discussion as well as waste time.
MAKE DIRECT EXAMINATION INTERESTING
Our goal in either direct or cross examination of witnesses should in part be "never a dull moment." We want to keep interest so people will listen and to communicate thoughts which will persuade. That means telling a story in an interesting manner by the way we conduct our examinations. On direct examination, you should present your case as a story. In conducting direct examination you have choices in how to do so. You can examine as if it were a narrative by a long questions and short answers, a step by step, process keeping tight control. People who are locked into a prepared question and answer outline often end up doing this. But it is very boring. It sounds rehearsed. It lacks spontaneity. However, asking more open ended questions and allowing the witness to tell their story is interesting and far more persuasive. The witness should be allowed to tell their story by your manner of examination as if they were telling their neighbor what happened. Direct examination which is conducted by open ended short questions allowing the witness to expand and explain is far more interesting then closed ended questioning restricting the witness to a few words in response. In thinking about how to conduct direct examination, remember Rudyard Kipling excellent advice. It is what direct examination is all about:
"I kept six honest serving men. (They taught me all I knew) Their names are what and why and when and how and where and who"
Messages in a court room that are too complicated result in jurors mentally shutting down and blaming the lawyer for their problem of not understanding. Therefore, your direct examination should be uncomplicated and your points simple to grasp. Frame your questioning in a way in which the facts are explained, technical terms defined and examples a frequently used. Use demonstrative aides and other devices frequently in the examination.
We all know the importance of first impression. One never gets a second chance to make a first impression. The beginning of your direct examination is important. It experts are right, the first three minutes of any presentation, especially witness. examination, are the most crucial. If we don’t capture interest then, we may never fully regain it. The American attention span has shrunk with changes in how we get our news and information. The advertising industry is very aware of this fact and explains how a thirty second television commercial can have a significant visual and mental impact. Plan your examination with this in mind.
In that regard, if you are the judge or juror, what is the first thing you would want to know when a witness is called on direct examination? For most people it is: who is this person and why are they being called as a witness? If you begin your examination of an expert, for example, by going through a long qualification process, you are likely going to have jurors trying to guess the answer to these questions and in addition, mentally drifting off. Instead, why not tell them right away? Most judges aren’t going to be upset with an innocuous leading question for the purpose of setting the scene such as:
Q. "You are Mr. Smith’s physician who examined and treated him? You are prepared to tell the jury what you know and what conclusions you have reached?
You can always re-frame the question to be non-leading if required, but what’s important is not to leave the hearer wondering who this person is and whey they are being called as a witness. This technique can be applied to any kind of witness called on direct and it sets the stage for the jurors to know what to listen for and gives them an interest in the examination.
As to establishing the qualifications of an expert or witness you must, of course, lay a sufficient foundation for admissibility, but if too prolonged and intensive the jurors will find the process of qualifying an expert boring. You need to balance the process by summarizing and focusing on significant factors that make the witness especially qualified to offer opinions. The details of the experts achievements are not often important.
In addition to making a correct start and being clear as well as brief, remember that visual aides are very important in direct examination. Breaking up the examination with such things as drawing or writing on the paper or blackboard or demonstrating something is an effective way to explain as well as keep the examination interesting. Electronic technology such as visual presenters and software presentations are common in trials today. When not over done these modern devices can be time savers as well as enhance interest. Simple things such as posters, models, photographs or overhead projectors still are helpful tools in the direct examination process.