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Three Keys to Persuasive Direct Examination

Posted by attorney Roy Comer

THREE KEYS TO PERSUASIVE DIRECT EXAMINATION [1]

Roy L. Comer, Esq.

1.ASK NON-LEADING QUESTIONS

Evidence Code Section 764: "A 'leading question' is a question that suggests to the witness the answer that the examining party desires." Evidence Cod Section 767(a) "Except under special circumstances where the interests of justice otherwise require: (1) A leading question may not be asked of a witness on direct or redirect examination. (2) A leading question may be asked of a witness on cross-examination or re-cross-examination."

Basic stuff, right? You certainly don’t want to ask questions that allow opposing counsel to interrupt the flow of your witness on direct with an, “Objection, leading" and have the judge look down with disdain, intoning, “Sustained."

But leading questions on direct are bad for at least two other, more important reasons: (1) they are not persuasive and (2) they give control of the courtroom to the witness.

Some people say that the most persuasive “witness" in the courtroom is the lawyer. If so, then how you craft the questions of the witnesses you call to the stand, if done correctly, will present your case in a way that makes it easy for the witness to answer, make it easy for the jury to follow and present your case in a persuasive manner.

Questions that give the witness a choice are not leading. The choices in the question focus the attention of the witness—and the jury—on the subject matter of the line of questioning. Asking very open-ended questions run the risk of the witness becoming confused (no matter how well you’ve prepared him/her) or giving a “correct" but incomplete answer.

In the words of Rudyard Kipling, Just So Stories:

I keep six honest serving-men

(They taught me all I knew);

Their names are What and Why and When

And How and Where and Who.

A well-crafted direct examination will contain short, specific, open-ended questions that seek the information relevant to one of the elements needed to be satisfied for the proponent to succeed in the claim or defense. Most of these questions usually begin with one of the following words: who, what, when, where, why, or how. You can almost guarantee that a question that begins with one of these words is not leading since they do not suggest the answer sought by the examining attorney.

2.ASK SUFFICIENTLY SPECIFIC QUESTIONS

Even if the examiner begins the questions with one of the “six honest serving-men," the question must contain enough to let the witness know what is being asked of him/her AND allow the jury to know where the examination is going. But, the examiner cannot unload his/her responsibility for guiding the process by simply asking, “What happened next?" Great trial lawyers guide direct examination by preparing the way the questions are asked. Their clients deserve no less.

Think about it. The “What happened next?" question often elicits a narrative answer will be (1) too long; (2) too confusing, (3) unexpected; (4) too “canned" or (5) simply non-responsive. This undermines the credibility of both the witness and the lawyer (who, as you remember, is the most important witness in the courtroom). The jury is likely to blame the examining lawyer for any confusion or misunderstanding or waste of time. After all, you called this witness, how is it that s/he can’t give simple answers to simple questions that everyone can understand and that relate to the case?

According to Ralph Adam Fine, there are three rules of direct examination: “Do not ask a question on direct examination unless: (1) The jury knows the answer before the witness responds; or (2) You have immediate corroborating material; or (3) If one or two is not possible, you start at the beginning of the logical train of thought so the answer rings true." (The How-To-Win Trial Manual, Fifth Edition, Juris Publications)

Lawyers rely on the “What happened next?" question—or the deadly variant, “Did anything unusual happen?"—because it is undoubtedly to stand at the lectern and hope the witness will answer the question accurately that it is to take the time and effort to craft persuasive questions. It is also an “easy out" if the case is lost; after all, if your witness “collapses" on the stand, how can the lawyer be blamed?

Remember, the question is only leading if it suggests an answer. It is not leading if it suggests the topic of the answer. The examining lawyer cannot ask, “I can’t give you any clues, but tell us something interesting you think might help the jury decide this case."

3.CREATE A WINNING TEMPLATE

Here’s a suggestion or two: First, start with a “headline" or “introduction" of some kind that orients everyone in the room the direction you’re heading.

Second, follow up with short, pointed questions that elicit one fact at a time. This doesn’t mean you cannot loop important facts into the questions as you develop this segment of the questioning. Just refrain from asking the same question the same way or, worse, boring the jury with unnecessary repetition.

Third, finish that topic with a concluding question that elicits the key fact you wanted from that subject matter. Your questions should start broadly and progress logically to narrow the detailed description of the key elements of that subject matter to make it memorable for the jury.

Fourth, transition to the next subject with another headline: “I now want to ask you about … “

The ever-faithful “Tell me whether or not" question can be inserted to guide the witness—and the jury—through any rough spots. In addition, do not forget that a question that gives the witness a choice is not, per se, leading.

4.CONCLUSION

Most experienced trial attorneys will readily agree that direct examination is the hardest part of trial. It is not as relational as jury selection, it is not as organized and easy as opening statement, it is not as confrontational as cross examination, it is not as dramatic as closing argument.

Nonetheless, without a well-crafted direct examination—one that prompts accurate answers from the witness that persuade the jury—you usually have no case. Just getting the facts out or making a record is no longer enough.

Let’s review:

First, spend time deciding the various subject matters you need to cover, then figuring out the order they should be presented and the transitions from one subject to another.

Second, perfect each subject matter with the questions starting with Who, What, When, Where, Why and How. Use looping, choice and broad-to-narrow to focus attention of the witness and the jury on the key point(s) this witness brings to the witness stand. Make sure the questions are short; break them down into one fact per question to make sure no one is confused and the answer is memorable.

Third, reduce your written questions to notes that list those key point (not the questions!) based on the argument(s) you want to make to the jury through that witness.

Follow these steps, and you’ll be miles ahead of the lazy lawyers. And, lazy lawyers are losing lawyers.

[1] This article liberally borrows from Read, D. Shane, Winning At Trial(NITA 2007) and probably contains ideas from of the Resources listed herein, too numerous to mention.

Additional resources provided by the author

RESOURCES

COMER’S LIST OF ADDITIONAL RESOURCES
• Ball, David Ball on Damages, The Essential Update, (NITA)
• Ball & Keenan, Reptile (Trial Guides)
• Bergman, Trial Advocacy in a Nutshell (Thomson/West)
• Cotchett, California Courtroom Evidence, (LexisNexis)
• Fine, The How-To-Win Trial Manual (5th Ed. Juris Publishing)
• Friedman & Malone, Rules of the Road, (Trial Guides)
• Friedman, Polarizing the Case (Trial Guides)
• Gitchel, Trial Advocacy Basics (NITA)
• Hegland, Trial and Clinical Skills in a Nutshell (Thomson/West)
• Hermann, The Curmudgeon’s Guide to Practicing Law, (ABA)
• Imwinkelried & Leach, California Evidentiary Foundations (Lexis/Nexis)
• Jeans, Litigation-3 Volumes (Michie Co.)
• Judicial Council of California Civil Jury Instructions (Thomson)
• Lisnek, Courtroom Power (PESI Law Publications)
• Lubet, Modern Trial Advocacy (2nd Ed., NITA)
• Lubet, Expert Testimony (NITA)
• Lucas & McCoy, The Winning Edge (Lawyers & Judges Publishing)
• MacCarthy on Cross Examination (ABA)
• Mauet, Trial Techniques (5th Ed. Aspen Law Publishers)
• McElhaney, McElhaney’s Litigation (ABA)
• McElhaney, McElhaney’s Trial Notebook (ABA)
• Morrill, Trial Diplomacy (Court Practice Institute)
• Perdue, Who Will Speak for the Victim (State Bar of Texas)
• Read, D. Shane, Winning at Trial (NITA)
• Sandler & Archibald, Model Witness Examinations (2d. Ed., ABA)
• Stern, Trying Cases to Win Series (Wiley Law Publications)

ENCYCLOPEDIC REFERENCES
• California Practice Guide, Civil Trials and Evidence, (Thomson)
• California Practice Guide, Civil Procedure Before Trial, (Thomson)

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