Direct examinations are underappreciated. The spotlight shines on the flashier opening statements and cross examinations, but nothing at trial packs a punch like a good story told through a direct examination.

The purpose of this article is to help make your stories more persuasive.

A story is how you tie issues together. Your issues are the points you want to impress on the judge or jury — the trier of fact. Direct examination is how you present your complete version of the issues to the trier. So the better your witness is at presenting the case issues on direct, the better your chance for victory. To be clear, when I refer to direct examination, I am including both the affirmative presentation to the jury and your witness’s handling of cross-examination questions.

DIRECT EXAMINATION TECHNIQUES

This article contains three suggestions to make your direct examination more persuasive. First, select your case issues early and frame them in a positive way. Second, elicit answers that will make an impression on the trier. Third, prepare your witness to turn dangerous cross-examination questions into opportunities.

Spot (positive) issues early

Begin work on your case issues early, preferably when you file your complaint or answer. Sit down and prepare an issues chart with these headings:

#     Issue     Witness     Document     Comment

As your case progresses, revisit this chart periodically to modify it.

I suggest using as a guide the jury instructions applicable to your case. For this process, use both the pertinent standard instructions and anticipated custom instructions. There is no better clue to your key issues than the facts that support the legal issues you must satisfy.

The issues chart is the foundation for your direct examination. For each issue a witness covers, prepare direct examination questions designed to elicit that issue. In a way, you can look at your issues chart as a first draft of your direct examination.

There is a twist. The key takeaway here is framing each issue as a positive statement and not as a reactive or defensive statement. A positive statement would be, “My client is correct.” In contrast, a defensive statement would be, “My client did not do what you claim he did.” By framing your case issues as positives, you control the narrative. Otherwise, the examination can appear to be defensive.

Here is a fact pattern to use as an example. Peter paid Debbie $10 for a sandwich. The sandwich had mayonnaise, which Peter hates. Peter asked for a replacement sandwich without mayonnaise at no charge. Debbie refused, claiming Peter did not ask for no mayonnaise. Peter responded that the description of the sandwich did not say it included mayonnaise.

If I represent Peter, one of my issues might be, “I had to pay $10 for a sandwich I did not order.” The defensive equivalent would be, “No one told me that the sandwich would have mayonnaise on it.” Both are accurate but the first cries out for redress while the second makes Peter seem reactive. For Debbie, the positive statement would be “I gave Peter what he ordered.” The defensive statement would be, “Peter never told me to hold the mayonnaise.” How you frame your case issues allows you to create subtle, but important, differences that may affect how the trier perceives it. When you position your case issues in a positive way, you appear confident about those positions. If you position your issues to respond to what you think your opponent will claim, you may appear reactive or defensive.

Note that I am not suggesting that you avoid issues, even difficult ones. Rather, attach a positive statement to your response to difficult case issues. For example, when Peter says, “I had to pay $10 for a sandwich I did not order,” he is anticipating Debbie’s defense that he did not say “hold the mayo,” but Peter is folding that defense into a positive statement as opposed to highlighting a defensive answer.

Another good way to sweeten the cross examination is to “draw the sting” before you get to cross examination, referring to the practice of anticipating your opponent’s best points and controlling how those points are presented to the jury. In our scenario, Peter may want to admit that he did not specify “no mayonnaise.” He knows this fact will come out during trial and rather than waiting to get asked about it during cross examination, he uses it to show his credibility to the trier. It also gives him the opportunity to shape that response, perhaps, by adding that he assumed no mayonnaise because it was not on the menu.

Find your range

When it comes to using your case issues to craft questions, consider the range between you and the witness. Let me explain. I like watching mixed martial arts fights. A key fight strategy is controlling the space between you and your opponent. Space control translates well to the trial fight — you want to be cognizant of how you space your questions.

Imagine a spectrum of questions. On one end would be open-ended questions. These questions generally start with who, what, when, where, or how, and leaves it to the witness to give a narrative answer. An open-ended question does not call for a yes-or-no answer.

Here is an example of an open-ended question using our scenario: “What kind of sandwich did you order?”

Open-ended questions have the advantage of allowing the witness to answer how he sees fit and will not elicit a leading objection. But they make it difficult for the attorney to guide the direct examination and encourage narrative answers, which can be boring.

On the other end of the spectrum is the leading question. Black’s Law Dictionary defines a leading question as one “that suggests the answer to the person being interrogated; esp., a question that may be answered by a mere ‘yes’ or ‘no.’”¹

Here is an example of a leading question: “You ordered a sandwich without mayonnaise, didn’t you?” A leading question allows the examiner to exert more control over the examination and often results in simple, short answers that can be more persuasive. But Rule 611 of both the federal and state rules of evidence generally prohibit the use of leading questions during direct examination.

In my experience, many lawyers ask open-ended questions on direct and leading questions on cross. But there is a third way — the closed-ended question. A closed-ended question has been defined as one to which an answer must be selected from a limited set. Closed-ended questions are not necessarily leading if they allow the witness to choose from more than one option.

Here is an example of a closed-ended question: “Did you order a sandwich with mayonnaise or a sandwich without mayonnaise?” (Note that one could just ask “Did you order a sandwich with mayonnaise” and leave the rest implicit; whether you explicitly spell out all the options or leave them implied may depend on your judge.)

The key difference between a closed-ended question and a leading question is that the leading question only proposes a take-it-or-leave-it scenario with one option; the closed-ended question presents more than one option for the witness to select.

A closed-ended question can be used during direct examination if it does not suggest an answer. The most effective way to ask a closed-ended question is framing it in such a way that the witness could just as easily agree or disagree with the question. If challenged, you can correctly respond that your question does not suggest one answer.

Changing your direct examination approach by making it heavy on closed-ended questions will improve the persuasiveness of your examination. You will be able to control the flow of testimony and make it more interesting and understandable to the trier. In addition, by asking questions in a more focused way, you are able to better focus the jury’s attention on where you want it to be.

To help frame closed-ended questions, consider a technique I learned long ago at an excellent trial seminar. Instead of writing out your questions, write the answers you expect to get (and, of course, confirm them with your witness.) So instead of writing, “What was the weather like?” you would write, “It was sunny and warm.” This approach offers flexibility in how you phrase your question and gives it an air of genuineness because you are creating the question on the spot. It also dissuades you from becoming wedded to your direct examination outline.

One final point on this topic: Consider mixing open- and closed-ended questions into your direct. This will spice it up and make it less likely that the trier will see you as a puppet master. If you have an energetic and persuasive witness, it will also allow that witness to connect with the trier using his own words.

Exploit cross-examination opportunities

Once you have completed your scintillating direct, your adversary gets a chance to ask your witness leading questions on cross examination. Many lawyers and witnesses see cross examination as a threat; instead, view it as an opportunity. Indeed, approach cross-examination preparation as an extension of your direct examination. This way, you reinforce your direct-examination points when the jury is on heightened alert.

Make sure your witness is prepared with reasonable responses to all the cross-examination approaches you can envision. Often, you can use case issues as a life raft your witness can go to when pressed by your adversary. Practice asking your witness tough questions and using the case issues to respond.

Please note that I am not suggesting that your witness memorize answers. It’s not an effective strategy. During both direct and cross, you want to avoid rehearsed or memorized exchanges. The trier can sense a canned answer, and an authentic response will win the day every time. Indeed, the demeanor of your witness during cross examination should be the same as it is during direct examination. What you want is a witness whose attitude on cross is, “I’m glad you asked me that question ...”