Straight Talk on Direct: When done well, examining a witness is like a conversationAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 84, No. 3 (MARCH 1998), pp. 82-83Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27839886 .

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LITIGATION

Straight Talk on Direct

When done well, examining a witness is like a conversation

BY JAMES W. McELHANEY

Angus files his letters on trial

techniques by subject matter, so when I told him that this column was going to be about direct exami nation, he just pulled out the right file. All I had to do was pick the best letters.

It's a lot easier than writing, which can be real work.

Dear Angus: I agreed to give a talk on open

ing statements for a local bar asso ciation program, and I was really excited because that's when a good lawyer wins the case. But now they tell me I've got to talk about direct examination instead.

Any suggestions for making a dull topic sound interesting?

?Stuck in St. Louis

Dear Stuck: You didn't get the short straw.

Sure, everybody talks about how important opening statements are, and they're right. The jury starts to take sides during opening state

ments, but that is not when you win or lose the case.

Make promises in your open ing that you don't deliver on and you're what Texans talk about when they say, "Big hat, no cattle."

Facts, not hollow words, win lawsuits. Direct examination is when you prove those facts.

The problem is, most lawyers do it poorly.

Most direct examinations are so long, tedious, dull, disjointed and

repetitious that everybody is re lieved when they are finally over.

When you speak at that pro gram, you have an opportunity to

get your audience excited about di rect examination and show them how to do it right.

?Angus

James W. McElhaney is Joseph C. Hosteller Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

Dear Angus: We always hear about lawyers

having trouble controlling witness es on cross-examination. Well, I have trouble controlling them on direct.

I have watched some of the best lawyers in the country try cases, and their direct examina tions look so easy?they just have conversations with their witnesses. But no mat-

j*?????? ter how carefully I jBHH prepare a witness, JB^^fl^H when I try the con- j||BAaBB versation method j^^^^^^^M on direct, every- ̂ ^^^^^^H thing falls apart. ^^^^^^^1 What am l^^^^l^l doing wrong? ^^^^^^^h ?Frustrated

in Framingham ̂̂ ^^^^^H Dear Frustrated: J^^^^^^H Direct examina- jjj^^^^^^H tion is not the same ff^^^^^H as having a conversa- aH^^^H tion. It should sound like one, but it isn't. sf^^^^H Do it right, and you fl^^^H guide the witness ev-

ifl^^^^H ery step of the way? 'ff^^^^^l without ever sounding like you are putting ^JhH| words in the witness's ^?

mouth.

And you do not want to sound like you are telling the witness what to say?for three very good reasons:

First, leading questions are an open invitation for your oppo nent to interrupt the witness's tes timony. And believe me, fragment ed testimony is a lot harder to follow than a simple, coherent story that has a minimum of interrup tions.

Second, even if the other side does not object, leading on direct sends the message that the witness is not a good source of information and needs to be told what to say.

Third, leading on direct also tells the jury that the witness is

happy to say whatever you want, which hurts the credibility of both you and the witness.

So you want to guide the wit

ness?direct where the testimony goes, point out the areas that need

filling in with more detail?without looking like you are Geppetto, stand ing over the puppet and pulling the

the headline that tells the witness (and everyone else) what the sub

ject is going to be. Does it point the witness in the

right direction? Without a doubt. For example:

"Mr. Dougan, I'm going to ask you some questions about your associa tion with Mabel Schuster. How long have you known her?"

Can you use the headline to

82 ABA JOURNAL / MARCH 1998 ILLUSTRATION BY JOHN SCHMELZER

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get wandering witnesses back on track?

So comfortably they may not even notice: "We'll get to your engi neering work in just a minute, Mr. Dougan. Right now I'd like to ask a few more questions about you and

Ms. Schuster." The real advantage of using

headlines is that they make it easy to ask short, specific, follow-up questions that are as broad or nar row as you like:

going to do?" "Why didn't you do anything

to keep her from leaving your com pany?"

Short questions command in stant comprehension from both the witness and the jury. The longer the question, the more you are like ly to inject serious confusion.

Because short questions are so powerful, it is worth the trouble

learning how to ask them. One of the best habits you can develop is to start every question with "Who," "What," "When," "Where," "How" or

"Why." ?Angus

Dear Angus: After years of trial practice, di

rect examination is still my biggest problem. Even when the facts seem exciting to me, the testimony of

most of my witnesses is pretty boring stuff. What can I

do to make their testi

ll^v mony come alive?

j^^^Hj^P there are'some tech

B^^^fa^^^ niques that can make

^^?^^^ they see, you want the

^ "see^^w?%^r??d "demonstrate."

See what they can do: "Mr. Wilkins, would you give

us a picture of what went on in that meeting with Ms. Anderson?"

"What did you see when you walked in the room?"

"Would you show us what Ms. Anderson did when you handed her the contract?"

Another way to make testimo ny come alive is to ask questions as if the events were happening right now instead of in the past:

Q: All right, Mr. Sanchez, you're in the conference room on the second floor. Where are you standing when the policeman comes in the room?

A: Over by the wall, next to the window.

Q: Do you see if Rachel Caulkins is doing anything?

A: She's pulling a gun out of her purse and pointing it at the cop.

Q: And what do you do? A: Me? I hit the floor. Asking questions as if things

were happening right now works in any kind of case, civil or criminal, business or personal injury. Just one caution: Do it sparingly.

?Angus

Dear Angus: To make sure I don't overlook

some crucial fact, I always organize my direct and cross-examinations with a list of the elements of my claim or defense in hand. That way I know I can survive a motion for a directed verdict against me.

?Organized in Ogalalla

Dear Organized: It is a good idea to make a

proof checklist for every case so you won't miss some essential fact. But there is a problem with letting that checklist organize your case.

From the very first case you briefed in law school, to every legal memorandum and brief you ever wrote, you have been organizing facts and arguments around legal issues. That kind of organization can help you present legal argu ments to judges and other lawyers, but it can really get in the way when you are talking to a jury. That's because the average person doesn't organize facts around legal issues.

Does that mean thinking like a lawyer can actually hurt your case?

Without a doubt. But if you don't organize your case around legal is sues, what do you do?

Use the story. Every direct examination is a

story and ought to be put together like one. Because you have the tools to guide the witness on direct, you have the power to shape the story so it makes sense to the jury. You

want the jury to see the facts from your client's point of view so they can identify with your side of the case. That's what gets lost in the legal checklist.

?Angus

ABA JOURNAL / MARCH 1998 83

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