Direct Examination Tips Lenae Pederson Meagher & Geer PLLP 33 S. Sixth Street #4400 Minneapolis, MN 55402 (612) 371-1334 lpederson@meagher.com
Lenae Pederson focuses her practice on complex civil litigation with an emphasis on disputes related to design professionals and products liability. In her professional liability practice, Lenae defends architects and engineers in private and public construction projects of all types, including claims associated with highway design, building design, roof design, parking ramp design, heating and refrigeration system design, oven equipment design, and several other commercial designs. Lenae has won successful jury verdicts in litigation defending engineers when millions of dollars were at stake. In her products liability practice, Lenae defends manufacturers and distributors faced with claims involving construction equipment, recreational vehicles and small machinery. Additionally, Lenae has defended a major auto manufacturer in several Lemon Law cases, including jury trials.
Direct Examination Tips Table of Contents I. Direct Examination Tips...5 Direct Examination Tips Pederson 3
Direct Examination Tips I. Direct Examination Tips Direct examination is kind of the work horse of the jury trial. It does not have the flare of a cross-examination, the opening statement, or the closing argument, but direct examination of witnesses is extremely crucial in convincing your jury that your client should prevail. If you follow simple strategies, you can ensure that your direct examination keeps the jury s attention and conveys your points clearly for the jury s consideration. You have to understand precisely what it is you need to prove at trial first, and then you can begin to prepare testimony that you will introduce through direct witnesses. Before you have a witness testify at trial, it is important that the witness understands their part of this trial story that they are charged with telling. Emphasize key points to the witness that you will need them to cover. It is important to use your direct witnesses as an opportunity to meet every element of your proof regarding any claim or defense you may have. While some litigators love the idea of outlining the questions they may ask to help elicit the testimony necessary from each witness, please be cautious not to be so rigidly tied to specific questions that you cannot respond to the ups and downs of trial testimony. You want to be sure that you cover some very general points at trial, which is then followed by more detailed questions. Trial is very unpredictable. The witness may not provide testimony that you expect, or they might provide testimony that you do not expect so you will always want to stay flexible so that you can respond to those issues the moment they happen, and continue to get the testimony required while that witness is on the stand. For your direct examination of witnesses, be sure to discuss with them the introduction of exhibits that you will want them to testify about. Hopefully before trial you were able to stipulate with opposing counsel to many of the exhibits so the testimony does not bogged down with contests regarding the admissibility of exhibits. Show the exhibits to the witness in as far advance of trial as possible. Give them time to read them and digest them. Make sure they clearly understand why the document content is important. You do not want to surprise a witness on the stand by showing them a document for the first time, and then asking them to provide favorable testimony about it. It goes without saying that technology is a very important tool in the direct examination of a witness. It is much more effective to have a witness testify about a document as the jury is able to see it on the screen (and maybe see you highlighting the section that is critical), then to just have the witness simply testify about it. This keeps the jury more engaged during the testimony, and makes it more likely that the jurors will remember critical points about the document. Use technology to put a visual before the jury at every chance you get. Consider charts, photos, before and after visuals, colored documents, and highlighting of important aspects of your documents. Additionally, jurors are used to information being presented in a high quality digital format, both on their phones, on television, and at many of their jobs. So jurors tend to have high expectations for technology presentations at trial. If your budget allows, you should always consider retaining a trial technologist to provide ideas and option with regard to how to use technology at trial. And also consider hiring them to run your technology during trial. Or possibly a well-trained paralegal can do this work for you. That way the jurors can focus on your examination of your witness, your witness can focus on their testimony, and neither of you are distracted by the mechanics of using technology. Witnesses are always extremely nervous when you begin a direct examination unless they are an expert witness. In order to calm the nerves of your witness, start with simple questions about the witness s Direct Examination Tips Pederson 5
background. By asking about the witness s background, the jury is allowed to learn more about the witness s education, work life, family life and other pertinent facts that helps the jury identify with your witness before important facts about the case are discussed. You want your witness to appear credible and confident when it is critical that the jury understand your version of the case. But be cautious not to appear overly friendly with your witness. Never address the witness by their first name. Always appear proper and professional, even if you have worked with the witness immeasurable times before trial. After the witness testifies about the easy personal background questions, next get the witness to testify to undisputed facts of the case. This will again make your witness more confident, and the jury will assume their credibility is not at issue. Ask open-ended questions that allow the witness to answer in a narrative format so the jury can get a feel for his or her demeanor and character. It is best if you encourage your witness to address their answers to the jury, rather than looking at you during your response. A helpful tip is to avoid eye contact with the witness after you ask the question, which will remind and encourage them to address the jury. If time allows, do a practice session with your witness where you ask them the tough questions that are not easy to answer. Let them practice their responses. Get clear in their mind the important points that need to be conveyed about conflicting testimony or events. When preparing your witness for direct testimony about disputed facts (and facts that may draw several objections from opposing counsel), coach your witness to be confident in their responses. No equivocating on issues that your witness knows to be true or false. Strong affirmative responses or empathetic denials are best if the witness wants the jury to believe their version of events. During direct examination, a common mistake many lawyers make is that they do not actually listen to their witnesses answers to questions, but rather prepare for their next question. That makes it very difficult for you to solicit the testimony that is most helpful to you. Sometimes a witness will volunteer information that merits further follow-up from you. Or sometimes a witness will overlook a fact that you think is critical. Be sure to be fully present as your witness testifies, and not be distracted with other things, so that you can react appropriately during this critical aspect of your case. Always encourage your witness to be honest at all costs. A jury can almost always tell when a witness is being inconsistent and dishonest by the witness s body language and speech. And be sure to remind your witness that direct examination is just one part of the trial testimony. There will be a chance to clear up confusing answers or incomplete responses when you offer re-direct testimony to the jury. Your witness is likely to undergo very strenuous cross-examination. It is important that you listen very carefully to what your witness answers to all of the questions so that you can re-direct on the appropriate points. Attorneys have lots of different systems for tracking re-direct questions and points. There is no one system that is correct. Just list your follow-up questions in a way that you will be able to re-direct in a very targeted and short manner. That way the testimony does not languish on, which will surely annoy the judge and the jury both. With a strong re-direct, you can be sure that your witness will get the last word. Use of these techniques with your witnesses will help them feel confident and prepared to give direct testimony and withstand cross-examination. Direct examination can look deceptively easy to juries when you prepare your witnesses correctly. 6 Trial Tactics March 2017