- Speak in a comfortable style. Use a conversational tone that’s loud enough for all to hear and can encourage a witness to speak out. Maybe sit or stand near the jury to make sure that the witness speaks toward the jury loudly enough to be heard.
- Choose the best sequence. There’s no “correct” order of questions, just outline what seems to be the best sequence for each examination you do. Some trial attorneys try to begin and end on a strong point, feeling that jurors are most attentive and receptive then. Others stick to a strict chronological order or to the sequence in which the issues in the case will be argued.
- Phrase questions carefully. Questions asked on direct examination should be short, direct, and require a single, specific answer. Don’t refer to inadmissible matter. You can’t stop adverse counsel from objecting, but proper phrasing can reduce the chances that objections will be sustained and discourage opponents from constantly interrupting.
- Watch your semantics. Avoid unusual words and legal jargon. Many witnesses and jurors don’t understand words like “prior,” “subsequent,” “plaintiff,” “deposition,” “interrogatories,” and “statement.” And don’t lapse into the jargon of the witness, especially one testifying as an expert. There’s a risk that you’ll become distracted by your own self-satisfaction in understanding a witness’ testimony that you’ll forget the main purpose of the examination: to inform and convince the trier of fact. And keep in mind that the words you use can subtly influence the thinking of judges and jurors. For example, plaintiffs’ lawyers often refer to the injuries that their clients “suffered”; defense attorneys often speak of injuries “experienced” or “claimed.”
- Apply strategy to names. You’ll usually refer to and address your client by name—although generally not by first name only. Using a client’s name can reinforce the idea that the client is a person who deserves the jury’s sympathy and support. By contrast, referring to adverse parties in depersonalized terms like “the plaintiff” or “the defendant” can have the opposite effect. When it comes to witnesses, addressing them by name tends to encourage jurors to remember them and their testimony. Using titles such as “doctor” and “officer” may suggest or reinforce a witness’s competence or authority.
Learn more about examining witnesses in personal injury matters in CEB’s California Personal Injury Proof, chap 1, and generally in CEB’s Effective Direct and Cross-Examination. Also check out CEB’s program Evidence: Tips for Effective Direct and Cross Examination.
Other CEBblog™ posts on direct examination:
- What Expert Attorneys Do During Direct Examination
- 12 Tips for Direct Examination in Depo or at Trial
- Direct Examination Crisis Control
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