Direct examination is the most important part of your presentation.
By Lynne Z. Gold-Bikin, Family Lawyer
Unlike followers of Perry Mason and his winning cases on cross-examination, a good trial lawyer knows that the most important part of a presentation is the direct examination. This is where your side tells your story and sets the parameters for what the judge will hear.
Every case has a theory. Why should you win? What is it about your particular case that means that your client is entitled to receive what they think they are? Why are your numbers more accurate than the other side’s? Why is your case more compelling than the other side? This story is all told through the direct examination.
How then, to insure that you put your case in the way you want it and that you do not have it interrupted by objections? You start off with how the questions are phrased.
All questions on direct examination should be what are called “non-leading” questions. That means that they do not suggest the answer. It further means that they are open-ended so that your client or your witness can tell their story and you do not control the parameters of what they have to say.
The easy way to do a proper direct examination is to remember the “W”. That means that all your questions should start with a “W”, such as, who, what where, why and when questions. Additionally, a “how” question or a “describe” question can be thrown in, but that is the way that all questions should be phrased. What that means is that somehow or other you can turn any question into a non-leading question if you think hard enough. If you continue to use the “W” questions, the other side cannot make an objection to a leading question. That means that they cannot throw you off your pace and they cannot interrupt a good flow of information that the court is receiving.
Every witness, even experts, can be handled in this same way. What did you do? Why did you do it? When did you do it? Where did you do it? How did the information that you received help the court in this case? That is an overview of the questions you would ask an expert on direct examination. So too, all of your witnesses who fit into your theory can be questioned in the same manner.
Your theory of the case can come out on direct examination and can be brought out in the same way. If you believe that your client should be the appropriate custodial parent, the questions are: What do you do; Why do you do it; How do you do it; Where do you do it; and, how does this information help the court in determining who should be the appropriate custodial parent. That is the overview of your direct examination of your witness or any other supporting witnesses in your custody case.
The most important thing to remember is, on direct examination, the spotlight is on the witness. It is not on the lawyer and you want the judge to have their attention on the witness who is telling the story that you have developed and the theory that you wish to sell. It’s also a time to bring out your theme. Every case can have a theme and the importance of the theme is that the court will remember your case above all others. If you believe that your client is being sent to the poor house by a very high earning spouse, you might think of Cinderella and that he has picked her up from rags and wants to send her back to rags. This could be your theme. Almost every case can fit into a nursery tale somehow.
Any witness you call is your witness and you are bound by their testimony. In order to properly prepare for direct examination, you must interview them and know what they are going to say. Do not put a witness on the stand that you have not met and carefully questioned. Prepare them by letting them know the issues you are going to raise and the questions you are going to ask. It is extremely important on direct examination to hit those weaknesses in your case that could hurt you later. A weakness is best brought out on direct rather than let the judge hear it first on cross-examination, as if you have attempted to conceal these facts from them.
The K.I.S.S. principle is also at play here. Keep It (your testimony) Simple, Stupid. Don’t try to embroider things that do not advance the case. Your goal here is to put a sleek case with your facts, buffering your weaknesses, and letting the judge know why you should win the case. Do not let your witness embroider so that it is difficult to understand the point.
That also leads into what I call the “marble” principle. If you put one marble on the table, it is easy to pick it up. If you surround that marble with another 50 marbles, it’s difficult to find the one that you want to focus on. That means that the evidence is presented briefly and concisely with not a lot of other stories around that have nothing to do with the case. Get the judge focusing on the marble you want him or her to hear.
You are in control of the witnesses you call in your case. Call them in a logical manner to set the story straight in the judge’s head. Remember, this judge knows nothing about the case and it is up to you to draw the picture for the judge. All of your witnesses should be told that it is up to them to draw a picture in the judge’s head of what they want to produce. You want the judge to say, “Aha, I get it now.” That can only come from your direct examination put on in a logical manner in a logical order.
Direct examination is where the flow of the information that you wish to present is brought. You can control that impact by doing it in a logical manner calling your first witnesses to tell the story from the beginning to the end, phrasing your questions properly, and not giving the other side an opportunity to object to a non-leading question.
Lynne Z. Gold-Bikin concentrates her practice in the areas of divorce, custody, support, prenuptial agreements, and protection from abuse. She has authored numerous books including Divorce Trial Manual: From Initial Interview to Closing Argument and Divorce Practice Handbook, as well as authored or co-authored numerous articles on family law matters. She is a partner at Weber Gallagher Simpson Stapelton Fires & Newby.