Counterintuitively, perhaps, direct examination is harder to master than cross-examination for family lawyers.
In cross-examination, we control the witness. Like lion tamers, we command the witness by tight questions, our whip being impeachment references. If done correctly, it’s focused and precise. In contrast, direct examination is often imprecise and sloppy. We can ask a perfect question and have little control over what comes out of the witness’s mouth. To further complicate things, we must simultaneously admit our exhibits and use them as part of the examination. Finally, during our direct examination, we also have the challenge of overcoming objections and evidentiary attempts to limit our proofs. Challenges abound in what is often considered a banal part of trial advocacy.
Even still, despite these difficulties, almost all direct examination injuries are self-inflicted. Most landmines are avoidable if you use better structure, better questions, and finally, better planning. While this seems fundamental, a focus on fundamentals is central to excellence in trial advocacy (and mastery generally).
3 Direct Examination Fundamentals
1. Think in Paragraphs
When structuring your examination, think in paragraphs. Use a topical sentence with several questions related to that topic. As subtopics arise, start a new paragraph and ask questions related to that topic.
For example, assume you are seeking information from your client regarding the parent’s healthcare responsibilities. The topical sentence might be, “Jane, now I want to ask you some questions about the children’s healthcare.” This topical sentence, also known as a “headnote,” directs the attention of both the witness and the judge to the topic of your focus. Once the topic is announced, start asking questions pertinent thereto:
- Who is the children’s pediatrician?
- How long has he/she been their pediatrician?
- Who took the children for their regular checkups?
- Who took the children for their shots?
- Who took time off of work if the children were sick?
- How many doctor appointments did Robert attend over the children’s life?
The paragraph approach gives you the flexibility to cover branches extending from the main topic as subtopics. “Did you and Robert ever disagree on medical care for the children?” Assuming you get a yes, follow up with questions pertinent thereto: “Describe an occasion in which you disagreed concerning the children’s medical treatment ” and so forth. Also, this approach allows you to embrace unplanned subtopics arising from the witness’s answer.
Whenever you move into a new topic or subtopic, highlight the lane change so both the witness and the judge know where you are heading.
Be clear when you move into another topic. You don’t change lanes on the highway without using your turn signal and the same applies here. Whenever you move into a new topic or subtopic, highlight the lane change so both the witness and the judge know where you are heading. “Jane, now I want to move on and ask you some questions about your health…”
2. Ask Better Questions
Better questions yield two benefits. First, they typically lead to better answers. Better questions help the witness understand and answer. Second, most objections relate to the form of a question. By asking tighter questions, many objections are avoided.
Tell the story through the testimony one fact at a time. Questions should be short and open-ended, soliciting only one fact per question. Avoid confusing (and objectionable) compound questions. Avoid jargon and “lawyerspeak.” Keep it conversational and use language that people might use while chatting over a cup of coffee. This approach makes for a crisper and more natural tone, which enhances the credibility of the witness.
It goes without saying that leading questions are generally objectionable on direct examination. However, even if the leading questions didn’t draw an objection, avoid them. You want the spotlight to be on the witness, letting them tell their story in their own words rather than you telling the tale with their assent. The witness also has a harder time building rapport with the judge when you lead that witness.
In my book, The Divorce Trial Manual: From Initial Interview to Closing Argument (ABA Book Publishing, 2021), I suggest starting all questions with one of the five “W” siblings and their cousin “H”:
- Who?
- What?
- Where?
- When?
- Why?
- How?
As another option, start an open-ended question with, “Please explain…” or “Please describe…” These open-ended starters are effective because they get the witness talking beyond a curt “Yes” or “No” response. The witness’s words should tell the story – and open-ended questions produce those words.
Listening is a trial lawyer’s superpower. In both direct and cross-examination, always listen to what witnesses say – and in some cases, to what they are not saying.
As previously mentioned, keep the examination conversational. That means don’t hyper-script your examination. Listen to the answer and use a technique called “looping” to engage with the witness. Looping involves using the witness’s language to expand on their answer. This technique can be used either in direct or cross-examination.
For example, assume the witness testifies, “… so I told him I was sick of his irresponsibility and childishness.” The follow-up might be, “You just described Robert as irresponsible and childish. Please give Judge Smith examples of his irresponsibility…” If you are too locked into your outline or notes, you lose an opportunity to mine gold from your witness’ answers. But in order to do so, you must listen to them. Listening is a trial lawyer’s superpower. In both direct and cross-examination, always listen to what witnesses say – and in some cases, to what they are not saying.
3. Script Your Proofs, Not Your Questions
As mentioned above, tying yourself to a script is ineffective. So, that begs the obvious question of how to prepare for your examination. Rather than scripting your questions, I suggest scripting your proofs. By doing so, it lays the groundwork for a more effective examination.
I use an approach taught by retired Denver trial judge Tina Habas. Using the Habas method, I use a separate sheet of paper for each topic I plan to cover. At the top of the page, I write my topic sentence. Underneath, I summarize as bullet points the proofs or evidence I need to get from the witness on that topic. I also list any exhibits to admit through the witness on that particular topic.
Avoid the scripting of your questions to create a more natural presentation, thus enhancing the persuasive punch of the testimony.
Using the example from above, my topic sentence at the top of the page would be “Children’s Healthcare.” On the page, I would then list the proofs or answers I need from the witness on that topic:
- Pediatrician Allen Jones
- Doctor since birth
- Mom took to checkups
- Mom took the children for shots
- Mom took off of work if the children were sick
- Robert attended less than 5 doctor appointments for the children
From this list, craft your questions on the fly: “Who was the children’s pediatrician?” etc. The bullet points are just prompts to ensure you get in all of the important evidence you need to tell your story. If the witness takes you down a productive side road, you can follow and then, before moving on, check your bullets to make sure you got what you needed within the topic at hand.
Avoid the scripting of your questions to create a more natural presentation, thus enhancing the persuasive punch of the testimony.
Direct Examination Is All About the Fundamentals
Better structure, better questions, and better preparation are low-hanging fruit to improve your direct examination. When you focus on these basic building blocks, you will set the groundwork for a successful witness.
In my next installment on this topic, I will dig a little deeper and discuss strategies for the admission and use of exhibits, witness control, and dealing with those pesky objections in family court.
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