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Advanced Trial Handbook Index


Direct Examination During Trials

A successful direct examination can be accomplished by controlling the witness without hampering her ability to testify freely, truthfully and honestly. This balance can only be reached by thoroughly preparing for the questioning.

Preparing For The Direct

To prepare the direct examination, you should: review the law; determine what essential elements must be proven through each witness; and list the facts and elements that will be established through the witness. Next, you should outline all of the key points that must come out through the testimony of each witness that you are presenting at trial. The outline should set up the foundation necessary for additional testimony, expert testimony or the introduction of exhibits.

You should prepare a file for each witness. The file should include your outline, copies of the exhibits that will be used with the witness, the relevant deposition, trial subpoena, return of process, and any working notes that you may have that relate to the witness.

Prepare to meet with the witness at least one week before the trial in order to evaluate the witness's personality, ability to speak, and manner of dressing. Provide the witness with some suggestions on how she should dress at trial, and how she should handle herself before the jury. Go over the expected testimony with the witness so that you may cover the key points, the evidentiary foundations necessary to be established at trial as well as any problem areas that may be encountered during the case. If the deposition of the witness has been taken, give the witness an opportunity to read the deposition well before she takes the stand.

If you are going to ask a witness to work with an exhibit, chart, or other demonstrative aid, allow the witness to see the chart or model before the trial so that the witness will appear comfortable with the exhibit by the trial date. Make sure you show the witness any exhibits that will be introduced to her well before the witness takes the stand.

Establish a good relationship with the witness by being considerate and pleasant to work with. Make arrangements to meet with the witness again right before the witness takes the stand. During this second pre-trial meeting, you should briefly go over the essential points and answer any questions that the witness may have.

Anticipate evidentiary objections to your direct examination and research the law so that you may present a solid argument to defeat them. Be prepared to proffer the excluded testimony on the record outside of the presence of the jury if the objection is sustained.

Direct Examination at Trial

During the trial, develop the direct examination through the use of conversational language. Avoid reading questions to the witness. This will bore the jury and leave them with the feeling that the presentation was rehearsed. You may have your outline present, but use it only as a reference and not as a script. Remember to guide the witness through the testimony so that she does not ramble.

Consider mentally placing yourself in the shoes of a news reporter or investigator at the scene of a breaking story. Wipe out the knowledge that you have of the case and attempt to become educated on the issues through the witness on the stand. Ask the types of questions that a reporter or investigator would ask to become fully informed of what happened in the case. This technique will allow you to view the case from the jury's perspective. Remember you may know everything about the case, but the jury is hearing the testimony for the first time at trial.

The jury's focus of the direct examination should be on the witness and not on you. Unlike cross-examination, you should limit your use of leading questions during a direct examination. The majority of questions should be open-ended allowing the witness to provide the answer. If you are having a hard time formulating a proper question, start your question with, who, what, why, when, where and how.

Although leading questions are generally not permitted on direct examination, there are many exceptions to this rule. See Florida Statute §90.612(3)(a). Leading questions may be used during a direct examination in the following situations: (1) preliminary matters such as a person's name, address, and background; (2) undisputed facts, for example: "I would like to direct your attention to October 23, 1995, you were in Paris on that day were you not?"; (3) an adverse or hostile witness Rule 1.450 Fla.R.Civ.Pro.; (4) when a witness has difficulty in speaking; (5) when necessary to refresh a witness's recollection Fla.Stat. §90.613; and (6) when encountering an unwilling, reluctant, or recalcitrant witness. See, D.R.P. v. Carrol, 438 So.2d 31 (Fla. 3d DCA in 1993).

Avoid repeating the witness's answer, as well as the use of "habit" utterances such as "uh- huh", "okay", "alright", etc. Try not to jingle your keys or pocket change when questioning. Do not play with your pen, curl your hair or create any other physical distractions that will take the jury's attention away from the witness. Stay focused on the questions, listen to the answers and appear very interested.

Do not use a monotone. Instead, change the tone of your voice based upon the importance of the testimony. Highlight the key points of the testimony with the use of voice inflection. Avoid legalese, speak clearly and to the point. Use action words and "word pictures," adjectives and adverbs in presenting your questions. Attempt to establish a rhythm with the witness and vary your pace so that the testimony is interesting to the jury. This will make your presentation powerful. Open and close the direct examination with the strongest testimony. Jury psychologists have established that jurors remember best what is heard first and last. Anticipate and isolate the troubling testimony in the middle of the presentation. Placing the difficult part of the testimony in the middle allows you to diffuse your opposition's anticipated cross-examination.

At the end of the examination, thank the witness and sit down. Attempt to appear confident during the entire cross-examination.

Conclusion

A direct examination must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. Never underestimate the importance of the direct examination. Set aside enough time in your trial preparation to properly prepare for an effective direct of each witness you anticipate to call at trial. A strong direct examination is an important building block that will lead to your success at trial.

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