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By: Scott D. Lane, Esq.
Lane & Lane, LLC
Chicago, Illinois

It’s your first trial and the parties have already given their opening statements.  Now, it’s time to question your first witness. Depending upon whether you are the prosecutor/plaintiff’s attorney or the defense attorney, the questions you will be asking your first witness will be on either direct or cross-examination.  Although by no means an exhaustive list, the following points are what I believe to be some of the key points that every attorney, especially an attorney trying her first case, should keep in mind when conducting these examinations.  Questioning your first witness is a very exciting experience.  It can also be a very nerve wracking experience. Hopefully, these suggestions will make the experience a little easier, successful, and enjoyable.

DIRECT EXAMINATION

Focus Is On The Witness And Her Testimony

During direct examination, the witness, not the attorney, should be the focus of the jury’s attention.  You are calling this witness because she supports at least some, if not all, aspects of your case.  Therefore, you want the jury to see this witness and hear what she has to say.  Conduct the examination near the far end of the jury box, away from the witness stand.  From this position, you will not be a visual distraction.  This position will also force the witness to speak more loudly and maintain a certain amount of eye contact with the jurors.  Ask short, simple, non-leading, open-ended questions which allow the witness to testify in the form of a narrative and descriptive answer.  Perhaps during each question the jury may glance at the attorney, but for the majority of the direct examination, the jury’s attention will be focused on the witness answering your questions.

Identify and Develop Points of Examination

You have called this witness to testify on behalf of your client because this witness can help you establish the elements you need to win your case.  Identify the points you want to make and formulate your questions in a manner which allow you to get to those points as quickly as possible.  Be sure to stop once you have developed those points sufficiently.  Do not bore or confuse the jury with unimportant or irrelevant points.

Organize The Examination

This is your witness.  You want the jury to believe the witness.  Therefore, establish the witness’s credibility first.  Then, elicit testimony as to what the witness observed in a chronological manner.  Generally, testimony presented in this fashion is the easiest to follow and the most effective.  There are, however, exceptions to this rule.  For example, you may want to elicit the ultimate opinion of an expert at the outset of the examination.  This approach may have a tremendous impact on the members of the jury who are most attentive at the beginning of an examination.

Develop Background And Qualifications

The jury must believe the witness.  To establish the credibility of the witness, develop those aspects of her background that show she is honest and qualified.  For expert witnesses, establish the witness’ qualifications to show that the witness has the knowledge which forms the basis of her opinion testimony.  Cases often boil down to a battle of the experts.  When one expert witness is more qualified in the eyes of the jury than the other expert witness, the case often turns on that determination.  For fact witnesses, be sure to establish that the witness had the opportunity to know the facts she claims to know.  For example, establish that an eyewitness to a motor vehicle collision had the “opportunity” to observe the collision.  Establish that the witness’s view was unobstructed and that the witness was in a place at a time that allowed her to view the relevant events.

Avoid Leading Questions

A leading question suggests an answer.  For example, the following question is leading: “[t]he light was red, wasn’t it?”  You should avoid leading questions on direct examination for several reasons.  First, leading questions are not allowed on direct examination except in limited circumstances such as in the case of an adverse or hostile witness or a very young witness.  Second, the use of leading questions will have the negative effect of shifting the jury’s focus from the witness and her answers to you and your questions.  Finally, the use of leading questions reduces the credibility of the witness.  If you use leading questions on a regular basis, it will be as if you are testifying, not the witness.  Even if opposing counsel and the judge allow you to use leading questions, the jury will not appreciate this approach and will no doubt question the credibility of the witness.

Elicit Detail

Detail is very important in establishing credibility. You have heard the expression “I have got to see it to believe it”.  Eliciting detail from a witness as to what that witness observed paints a picture of what occurred and helps the jury “see it” and therefore “believe it”.  However, elaborate detail should only be elicited as to important points.  Detail as to unimportant points will only serve to confuse the jury and allow opposing counsel an opportunity to impeach the witness’s credibility on minor inconsistencies.

Emphasize Important Points

Use your voice, demeanor, and pace of questioning to emphasize important points.  In other words, in some way, tell the jury that this is an important question and that they should listen carefully to the answer.  For example, counsel could state the following in a very slow and deliberate manner:   “Ms. Jones, please tell the members of the jury what the defendant told you at that time!”  Additionally, varying your voice, demeanor, and pace of questioning will help to keep the jury interested.

Finish Strong

It would be great to begin and end on a strong point during direct examination.  However, beginning with a strong or powerful point is usually not a reasonable expectation since background information is what we usually begin with.  However, nothing prevents us from ending on a strong point.  Carefully select this strong point and formulate your questions accordingly.  End your examination by stating “no further questions at this time” and sit down with an air of confidence and satisfaction.

Use Exhibits

Use exhibits during direct examination to prove or emphasize points, explain testimony, and make the examination more interesting.  Jurors appreciate the use of exhibits.  Be sure not to block the view of the jury when using an exhibit.

Volunteer Weaknesses

Generally, you should volunteer weaknesses during direct examination to knock the wind out of your opponent’s sails.  If you do not bring out the weakness on direct examination, opposing counsel will no doubt highlight the point on cross-examination.  If your opponent brings out the weakness, the jury may conclude that you were trying to hide something.  Of course, this undermines your credibility.  It is important to remember that the attorney’s credibility is as important as the client’s credibility.  However, if the weakness is truly a non-issue which can be explained later or totally ignored, the weakness should not be volunteered.  If you decide to bring out the weakness during direct examination, bury it in the middle of the examination to reduce its impact as much as possible.

Silence is Acceptable

Many attorneys feel uncomfortable with silence between a witness’s answer and their next question.  As a result, those attorneys use verbal crutches such as “um” and “and” to fill this void with sound.  In reality, when these sounds are used on a regular basis they only serve to distract the jury.  Remember, moments of silence between a witness’s answer and your next question are acceptable.  In fact, these moments of silence allow the jury to absorb the witness’s testimony and its significance.

Write Out Points And Listen To Answers

Some attorneys write out (or type out) their questions.  Others write out some of their questions and see how it goes.  Others write out the answers or the points they want to make.  And some, do not write out anything at all.  Writing out the points that I want to obtain from the witness works best for me.  Essentially, I have a check list that constitutes my direct examination.  As the witness testifies, I literally check off the points on my list.  Once I have checked off everything on my list, I know that everything has been covered.  I write the points in block letters that are easy to read at a glance.  Simply reading the questions without looking up is not an option!  You should maintain eye contact with the witness as much as possible, ask the questions, and listen to the answers so that you can follow up with the appropriate questions to obtain the information you need.  You must appear to be interested in the answers to your questions.  If you are not interested, why should the jury be interested?

You Must Be Prepared

Well in advance of trial, you should know the facts of your case and formulate the theory or theme of your case.  You should also anticipate your opponent’s theory.  Only then will you know what you need to prove to be successful.  Research the applicable case law and learn the appropriate foundations for admission of the evidence you need.  Have case law and statutory citations in support of your position handy.  Speak to other trial attorneys regarding the issues of your case.  Watch as many trials as you can and learn the practice and procedures of the court room where your trial will take place.  Learn the rules of evidence and attend as many trial practice seminars as possible.  Thorough preparation will certainly relieve some of the anxiety associated with the unknown.

Your Witness Must Be Prepared

Preparation of the witness for examination is as important as the attorney’s preparation for the examination.  Review every question and exhibit with the witness.  Ask the witness what exhibits she believes would be helpful in explaining her testimony.  Inform the witness that after direct examination she will be cross-examined by opposing counsel but that on redirect examination she will have the opportunity to explain the answers she did not have an opportunity to explain during cross-examination.  Review the likely points of cross-examination to avoid as much surprise as possible. Tell the witness to show respect for the system and all involved. Instruct the witness to speak clearly, loudly, and to the jury.  The witness should speak, dress, and act appropriately.  It is important to remember that how a witness testifies is as important as the substance of their testimony.  Show the witness the courtroom.  If possible, have the witness watch part of a trial to become generally familiar with the process.  Review all procedures with the witness.  Hopefully, if you follow these suggestions, the witness will be both prepared and comfortable.

Your Expert Witness Must Be Prepared

Counsel often do not prepare expert witnesses as thoroughly as they prepare lay witnesses.  This is especially true with experienced expert witnesses.  You should avoid this temptation.  Make sure the expert is familiar with the facts and the relevant literature.  The expert’s testimony should be focused and kept as simple as possible.  Make sure she uses language that is easy to understand and that her manner and demeanor is not condescending.

CROSS-EXAMINATION

Scope And Purposes Of Cross-Examination

The scope of cross-examination is usually limited to the subject matter of direct examination and matters affecting credibility issues.  Cross-examination has essentially two purposes.  The first and primary purpose of cross-examination is to elicit testimony that supports your case.  The second purpose, which is discussed in more detail below, is to attack the credibility of the witness or the witness’s testimony.

Cross-Examination Is Not Required

Listen to the direct examination.  If after direct examination you make the determination that your case has not been hurt or that you will not gain anything from cross-examination, do not ask any questions on cross-examination and simply tell the court with confidence that you have no questions of this witness.  If you decide to conduct a cross-examination in these situations, you will only get hurt.  Sometimes the best cross-examination is no cross-examination.

Establish Goals of Cross-Examination

Usually, no more than four strong points are made during a good cross-examination.  Select the key points you want to make and develop them fully.  Stick with strong points.  Do not lose the impact of those strong points by diluting them with weak or unimportant points.  Develop facts to argue in closing argument.  You may not get the “home run” on cross-examination, but hopefully you will develop the facts to argue the “home run” in closing argument.

Formulate And Organize Questions

Use concise, leading questions that for the most part elicit yes or no responses.  Organize your questions so that they build to an important point.  The last question of a series of questions should make the point very clear.  Stop for a moment to gather your thoughts and to let the jury have an opportunity to appreciate the point and its significance.  Then move on to your next point.  Keep the witness guessing.  Move from point to point in an order that keeps your thought process hidden.  If the witness does not know where you are going with your questioning, you are more likely to catch the witness off guard and get the answer you desire.

Emphasize Points

Make a conscious effort to emphasize the important points of your cross-examination.  Of course, the wording of your questions and the structure of your examination will serve to emphasize and highlight certain points.  However, do not overlook the opportunity to emphasize these points with your voice, demeanor, and movement in the courtroom.  Changing the pace and volume of your questioning can highlight a point.  A hand gesture or a particular movement can also serve to highlight a point.  Remember, the manner in which you question a witness can send a very important message to the jury.

Ask Leading Questions

This witness is your opponent’s witness and will try to hurt you.  Do not ask open-ended questions that allow the witness to explain her answer.  Ask leading questions to control the witness.  Move to strike an answer that is not responsive to your question or is volunteered.  Ask the court to admonish the witness for not answering the question or volunteering an answer.  DO NOT argue with the witness.  Rather, maintain your cool and ask leading questions until you get the answer you desire.  There are many benefits to this approach.  First, the point will be highlighted and its significance magnified.  Second, the jury will respect you for your professionalism and patience. And third, the jury will question the witness’s credibility because of her attempts to avoid answering the questions.

Focus Is On You And Your Questions

Unlike direct-examination, during cross-examination, the jury’s focus should be on you and your questions.  You are, in effect, testifying.  Therefore, stand in the middle of the courtroom in front of the jury and ask leading questions of the witness that get your points across.  Be confident and adopt a take charge attitude, but do not be overbearing.

Know The Answer Before You Ask

Again, keep in mind that the witness you are cross-examining will try to help your opponent whenever possible.  Therefore, if you do not know the answer to a question, do not ask the question unless any answer the witness gives will be favorable to you.

Never Look Hurt

There are times when a witness hurts you with an unexpected answer.  Even though you will do your best to avoid these situations, they will happen.  If you look hurt by a particular answer, the jury will know you are hurt.  If you move on without any sign of being hurt, you will at the very least reduce the impact of the unexpected testimony.

Impeachment

There are several ways to impeach the credibility of a witness. The witness may not be credible because she is not a believable person.  This may be established in several ways such as showing bias, prior convictions for felonies or crimes of dishonesty, or prior inconsistent statements.  A witness’s testimony in a particular situation may also not be credible.  For example, with regard to an eyewitness to a collision, perhaps you can establish that the witness did not have the opportunity to see what the witness claims she saw.  Perhaps the witness’s memory is simply not accurate.  It is always preferable to challenge the credibility of a witness’s testimony as opposed to the credibility of the witness herself.  In other words, it is always better to argue that the witness is mistaken as opposed to being a liar.  The jury will respect you for taking the “high road”.  Of course, there are some situations where calling a witness a liar is unavoidable.  Impeachment of a witness should only be attempted on important matters and must be done well.  Be sure to study and practice the methods of impeachment before you utilize them at trial.

Write Out The Points

Again, like direct examination, I write out (or type out) the points that I want to make on cross-examination like a check list.  I write the points in block letters so they are easy to read.  Additionally, I note in the margin where the information for each point came from (e.g., Jones’ deposition p. 35, line 8).  This allows me to quickly refer to the source for the purpose of impeachment if that becomes necessary.

Listen to The Answers

Even though you should know the appropriate answer to every question you ask on cross-examination, you may not get the answer you expected.  Therefore, it is important for you to listen to the witness’s answer to each of your questions.  If the witness answers inconsistent with a prior statement then you may need to impeach the witness on that point.  If the witness provides an answer that helps you more than the answer you expected, you may want to use the answer to develop additional points that are favorable to your case.  You should listen to the witness’s answers on both direct and cross-examination so that you can follow up in the appropriate manner.

Start And Finish Strong

Jurors remember best what they hear first and what they hear last.  For that reason, start and finish your cross-examination with your strongest and most important points.

RE-DIRECT EXAMINATION

Scope And Purposes Of Re-Direct Examination

After cross-examination, you will have the opportunity to conduct re-direct examination.  There will be times during cross-examination when the witness provides answers that the opposing counsel did not allow her to explain.  Re-direct examination is the witness’s opportunity to explain or further develop her answers.  Simply direct the witness by leading questions to the topic brought out during cross-examination and ask the witness to explain or further develop her answer.  The use of “why” questions is often helpful.  For example, “Ms. Jones, on cross-examination you testified that you did not have an opportunity to stop before the collision, is that correct?”  The witness will answer “yes”.  Then ask, “Why did you not have an opportunity to stop?”  The witness will then explain her answer.

Develop Material Matters

Only develop or ask for explanation of material matters.  Do not ask for explanation on immaterial or unimportant points.  This will only serve to confuse and/or aggravate the jury.  If you decide to conduct a re-direct examination, keep it brief and to the point.

Do Not “Sandbag”

You may be tempted to save for re-direct examination questions you could have and should have asked during direct examination.  As many attorneys will tell you, this attempt to “sandbag” the opponent can backfire.  Because re-direct examination is often limited in scope to the cross-examination, the court may prevent you from bringing up new matters on re-direct examination and thereby preclude you from getting important evidence admitted and before the jury.

Do Not Rehash Direct Or Cross-Examination

If you do not have anything substantial to develop during re-direct examination, just state that you have no further questions and remain seated.

CONCLUSION

The evidence at trial comes from the witnesses and the evidence admitted through those witnesses.  Therefore, the importance of effective direct and cross-examinations of those witnesses cannot be overstated.  Your trial skills, including the questioning of witnesses, will improve with practice and experience.  If you prepare thoroughly and maintain your own personality, you will no doubt enjoy the experience and be successful.

For more information about Scott Lane and the law firm of Lane & Lane, LLC, please visit the International Society of Primerus Law Firms.