Benchmark Institute is a training and performance development organization dedicated to increasing the quality and quantity of legal services to low-income communities.
  Our Training
  Learning Portal
  Best Practices in Learning
  Orientation to Legal Services
  About Us
  Support Us
  Contact Us
  Email Newsletter

Direct Examination Fundamentals

Direct Examination Skills
Direct Examination Fundamentals

A good direct —

Accredits the Witness

Sets the Scene

Lays Out Details

Accredits the Witness
Accrediting the witness allows you to describe the witness in a way that makes them appear competent and sympathetic. You accredit a witness by developing the witness' background to make their testimony relevant and real. The skill is to personalize the witness without becoming tedious or obvious. Accrediting may include such facts as where the witness lives, where she is from, her work experience.

Sets the Scene
How does the witness come to know the facts that he will testify to? Did he have an opportunity to observe something? Was he in a position to see or hear? What are the specifics of the scene in terms of buildings, lighting and location? In setting the scene, you are showing that the witness testifies from personal knowledge.

Lays Out Details
Next the witness describes the details of what she did or did not observe. She describes what happened, who was involved and the time and sequence of events.

Preparing Direct
Determine your goals

Select topics

Organize topics

Select key words

Anticipate problems

Practice with the witness

Use forms in Trial & Hearing Notebook

Determine the goal
The first and key step in preparing a direct examination is to determine what you want to accomplish on direct with the witness. Simply, why are you calling this witness:

To establish legally significant facts?

To corroborate another's testimony?

To get a document into evidence?

Your goals on direct depend on your overall case theory and strategy. Is the witness an upright citizen doing his or her duty? An honest, but bumbling neighbor?

Select topics
Next decide what topics that you will cover in direct. The witness may know about many things that you may not wish to include. Most often witnesses are called to establish some legally significant facts. You must be clear about what facts you want the witness to establish. You should not shy away from "negative" topics, but be prepared to undercut any potential cross-examination of the witness. If something negative will come out on cross or in through the opponent's direct, bring it out first.

Organize topics
Organize the direct maximize the decision maker's comprehension and retention. Your goal is to tell a coherent and interesting story. At this stage you also should decide what documents you will introduce through this witness and where in the direct that the documents will be introduced.

Select key words
Many examiners do not write out their questions word for word. They do think about key words to use to set the tone of the direct. One technique is to draw a line down the center of the page. On the right, write the answers the witness will give and on the left, any key words you want to use in your questions or elements you must meet to lay a foundation.

Anticipate problems
You should anticipate any problems you might have with the witness and devise some strategies to meet them. For example, if your client is forgetful, how will you refresh his or her memory?

Practice with the witness
You must review the questions with the witness. Combining roleplay with feedback on how the witness answers is an effective technique. In judge trials and administrative hearings, some judges like to question witnesses first or will interrupt your examination with questions. Be sure to prepare your witnesses for this situation.

Use diagrams and demonstrations

Avoid compound, complex questions

Personalize the witness

Tell a story

Tie up the evidence; place it in context

Use transitions to structure testimony

Omit redundant and unnecessary testimony

Stress specific details on which conclusions rest

Avoid leading questions except with preliminary or inconsequential matters or
where the witness has difficulty in remembering