A good direct
Ø Accredits the Witness
Ø Sets the Scene
Ø 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
Ø Determine your goals
Ø Select topics
Ø Organize topics
Ø Select key words
Ø Anticipate problems
Ø Practice with the witness
Ø 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:
Ø To establish legally significant facts?
Ø To corroborate another's testimony?
Ø 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
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 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
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.
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.
Ø Use diagrams and demonstrations
Ø Avoid compound, complex questions
Ø Personalize the witness
Ø Tell a story
Ø Tie up the evidence; place it in context
Ø Use transitions to structure testimony
Ø Omit redundant and unnecessary testimony
Ø Stress specific details on which conclusions rest
Ø Avoid leading questions except with preliminary or inconsequential
where the witness has difficulty in remembering