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Anatomy of a Civil Trial

Effective Direct

Examination Tips from the Bench

The Honorable Angela M. Eaves & Courtney Buettner

T statements,

he importance of direct examination of a plaintiff and other witnesses is often overlooked, compared to the theatrics and techniques often used for opening closing arguments and cross examinations.

Yet direct examination is the vehicle by which an attorney drives home the theory of the case, establishes his or her persuasiveness and trustworthiness, and most importantly, imparts the story behind the trial. An attorney must be flexible and rigid—controlling without overshadowing the testimony of the witness, be prepared to address potential objections, and be able to respond to and clarify any surprise testimony. Te direct examination must call the attorney’s bluff made during the opening, engage the trier of fact during the trial, and get the trier of fact to believe the witnesses. And, because cases are most often won or lost on the strength of a case- in-chief, the importance of direct examination should not be minimized. Attorneys know the common elements—develop

a theory of the case and understand how the plaintiff’s testimony and that of other witnesses fits that theory. And, in civil cases, discovery aids attorneys in ferreting information important for the case. It is the “how” that sometimes escapes attorneys when crafting a cogent and seamless presentation through the witnesses during direct examination. Tis article highlights elements of an effective direct examination that often are taken for granted or given inadequate attention and provides some recommendations for enhancing the direct examination of plaintiffs and other witnesses.

Preparation Paramount to every aspect of a trial is an attorney’s

preparation, but it is especially critical for the direct examination because of the various factors and objectives an

attorney must keep in mind during the direct examination. An attorney must prepare for the audience, be attuned to the nature and character of each witness in order to prepare them to testify, and have a strong grasp of the law to anticipate and respond to objections. It is not enough to know the plaintiff ’s story and how they will tell it, but attorneys also should understand how each witness will appear to the trier of fact in conveying their testimony. In addition, attorneys also should be aware of how they will be perceived based on the manner in which they examine the witnesses. First, the attorney has to prepare each particular witness

since each witness advances the theory of the case. Te attorney cannot testify, or simply summarize the events in his own words and must rely on witnesses to communicate the relevant facts. So attorneys should explain to witnesses how their testimony fits into the overall theme or theory of the case so that the direct examination does not detract from the theme by a witness who provides superfluous information, or by a witness who is unsure of why he or she is testifying. If a witness is testifying for the first time, it may be helpful to give the witness a few instructions before he or she actually takes the witness stand. For example, instruct the witness that once an objection to a question is lodged by the opposing attorney, the witness may not answer the question unless the judge or the attorney grants the witness permission to do so. Second, the attorney also should address the audibility

and tone of the witness’s voice. Speaking up is important, and while a conversational direct examination helps calm the witness, it is important for the witness to know that everyone

Trial Reporter / Spring 2012 11

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