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Anatomy of a Civil Trial


intractability for its own sake. Rather, attorneys should get to the heart of the matter without out sacrificing content by asking questions in a concise manner and which highlight the interesting and important segments of the responses to keep the jury or judge interested in resolving the issues at hand. Telling a story is one of the most effective ways to engage the trier of fact. So question the witness in a manner that allows the witness to provide a narrative of the salient facts in a logical manner. Usually this is done most effectively when a witness is asked to recount the events chronologically.


Personalize the Witness Equally as important as engaging the trier of fact is to


personalize the witness. Asking a few brief introductory


questions of the witness to elicit some background information about the witness, such as the witness’s occupation or role in the trial serves three important purposes. First, introductory questions are a good “warm-up” for nervous witnesses by giving them a chance to calm down while answering questions to which they know the answers.


Second, introductory


questions give the trier of fact a chance to learn something personal about the witness and place the witness’s testimony into the proper context.


Finally, introductory questions


give an attorney an opportunity to provide a favorable first impression of the witness to the trier of fact by allowing the trier of fact to implicitly judge the credibility of the witness at the outset of the questioning. Terefore, by starting the direct examination with easy questions, those that ask the witness to talk about himself, the attorney minimizes the chances of disingenuousness or dishonesty, unless of course, this is the impression the attorney is trying to convey. Letting the witness take center of attention at the outset of the direct examination allows the desired perception to come through.


Be Direct and Avoid Leading the Witness


A direct examination is just that—one in which the witness is asked direct, short, and concise questions to elicit the facts of the case. In addition, asking compound of complex questions or questions that contain double negatives may also elicit confusing testimony or responses that muddle important facts. Rather, attorneys should ask open-ended questions—those that begin with who, what, where, why, and how allow the witness to get straight to the point without the attorney appearing to lead the witness to the “correct answer.” Tese types of questions allow the witness to tell his or her story as opposed to the attorney


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Trial Reporter / Spring 2012 13


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