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Anatomy of a Civil Trial doing so through the questions posed.

It should be the

witness who conveys the theory of the case through his or her testimony rather than the attorney asking leading questions. So the focus should be kept on the witness. And, when an attorney asks a leading question during direct examination, it focuses the spotlight on the attorney rather than the witness which then may cause the trier of fact to question the reliability of the witness’s testimony. Leading questions, however, are best suited for cross examination and are often inappropriate on direct unless there is a hostile, uncooperative, or young witness.

Avoid the “Kitchen Sink Approach” Conveying the right amount of information to the trier

of fact can be challenging at times. It requires balancing the sophistication of the trier of fact with being concise and interesting in order to make the important facts of the case remarkable to the judge or the jury. It does not, however, require extracting extraneous information from a witness. When witnesses convey too much information, the attorney risks unimportant facts overshadowing those that really strike at the heart of the witness’s testimony.

Understanding the Role of the Attorney Underlying the purpose of the direct examination is the

message or set of facts the attorney wishes for the witnesses to convey, or the piece of the puzzle that needs to be presented to the trier of fact. Te role that an attorney plays in a direct examination is a critical one, because it helps to establish the attorney’s persuasiveness and trustworthiness with the trier of fact. Te judge and/or the jury expect the attorney to control the pace of the examination, elicit the relevant substantive testimony, and show its importance to the case.

Tis is

no small feat if the attorney must take a back seat to the testimony of the witness and let the focus be on the witness. To accomplish this, however, the attorney should be attentive to how the questions are phrased and also to the witness’s responses to the questions. A prepared attorney should anticipate objections and respond to them appropriately. In addition, an attorney also must handle surprises in the witness’s testimony, and address gaps or inconsistencies in the witness’s testimony. Paying attention to the witness will help the witness maintain his or her composure during the direct examination. Ultimately, this will pay off in terms of how favorable the trier of fact perceives the attorney’s capabilities.

Conclusion Attorneys understand the anatomy of a trial, and that it

requires preparation. Often, however, direct examination is viewed only as a function of what has been learned through the discovery process and no further effort is made to develop the actual questions that will convey the information the trier of fact needs to see the larger picture. Asking questions are the hallmark of litigation and the attorney who masters not only the art of asking questions, but by getting the witnesses to provide the answers will influence and hopefully, persuade the trier of fact to rule in their client’s favor. 

Bipgraphy Te Honorable Angela M. Eaves has served on the

Circuit Court for Harford County since 2008, and previously served on the District Court of Maryland from 2000 through 2007. Judge Eaves is a 1986 graduate of the University Of Texas School Of Law and the Lyndon B. Johnson School of Public affairs, and practiced law in both the State of Texas and the State of Maryland prior to her appointment to the bench. Courtney Buettner, Esquire is currently serving as a

judicial law clerk to Judge Eaves. She is a 2011 graduate of the University Of Baltimore School Of Law, and intends to pursue a general practice of law after her clerkship ends in August 2012.

14 Trial Reporter / Spring 2012

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