By Gerald A. Klein, Esq.
While everyone enjoys preparing final argument, the foundation of any compelling final argument comes from the key building blocks - direct examination and cross-examination. Understanding how to create riveting direct examination and devastating cross-examination is the key to winning any trial. This article helps trial lawyers understand how to develop direct testimony so it is compelling and memorable to jurors.
It has been said, "a monkey with a razor blade can destroy the Mona Lisa, but only a true artist can create it." The same might be said of the distinction between cross-examination and direct examination. A lawyer preparing direct examination must work from a blank canvas and create a breathtaking image to win the hearts and minds of jurors. It is easier to tear an opposing witness apart than to captivate a jury using testimony from your own witness. Creating a work of art through direct examination requires careful thought and planning.
Pick Your Storytellers Carefully and Decide What Part of the Story They Should Tell
Jurors evaluate testimony not only from the testimony they hear, but also based upon who is telling the story. Sometimes, the person who may be in the best position to tell the story might not be the person most likely believed. For example, while the plaintiff might be in the best position to explain how her injury has ruined her life, she has an obvious motivation to exaggerate and color the story. Americans tend to admire and respect the qualities of perseverance, endurance, and "pulling ourselves up by the bootstraps." Most jurors do not like whiners. Accordingly, the best storyteller to explain the consequences of the victim's injuries may not be the person with the most knowledge of those injuries (i.e., the plaintiff). Consider telling the story of the impact of an accident with other witnesses who have had the opportunity to know the plaintiff and observe her both before and after the accident. Treating physicians, therapists, co-employees, and others may present more credible evidence than the victim herself. The more remote these storytellers are from having an interest in the case, the more credible they may be.
Some of the most important storytellers at trial will be experts. Whenever possible, consider using experts whose daily work is in the field in which the expert will testify, as opposed to a "professional" expert who testifies for a living. For example, an expert who has worked every day of his life repairing tires may present more credible direct testimony than a paid expert who always testifies in tire cases and seems to find a defect in a tire almost every time. When you have such an expert, go through the expert's daily routine and present the expert as a "hands on" person without an agenda. What such witnesses lack in a curriculum vitae, they may make up in every day experience.
Good direct storytelling has a beginning, a middle, and an end. Your jurors want to know at the outset who the witness is, what interest the witness has in the litigation (if any), and why that witness has something to contribute to the discovery of truth. Whenever possible, make the testimony of that witness riveting and get the witness to present testimony in a way that makes it clear to jurors that the witness is knowledgeable, truthful, and worthy of belief. To the extent you can engage the witness in "conversation," as opposed to testimony, such that the witness's personality comes out and the story unfolds as it should, jurors will pay closer attention. They are also more likely to believe the testimony and give it greater weight.
Remember, Trial is Theater
It is hard to turn on a prime-time television station without seeing one make-believe lawyer or another asking awful questions, but eliciting breathtaking responses from witnesses. Jurors want to see that kind of drama at trial. While drama is often more easily presented in cross-examination, it can be woven into direct testimony not only by what the witness says, but also how the examiner takes the witness through the testimony. Listen carefully to what your witness says and watch the jurors for their reactions. When you have had a dramatic moment come out in the witness' testimony, let that moment stand quietly without interruption. Often, silence is more dramatic than anything a witness has said. Let the jurors absorb what has been said. Do not ruin the moment by opening your mouth and asking another question too quickly.
Use Demonstrative Evidence
Whoever said "a picture is worth a thousand words," was probably a judge who saw an attorney use demonstrative evidence effectively. When Abraham Lincoln was running for president, the typical voter could listen to politicians debate for hours on end. Today's typical juror has difficulty watching a movie longer than two hours without falling asleep. We are living in a fast-paced world, where people want to get their information quickly and visually. Most jurors have no patience for talking heads, whether they are news pundits, witnesses, or attorneys. The modern juror needs to see pictures in connection with what the juror is being told. Like it or not, this is now how most people learn. Trial is just another teaching forum.
With modern trial presentation technology, jurors have an opportunity to see the document the attorney and witness are referencing and to absorb the critical language that might make the difference between winning and losing the case. When jurors have an opportunity to see the document and focus upon the key language being discussed they have a better framework to evaluate the testimony they hear - and remember it. Simply talking about the document and reading it repeatedly does not deliver the same message as allowing jurors to see the key documents themselves. Likewise, pictures of a location, a product, or an injury will tend to make testimony about those things more understandable to jurors and allow them to recall those facts more clearly during deliberations.
If a picture is worth a thousand words, a moving picture may be worth ten thousand words. In appropriate cases, animations can explain manufacturing processes, chemical reactions, physiology, and other complex, abstract concepts where words simply fail. Closely consider using appropriate demonstrative evidence for every witness you present. More often than not, demonstrative evidence makes a case come alive. Lawyers who do not use such evidence will not communicate effectively with today's jurors.
Use Open Ended Questions
There is a tendency among many lawyers - especially young ones - to use leading questions to "get out the answers." If winning trials were just about "getting out the answers," we could try cases using declarations. However, winning trials is about convincing people of the truthfulness of facts, not just the assertion of facts. Jurors are sophisticated enough to recognize when an attorney is simply a puppet master and a witness just a puppet saying yes or no on demand. Leading questions do not make for good storytelling and will not let jurors evaluate witnesses - or their testimony - appropriately.
Good storytellers use open-ended questions that allow the witness to tell the story, but not so open-ended that the witness starts to wander aimlessly into a monologue that loses everyone. You are more likely to get out a helpful answer when you ask for small pieces of the story, as opposed to asking for the entire story in a single question or two. For example, questions like, "approximately how fast was the plaintiff traveling immediately before the accident" and "describe the weather conditions at the time the accident occurred" are more likely to get out useful bits of information than "tell us how the accident happened." By keeping your question short and precise, you will be more likely to get concise and responsive answers. Such questioning will build a great tempo with your witness and make the testimony easier for a jury to follow.
Go Over Testimony with the Witness Before the Witness Takes the Stand
There are some excellent attorneys who do not like to go over testimony with their witnesses to avoid testimony coming off as "canned." There are also people who like to jump out of perfectly good airplanes with parachutes strapped to themselves, 10,000 feet over the ground. For the more cautious of us, there is no substitute to preparing a witness for direct testimony. There is nothing more embarrassing at trial than asking a witness a question, whose only response is a puzzled look and a glimmer of panic as the witness tries to understand what the lawyer was asking.
Going over testimony before the witness testifies does several things: (1) it takes out the element of surprise, as the witness knows what he or she will be asked; (2) it, hopefully, takes out the element of surprise on the part of the attorney, as the attorney knows what the answer will be; and (3) preparing a witness before he or she testifies often leads to the discovery of unknown facts (both good and bad), which may change the entire presentation of that witness's testimony.
Going over testimony with a witness, including "dress rehearsals," will usually help you and the witness when he or she is on the stand - with minimal risk the testimony will sound canned. However, avoid trying to teach a witness to memorize testimony and the actual choice of words to use at trial. First, it will not work. Witnesses are not professional actors who can "learn their lines." Second, such testimony will more often than not come off scripted and not credible as the witness struggles to remember the exact testimony that he or she was supposed to give or testifies in robotic cadence. Try to have your direct examination come off as an interesting conversation between two reasonable people.
The lawyer asking direct examination is not simply a prop for the witness. If done correctly, the lawyer should use voice tone, rhythm, and physical movement from one location in the courtroom to another (unless in federal court) to help keep the jury captivated regarding testimony. Let the jury know through your voice tone and cadence that the witness is about to get to a very important part of the testimony. Lead up to a dramatic moment by giving a question an introduction or raising or lowering your voice for dramatic effect. How you ask the question can have a significant impact on how the jury hears the response.
When showing demonstrative exhibits, use a laser pen (or have the witness do it) to highlight key points and pictures, or use an electronic highlighter to emphasize key language in documents. The lawyer's job is not just that of the writer preparing the questions to elicit the dialogue at trial, but also the director in showing how the play should unfold.
There is nothing more difficult in the presentation of a trial than creating direct evidence to support a case. Trials are theater and storytelling. While good cross-examination can result in dramatic theater, it is almost impossible to tell a story through the other side's witnesses. Although effective cross-examination can help destroy the other side's case, a strong presentation of direct examination is the best way to build your own case. Never forget that, at its core, direct examination is about telling a story in a way people expect to hear it.
This article first appeared in the OCTLA Gavel, Spring 2010.