July 23, 2012

A Direct Examination Primer

The heart of most trials is direct examination, through which you persuade the judge or jury of your case. My previous blog focused on the art of avoiding leading questions when conducting direct. This post discusses other essential aspects of direct, including preparation, organization, and immunization.

Lawyers talented at direct examination are well prepared, as are their witnesses, and they appreciate how to elicit vivid testimony. Much of the work transpires well before a lawyer calls the witness to the stand. Of course, you should master the law and facts of the case – your case and the opposing side’s. You should also be cognizant of your overall theme and the core elements you need to establish.

As you organize individual examinations and the lineup of witnesses, assure yourself that you are proving each necessary element. For example, if the case is breach of contract, make sure the witnesses will allow you to establish the elements of contract and breach, as well as the appropriate damages.

You should also prepare for what may happen on cross-examination. If your witness is vulnerable on a particular subject, consider “immunizing” him or her by raising that very subject on direct.

Of equal importance is your preparation of the witness. To ready your witness for the courtroom, you may want to ask practice questions, explain the pertinent themes and discuss your goals. You can also review documents with the witness and even videotape mock testimony. Whatever you do, avoid calling a witness before you know what his or her answers will be.

Once you and the witness are prepared, how do you proceed? Generally, it’s best to start and end an examination with the strongest testimony. Judges and juries tend to remember best the beginning and conclusion of a given experience. During an examination, strive for short, clear and precise queries. Seek fluency between question and answer. Develop a rhythm to capture the attention of the listener.

Establish the dialogue with the witness so that questions vary from open-ended to closed-ended to transitional. An open-ended query might be: “Mr. Smith, tell the jury what you observed when you arrived at the scene.” Here is a closed-ended question: “Mr. Smith, when you arrived at the scene, did you actually see the automobile collision?” And a transition: “Mr. Smith, I would like to turn to the subject matter of your health on the day of the collision.” Such variety helps stimulate your audience.

You can also vary and support your testimony with the use of exhibits and demonstrative aids. For example, after asking a witness if he saw Mr. Smith hit Mr. Johnson on the head with a chair in a bar, you could ask that witness to diagram the position of the two men within the room. The ensuing sketch will accentuate and affirm the testimony.

Similarly, it is helpful to use corroboration and repetition to delve into the details of a given event. For example, if you want to emphasize the viciousness of an alleged assailant, here is how you might heighten the jury or judge’s attention to the matter:

Q: What happened after you saw Mr. Smith hitting Mr. Johnson over the head with the chair?
A: Mr. Johnson fell to the ground unconscious.
Q: Could you see Mr. Smith’s hands clenched around the legs of the chair during this incident?
A: Yes.
Q: How tightly was he holding the chair?
A: He was gripping the chair hard with both hands.
Q: How could you tell?
A: I could see his knuckles bulging.
Q: Could you see his face at the time?
A: Yes.
Q: What did you observe about his face?
A: His teeth were clenched and he had an angry facial expression.
Q: When he was hitting Mr. Johnson over the head with the chair, how high did he raise the chair?
A: Smith raised the chair over his head the full length of his arm.
Q: Can you demonstrate to us how Mr. Smith was swinging the chair without actually using the chair?
A: I believe I can.
Q: With Your Honor’s permission, may the witness stand up?”

COURT: No, let’s move on.

Such dramatic testimony doesn’t happen by accident. The lawyer in this example has probably prepared the witness for those questions and determined that such imagery would aid the overall case. An effective direct examination, then, presents credible and vivid testimony that develops the right themes, using a variety of evocative questions.

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July 11, 2012

Beware of leading questions in direct examination

Direct examination is considered to be the most difficult part of a trial, even more difficult than most cross-examinations. My years as a Baltimore trial lawyer have taught me that one of the main challenges of direct examination is the prohibition against asking leading questions. The reason leading questions are prohibited on direct is that the jury must hear evidence from the witness and not from the lawyer.

Such questions can be posed only in limited circumstances, for example, when confronting a hostile witness, reviewing uncontroversial matters, questioning children or senior citizens, or introducing new topics in your examination with a topical oral sentence.

What then is the distinction between leading and non-leading questions? Simply stated, a leading question suggests the answer. A non-leading question does not. “It rained last night?” is a leading question. “Did it rain last night?” or “Do you recall whether or not it rained last night?” are both non-leading questions.

Asking non-leading questions creates difficulties in controlling the testimony and the witness. When you ask skillful leading questions, as permitted on cross-examination, you control the testimony by almost testifying for the witness: “It rained last night?” “You came home after midnight?” When you must ask non-leading questions (“Can you tell us what the weather was last night?” you could get more explanation than you want. (“Well, I can’t recall, but I do remember that the road was very slippery and cars were skidding all over the place.”) Many lawyers have been stunned by a witness’s response to an open-ended question on direct exam. Frequently even the most careful preparation of a witness is no safeguard against the witness’s desultory response to your questions.

As you ask questions during direct, beware of the distinction between prohibited leading questions and leading questions that may be tolerated. These include questions that are used to save time and do not relate to important facts, or that refer to facts that are generally in evidence. “You attended the Spago tea”” is leading, but it is more efficient than “Did you attend the Spago tea at noon on June 11, 2000.” If the record is saturated with testimony that the witness was at the Spago tea at noon on June 11, the shorter, leading question will probably be tolerated by opposing counsel and the court.

Sometimes in the heat of trial you may have trouble asking a non-leading question after an objection is sustained. This predicament is not unusual, especially for young trial lawyers. Don’t panic. Try rephrasing the query using the word “whether.” For example: “You then went to the bar after the reception?” could be rephrased: “Can you tell us whether you went to the bar after the reception?”

Generally, however, leading questions should be avoided on direct and saved for cross-examination, where you can use your questioning to greater control the testimony.

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October 19, 2010

Is Sarcasm Good Courtroom Strategy?

How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.

According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.

Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.

Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.

A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.

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October 21, 2008

The Ted Stevens Trial and the Lesson of the Memorable Image

There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.

Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.

To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."

The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:

Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.

Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »

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September 23, 2008

Fallacious Arguments

For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.

Slippery Slope

The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.

For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”

On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.

Compound Question

A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.

Continue reading "Fallacious Arguments" »

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April 11, 2008

"D.C. Madam" Prosecutors Get Personal on Direct

Dana Milbank has a revealing sketch of the ongoing "D.C. Madam" trial in today's Washington Post. The prosecutors seem to be holding nothing back in building a case against Deborah Jeane Palfrey. Indicted for allegedly running a prostitution ring made infamous for attracting several Washington luminaries, Palfrey watched as the prosecutors grilled several of her former employees about the services they performed for clients. From Milbank's perspective, these direct examinations were so humiliating, needlessly detailed, and invasive that they discredited the prosecutors.

Here's some of the testimony that got Milbank's attention:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.


"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

Butler pressed on with more humiliating questions until the judge cut him off. "That's enough," Robertson said. Minutes later, the dazed woman was helped out of the room.

If that's how it truly played out, you have to wonder what the prosecutor was thinking. By simply having to show up and testify, the witness had compromised her dignity. The aggressive questioning was just rubbing salt on the wound. And what were the jurors thinking? It could very well be they sympathized with the woman and wanted the lawyer to sit down.

Prosecutors should be wary of even appearing like they might be abusing their significant powers. A few questions too many can cause the prosecutors' courtroom ethos to plummet. Whether that has happened in this trial, we can't know, but if the defense puts on a strong case, any ill will the jury feels toward the prosecutor could come back to haunt him.

One of challenges of direct is being selective--paring the testimony down to the essential and letting those points speak for themselves. "Less is more" serves as a helpful axiom particularly in examinations involving sensational or emotional testimony.

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