On demand 1h 2m 55s Intermediate

Perfecting Direct: Understanding How Jurors Learn and Tailoring Your Direct Examinations Accordingly

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Perfecting Direct: Understanding How Jurors Learn and Tailoring Your Direct Examinations Accordingly

When you try a case in front of a jury, it’s critical that you convey information in a way that best permits you to persuade those jurors. Learn how jurors understand evidence so you can create effective direct examinations that convince those jurors to find in your client’s favor. Learn the basic direct examination skills, including proper form and style of questioning, as well as advanced techniques to take your direct examinations to the next level.

Transcript

- In this presentation, we're going to talk about perfecting your direct examinations. In this presentation, you'll do all of the following: first, learn how juries understand the evidence that's presented to them at trial; second, understand your role as an attorney in educating the jury during the direct examinations you present; third, explore the basics of direct examination technique with an emphasis on both the form and style of effective questioning; and fourth and finally, develop some advanced techniques that will enable you to even better educate jurors in your next trial. Let's get started. First, let's talk about what we know about juries as fact finders. Jurors are people, just like you and I, and they learn in particular ways. Now, as we learn, there are various techniques that can be used that can help us retain information. Those are things you should be considering when you're crafting your direct examinations. Because the more you lean into and take advantage of the fact that we understand how jurors learn, the more you can use that information to your advantage to structure your direct examinations in a way that will let you most take advantage of these techniques. The first thing to keep in mind about how our brains work when we learn is that primacy and recency have a major effect on the retention of information. We tend to remember best things that we hear first and things that we hear last. Now, that's true both in terms of a direct examination as a whole, so the very first topic that's addressed in direct examination and the very last topic that's addressed in direct examination, but it's also true in smaller parts of directs as well. Even within one answer to a question, jurors are more likely to retain and remember the part of the answer to that question that's first and last. Now, if you think about it, we rarely take advantage of the primacy and recency effect when we structure our direct examinations. We often start with something that's really not all that interesting, memorable, or important. Often a direct examination will start by saying to the witness, "Introduce yourself to the jury," or "Tell the jury your name." And while that is important information, it's not taking advantage of the fact that you have the jury primed to learn in one of their best moments at the very beginning of a direct examination. So, it would behoove you to think about a way to structure the beginning of that direct to not only introduce the witness, but do so in a memorable way that situates the witness in the general context of the trial, that way the jury learns that information and can retain it as the jury listens to the remainder of the direct examination. You should also be thinking about the primacy and recency effect in the questions you ask. Breaking up a longer piece of testimony into smaller pieces gives you more beginnings and endings. That means that there's more opportunity for the jury to learn and retain the information in the witness's answer. So, think about the primacy and recency effect as we're talking about how to structure direct examinations. Because we know that our brains best retain information at the beginning and the end of a day, of a segment, of a portion of a direct examination. The second thing that we know about how our brains work when we learn is that cognition, understanding, is often linked to emotion. If you've ever been in a classroom, having someone at the front drone on and on at you, especially if it's a topic that you weren't that interested in or you find the material dry, you know that you will retain far less information than if you have some sort of emotional reaction to the material that's being presented. If you love the subject matter or even if you hate the subject matter, you are far more likely to remember what you heard than if you have no emotional connection to it. So, it's important, no matter what kind of trial you're writing a direct examination script for, even if it seems like kind of a boring subject matter, perhaps it's a tax matter, perhaps it's a relatively straightforward breach of contract case, to try to create some sort of emotional connection between the jurors and the direct examination and the witness who is being questioned. Because the more there is that emotional connection, the easier it is for our brains to retain information, and the same is true of a jury that is listening to the testimony at trial. The next thing we know about how our brains work when we learn is that things that are familiar are easier to remember than things that are strange. There's two takeaways when it comes to educating jurors. The first is that the more complex your subject matter is, the more effort you are going to need to go to to make sure that the jury understands the material that's being presented, and that includes the testimony on direct. The second takeaway is that you need to make efforts and take steps to take things that are unfamiliar to a juror and make those things familiar. Use analogies, encourage the witness to make comparisons so that a subject matter that perhaps seems strange to a jury, that they've never encountered before, becomes more familiar by seeming similar to a context that the jury has dealt with before. The last thing that I want to emphasize about how our brains work when we learn is that organization is critical. And the more complex and difficult material is that we're trying to teach, the better the organization needs to be. The reality is that we only have a finite amount of brain capability. There's only so much juice that we can use when we learn. Any amount of that capability that we have to use to organize material as we're learning it, takes away from that finite amount of juice or space that we can put towards learning the substantive material. So, if you are presenting material that is complex and you don't give the jury a container or an organization to filter that information into, the jury is simply not going to be able to retain as much of the substance because some portion of the jury's brain is going to be used for organizational purposes rather than to actually learn. This is true even when the subject matter you're trying to present at trial isn't that complex. If you don't organize it for the jury, if your direct examinations don't have a structure that the jury can easily follow, the jury is going to lose the ability to retain all of the substantive information you're presenting. And that is very, very critical when you're trying a complex case with lots of different evidentiary issues that you're going to ask the jury to consider and decide when they go back to deliberate. In order to best tailor your direct examinations, it's helpful to not only know how jurors learn, but also to do some audience adaptation and answer the question of, "Who is it?" "Who's on the jury?" So, who can serve as a jury in the United States? Well, in federal court, there are some qualifications that have to be met that mean that, to at least a limited degree, your jurors are going to be homogeneous, they're going to have all of these things in common. Jurors have to be United States citizens. They have to be at least 18 years old. They have to have lived in the judicial district where the case is being litigated for at least a year. They have to be sufficiently proficient in the English language to fill out the juror questionnaire. They can't have any sort of disqualifying physical or mental condition. They can't currently be subject to felony charges punishable by imprisonment for more than a year. And they cannot have ever been convicted of a felony, unless, after conviction, the juror civil rights have been restored. So, that's what we can say for certainty about all of the jurors in federal court. But, while I set at the outset that there's some degree of similarity between the jurors, that's not a high degree of similarity. Notice that there isn't an education requirement for being a jury. You're going to have jurors who are highly educated all the way down to jurors who have very little formal education. There only is a requirement for sufficient proficiency in English. So, you may have some jurors who are very comfortable in the English language and some jurors for who English is a second language. So, while there are some similarities, just based on the way we screen jurors, the reality is that you are inevitably going to have a jury made up of individual jurors who are quite different from one another. And those differences include different abilities to understand the evidence that is being presented at trial. It is your obligation to present that evidence, including during direct examination, in a way that will be effective for all of these different jurors, for those who are highly educated and less educated, for those who are quite proficient in English and those for whom English is a second language. And that's a tough task, especially because we know that trials are difficult and foreign for many jurors and that learning the information is often an uphill battle. So, let's talk about how jurors behave. Jurors, as a general matter, take their responsibilities very seriously. And they generally care very deeply about getting things right. They don't want to have deliberated and come to a wrongful verdict. They don't want to have ordered a judgment for the wrong party. But while they take the process very seriously, their comprehension of the evidence presented at trial varies. The more familiar events are, the more likely jurors are to remember those events when they go back to deliberate. But when they are faced with complex issues or complex evidence, they tend not to remember or understand it as well. Here's just one example of a research study that shows this in practice. In one experiment, researchers tried a mock sexual assault case to 219 undergraduate psychology students who served as mock jurors. So, right off the bat, let me point out to you that these jurors were more educated, they were already getting undergraduate degrees than many jurors are in actual practice, and they were more homogeneous. They were all psychology majors. They were all students who were interested in that area of study. These 219 undergraduate students were sorted into different juries. They were of different numbers. Some juries were of seven people, eight, nine, all the way up to 15 different people on a jury. Then the jurors were presented data about how likely the DNA evidence collected from the victim was a match for the defendant. And this evidence was presented to the mock juries in different ways. Some groups had an expert witness who testified on direct examination and explained the DNA evidence to the jurors. Other groups were just given a jury instruction that told them the percentage of likelihood that the DNA was a match. Both groups, even those who were presented with expert testimony on direct examination, trying to elucidate and explain the issue, both groups made significant errors in calculating the probability. The reality was that despite good efforts to explain this complex material, and despite the fact that these jurors took it very seriously and wanted to get the judgment in their mock trials correct, the jurors simply didn't completely understand the material. And if that was true for undergraduate psychology students, that's even more true for your real panels of jurors. Now, let's switch gears and talk about your role in the direct examination process. The way that you are going to take what you know about jurors and their comprehension and the way they learn and structure your direct examinations to make them more effective. Let's start by talking about what a direct examination is. In some ways, you could think about a direct examination as a friendly conversation, but it's not completely ad libbed, the way most conversations are; rather it's a controlled conversation between you, the attorney, and the witness, who, in most circumstances, is a friendly witness. Now, of course, there are times that you have to call an adverse witness, but I'm not covering those in this presentation. I would think about the direct examination of adverse witnesses a bit more akin to cross examinations. For the purposes of this presentation, which is focused on direct examination techniques, we're thinking about situations where you're calling a witness who is at least in part friendly to your case. And when you have a friendly witness, you want the back and forth dialogue during direct examination to be conversational. You have a witness on the stand who has firsthand knowledge, if it's a lay witness, or specialized training and expertise, if it's an expert witness, and the witness is going to relay that information to the jury. The witness is going to tell all or part of the story that is the story you're telling in this trial. And good cases, good trials should be about storytelling. A witness's direct examination is an opportunity to do all or part of that storytelling. During a direct examination, you don't want the focus to be on you as the questioner, you want the focus to be on the witness. Now, remember, that the jury has two very important functions at trial. One thing that the jury is going to do is weigh and decide the evidence, decide the substance. But another thing that the jury is going to do is assess the credibility of the witnesses. Now, if multiple witnesses tell contradictory stories, the jury is going to have to decide between those contradictory stories. And credibility determinations are one way that the jury decides which of those stories, if any, to believe. So, during direct examination, when you have a friendly witness, you want to allow that witness to build up his or her credibility. And the way that that happens is by putting the focus on the witness so that the jury can watch the witness and not only listen to the substance of the testimony, but look for nonverbal and verbal communications that show credibility. So, what's your role? Well, your role is essentially to be the director of the short live film that is the direct examination. The witness is the star. The witness is the actor in the movie, in the analogy that we're making. But that doesn't mean that you have no role whatsoever. It doesn't mean that you put the witness up on the witness stand and say, "Go ahead and talk," and then you fade into the background and do nothing. Remember, it's a controlled conversation, not a totally free-form conversation. And the director is the one who is making decisions in the background, not appearing in front of the screen, but making important decisions that control the end product and dictate what that final movie is going to look like. And on direct examination, that's what you are doing. When you're crafting your direct examination scripts, you're making choices just like a director who's storyboarding how a scene is going to play out. As you're asking questions and controlling the conversation, you are taking the same role as the director who's giving feedback to the actors and helping them decide how to deliver their lines. Your role in direct examination is akin to the role of a director in the film context. So, what exactly does a director do in the film context? Well, the director is the creative lead. The entire vision for what the movie looks like comes from the director. And the same thing is true in direct examination, you are the one who's deciding what witnesses to call, what order to call them, and what questions to ask in what order. You are the creative lead of the case you are trying. The director has to have some kind of vision for the finished product and has to be able to communicate that vision to the other people who are involved in producing the film. It's not helpful if the director knows in his or her head what he or she wants to capture on camera, but can't communicate it to the actors or to the director of photography or to anyone else involved in producing the film. Similarly, you as the attorney have to have not only a vision for what you want to tell in terms of a trial story, but you have to be able to communicate that to other people. Of course, you have to be able to communicate it to the jury, but you also have to be able to communicate it to your witness when you're preparing the witness for direct examination. You need to be able to take your vision of how you want the evidence to come in and not only create a script that you can use to make sure that that happens, but you have to be able to prepare your witness so that the witness can give you the performance you need to put that evidence in the way you're envisioning it. The director on a film set also takes a script that's on paper and imagines it visually. And you need to do the same thing. Remember, the jury is not going to be reading your direct examination outline. The jury is going to be seeing the testimony unfold live at trial. The jury is going to be able to lock eyes with the witness who is testifying live and see the testimony unfold in real time. So, as you're crafting a direct examination, you need to be thinking about more than just what looks good on paper or what reads well, but you also need to be thinking about how this will present live at trial. And that means thinking about all kinds of things. For example, when it comes to primacy and recency, when the witness goes on the witness stand is in some ways going to control some of the primacy and recency. If you call a witness right before a lunch break, you know you're going to get a natural break in the testimony and you can use that to your advantage in structuring the direct examination. The director also has to make some choices on a movie set about what's going to be in and out of the finished product. Movies can only be so long, they have finite lengths, and the same thing is true of trials, they can't go on forever, and the same, of course, is true for direct examinations. You're going to have to make some strategic choices. What evidence do you get in with each witness? If there's cumulative evidence that you can get in with a variety of different witnesses, where are you going to pick and choose to get that evidence in? When you're crafting your direct examination, you're making some necessary choices about what evidence you are or are not going to offer at least through that particular witness. The director rehearses, gives instructions to the actors, and then has the actors play out the scene until the director is happy with it. And you need to think about doing the same thing on direct examination. You should be preparing your witness not only by generally explaining the trial process to the witness, but by practicing some questions and answers. And sometimes even doing role plays so the witness gets to understand where the witness should be looking, where the jury will be located, and the general way that the trial will proceed. The director arranges for logistics, like lighting and wardrobe and transportation. And although it seems kind of silly, you or someone on your trial team probably need to do the same thing as well. When you're calling a witness on direct examination, you need to make sure that the witness knows where to show up, what to wear, and that the witness is not distracted or worried about things like getting a parking ticket during critical direct examination testimony. So, you need to do a little bit of that administrative legwork or delegate to somebody on your trial team that administrative leg work. And then what is the last thing that the director does? Once the director has done all of these other things, taken a creative idea, committed it to paper, communicated it to other people, ensured all the logistics are possible, made good artistic choices, then the director fades into the background and allows the actor to be the star. That's what you'll do in an effective direct examination. Your witness will be prepared, will understand what's being asked in his or her role in the trial, you'll have an excellent script that takes advantage of the way that juries learn, and you'll fade into the background asking the questions, directing the conversation, and allowing the witness on direct examination to take center stage. You can think of yourself as the director of the trial that is essentially a little version of a movie that's not being recorded. With that in mind, let's talk about some direct examination basics. First, who should you call on direct examination? Well, you need to consider what evidence you have to offer at trial in order to prevail. If you're the plaintiff and there are prima facie elements that you have to prove, you likely have the burden of proof to prove all of them. And you need to make sure that, through all of the evidence you present at trial, you're able to put into evidence enough to convince the jury that you've met each of those elements. As the defendant, you may not have a burden of proof on the affirmative case, but you might have an affirmative defense that you want to present or you might be focused on disproving one of those prima facie elements that the plaintiff has the burden to prove. Either way it's critical that you understand what needs to go into evidence at trial in order for each party to win. Because direct examination is not just about telling a great story, it's about telling a great story that allows you to put in all of that evidence so that not only is the proper evidence before the jury for them to find in your client's favor, but you can take that story and tell it in your closing argument, tying a bow and connecting up all of that important and critical evidence that was presented during trial. One great way to figure out what evidence has to go in a trial is to create what I call a proof chart. That's just a piece of paper where you write out all the elements that have to be proven and then you write down in that chart all of the pieces of evidence that might potentially be used to prove each of those elements. That will help you make choices between whether or not you call one witness to testify to a fact or a different witness, or perhaps whether you make out one of your prima facie elements by offering an exhibit rather than offering testimonial evidence. If you use a proof chart and you populate it at the beginning of the case and work through discovery and continue to populate it, by the time you get to trial, you'll know what choices you have. And if something goes wrong at trial, you'll know what your alternative choices are. You should also be using that proof chart during trial to check and make sure that your opponent has offered all of the evidence on all of the issues that your opponent needs to. Because if not, you might be able to move for a directed verdict or at least argue in the closing that your opponent has not met his or her burden. You also want to consider what evidence is better presented through testimony versus being presented through an exhibit. Sometimes an exhibit is just the better way to present a particular piece of evidence or a particular fact. Sometimes the rules of evidence even require it. If you're trying to prove up the contents of a contract, the best evidence rule might require that you offer that contract into evidence. So, not only might the actual document be better than testimony in that circumstance, it might actually be required. But sometimes you have choices. Sometimes there's more than one witness that could testify to a particular fact, or you have both a photograph and an eyewitness who would testify and you might want to make some choices as to which is more compelling. Sometimes you'll want to offer both, but you have to be sure you don't run afoul of rules about overly cumulative evidence, including Federal Rule of Evidence 403. So, you should be able to make some strategic choices about whether or not particular facts that you want to prove are better proven through testimony or through exhibits. And if they're better proven in one way or another, which witness would you like, or which exhibit would you like to use to prove that particular fact? You also should think about calling witnesses who will help you authenticate exhibits you want to offer into trial. Many exhibits are not self-authenticating. They require a custodian of some type to testify in order to authenticate the exhibit. And so when you're making choices about who to call on direct examination, you should be thinking holistically not just about telling the story in the abstract and how this particular witness helps you tell the story, but about other exhibits you might want to use to tell the story and whether or not you need a particular witness to get that exhibit in. You also should think about what evidence your opponent is likely to offer. For example, is your opponent going to offer an eyewitness who will testify differently about important events than your plaintiff will? If so, you may want to consider those credibility issues because testimony is often the best way to help a jury decide between two conflicting pieces of evidence. If you know that an eyewitness is going to testify, that might cause you to lean more in favor of using testimonial evidence to address that issue than just addressing it through an exhibit. Or if the exhibit is really slam dunk, you may feel like the exhibit is actually better. All of these strategic decisions are things you should be thinking about when you're trying to decide who do you even want to call to testify on direct examination. What goes into a good direct once you've decided that you're going to call a witness? Well, there are certain things that are satisfying and expected to a jury and a good direct examination should cover all of these things. The first is accreditation. You need to tell the jury who this witness is and why they matter, why they should be believed. If this is an eyewitness to a murder, to a homicide, the jury needs to understand how this witness came to be at the scene. The witness needs to give some background. That's another thing that the jury needs. And the jury needs to be able to fit this witness on direct examination into the overall story. When deciding between all of the characters, where does this particular character fit in? Then with accreditation and background done, then the jury is ready to hear about the action. The jury is ready to hear the witness say what the witness observed firsthand, if this is a lay witness. But you want to break down that description of the story into smaller chunks to take advantage of primacy and recency, and to organize the material for the jury. Remember, those two tactics will help the jury learn. So, you want to think about telling the story in scenes, in vignettes. That's a very helpful way to think about structuring your direct examination. And then finally, you want to fill in any necessary detail. Answer any questions that you think might be lingering in the jury's mind. Fill in the blanks of the testimony that you anticipate will be offered by the other side. All four of those things are critical in your direct examination, but it's up to you to decide how you structure and organize that direct examination to cover those grounds. So, how should you prepare a direct examination? Well, the first thing you need to do is meet with the witness and get a sense of how the witness is going to testify. You need to understand how the witness is going to describe things in his or her own words. Remember, that although you want to have a story or a theory that you're telling at trial, that story has to be consistent with the actual facts. And you can't change the facts, you can't coach a witness to lie so you need to build your story around the facts that are actually going to be elicited at trial. So, before you can write and structure a really effective direct examination outline, you need to have met with the witness and talked with the witness enough to know what the witness is likely to say. You want to use the way the witness tells the story as a jumping off point, but you don't need to simply accept the witness's structure unless you like it and think it's helpful to your case. The witness may tell the story in a purely chronological way and you may feel, for primacy and recency reasons, that you'd like to start the story in the middle with the most important events. You can't change or encourage the witness to change the actual story, but you can direct the way the story comes out so that it comes out in an order that you think is most helpful. But the only way you're going to really know how to structure your direct examination or how you might be able to organize that story is getting the story first from the witness you'll be calling on direct examination. Once you've done that and you have a pretty good sense of what the witness will testify to, then you want to draft an outline. I would never plan on going into direct examination completely free-form. You always want to think through the general structure of what you're going to cover and come up with an order that makes the most sense for you. That being said, I would try to avoid scripting out verbatim questions and answers. The problem with focusing on specific questions and answers is that sometimes it makes it hard for you to think on your feet if a question is objected to and the objection is sustained or, even if there's no objection, if the witness misunderstands the question or gives a different answer than you're expecting. So, I suggest when you're drafting an outline for direct examination, that you focus and organize it around topics rather than writing out specific questions verbatim. Certainly here and there, there might be a question or two that's very, very critical that you want to make sure you use the exact language from the contract or the exact quote that you think the witness will give, certainly there may be times where you want to script things out in a little more detail. But as a general matter, I would not write my whole direct examination script out word-for-word, instead I would organize it by listing topics. And I would sometimes jot down or, at minimum, I would know what substance I need to elicit. So, in response to a particular question, what are the three topics I need the witness to tell me? Again, I wouldn't script it out word-for-word. That's a lot of words on the page. That'll make it very hard for you to both listen, ask questions, and keep your eye on the jury, and their retention of information at the same time. If you're also trying to read verbatim long sentences, but I would make a few notes for myself of the substance that I need to get out or expect to get out in response to each question. That way if I ask a question and I don't get all of that substance, I know I need to ask some follow-up questions targeted to elicit that additional substance. And then once I've got a good script, I practice, practice, practice. I practice by myself, I practice with the actual witness, and, if necessary, I ask somebody else to moot with me and play the role of the witness so that I get some additional practice. But when I'm going in there to do a direct examination at trial, I've got a great script that's thoughtful, that builds into my theory of the case, that seems realistic, given what I understand the witness to know in terms of the substance of the testimony, and I am prepared to have that directed conversation, to be the director who fades into the background and allows the witness to be the star. With that in mind, now let's talk about the form of questions on direct examination specifically. Remember that your goal on direct examination is to let the witness be the star, to keep the focus on the witness. In order to do that, the best way is to ask open-ended questions. Questions that cannot be answered with a yes or a no, but rather invite a conversation. Those are questions that start with who, what, where, when, how, why, describe, explain, tell us, show us. Those are the best kinds of questions on direct examination. Now, under the federal rules, you are allowed to lead a bit to ask yes/no questions on foundational matters on direct, but I don't suggest that you do it. There's a lot of power in allowing the witness to say their answers in their own words and for it to appear to the jury like it's the witness who's at least in part controlling the content and not so much the attorney. And even if you're allowed to ask leading questions, it does take the focus off the witness and it does create the appearance that it is you and not the witness that is directing the answers. Be careful. Open-ended questions do not necessarily have to ask for unbounded or unlimited amounts of information. Be careful asking for questions that ask for long narratives. Questions like, "What happened next?" Well, a witness could answer what happened next on direct examination by giving you pages and pages of trial transcript testimony. That doesn't take advantage of primacy and recency because it doesn't give a natural break that creates a beginning and an end. So, you want to control and direct the conversation by asking open-ended questions, but by keeping them narrow in scope. So, instead of asking what happened next, you might make the question a bit narrower by saying something like, "What was the first thing you saw after the accident?" And then after that's been answered, "What was the second thing you saw after the accident?" And then after that's been answered, "What was the third thing you saw after the accident?" Do you see how I've broken up the testimony into smaller chunks and created, therefore, more beginnings and ends, more primacy and recency? And I've created organization. I've told the jury that there's a first, a second, and a third. There's events that happened in order and I've primed the jury to understand the testimony as a sequence of items in a list. That's what I mean when I say be careful about asking wide open-ended narrative questions. You can ask a non-leading question that still solicits discreet amounts of information, and that should be your goal. If you ask big, broad narrative questions, you lose a lot of the control, and that's not what you want to do when you're directing the conversation. It becomes very hard to control what the witness is going to say and it certainly becomes very hard to control the length of the answer. So, be careful. Open-ended does not mean unlimited. You also want to try to use easily understood words on direct examination. You want to use simple language as much as possible. Try to avoid jargon, acronyms, and legalese. Sometimes the judge and the fact finder, they just don't understand what you're saying when you use those terms. But even if they do understand what you're saying, sometimes it makes the record very muddled and unclear. If you get too technical about language, it may not be apparent if you have to defend the case on appeal, what you meant by that particular term, or whether or not the witness understood what you meant by that particular term. It can create a situation where you and the witness are talking past one another. It also can cause additional problems when the testimony is being translated from one language to another. Then you have the additional person, who can be confused by jargon and legalese, namely the translator. So, use simple language as much as possible. Short, pithy, seven-word questions, with words that the average juror would not need to look up in a dictionary in order to understand that word. And as alluded to previously, you also want to use short questions. Short questions tend to get shorter answers. That helps you maintain control during the direct examination. And in the case of a translation, it also makes things much easier for the translator. Think in terms of sound bites of a question and an answer that's short and pithy enough that you could play it back in your closing if you wanted to. You could either read directly from the trial transcript, if you're getting contemporaneous or daily copies of the transcript, or you could just replay and describe to the jury during your closing argument. People remember sound bites because the human brain can only keep so much information in focus at a time. And so the shorter and simpler your questions are, the shorter and simpler the answers are, the more likely it is that the jury is going to remember those questions and those answers. So, if the information is critical, go simple on direct examination and control the witness. Now, let's switch gears and talk about the style of questions on direct examination. My first tip for perfecting direct is to be conversational. You want this to feel like it's comfortable, and jurors can sense immediately when witnesses are uncomfortable. Now, look, most people, unless they are professional expert witnesses, are nervous when they're testifying at trial. It's a strange context, the stakes are significant, even if the witness has done nothing wrong or has no real investment in the litigation, it nonetheless is a nerve-racking process. So, you know that the witness is going to come out of the box being nervous. And that is something that the witness is going to telecast to the jury. And when the jury is assessing credibility, some of the same mannerisms that come out of nervousness can suggest to the jury that the witness is not being truthful. Shaking because you're nervous can seem like shaking because you're lying. Other tells: touching your face or touching your hair because you're nervous, or stammering because you're nervous. All of those can also suggest to a jury that the reason for that behavior is because the witness is nervous about not telling the truth. And so the more you can do to be conversational and set your witness at ease, the better. One of the ways that you're going to set your witness at ease is through practicing. Going through the direct examination until the witness really feels comfortable, and role playing enough of what's going to happen at trial, that the witness doesn't show up the day of trial and get thrown off or be made nervous by something that you could have warned the witness about in advance. If the witness is really hard of hearing, assuring the witness that you're going to stand in a place in the courtroom where the witness doesn't have to strain to hear you. The witness is diabetic and needs to take a break every few hours to eat. Assuring the witness that you've notified the judge in advance and that you've made arrangements so that's going to happen. Taking everything off the table that could make the witness nervous that you can control. Once you've done that, the only other thing you can really do and control is the way you ask questions on direct. You know cross-examination could be adversarial, you're not the one asking the questions, it's out of your control; but you have control on direct examination. So, you want it to seem like a conversation. How do you make things conversational? Well, you do all of the things we do when we're talking to people outside the courtroom. You make eye contact. You use nonverbal gestures, like subtle nodding to convey to the witness that you understood and heard their answer. You act interested in your voice and in your gestures in what the witness is saying. These are all methods of being conversational and they're important so that the direct examination feels like a conversation and doesn't feel wracked with nervousness to the jury. It's much more engaging to watch two people have a conversation than to watch one person reading off a list of notes, with that person never looking up and making eye contact and never engaging with the witness who's answering the questions. You also want to avoid adding taglines talking to yourself. That's a way that you take the focus off the jury, off the witness, and accidentally focus the jury on yourself instead. And you want to avoid doing that, if possible. What do I mean by taglines? I mean, by things we say after the witness has answered a question. Things like thank you, or uh-huh, or okay. What else do I mean by taglines? Repeating or summarizing the witness's answer for no good reason. Look, the reality is that during real conversations there are moments of silence. People are thinking and not talking, that's natural. It actually feels good. When you're a jury, if you're watching a direct examination, it is information overload if there is talking nonstop with no breaks. You want a little bit of silence before your next question. It lets the jury take a break. It gives the jurors' ear a rest. It's a good thing. You also want to make sure that you make eye contact with the witness. Now, of course, you also want to be keeping an eye on the jury, you want to make sure that they're understanding the material and that they are following along. But when you're not checking in with the jury, you really want to be making eye contact with the witness, especially while the witness is answering your questions. If you're not looking at the witness and it doesn't seem like you're paying attention, you are in a non-verbal way telling the jury, "Hey, this doesn't matter." So, you may ask yourself, "What am I supposed to do about notes? Shouldn't I be looking at my notes while the witness is answering?" I don't suggest that. I suggest that you look down at your notes, you get the question or the topic in your head, you look up, you make eye contact with the witness, then you ask the question, you maintain the eye contact with the witness until the witness is done answering the question, and then you take advantage of the benefits of a moment of silence, you look down at your notes, you get the next question or topic in your head, you look up and make eye contact with the witness, and you repeat. I think that is much more effective than trying to read your notes while the witness is testifying. What you are essentially telecasting to the jury when you do that, is that the answer doesn't really matter to you because you're not listening to it. And if the answer doesn't matter to you and you are the one who represents a party in this case, why should the answer matter to any of the jurors? The next tactic that you want to use is you want to use active listening. I mentioned before that I wouldn't write out verbatim every single question or every single answer, because it creates a situation where you get too wedded or stuck on your notes. You should know what substance you're trying to get out, you should know what plan and what order you're going to use to get that evidence out, but you should not be so fixated on a particular question or a particular answer that you're flummoxed if you don't ask the question exactly that way or get exactly the answer you're anticipating. The reality is that witnesses rarely testify exactly verbatim the way you expect. Even if you've practiced many, many times, something is going to surprise you during this direct examination. You need to listen, so that you know when you need to follow-up. If there are three pieces of information you expected to get in response to a question and the witness surprised you and only gave you two, you need to listen so that you know that it's time to ask a follow-up question and elicit that final missing piece of information, or to make a strategic decision about whether you need that information at all and perhaps decide to move on. With that information in mind, let's talk about just a few advanced techniques that you can use once you feel comfortable with the basic style and form of questions on direct examination. The first is organization. Many people are tempted to organize every direct examination chronologically. Sometimes chronological makes the most sense, but not always. Sometimes it's not the most persuasive way to organize things. Let me give you an example. If you go to the movies and you watch a movie and it starts at the beginning of time and the important events that happen in the character's lives happen not at their birth and not when they're children, but when they're young adults, well, the movie will have bored you with unimportant events worth years and years of the character's lives before getting to what matters. That's why most movies would start the story at the time that matters when the characters are adolescents and use flashbacks later to go back earlier in time as necessary. You can do the same thing when you're structuring direct examinations. You can jump right into the time period that matters, and then go back in and out of chronological order as necessary to tell backstory and history to the degree that it's important. Also, you may want to organize your direct examination not chronologically, but rather by topic. If there is a breach of contract issue in the case and also a failure to perform after the contract was breached, if there are two separate topics you want to address, even though, chronologically, there may have been overlap between those two events, you might want to go topically, you might want to organize and say to the jury, "Hey, first, we're going to talk about the breach itself, then we're going to talk about subsequent performance after the breach was excused." You might want to go topically rather than chronologically. Another advanced technique that's incredibly effective when used judiciously is the technique known as loop-back. Now, I said earlier that you shouldn't just repeat the witness's answers for no reason. Loop-back is a conscious and intentional repeating of a critical part of a witness's testimony that is done intentionally and thoughtfully. It is using something from the witness's answer and building it into the next question. This is an effort to use primacy and recency. It takes a piece of testimony that was the end typically of a prior answer, so it's got a place of primacy and recency, and then it puts it into the next question and it again gets a place of primacy and recency. It's repetition that makes that fact stand out to the jury as compared to other facts that don't get repeated. If you use it too much, you take the effectiveness out of it. If you repeat everything that the witness says, it all seems unimportant. In fact, it starts to feel like you're testifying and it gets really boring because the witness is hearing everything, the jury is hearing everything the witness said twice. So, you only want to use it for critical important points that you really want the jury to focus in on. Here's an example. If I ask the question on direct examination, "What did you do when you first arrived at the scene?" Now, before we move on, let's just take a step back. You'll notice that that's an open-ended question, but it's not unbounded in scope, right? First arrived at the scene, those details narrowed in the time period of the question so that it didn't ask for a narrative. The question is simple. It doesn't have an unnecessary amount of words. It doesn't have lots of legal jargon. This is a good direct examination question. Okay, going back into the technique of loop-back. The question I ask is, "What did you do when you first arrived at the scene?" And the witness says, "We secured the area and I recovered a gun." Now, if the recovery of that gun is a really important fact and I want the jury to focus in on that, I might repeat that fact in the next question I ask. So, instead of asking as the next question, simply, "Where was it located," I might instead ask, "When you recovered the gun, where was it located?" I used loop-back to take advantage of an opportunity to repeat the phrase a gun a second time. And then the witness can answer, "It was next to the body." Now, remember, you've got to be judicious about your use of loop-back. If you use it too often, you take the effectiveness out of it. You also can only loop-back on testimony that the witness has actually given you. So, you can't introduce facts, not an evidence, in a question. You need to first elicit the fact from the witness. And then once you've gotten the witness to say it, now it is a fact and evidence and now you can build it into your next question. But selective effective use of loop-back is a really great technique. It subtly reinforces things to the jury in a way that helps them learn and remember information. The next advanced technique is the technique of using headnotes. I love headnotes. I wouldn't approach a direct examination without them. What is a headnote? It's a foundational statement that orients the witness and the fact finder. It says to the witness and to the jurors, "Here's the topic we're talking about," and you introduce the topic before you start asking questions. And every time you switch from one topic to another, you use a new headnote to tell the jury where you're going. They help keep your examination organized. And remember, any portion of the jury's brain that's used to organize the material is a portion of the jury's brain that can't be used to understand the substance. So, this takes part of the obligation of organizing the material off the jury's slate and puts it on yours, because you're going to use headnotes to organize the material. They also alert the fact finder and the witness to the specific relevant information that you're trying to elicit. So, what's an example of a headnote? I might say to the witness, "Let's talk about when you were hired at the company." I'm not making an argument, I'm not testifying, we're going to assume that the witness has already said that he or she worked for the company, but now I'm using that headnote to essentially say to the witness and to the fact finder, "The next series of questions you hear, they're just about the hiring process." And I might ask a series of open-ended questions about the hiring process. "When were you hired? Who hired you? How long was the interview process? How long between when you were offered the job and when you began?" Maybe those are the questions I'm going to ask. Then I'll use another headnote to flag for the jury and the witness that I'm changing topics. So, I might say something like, "Now, let's move forward in time to when you started the job." I'm signaling that I'm changing topics, and that the next series of questions I ask will be about that topic, not about the prior one, and maybe I'll ask some open-ended questions like, "What day did you start? Who ran your orientation?" And then if I'm going to move on to another topic, I'll use another headnote to do so. Headnotes are a terrific tool to organize material for the witness, for the fact finder, and, frankly, for yourself. They help you make sure that all of your questions flow in a logical order and that your vision of how you want the evidence to get in is actually going to play out for the fact finder. So, now let's look at an example of some headnotes in action. So, I might say on direct examination, "Witness, I'm going to ask you some questions about when you woke up. What time did you wake up? What room were you in? What did you do right after you woke up?" Then I'll move on to another headnote. "Let's talk about your breakfast. What did you have? What time did you eat? Where did you eat?" I'm using headnotes to organize the material and let the witness and the fact finder know where I am at any given time. Now, the use of headnotes also helps you solve the problem of open-ended questions asking for a narrative because the headnote will naturally limit all of the questions that follow. If I give a headnote, and I say, "I'm going to ask you about when you woke up," that means that even if I ask very broadly worded questions after that headnote, the answers have to be bounded in some way because they're limited to only discussing when the witness first woke up. So, headnotes are really effective to organize the material, and they're also a really effective way to control the witness's answer on direct examination. You also want to use some other well-known techniques of persuasion. You want to start and finish strong. Take advantage of primacy and recency. The first issue that you address should be an important one. The last issue you address should be an important one. I like to think of that first question or first few questions as answering for the jury, "Who is this person and how does this person fit into the overall story you're going to hear in this trial? Who is this character and how does the character make sense in the story?" And I think one of the important things to consider finishing on is, "Why that character's story would result in a finding in favor of your client? How, if everything that witness said is true, that would support your theory of the case?" To the extent possible, those are great things to begin and end on. Now, sometimes there's substantive issues that make sense to begin and end on. You're going to have to decide where you start and finish based upon the story you plan to tell at trial, the evidence that you expect will come in, and your overall strategic plan. But you definitely want to try to start and finish strong. I would try to avoid starting with a question like, "State and spell your name," and I would try to avoid ending with a topic that's unimportant or repetitive. And I would also try to avoid ending with a question you're going to get objected on because then if you have no backup question, you end up sitting down and ending the examination on an objection that you've lost and that is the very opposite of ending strong. As you're crafting your direct examination, you want to think about keeping the jury's attention. Do that by introducing change, mixing things up. Entering an exhibit in is a break in testimony, that creates a beginning and an end, that gets the juror's attention, creates a primacy and recency opportunity. Using a demonstration, having a witness come down off the witness stand and show on a map where they were located, or point on a skeleton where on their elbow the pain began, all of these things are great ways to introduce change. Movement can introduce change. Having the witness come down, that's one form of movement. To the extent that you're allowed to move about the courtroom, your own movement, use judiciously can affect change. Now, it needs to be purposeful movement. I wouldn't be meandering or wandering all throughout the direct examination. That will take the jury's focus off the witness and on to you. But when you're changing topics between big major topics, you might want to use that as an opportunity to strategically move just a little bit from one position to another to signal to the jury, "Hey, I'm switching gears, I'm switching topics. That's why I'm moving." You also want to use some variety in your tone and in the pace in which you're speaking. And silence is another great way to introduce change. Sometimes letting there be a longer than usual pause is a great way to grab all of the jurors' attention. You also want to avoid clutter. Try not to ask questions multiple times. Not only will you elicit an asked and answered objection, but it just clutters up a direct examination. Try to be straightforward, try to be pithy, realize that the jurors have limited attention spans and try not to introduce anything extra or unnecessarily complicated if you can avoid it. Just give them the information they need when they need it. The final advanced technique that I'm going to suggest is having a plan for dealing with bad information. You should never just ignore bad information on direct examination that you think is going to come out on cross-examination. Now, of course you want to understand the rules of evidence and you want to not make a mistake and open the door to evidence that otherwise would be excluded. But if you filed motions in limine or you have rulings on evidence already or you can predict well what going to happen at trial and you know that that information is going to come out, you don't want to ignore it on direct; you want to bring out the bad. How do you bring out the bad? You ask your witness about it first and you do what you can to neutralize that bad information. That way it doesn't seem like you're hiding it, but you're not intentionally drawing attention to it either. How do you diminish bad information? Well, you take all of the tactics that we talked about in the beginning of this presentation about how juries learn and you put the bad information in a place that the jury is least likely to learn and retain that information. So, yes, they heard it and it doesn't seem like you were sandbagging or hiding it, but it also didn't seem that important to them because it didn't come out in a memorable way. I would suggest that you ask about bad information to the extent possible towards the middle of your direct examination. Don't use a place of primacy or recency. And try to sandwich that bad information between more memorable pieces of good information. If your client is on the witness stand and your client has a credibility issue, sandwich asking about that credibility issue in between two facts that your client is going to testify about that are absolutely 100% borne out by the testimony of other witnesses or by uncontroverted evidence. If there's a photograph that backs up your client's story on two particular points, sandwich the credibility issue between those two points because the jurors will focus on the fact that, "Yeah, there was maybe this credibility issue, but here's two other points right in and around the same testimony where your client's credibility was not able to be questioned." And try not to emphasize the bad information. So, don't use language to draw attention to it. Don't use any of the techniques we've talked about, like movement or silence. Don't intentionally draw information to the bad evidence, simply elicit it, and then move on. You've brought out the bad, you've created a situation where you've taken the sting out of it, opposing counsel no longer gets the opportunity to be the first to ask about it, but you've done it in a way that diminishes its impact on the jury. Thanks for watching. And I hope these techniques will help you perfect your next direct.

Presenter(s)

VF
Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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