A Direct Path to Winning Tips for Conducting an Effective Direct Examination
Total Page：16
File Type：pdf, Size：1020Kb
A NEW YORK LAW JOURNAL SPECIAL SECTION LitigationLitigation WWW. NYLJ.COM MONDAY, JULY 18, 2011 A Direct Path To Winning Tips for conducting an effective direct examination. case, i.e., the centrality of the witness’ role in the BY DAVID R. MArrIOTT story being told, and on an objective assessment AND JOHN GLEESON of the strengths and weaknesses revealed by a mock examination. OME LAWYERS DREAM of conducting Prepare Them for Success a blistering cross examination. Others S of delivering a compelling, emotionally Juries tend to side with the parties they like charged closing argument. But few lawyers dream and have a hard time believing the testimony of of planning, preparing and conducting a direct witnesses they dislike or to whom they cannot examination. In fact, direct examination may be relate. In a trial setting, however, even likeable the most underestimated part of trial. people can be paralyzed by fear, honest people It may also be the most important, because can appear to be lying when they state their the truth is many, if not most, cases are won or name, and knowledgeable people can come lost on direct examination. It is during direct across as arrogant. A direct examination that examination that the parties present their © BIGSTOCK maximizes a witness’ strengths and minimizes his affirmative cases, that the witnesses provide their or her weaknesses rarely, if ever, occurs spont versions of the events and that the judge and jury try a product liability case without presenting aneously. Setting the stage for success in the first hear from the witnesses. While other parts testimony from the plaintiff, no matter how courtroom requires preparation. of the trial may be more dramatic, none matters nervous; it is just as difficult to defend a securities There is no single method for preparing a more than direct examination. This article offers fraud litigation without presenting testimony witness to testify. Provided it can be done without 11 tips for conducting it effectively. from the individuals accused of fraud, no matter imparting to the individual information she does Choose Witnesses Carefully how arrogant; and it is almost impossible to try not already possess, it is usually advisable to a patent case without presenting testimony from ensure that the witness understands the big More than one lawyer has told of how well the inventor, no matter how quirky. In other picture, and how she fits into it. That usually his case was going until his witnesses opened cases, however, one of counsel’s principal tasks entails multiple meetings with the witness, their mouths. It is only a slight exaggeration to in preparing for trial is to identify the witnesses discussion of the topics the examination will say there are no bad cases, just bad witnesses. who can present the case most effectively. address, a review of her prior testimony and Indeed, very few cases are better than the Choosing whom to call and for what purposes consideration of documents relevant to her witnesses who make them, no matter how is often a difficult task. Although most witnesses testimony. Developing an effective direct compelling the story, no matter how persuasive can be prepared to testify effectively, the risks examination is a collaborative, iterative process, the documentary evidence and no matter how of calling a witness can nevertheless outweigh and the objective is to find the best way for the extensive counsel’s preparation. the benefits. None is perfect, and many have witness truthfully to communicate what she There are of course cases in which counsel will the vulnerabilities mentioned above and others knows as simply and persuasively as possible. have no choice but to call a particular witness, as well. There is no substitute for engaging in Trial lawyers differ on whether a detailed no matter his or her baggage. It is difficult to a mock examination of each potential witness. “script” of the examination that includes How effectively does each communicate the both questions and expected answers is client’s side of the case? How well does he or desirable. Inexperienced trial counsel can get she handle the likely cross? The decision whether so preoccupied with their outlines that they DAVID R. MARRIOTT is a partner in the litigation department of Cravath, Swaine & Moore. JOHN GLEESON is U.S. District to call a particular witness must be based on an do not listen carefully enough to the witness’ Judge for the Eastern District of New York. evaluation of the individual’s relationship to the answers, missing opportunities to clarify or MONDAY, JULY 18, 2011 correct. Experienced ones will often reduce or accomplishments, such as professional awards account omits useful detail, counsel can follow to bullet points the testimony that must be or distinctions. With lay witnesses, it can be up to elicit that information. elicited from the witness and make sure each done by emphasizing what makes the witness’ Anticipate the Witness’ Need for Help point is checked off. Suffice it to say that, by testimony special, e.g., her presence at the site the time she is expected to take the stand, the of the accident, her role in the negotiations that No matter how well trial counsel selects and witness should be familiar with the questions led to the contract being signed and so on. prepares her witnesses, there will be glitches, that may be asked, whether or not they have Organize to Facilitate Learning and some will be significant. been “scripted” in detail, and with the exhibits In all of the prep sessions, the project manager, that may be used. Nothing that occurs during To persuade, direct testimony must be her key witness, will remember clearly that he a direct examination (or cross examination, for understood. As the German poet Goethe put it, began construction on the job in the fall of 2009. that matter) should come as a surprise to the “everyone hears only what he understands.” Thus, But when counsel asks him about that at the witness or the examining attorney. the most effective direct testimony is organized beginning of his direct, he is flustered in front All witnesses have strengths and weaknesses. to promote learning. Jurors are generally most of the jury and cannot remember. The most effective direct examinations play to alert at the beginning of an examination. And An unprepared lawyer will ask, “Was it in the witness’ strengths and minimize (or at least what comes at the end can be enduring because the fall of 2009?” That will likely establish the accommodate) weaknesses. If the witness is a it is the last thing jurors hear. Beginning strong necessary fact, but at the cost of creating the chemistry professor who has spent decades increases the probability that an examination impression that the witness is there to say what teaching in a classroom, it may make sense to will be understood and remembered. counsel wants him to say. Prepared counsel will structure the examination so that it resembles a have annotated her witness outline and have classroom discussion by asking for permission ready access to the exhibits in the case. She to have the witness come off the stand and will seamlessly place before the witness the present testimony using flip charts or other Few lawyers dream of planning, document that refreshes his recollection. The demonstratives. By contrast, if the witness is preparing and conducting a jury gets the testimony about when construction a reserved bookkeeper who rarely interacts direct examination. It may be the began from the witness, and counsel has shown with people, it may make sense to orient the both the jury and her nervous witness that she examination around the documents with which most underestimated part of trial. is completely in control of things, even when the witness is most comfortable. It may also be the most important, they do not go according to plan. Introduction and Accreditation because the truth is many, if not In many cases, virtually everything to which a most, cases are won or lost on witness will testify is rooted in documents or other More than 2,300 years ago, Aristotle referred exhibits. Prepared counsel will have annotated to one of the primary means of persuasion as direct examination. witness outlines with references to those exhibits. “ethos,” appeal based on the character of the When the inevitable failure of recollection (or, speaker. Not only is ethos important in any jury Direct examinations are most effective where worse yet, incorrect recollection) occurs, counsel trial, it is critical that it be established early. they employ the principles of good storytelling. will then be prepared to immediately produce Jurors form strong opinions early, and those For instance, most stories are best understood before the witness the exhibit that will set him opinions can be difficult to shake. Thus, an when presented chronologically. Action testimony straight, rather than being one of those lawyers effective direct examination begins by introducing is most effective when presented without who ends up fumbling awkwardly for an exhibit and accrediting the witness. interruption. And specifics are more interesting in front of the jury, only to end up uttering the From the start of direct, the witness’ than generalities. leastkept promise of unprepared trial lawyers: relationship to the case should become apparent, Control Without Leading “I’ll come back to that later.” and the trier of fact should have a general sense Anticipate Objections of what she will testify to and why her testimony Leading questions are generally not allowed on should be credited. One way to do that is by direct examination. But even if they were, leading Annotations to a witness outline should include asking, immediately after the witness identifies questions are rarely the most effective means of more than just references to exhibits.