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Direct Examination Tips

A trial is all about storytelling. Direct examination should draw out facts and themes necessary to tell your story. Witnesses should be presented so that they will be believed which means embracing uncomfortable facts in the case. Bring those facts out proactively! Anticipate cross. Do not hide facts from the jury! They will find out and then they won’t believe you! It also means bringing out humanizing details about each witness that will help jurors to identify with the witness. A good lawyer must spend time with the witness to learn about their background and judge how the will come across to a jury. You should also think about time of day and the juries energy level (and your own) when presenting more complex expert witness testimony.

  • Know your case and what issues you have good and bad. Where does your witness fit in your case?
  • Become familiar with every statement that your witness has given about the case whether taped, written, or summarized in a police report or narrative.
  • Get criminal histories on your witnesses.
  • Conduct in-depth face-to-face interviews with your trial witnesses. Focus on getting the bad news now and preparing them to testify.
    • Tell your witness that you are only interested in the truth – if they haven’t told the complete truth yet, that is ok, but now is the time to tell everything
    • you must build rapport and aggressively find everything that will be coming on cross – the average people thinks that when called as a witness they only have to present the side that they want to present selectively choosing what they want to reveal
    • what haven’t they told you – now is the time to get all the bad news – what are they embarrassed about? What does the State know about them that will undercut their credibility? They are not an advocate you are their advocate, and you can’t protect them if you don’t know everything that they know about what is coming.
    • Who have they communicated with since the offense or written any juicy letters? (you should have told them to not talk to anyone at the initial consultation)
    • You want brutal honesty. Brutal honesty is unimpeachable. Tell your witness that embarrassing admissions INCREASE credibility on DIRECT.
    • Your witnesses don’t want to look bad or get ripped on cross. Their honesty with you and the jury increases their credibility. Once you have the dirt you can figure out what your case is worth or if the issue can be explained or argued.
    • Ask them the tough questions that are coming on cross in the pre-trial interview. Talk about it until you are satisfied. Do not ignore it or shy away from it.
    Go over their criminal history. Don’t allow bullshit explanations for their previous offenses.
    • Interview witnesses who witnessed the same thing together – their collective memory is better and you can resolve discrepancies.
    • If you have a video taped interview or written statement, sit down and watch it with your witness – it forces them and you to prepare adequately and correct any misimpressions or even lies.
    • Emphasize that there is nothing to be ashamed about as far as talking to you about the case – they deserve to be interviewed before they are thrown onto a witness stand.
    • Explain that they are not an advocate. They are here as a witness, not to argue with the lawyer.
    • Tell them to be respectful of the prosecutor, too.
    • Tell them to listen carefully to each question on direct and cross.
    • Your witness should not answer a question they don’t understand.
    • “I don’t know” is a perfect answer if they really don’t know. No speculation. No guessing.
    • A good witness is fair and readily concedes honest weaknesses in their testimony. However, they must stand firm on what is important.
  • All direct leads to jury argument. Trial is argument. Let your direct contain the necessary details to give you the substance for your jury argument. If your witness said compelling things in their first interview that you want to argue, make sure that you get them to say it again on the stand.
  • Thoughts for preparing and presenting your direct:
    1. Outline – do not script unless absolutely necessary on key points – breakdown by TOPICS – moving from general to specific.
    2. Listen to your witness’ answers. Sometimes your witness gives an answer that demands a follow-up. Plus, you must take some notes on key points that you want to argue.
    3. Keep questions simple and generally do not lead your witness. Leading is not persuasive. Open ended questions put the focus on your witness. It may take a lot of prep with a difficult witness.
    4. Employ transitions and signposts
    5. Background questions
    6. Facts
    7. Exhibits: Think in advance about what you will use and how you will use it with each witness. Figure out WHEN you want exhibits to come in and mark it in your outline.
    8. Persuade with repetition.
    9. Be precise, but do not RUSH
    10. Have your foundations and predicate ready. Smooth is essential. Get in as much as possible with the fewest questions with the fewest times approaching the witness.
    11. Figure out what you don’t want to ask
    12. STEAL THEIR THUNDER – Deflate the potential cross-examination. Anticipate the probable cross-examination that will be conducted by opposing counsel and bring it out in your direct the way you want it brought out.
      • Bring out impeachable criminal offenses (TRE 609 – felony convictions and crimes of moral turpitude, i.e. Theft, assault by a man on a woman, pub lewd, prostitution, filing a false report – for a full list see your annotated code book).
      • Attack inconsistencies in your pretrial interview and talk with your witness to resolve the inconsistency until you are satisfied
  • Sequence (order) of witnesses: You must plan the order in which your witnesses will testify.
    • Always start strong and finish strong.
    • Keep the ball moving forward. Do not call a witness unless they have new information.

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