A plaintiff in a commercial dispute usually has the burden of establishing that they are entitled to win. And if a case proceeds to trial, a plaintiff often meets this burden by presenting witnesses who testify about why the plaintiff should win. And even though defendants usually carry no burden, they often present witnesses to tell their story.
The process of presenting the testimony of friendly witnesses to present the primary case for why your side should win is called direct examination. Although the process is usually less prone to surprises than cross-examination, it still requires a lot of work.
Why should you continue to read this post about direct examination?
A lawyer often begins preparing for direct examination by determining what facts need to be proven at trial. For example, if the trial is about a breach of contract, the lawyer may need a witness to prove the existence of a contract, the plaintiff’s performance of her side of the agreement, the breach, and the resulting losses. And although a party may not need to respond to unhelpful facts in their own affirmative cases, they may choose to do so to instead of waiting until the rebuttal portion of the trial. Once the lawyer lists all of the facts to be proven at trial, she may come up with a list of witnesses who can testify about those facts.
It is helpful to have one witness who can tell the plaintiff or defendant’s story from beginning to end. This often makes it easier for a judge or jury to follow the story instead of having to piece it together from the testimony of multiple witnesses, even if there are multiple witnesses who focus on various aspects of the story.
For each witness, a lawyer often makes a list of subjects and then prepares questions about each. It is normal for the first subject to be an introduction to the witness, so those questions may just be about who the witness is and their relationship to the case.
It is important for a lawyer to make sure that every element of their claims is covered in direct examination. If she does not, opposing counsel may move for a directed verdict, asking the judge to make a ruling during the trial because one side failed to meet its burden.
According to an old adage, in cross examination the lawyer is the star, but in direct examination, the witness is the star. And so lawyers often draft questions so that the questions are short but the answers are long. Not only does this allow the judge or jury to focus more on the witness with firsthand knowledge than on the lawyer, but it also complies with a rule against “leading questions.”
So, for example, a lawyer may not ask “You saw the light turn red, right?” because it leads the witness to an answer. Instead, she may ask “What did you see?” and wait for the witness to say “I saw the light turn red.”
Lawyers also draft questions that allow the witness to authenticate various pieces of documentary evidence. This means that a witness can testify that a photograph is accurate or they sent a particular email or saw a physical object. Once the witness testifies about the evidence, the judge may accept it as evidence at the trial. This is why a lawyer may also make a list of all of the exhibits they intend to introduce and make sure that there is a witness for each to introduce them and make sure that each comes up in the list of direct examination questions.
Although a lawyer wants to be thorough on direct examination, judges and juries have limited attention spans and often little patience for examinations that drag on for hours. Many lawyers ask pages of questions that are irrelevant to the issues at trial. In my experience, everyone in the courtroom appreciates a lawyer that gets to the point.
At first, it should seem like a witness needs little preparation for direct examination. After all, the witness is just being asked things they already know from their own experience.
But in my experience, direct examination requires a lot of work. First, the lawyer may think she knows all of the answers to the questions she has written, but once she poses them to the witness in her office, she may discover that the answers are actually a little different. Practicing the questions gives the lawyer the chance to revise the questions, or to review relevant evidence with the witness to make sure there are no misunderstandings about the facts.
Second, a lawyer often has a better idea about what information is relevant for the legal claims and which is not than the witness may. So when a lawyer first poses a question to a witness, the witness may spend a lot of time on an irrelevant point but not much on an important point. By practicing the questions, the lawyer can make sure the questions she poses elicits testimony that highlights the relevant facts.
And third, witnesses often know a lot of facts, but have not synthesized those facts into on overall narrative. And even if they have a narrative, they may not be able to tell it, from memory, in an organized way. One thing that I have learned is that a lawyer can help a witness tell a story by asking the witness lots of small questions in preparation. For example, I may ask “When did you send this email?” and then “Why did you send it?” and then “Did you meet with anyone after you sent it?” and then “With whom did you meet?” and “What did you tell them?” After asking a lot of short questions, I repeat the exercise a few times. After doing this a few times, the witness knows what information is relevant and can recount her story with fewer questions prompting her. This way, I can just ask something like “Tell me about this email.” and the witness can say when she sent it, why she sent it, and so on.
In my experience, direct examination preparation may take several sessions, each lasting several hours. But the time spent before trial translates to clearer and smoother testimony during trial.
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