How to be good at Direct Examination

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It’s not about you, Mr./Ms. Lawyer.


There are few things lawyers like more than a good cross-examination. They prepare for it probably more than any other part of a trial, getting ready to stand toe-to-toe with a witness, using skills honed by years of practice, and destroy even the appearance of honest testimony from the witness. Most of the great scenes from movies involve lawyers conducting cross-examination.  Remember “You can’t handle the truth”? Or “What’s all stuff here on the window”? And let’s just admit that one of the reasons lawyers love cross-examination so much is because they are in the limelight, on center stage, the focus of everyone’s attention. Cross is all about them. Lawyers are, after all, type A personalities who want attention.

Can you even think of a scene from a movie involving skillful and dramatic direct examination? I can’t either. But here’s a little truth all good trial lawyers know: you win your case on direct examination. Cross-examination is defense but direct examination is offense and that’s where you score the points you need to win. And a lawyer cannot conduct a skillful direct examination and be the center of attention. To be effective on direct examination, the lawyer has to step aside and let the witness be the center of attention.

So, the first hurdle to a good direct examination is persuading the lawyer to surrender the spotlight to the witness. Once a lawyer accepts that she benefits by not being the center of attention during direct examination, there is still the problem of how to conduct the direct exam skillfully and persuasively.

In witness preparation sessions, I tell witnesses that cross-examination may be a battle between the witness and the other lawyer but direct examination is a dance with your lawyer. Like Fred Astaire, the lawyer leads, but all eyes are on Ginger Rogers, the witness. If the lawyer does not lead well, the witness looks bad. And if the lawyer does lead well, the lawyer is invisible but the witness shines. The skillful direct examiner has to know how to lead well, how to signal the twirl’s, turns and steps that make the witness looked graceful in this dance. But all that is wasted if the witness does not know what to do in response to the signals from our Fred Astaire leading lawyer.

You have undoubtedly heard the story about the tourist in New York City who asks a passerby how to get to Carnegie Hall. The passerby answers, “practice, practice, practice.” You cannot conduct a graceful direct examination with your client without practice. So, let’s continue the dance metaphor.

The dance needs to be choreographed by the lawyer.  The lawyer knows the order of the factual presentation that needs to be presented to be effective. To accomplish this, I write out the answers I want and then I fashion specific questions that will bring out those exact answers without an objection that I am leading the witness.  And that is my script.

The script must be familiar to the client/witness. To be a confident witness, the client must know the subjects he will be asked and the order in which the subjects will be presented. Like a dance, the client should know what is coming next. The client needs to know what your questions will be – your lead-signals – and what answers you are looking for with each question – whether to twirl left or right. Every lawyer has asked a question and got an answer back that was not the desired answer. The lawyer looks concerned because she cannot re-ask the same question and the client panics because he knows he got it wrong. Bad break in the dance!

So, like a dance, you don’t just talk about the steps you expect to perform, you actually practice them – you ask questions the witness gives answers. You rehearse. You correct mis-steps until the two of you look graceful in the presentation. And if there is a mis-step, the lawyer leads the witness back.

If you can step out of the limelight, if you can surrender the center stage to the client, you have a chance of being a great direct examiner.  And only you and your successful client will know just how important you were to the dance.