In this episode of “The Trial Lawyer’s Handbook”
podcast series, litigation attorney Dan Small goes
over how to avoid leading questions on direct examinations while
still maintaining control. Mr. Small outlines six important steps
to help ensure direct examinations go the way the lawyer wants them
to: preparation, mistakes, pace, pieces, narrative and listen.
These steps help to control the witness and guarantee that the
testimony is clear, effective and engaging for the jury.
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Mr. Small is also the author of the new American Bar Association
(ABA) book Lessons Learned from a Life on Trial: Landmark
Cases from a Veteran Litigator and what They Can Teach Trial
Lawyers.
Podcast Transcript
Dan Small: It’s important to avoid leading
questions on direct examination. But many lawyers assume that
giving up on leading questions means giving up on control. Of
course, that isn’t true. You still get to ask the questions,
and the witness is usually friendly. But you are the captain of the
ship. You have to make sure that the direct examination goes the
way you want it to. That requires both preparation beforehand and
attention during the trial.
Preparation. First and foremost, prepare your
witness. I wrote the ABA’s Manual on Preparing
Witnesses, now in its fifth edition, and it’s the subject
of a whole separate podcast series, “Powerful Witness
Preparation,” so I won’t spend much time on it here.
Suffice it to say that that includes going over not only the
anticipated testimony, but how you expect it will be delivered by
the witness and what might go wrong. Make sure the witness
understands that you are in charge, and that the witness has to
take his or her cues from you. Tell your witness you may need him
or her to stop talking, or to go back over something, or even to be
interrupted. As part of my witness preparation, I sometimes use the
analogy of sports broadcasters who use slow motion replays. Why do
they do that? Because you can’t always follow the story in real
time. Often real life happens too fast and you have to stop, slow
it down and go over it frame by frame. That doesn’t mean that
the witness did something wrong. On the contrary, it often means
they did something right, and we want to linger over it and make
sure the jury is following.
Second: Mistakes. All witnesses are people, and
as people they make mistakes. Prepare your witness for that
likelihood. They’re not ready for it. Tell them that it’s
OK. Tell them that jurors don’t want robots talking to them.
They know that witnesses are human, they know that witnesses will
make a mistake, and they’re OK with it. Tell them that when
they make a mistake, you’re going to stop and try to fix it.
Explain to them how you can use a document to refresh their memory,
for example. Of course, you need to be listening carefully to make
sure you catch the mistakes, especially ones involving numbers,
dates and times, which may be easy to miss. Stop the train and make
sure it’s going in the right direction.
Number three: Pace. Whether out of nervousness,
eagerness or both, witnesses often talk too fast. By doing so, they
risk confusing jurors or losing them entirely. It’s up to you
to recognize the problem and to slow things down. You probably can
get a sense in your preparation whether your witness is likely to
be one of those people. If it happens in the courtroom, don’t
be shy about trying to stop it. There’s nothing wrong with
saying something like, “Mr. Witness, I’m going to ask you
to slow down a bit to make sure we can follow,” or “Mr.
Witness, the court reporter has a difficult job to do. She’s
got to write down every word. So can we try to slow this down so
she can take everything up?” or “Mr. Witness, or Madam
Witness, let’s stop and back up for a moment.” There are
also more substantive reasons to vary the pace. If there’s an
important piece of testimony, you almost always want to slow down
and spend time on it. The whole case might turn on those answers.
Don’t just rush to the next set of questions, linger.
Number four: Pieces. Tell your witness in
preparation that you want the answers to contain one thought at a
time, usually expressed in one sentence, one phrase or even one
word. Witnesses will often jumble things together in a way that
might make sense to them, but not to the jury. Don’t try to put
the whole case in one answer.
Number five: Narrative. Avoid long narrative
responses. Most of the time, you don’t want your witness to be
giving a narrative answer of any kind. It may be objectionable, and
it’s not likely to be effective. The jury may not follow the
story, and important points will be buried among minor ones. Break
the answers up if you have to by saying, “Let me stop you
there.” Put the testimony forward in manageable, bite-sized
pieces, or the jury will be overwhelmed.
Number six: Listen. Listen, listen, listen.
Remember to listen to what the witness actually says. It’s not
going to be exactly as you prepared. It’s not going to be
exactly what’s in your notes. And if you’re too busy
looking at your notes, you’re going to miss what happens in
real life. Be prepared to react to a wide range of unexpected
testimony, including mistakes, missed facts, new issues and
unexpected opportunities.
Direct examination can be a somewhat deceptive environment for
both the witness and for counsel. Because the witness is usually
friendly, the lawyer and the witness may wind up in sync with each
other, but leave the jury behind. It’s your job to control a
witness, even a friendly one, and to make sure that the testimony
is clear and effective for the jury. Make sure your witness
isn’t just answering questions, but they’re bringing the
jury along with them.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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