1 THE ART OF EFFECTIVE DIRECT EXAMINATION Atty. Rogelio A. Vinluan ACCRALAW OFFICES July 5, 2011

2 While direct examination and cross-examination may have differing purposes or objectives, both require for success thorough preparation, mastery of technique, and an artful execution of the advocate’s game plan.

3 The facts will affect the extent and quality of the examination. No matter how brilliant the lawyer is, he has to live with the facts of the case.

4 As a general rule, on direct examination, the lawyer calling the witness will try to provide a clear exposition of the relevant facts.

5 On cross-examination, on the other hand, the opposing lawyer will try to show to the court that the witness’ testimony is unclear, inaccurate, or contradictory, or that the witness is not a credible person

6 Direct examination and cross- examination differ as follows :  On direct examination, the lawyer uses the witness to advance and support his theory of the case, while on cross-examination, the lawyer first tests the possibility of confirming his theory of the case by eliciting from the witness admissions in support of the relevant facts and he may also attempt to destroy and discredit the witness’ testimony by emphasizing contradictory facts and attacking the credibility of the witness.

7  On direct examination, the lawyer tries to focus the testimony on facts that will enhance his theory of the case while on cross-examination, the lawyer tries to surround the testimony of the witness with clouds of doubt and tests the possibility of eliciting facts corroborating his theory of the case.

8  On direct examination, the lawyer will ask the witness questions concerning his knowledge of the facts; any question not prepared in advance could confuse and entangle the witness at this stage. On the other hand, on cross- examination, the lawyer’s purpose is to move the witness from the security of prepared and rehearsed questions to a different field, generally unexpected by the witness.

9  On direct examination, the lawyer’s purpose is to connect the testimony to credible and verifiable facts, while on cross- examination, the lawyer’s purpose is to point out and prove improbabilities and inaccuracies in the direct testimony.

10  On direct examination, the lawyer’s purpose is to ask questions drawing facts in chronological order since it is easier for the witness to remember events in chronological sequence, while on cross-examination, the lawyer’s purpose is to break the chronology of events by jumping from one subject to another and thereby distract the witness from his or her line of thought.

11  On direct examination, the lawyer must examine the witness since the testimony is an essential part of the evidence, while on cross- examination the lawyer may examine the witness if the questioning could contribute to his case.

12 B.DIRECT EXAMINATION The aims of direct examination are two-fold: (a) to present evidence legally sufficient to prove each claim or defense, and (b) to convince the court of the truthfulness and accuracy of all the evidence supporting the claim or defense.

13 More cases are won by evidence on direct than by that on cross-examination.

14 To win your case, you must prove it rather than disprove your opponent’s case. The direct examination is the foundation of the case.

15 An “effective” direct examination is one that presents not only legally sufficient evidence but also convinces the court about the truthfulness and accuracy of the witness’ testimony.

16 Witness selection and preparation The first step to ensuring a good direct examination is the selection of witnesses who can make the most effective presentation and corroborate critical information. You should consider which witnesses will be most persuasive.

17 Before a witness is presented, you should study and evaluate the witness’ strengths and weaknesses in order to make the witness as effective as possible.

18 The need to interview the witnesses and to go over the case thoroughly with them cannot be overemphasized.

19 Going over all details with the witnesses beforehand will help them remember the facts better in court; they will also have more self- confidence, will know what is required of them, and will make better and more intelligent witnesses in every way.

20 Before a witness is called to the stand, he must be given the proper guidelines or instructions for testifying, which should include: the needto maintain eye contact with the judge; the need to maintain eye contact with the examining counsel.

21 the dangers of becoming angry or losing control; the importance of telling the truth and not exaggerating; the importance of making his answers concise, accurate, complete and responsive; the benefits of appearing honest and sincere; the necessity of not answering a question that is not understood; the avoidance of speculation or inappropriate opinions when answering questions;

22 to decline to answer a question if the witness does not know; the problems created by being non-responsive or volunteering information; and how to properly address the judge and the examining counsel

23 After the interview with the witness, you must prepare a detailed outline of the topics to be covered by the direct examination

24 The advantages of outlining the examination of each witness are many. Your presentation is more logical and orderly; less confusion and waste of time results; you can check your outline of the examination of all witnesses against your outline of the essential elements to prove your case; you are less likely to omit some vital evidence in the stress of trial; and you can more easily anticipate and provide against objections to important evidence.

25 Another advantage of outlining the examination of each witness in advance is that it enables you to open and close the testimony of the witness on the stronger points and in other ways to arrange the timing of evidence for the greatest tactical benefits.

26 Instead of a mere outline, is it advisable to write out every question you intend to ask and a summary of the expected answer?

27 Its advantage is that you can draft your questions in proper form in advance. The disadvantages are that, unless you are a great actor, your questions will invariably sound as though they are being read from a script – hardly the impression you want to convey. This approach also weds you to the script and hinders your flexibility in asking logical follow- up questions.

28 The advantage of a mere outline – rather than a question and answer script – is that your questions will sound fresh and spontaneous, and you retain flexibility to ask follow-up and clarifying questions.

29 The ideal preparation of the witness includes a practice session with him, in which you ask and the witness answers questions just as if he were on the stand.

30 You must prepare the witness to testify by reviewing with him the questions you are going to ask and his proposed answers.

31 As long as you tell the witness to stick to the truth, there is nothing unethical about coaching or rehearsing the witness.

32 “Witness preparation for direct examination is not complete until you have run through your actual planned questions and seen how the witness actually answers them.

33 Care must be taken not to rehearse the examination so extensively as to cause the witness to deliver an obviously memorized set piece. If the testimony appears canned or seems to be the product of a script, much of the witness’s credibility will be lost.

34 Presentation and delivery It is not, however, a simple matter of getting the story or the facts out. The direct examination should tend to portray a clear and dramatic picture of the main events. As a trial lawyer, you should view a trial, particularly a direct examination, as a creative art, one which allows you to tell a story to the court in a way that is most advantageous to your client.

35 To make your direct examination a highly effective one, the following suggestions should prove helpful:  “Humanize” your witness.  Keep it simple. -  Use short simple words.  Use sensory language.  Elicit visual descriptions.  Avoid leading questions.  Present the testimony of the witness in the most logical and effective manner.

36  Volunteer weaknesses.  Use exhibits to highlight and summarize facts.  Listen to the answers of the witness. -  Vary the pace or tempo of the examination.