Direct Examination

Direct Examinations

Direct Examination

Noble County Courthouse,  Albion, Indiana, 1887, Richardson Romanesque style, red brick with limestone trim. 

Objective:

A Direct Examination is where an attorney conducts an examination of their own witnesses to bring out the facts of the case.

An effective direct examination should isolate exactly what information each witness can contribute to proving the case. It should be posed as a series of clear, simple questions designed to obtain that information. All testimony from a particular witness that is needed to prove the case must be presented or the jury cannot consider it later.

What to know before drafting a Direct Examination:

  • What is your team’s theory of the case?
  • What themes does your team want to emphasize?
  • What are the strengths and weaknesses of the witness in their statement?
  • What are the four to five most important points your team wants to make with this witness?
    • Suggest using a witness analysis sheet to prioritize issues
  • What are the key facts your team wants the witness to admit/testify to?
  • What is the overall impression your team wants to leave the jury with regarding this witness?
  • Are any exhibits going to be used and perhaps introduced with the witness?
  • What is the total time allowed for all direct examinations?
    • Check the Mock Trial rules in your jurisdiction
    • Allocate the time between all witnesses
  • What possible objections might be made to the direct examination questions? What response might you give?  
  • What objections could  be made against the witness’s testimony on cross examination?
  • What questions do you anticipate on cross examination?
  • What questions might you ask on re-redirect?

Anatomy of a Direct Examination: The Basics

  1. Call the witness with a formal request
    • “Your Honor, I would like to call (full name of witness) to the stand.”
    • The clerk will swear in the witness before you ask your first question
    • The clerk should also ask the witness to state their name 
  2. Choose an organizational structure to use
    • Most direct examination start with getting to know the witness’s background
    • A chronological approach is good for a lay witness
    • An issue approach is another option for some witnesses
    • Expert witnesses typically follow a different structure (see below)
  3. Introduce the witness’s background
    • It is good practice to ask some introductory questions of the witness to help him or her feel comfortable
    • Appropriate introductory questions might include asking their name (if not already given), residence, present employment, etc.
    • After this introduction the jury should learn why the witness is testifying
      • “Will you tell us a little bit about yourself?”
      • “How are you connected to the case?”
      • “Please tell the jury a bit about  your background?”
  4. Ask open ended questions
    • Who, what , when, where, why, how
    • Proper phrasing of questions on direct examination include:
      • “Could you please tell the court what occurred on (date)?”
      • “How long did you remain in that spot?”
  5. Do not ask leading questions
    • Generally, leading questions state the facts in the question and ask for a “yes” or “no” answer
      • “You waited there for 15 minutes, correct?”
    • Opposing counsel can object to a leading question on direct
    • There are some preliminary “yes”and “no” questions that are in the grey zone, and if objected to, the judge may rule either way
      • “Did you see anything while you waited?”
  6. Ask questions which allow the witness to tell the story.
    • Help the witness shine
    • Make the witness seem believable
    • Get out the facts that support your side
  7. Use transitions between points
    • “I would like to move to the events of …”
  8. Conclude your direct examination with:
    • Thank you Mr./s. ________. That will be all, your Honor

Going deeper: Ways to improve Direct Examinations:

  • In a Mock Trial the attorney is judged on both:
    • Substance and technique . . . AND
    • Performance and style

Substance and Technique

  1. Keep revising your direct until it is exactly as you want it
    • Work closely with your witness when drafting the direct examination 
    • Practice your direct examination with the witness many times
    • Keep revising the examination until both you and the witness are satisfied
    • Examinations go through many edits and revisions 
    • Seek input from others on your team as to facts and questions that may have been missed
    •  Try things out – if they don’t work, don’t use them
  2. How to ask questions
    • Open ended (who, what, when, where, why, how)
    • Use short sentences
    • Be simple and direct
    • Clarify and enlarge on previous questions and answers 
    • Avoid humor, hyperbole and sarcasm
    • No legal mumbo jumbo
    • Avoid commentary 
      • Use sparingly, if at all
      • Example: “Now this is very important…” 
  3.  What to ask questions about
    • Questions that get out the facts you want
    • Questions that allow the witness to act
    • Never ask questions you do not know the answer to
    • Limit your key points to 4-5 major areas 
    • Build the case, don’t win it – leave that for the closing argument 
  4. Listen to the answer
    • Even though directs are rehearsed testimony doesn’t always come out as intended
    • Know what your witness is supposed to say
    • Make sure they didn’t miss anything
    • If the witness forgets something
      • Try with an open ended question
      • Try to slip in a leading question
      • If objected to, then come back with an open ended question (witness should be reminded by then)
  5. Be prepared and organized
    • For each question, have a page and line numbers where the answer will be found in the witness’ statement 
    • Have exhibits ready
    • Have witness statement available if needed for impeachment or objections
    • Have Mock Trial rules ready in case you need them
    • After the first direct examination, check time remaining before starting each subsequent direct examination 
  6. Transition between subject areas or time periods. Transitions can be:
    • Pauses
    • Changes in body position
    • Language
      • “Now I’d like to talk about . . .”
  7. Use crime scene map or diagram if available 
    • If no map, use courtroom for distances
    • It’s easier to visualize “from here to the door” than it is “60 feet”
    • If you do use the courtroom make sure it is consistent with the distances in the witnesses statement
  8. Protect your witness on Cross Examination
    • On direct, don’t give away all the details – save some for cross or re-direct
    • Common objection to do this are “Argumentative, “Asked and answered,” and “Calls for speculation outside this witness’s knowledge”
    • Consider addressing that which will be brought out on cross
      • This is a tactical call – there is no right or wrong strategy
      • Pros:  can soften the impact and allow the witness to explain in advance
      • Cons:  the opposing attorney might not go into this, it results in repetition of the point so the jury will remember it more
    • Have re-directs ready to rehabilitate the witness (see section on re-directs below) 

Performance and Style

  1. Practice – rehearse the direct with the witness
  2. Create drama in the courtroom
    • Tell a good story that does not appear scripted
    • On some occasions it may be OK for the witness to correct the attorney 
    • It’s even OK to have the witness disagree with the attorney at times, if this is planned
  3. Help the witness shine
    • Keep the focus on the witness
    • Imagine you are invisible
    • Talk to the witness not the jury
    • Use courtroom to develop emotional content
      • Example: Referring and pointing to other witnesses present
    • Position yourself to optimize the connection between the witness and the jury  
      • This may vary based on courtroom configuration
      • Stand with jury (a bit to the side)
      • Stand with your client at appropriate times
      • Do not block witness’s view of the jury
      • The witness should not have to turn their head back and forth between the attorney and jury to answer questions
  4. Memorize the Direct Examination
    • Memorize content, movement, inflections, and gestures 
    • If notes are needed
      • Use them sparingly
      • Do not read them
      • Use a legal pad or clip board so they do not flop around 
  5. Use conversational language 
    • Let the type of case dictate your style and tone
      • Example: A prosecutor might want to be more forceful whereas a defendant might want to evoke sympathy
    • Enunciate clearly 
    • Use slight voice changes to emphasize points 
      • Do not overdo it
      • The primary emotions should come through the witness
  6. Use body posture and movement deliberately and consciously
    • Maintain upright body posture (do not slouch)
    • Keep shoulders back to show confidence
    • Stay balanced
    • If you move, make the movement coincide with transitions between points
    • Try not to change position more than 7 times
    • Try not to fidget or make unnecessary gestures or body movements
  7. Use gestures consciously and sparingly 
    • Focus should be on the witness
    • Gestures can be used to create emphasis
    • Don’t shy away from pointing to individuals in the courtroom 
  8. Act professional and confident – even if you are nervous

Direct Examinations of Expert Witnesses

Direct Examination of expert witnesses typically follow some variation of the following form:

  • First ask questions about the expert’s background and qualifications
  • Some competition rules require you to request that the witness be qualified as an expert – to do so you ask the judge that the witness be qualified as an expert in ____________.
  • Questions about what the expert reviewed to prepare to testify
  • Ask if the expert formed any opinions/conclusions based on what they reviewed (“yes”)
  • Identify the opinions/conclusions and go into them in more depth
  • End with something you want the jury to remember
  • Have some good re-direct questions ready to go

Making and responding to objections

  • Review and practice how to make objections (see this section on this website)
  • When the other side objects to something you will have an opportunity to respond
  • If the objection is a minor one as to the form of the question consider just correcting it so the flow of your story is not disrupted
    • “Objection, leading” – Just say “Your honor, I will re-ask the question”  Then follow with an open ended question,
    • “Objection, no foundation”, if there is no stipulation which establishes the foundation just ask a series of questions to do so. “Who wrote this”? When did you write this?” etc.
  • Protect your witness on cross with objections as to both form and substance.
  • You should adopt a different persona when making and responding to objection
    • When asking questions on direct the goal was for the attorney to disappear and let the witness shine
    • When responding to objections the attorney no longer has to disappear and should be assertive and respond directly to the Judge

Re-direct Examination

  • A re-direct is when the direct attorney asks the witness a question about something dealt with during cross examination 
  • A re-direct can help the witness have the last word and make a final impression on the jury
  • The direct attorney cannot ask a question on re-direct that does not relate to questions asked by the cross attorney or an objection may be raised 
  • The Mock Trial rules limit number of re-direct questions that can be asked. (typically 2 questions)
  • The questions still have to be open ended
  • Prepare in advance a list of possible re-direct questions and go over them with the witness
  • Make the questions count –  ask something the witness can expound upon 
  • Practice planned redirects beforehand with the witness 
  • Listen to what the witness says on cross – do not be afraid to deviate from the prepared list if something needs to be clarified – especially if the opposing attorney cuts the witness off on something
    • “On cross, opposing counsel was asking you about . . . . “
    • Then ask an open ended question allowing the witness to provide clarification

Resources

Direct Examination Worksheet

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Direct Examination Worksheet

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Direct Examination I – Hosting a Conversation

Direct Examination II – Establishing Believability

Example of Direct Examination Louisiana State University Law Center