At a trial or deposition, there are two main ways to elicit testimony from a witness: direct examination and cross-examination. A direct examination is friendly, while cross-examination is hostile. A witness will take direct examination from the party who called them as a witness. They will then face cross-examination from the opposing party’s lawyer.
Direct examination takes place in two possible settings – deposition and trial. A deposition occurs after a lawsuit is filed but before trial. A deposition typically takes place in a lawyer’s office, in the presence of the opposing party’s lawyer but outside the presence of a judge. Witnesses participate in direct examination and cross-examination under oath, and their answers are recorded.
Best Practices for a Lawyer in Direct Examinations
Treat the following as a “how-to” guide to cross-examination:
- Know your witness‘s testimony by heart, and understand exactly how it fits into the story you are trying to tell the court.
- Develop a theme and a theory of your case. Ultimately, you are trying to tell the court a story. The evidence should support your theory of the case.
- Organize your direct examination according to a particular principle. Most direct examinations proceed chronologically, but not all of them do. Organize your examination in the most logical and understandable manner.
- Prepare all your questions in advance. Never ask a question that you don’t already know the answer to.
- Rehearse both direct examination and cross-examination with your witness, so they will know what to expect. Be tough on your witness, as it will help later.
- Ask open-ended questions that invite your witness to tell their story in their own words.
- Keep your language clear, simple, and free of ‘legalese.’ Advise your witness to do the same.
- Establish the witness’s background and qualifications. The qualification for an eyewitness could be simply witnessing the accident that produced the injury.
- Highlight key points and avoid getting bogged down in detail. Avoid confusing the judge or the jury.
- Keep control of the conversation. Don’t let the witness ramble off-topic.
- Deal with weaknesses in your case, including lack of evidence. You can be sure that the opposing party will bring them up during cross-examination. It’s best that the court hears your case’s weaknesses from you first – otherwise, you might appear to be afraid of them.
- Focus on facts, not interpretations.
- Think on your feet. Be prepared to modify your follow-up questions if the witness gives an answer you didn’t expect.
- Pay attention to dress and body language, both your own and your witness’s. Good non-verbal communication can make you look confident.
- End your examination on a strong point and a positive note.
The scope of direct examination is broader at a deposition than at trial. There are some questions you can ask at a deposition that you can’t ask at trial.
Special Case: Expert Witnesses
Conducting a direct examination of an expert witness involves its own special considerations. The following tips apply especially to expert testimony:
- Select your expert carefully. A “professional witness,” if otherwise qualified to testify, is often a good choice because they have experience testifying and will not wilt under cross-examination.
- Thoroughly understand the expert’s testimony before you walk into the courtroom or the deposition. This could take a lot of preparation if you are not already familiar with the subject matter.
- You need to prepare and rehearse with an expert witness even more intensely than you do with an eyewitness. You can be certain that the opposing party will seize upon the slightest flaw in your logic or evidence.
- Make a special effort to keep your expert’s testimony understandable to a lay jury without compromising accuracy. Make a special effort to simplify complex information
- You must pay particular attention to establishing the expert’s credibility, meaning their background, qualifications, and more.
- Consider starting with the conclusion and filling in the details later. This could render the expert’s testimony more understandable.
It is much trickier to examine an expert witness than it is to examine an ordinary witness.
Questions Not To Ask
Avoid the following types of questions, because they will draw objections from the opposing party:
- Questions that suggest their own answer (leading questions). “You were home all night on June 22nd, weren’t you?”
- Questions that call for speculation.
- Compound questions that combine two or more questions into one.
- Questions that call for inadmissible hearsay, such as “Why do you think he did it?” There are many exceptions to the rule banning hearsay, however.
- Irrelevant questions. Don’t start bantering about baseball scores just to ‘break the ice.’ Any question you ask must be related to the case.
Many other types of questions are likely to draw objections from the opposing party. The court will uphold some of them and overrule others.
A Miami Personal Injury Lawyer Can Help You With a Lawsuit
You won’t get a chance to conduct a direct examination unless you have already filed a personal injury lawsuit. Even a deposition will have to wait until you file your complaint and serve the lawsuit papers on the defendant.
You could try to handle all of this on your own, but it wouldn’t be a good idea unless your claim is so small there’s no point in bothering with a lawsuit anyway. Contact a Miami personal injury lawyer from Shaked Law Personal Injury Lawyers at (305) 937-0191 for a free case consultation.