The Purpose of Direct Examination

1. The Purpose of Direct Examination • The Overall Purpose of Direct Examination • Argue Your Case to the Jury • Obviously You Cannot Argue the Whole Case Through Virtually Any Witness • You Do As Much As You Can With Each Witness • It is the Lawyer Who Must Decide Where Each Witness Fits in the Overall Argument

2. EFFECTIVE TRIAL ADVOCACY: DIRECT EXAMINATION • DISTRICT COURT OF THE VIRGIN ISLANDS • MID-YEAR CONFERENCE • JULY 11, 2014 • PROFESSOR STEPHEN A. SALTZBURG

3. Four Tasks of Direct Examination • 1. Testimony Must Be Clear • If Not It is Worthless • Must Break the Testimony into Small Bites • 2. Testimony Must Be Credible • Clear Without Credible is Worthless • 3. It Must Be Invulnerable to X-Exam • Destroyed on X-Exam, Less than Worthless • 4. It Must Be as Memorable as Possible • Especially on the Key Points of Your Case • Small Bites and Repetition Help

4. IT’S AN ARGUMENT • You Argue As Much as You Can Through the Witness • The Lawyer Makes the Argument by Asking Questions • The Witness Provides the Answers

5. The Role of the Lawyer • The Lawyer Controls Pace • The Lawyer Controls Emphasis • The Lawyer Chooses the Argument • The Witness Just Answers Questions • Most “Bad Witnesses” are Bad Because the Direct Examiner Left Them Exposed

6. FRE 611 (c) Leading Questions • Generally should not be used on direct • They may be used as may be necessary to develop the witness testimony • With a hostile witness, adverse party, or witness identified with adverse party, interrogation may be by leading questions • Ordinarily leading questions should be permitted on cross-examination • More on leading questions later

7. Directs Should Not be Narratives • Objectionable (although savvy lawyers don’t object) • Boring • Does not Break Facts into Small Bites • Does not Repeat the Important Facts • Witnesses Who Work Too Hard Are Not Credible • More on This in a Moment

8. Four Laws Always to Remember • Primacy – People Remember and Focus on What They Hear First • Recency – People Remember and Focus on What They Hear Last • Frequency – People Recall Things That Are Repeated • Vividness – People Understand Things Best When Those Things Are Vividly Portrayed

9. Who Uses The Four Laws?Lawyer or Witness • Primacy – It is the Lawyer Who Decides What Goes First By Questions Asked • Recency – It is the Lawyer Who Decides What Goes Last By Questions Asked • Frequency – The Right Questions Get Things Repeated • Without Running Afoul of “Asked and Answered” • Vividness – Surprisingly, Questions that Enable Witnesses to Provide Vivid Testimony

10. Witnesses and Bias • Witnesses Who Work Too Hard Appear Biased • Witnesses Are Supposed to Answer Questions, Not Argue the Case • Lawyers Make Witnesses Credible • Personalize Them • Allow Them to Emphasize Strong Points • Allow Them to Repeat the Good Stuff

11. Introduce Your Witnesses • Don’t Have Your Head Down and Say to the Witness, Please State Your Name and Address for the Record • The Jury Wants to Know About the Witness • His or Her Name is Not Unimportant • The Jury Wants to Know Whether the Witness is Someone They Can Trust • Questions About Jobs, Family, Education, Experience Can Therefore Be Critical

12. Argue Through Your Questions • You Ask Questions So that a Witness Provides the Answers that Make the Points You Want Made and that Bolster Your Theory of the Case • Only You Can Decide How Many Questions to Ask, in What Order to Ask Them, and Whether a Point is Clearly Made • As Long as the Witness Understands that He/She Need Only Answer Your Qs and Their Role in the Case, the Witness Relaxes – Like a Dance Duo in Which You Lead

13. Looping Enables Emphasis and Argument • By Looping, You Can Argue Your Case to the Jury and Emphasize the Things that Matter • By Combining Open Ended and Closed Ended Questions, You Can Emphasize the Things that Matter • By Having the Witness Diagram a Scene after Describing it, You Can Repeat the Good Stuff and Emphasize What Matters

14. An Example of Looping • Q. Did You Hear Anything Unusual? • A. I Heard the Roar of an Engine? • Q. Did You Hear Anything Else Near the Time You Heard the Roar of the Engine? • A. I Heard Tires Squeal?

15. More Looping • Q. How Much Time Elapsed Between the Engine Roar and Tires Squealing? • A. I Heard Them About the Same Time? • Where Were You Standing When You Heard the Engine Roar and Tires Squealing? • I Was a Few Feet from the Door of The School? • How Far Away From the Road Were You When You Heard the Engine Roar and Tires Squealing?

16. No Asked and Answered • Each Question is Different from the Preceding One • The Objection “Asked and Answered” Will be Overruled • Do You Really Care About the Details? • Only to the Extent that You Are Able to Repeat and Argue the Points that You Want to Be Sure the Jury Understands and Remembers

17. Transition Questions Should Be Used Liberally • Use Transition Questions • Not really questions at all • They Serve Function of an Outline • E.g., I want to ask you some questions about your physical condition prior the accident • I want to ask you some questions about your physical condition after the accident • Now, I want to ask you some questions that compare your condition before and after

18. Written Out Questions • Should You Write Out Questions? • Why Would You? • Remember the Points You Want to Make? • No, You Would Write Out Answers • Why Do Lawyers Write Out Questions? • It is the Fear of Leading and Being Stopped with Objections

19. Problems with Written Questions • Some Lawyers Practice Each Q and A with a Witness as Though It Were a Script • This May Make Witnesses More Nervous • What if the Judge Sustains an Objection to Qs and You Need the Material? • What if the Witness Deviates from the Script? • It is Not Necessary to Write Out Questions • In Fact, You Should Focus on the Substance You Want to Elicit, Not Specific Words

20. Don’t Worry So Much About Leading • Remember that You Do Not Go to Hell For Asking a Leading Question • With Some Witnesses You Will be Permitted to Lead • Adverse or hostile witnesses • Children • Witnesses with Disabilities • There are Times When You Must Lead a Forgetful or Nervous Witness

21. Saving the Witness and Your Case • A Price-Fixing Case in Which the Witness is Cooperating with the Government and Describing Meetings in Which Pricing was Agreed Upon • Q. Where was the second meeting? • A. Uh, Uh, I’m having a little trouble recalling. • Q. Was it in Philadelphia? • A. Objection! • Court: Sustained. • Q. Where was the second meeting? • A. Philadelphia

22. Who Won? Who Lost? • In the Previous Example, You Might Have Tried to Refresh Recollection with a Document • You, However, Are Not Required to Do That • Do You Want to Interrupt the Flow of Your Direct or Move it Along? • Yes, An Objection was Sustained. So What” • Do You Think the Jury Liked the Objection? • Do You Think the Jury Will Identify with the Witness or the Objecting Lawyer?

23. Who Knows What is Leading Anyway? • Bank Robbery Case; Teller is the Witness • Q. Was the Robber Tall? • Leading? • Q. How Tall was the Robber? • Leading? • Q. Was the Robber Tall or Short? • Leading? • Q. What Happened Next? • Leading?

24. Definition of “Leading” • Defined as Suggesting the Answer • But Everything is Leading to Some Extent or Trials Would Never End • Even “What Happened Next?” is Suggestive • Judges Vary on Their Approaches to What is Leading • At the Outer Margins, They Agree that • What Happened Next? is Not Leading • Was the Robber 6 feet, 4 inches? Is Leading • In the Middle, All Bets Are Off

25. Don’t Be Afraid • Usually, If You Think of the Answer You Want the Witness to Give, The Question Will Come • What Would Your Ask the Teller in the Robbery Case to Get the Teller to say: • 1. The Robber Wore a Back Coat and Grey Pants • 2. He Had a Bandaid on His Right Cheek • 3. He Had a Gun in His Right Hand • 4. He Was About 6’4” Tall • 5. He Handed Me A Sack • 6. He Told Me to Fill the Sack with Money or He’d Shoot

26. Leading Without Leading: Choices • If You Cannot Think of the Right Question, Offer a Choice • Was the Second Meeting in Philadelphia, Chicago or Somewhere Else? • Was the Robber Tall, Short or Medium? • Choices Appear Not to Be Leading? Good! • But Choices Enable the Examiner to Control the Subject Matter and Focus the Witness on It. Also Good.

27. If All Else Fails, Lead • If You Cannot Think of a Question and You Need the Answer, then Lead • Yes You May Get an Objection • Unless You Do this Repeatedly, No Judge Will Care • It is Vital that You Get from a Witness What You Need • It is Better for You to Lead, Suffer Having an Objection Sustained, and the Get the Answer You Need than to Forego an Answer Because You are Fearful of Hearing “Objection Sustained”

28. Don’t Try to Sound Like a Lawyer • You Do Not Have to Ask Questions Like “Where, if Anywhere, Did Your Go? What, if Anything, Did You Do? Who, if Anyone Went Along? • Why Do Lawyers Ask Such Questions? • They Sometimes Want to Sound Like Lawyers. Good? No! • They Want to Sound Not-Leading. Necessary? No! • Each of These Qs Can and Should Be Different

29. Avoid Exactitude on Direct Examination • Exactitude is the Enemy of Direct • E.g., Witness Says Robber was 6’4” • Witness is Not a Human Ruler • Better to ask “Approximately How Tall Was He?” • “Might He Have Been a Little Taller or Shorter?” • Protects the Witness from X-Exam Designed to Attack Certainty

30. Witnesses are Nervous About Conversations • This is Understandable • Witnesses Do Not Recall Word for Word What Was Said & Should Not Claim To • “Can You Remember Word for Word What You Said to Him and He to You?” • “But, Can You Remember the Substance of the Conversation?” • “Please Tell Us Who Spoke First?” • “In Substance, What did He Say to You?”

31. Nervous or Wordy Witnesses • Must Tell Witnesses that You May Interrupt Them • Explain This is Not Rudeness But Protection • Opposing Counsel May Object that the Witness Didn’t Finish the Answer • Judge Will Ask: “Are You Done?” • Answer is “Yes” • Holding Up Your Hand May Stop a Runaway Witness

32. Dealing with Nerves • Should You Videotape Your Witness and Watch the Tape with Them? • What are the Risks of Discovery? • Should You Write Out a Sample Script for the Witness to Practice? • Again, What are the Risks of Discovery? • Should You Take a Witness Into a Courtroom to Give Them a Feel for It? • Probably Little if any Risk

33. A Recess Can Help • When a Witness, Especially an Important One, is Very Nervous, You Might Consider Putting the Witness on to Talk About Background (Family, Work, etc.) and then Seek a Recess • Many Witnesses Relax Once They Get a Feel for the Q and A and a Sense of Being on the Stand

34. Exhibits • Mark Them All Ahead if Possible • Know the Court’s Rules • Foundation • I Show You What Has Been Marked for Identification as _____’s Exhibit ___ • Can You Identify It? • What is It? • Photos or Tapes: Is it a Fair (True) and Accurate Representation of [Whatever]?

35. Additional Authentication • If It is Not Obvious That Your Witness Has Personal Knowledge of An Exhibit, You Might Want to Ask Additional Questions • If a Witness Says, “That’s My Hotel Bill” Further Questions Are Not Needed • If a Witness Says, “That is a Letter that the Defendant Wrote” You Might Need to Make Clear How the Witness is Able to Identify It as the Defendant’s

36. Moving Exhibits • Many, if not Most, Exhibits are Used to Corroborate Testimony and Have Little Independent Value • A Key Tactical Judgment is When to Offer an Exhibit • If You Are At An Important Point in Your Examination, Moving an Exhibit Into Evidence May Result in Your Adversary Asking for a “Voir Dire” in Aid of An Objection • This May Interrupt the Flow of the Examination

37. Voir Dire • Most Judges Will Give an Adversary a Chance to Ask Some Questions if He or She Claims it Might Aid or Avoid an Objection • Jury May or May Not Be Excused • Jury Present May Hear Something Direct Examiner Did Not Want Heard • Jury Absent Gives Adversary a Chance to Explore More Widely and May Be a Longer Interruption

38. If You Want to Use the Exhibit, Move It • You Must Get an Exhibit Admitted Before You Can Show It To the Jury • So If You Need the Jury to See It, You Must Move Its Admission and Take The Risk of a Voir Dire • If You Don’t Need The Jury to See It in the Moment, You Can Wait Till the End of the Examination and Move Any Exhibits Not Yet Admitted • At the End Voir Dire is Much Less Likely Because the Adversary is Anxious to X-Examine • You Can Re-Authenticate Easily if the Judge Is Unsure Whether You Laid a Foundation

39. FRE 607 Permits Any Party to Impeach Any Witness • You Should Consider Motions In Limine to Exclude Impeachment Evidence Directed at Your Witnesses • If the Court Rules that Impeachment is Permissible, You often Will Bring Out the Impeachment Material Yourself • Your Goal, Of Course, Is Not Really to Impeach; It is To Take the Sting Out of X-Examination and to Offer the Evidence in the Least Damaging Way

40. Organizing the Direct • Primacy and Recency: Start and End Strong • Don’t Get to the Impeaching Material Until Close to the End • The Longer the Jury Hears and Believes the Witness, the More It Will Excuse Deficiencies • But Don’t End on the Impeaching Material • Transition Qs Permit You to Go Back and Forth in Time and Place; Choose the Most Persuasive Way to Make a Point Through a Witness