Preparing for Trial – Direct Examination

Once I heard a trial lawyer making a speech. He recalled a time when he had to testify in a civil action. This lawyer was experienced, intelligent and motivated to testify clearly, completely and truthfully. But while he was testifying on direct examination, answering questions asked by his own lawyer, he could not tell for sure what facts his own lawyer wanted. “I had no idea where we were going.”

If an attorney-witness cannot read the examining attorney’s mind, imagine the difficulty facing the average witness. More nervousness, less familiarity with the elements.

A colleague of mine once was trying a case. The adverse party was being examined by the adverse attorney. The adverse attorney became visibly exasperated with his own witness for failing to give the desired answers. Of course, the witness had a common shortcoming, that is, lack of mental telepathy.

Presenting a guessing game is the wrong way for a witness to testify. You may wish to consider the most effective way to prepare a witness for direct examination.

The best method I know of is to write out, for each witness, each question to ask, and each expected answer, in the order for trial testimony.

The expected answers come from prior interviews with the witness. Preparing the question and answer memorandum forces the trial attorney to organize. You will decide which facts to introduce from which witness and in what order.

Moreover, you should write into this question and answer memorandum the exhibits to be introduced, and at what point from what witness. In a State court case, with no pre-admission of exhibits, the foundational questions can be organized and written into the memorandum. Potential objections are eliminated.

Some attorneys believe that this is too much work. I hope that all my opponents think this.

A few days before trial, when meeting with a witness, you will use the question and answer memorandum to go over the testimony. Inevitably, you discover weak spots, confusion over what you are asking, and the need to improve. After revision, you go over it again.

No witness will testify completely in accordance with your expectation. But your presentation will be much smoother and complete. Your witness will be nervous, but much less so since every question on direct will be a question the witness has heard before.

Since examples are useful, another post will provide an excerpt from a memorandum as used in actual testimony, with names changed to preserve confidentiality. (We won the prayer for relief.)