Direct Examinations

AuthorJohn Hollander
direct examinations
direct examinations
chapter four
Direct Examinations
   types of examination that the trial
lawyer will encounter. e rst is the direct examination,
in which the examiner examines a witness for the party
represented by the examiner. e second is the cross-
examination, in which the examiner questions a witness
who is called by a party adverse in interest. e third is
the redirect, in which the examiner gets to put questions
to the witness that stem from answers given during the
cross-examination. ere is another type of examination,
almost a hybrid of the direct and cross. is is the out-
of-court examination, whether for discovery or by depos-
ition, which is the subject of another handbook in this
series, Discovery Techniques.
is chapter of the handbook canvasses the conduct
of direct examinations. ese are unlike the other two
types in that the examiner can practise and prepare with
the witness in advance. is suggests that there are three
distinct phases to the preparation process:
. e examiner prepares to interview the witness.
. e examiner interviews the witness to prepare for
the examination.
   
. e examiner puts together the rst two phases and
prepares for the examination itself.
Each of these involves case analysis and preparation of an
At trial, the examiner conducts the direct examina-
tion in real time. e purpose of the examination is to
elicit evidence that will help the case of the examiner and
hurt the case of the opposition. e examiner may want
to either bolster the credibility of the examiner’s witnesses
or hurt that of the others. e examiner may also try to
develop the back story and the theme or themes that will
allow the examiner’s position to prevail at trial.
e tactics that examiners employ during direct exam-
inations are somewhat dierent from those employed dur-
ing cross-examinations. ere are constraints in how direct
examiners may compose their questions, and there are
opportunities for lawyers to prepare their witnesses for
direct examinations, which do not exist for either cross-
examinations or redirect examinations.
e preparation process can be the make or break
point of the examiner’s case. Not only does the examiner
prepare the witness for the examiner’s questions, but the
examiner prepares the witness for the cross-examination
that will follow. e rst phase involves teamwork and
storytelling, and the second, mitigation of risk and dam-
age control. is chapter of the handbook canvasses all of
these subjects.
direct examinations
Storytelling in Direct Examinations
   is the opportunity for the wit-
ness to tell the story. Consider the commonly phrased
question that begins, “Tell us in your own words . . . .”
What does this mean? Does the witness recite from a
script written by others? is section and the following
one explore how the direct examination should allow the
witness to tell the story.
e “story” is restricted to the components that the
witness has to oer. For example, the witness may know
about one part of the case but not others. at part
should t well into the overall storyline of the case, as
presented by the direct examiner’s other witnesses. is is
where case analysis is so important. e function of the
witness is to provide some of the components necessary
for the direct examiner to make out the case. However,
this alone does not make the testimony compelling, or
even interesting.
Ability of the witness
   of a witness’s testimony
is very much a matter for the lawyer to consider. e
relevant context is the capacity of the witness to tell the
story. As with all examinations, lawyers should consider
carefully the capacity of the witness to testify. is cap-
acity includes the witness’s ability to
understand the question,
appreciate its signicance,
articulate a response,

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