Direct Examinations

• Author: John Hollander
• Pages: 83-130

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

outline.

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,