Techniques in Common for Examinations in General

• Author: John Hollander
• Pages: 35-66

techniques in common for examinations in general

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techniques in common for examinations in general

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chapter two

Techniques in Common for

Examinations in General

 ,  eect, controlled discussions.

Two people speak with each other in the presence of an

audience, the trial judge and opposing counsel (at least).

e examiner leads the discussion in the sense that the

questions direct what subjects the witness should address.

ere are several techniques common to both direct

examinations and cross-examinations. It is common, for

example, to follow up answers with more questions on

the same subject or to use a word or phrase spoken by the

witness or an idea expressed by the witness in a follow-up

question (looping).

Examiners should control the momentum of the

testimony (subtly in direct, not so subtly in cross). As with

a movie director or orchestra conductor, the trial lawyer

can create a favourable or unfavourable impression by the

use of pace. Pauses, or the lack of them, are the most com-

mon method to manage the pace of the testimony of a

witness. All examiners face the threat of objections. Noth-

ing kills the momentum of an examination more eect-

ively than a well-timed objection. A close rival for this

as a momentum killer is an argument with the witness.

   

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Lawyers who argue with their witnesses lose momentum,

if not the point itself.

As with most of this handbook, the techniques sug-

gested in this chapter are merely that, suggestions. When

lawyers speak, they are the only ones responsible for what

they say. is chapter will suggest several techniques that

will help lawyers project professionalism and competence.

Follow-Up Questions

   able to follow up the answers given

by witnesses with relevant questions. is applies to every

situation in which lawyers ask questions, all the way from

initial interviews with clients to interviews of witnesses to

direct examinations and cross-examinations at trial. is

subject features prominently in e Art of the Interview,

the rst handbook published in this series. e follow-up

technique requires the examiner to listen to the answer.

is point should be obvious. Alas, it is ignored by many

counsel — all wrapped up in their prepared questions, the

only reason some lawyers listen to the answer is to know

when it is polite to ask the next question on their list.

e ability to follow up is a discrete skill: it requires

practice. Consider any fact or point, any one. en run

o a series of follow-up questions, all open questions, at

least for the purpose of this drill.

1 John Hollander, The Art of the Interview: How Lawyers Talk With

Clients (Toronto: Irwin Law, 2013), online: www.irwinlaw.com/

titles/art-interview.

techniques in common for examinations in general

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exAmple

   discussion is that the pen had black ink.

Follow-up questions include the following:

• “What pen are we talking about?”

• “Whose pen was it?”

• “Where was it?”

• “Describe the pen.”

• “What was the brand of the pen?”

• “What colour was the ink?”

• “Where did the pen come from?”

• “Who knew about the pen?”

• “What notes did you make about the pen?”

• “What literature described the pen?”

It is obvious that many of these questions are trivial and

even silly, but the purpose of the demonstration is to

show how many questions can follow up a simple state-

ment of fact. Witnesses answer open questions in direct

examination with answers that beg for more detail. With

practice, lawyers can become expert at following a trail

wherever it leads.

Note that the follow-up questions identify single facts.

Where the rst question in a series may have been an

open question that allowed for multiple facts in the re-

sponse, the follow-ups seek a single fact each. is allows

the examiner to zero in on exactly the point to be made.

is is not only a technique for direct examinations.

In cross-examinations, witnesses often give longer answers,

and answers may also be non-responsive or unexpected.

Lawyers can seize the opportunity to ask short, pointed,