Preparing Witnesses for Direct Examination Master Class: Working with Witnesses ABA 2018 Professional Success Summit By Kalpana Srinivasan The moment your clients and other key witnesses have been waiting for since the start of the case is here: they get to tell their story at trial. While depositions largely are an exercise in avoiding giving unhelpful testimony, looking bad on video or being locked in to one theory, a direct examination at trial is the moment in which a witness with the careful guidance of a lawyer can walk a jury or judge through key issues to guide the case. As a lawyer, it is your job to help the witness do so developing the narrative, setting the scene, and showing your witness in the best light. Here are some considerations for developing that direct examination the best of which will involve intense and close preparation between lawyer and witness: Get to (really) know your witness Too often lawyers prepare the examination of a witness without the benefit of really learning their witness. o There is no substitute for spending the time getting to know the witnesses you will present at trial, including what motivates them, how they learn, their strengths and weaknesses, the language they are comfortable using and what environment they can flourish in. For example, lawyers often assume their witnesses are visual learners who do best looking at documents or reading materials. Some are not and may need more inperson work or visual learning techniques like watching
snippets of their own videotaped deposition or diagrams representing case issues. o It is never too soon to start. A great direct examination including achieving a deep understanding of your witness can take weeks of work. It often involves learning about that person outside of their role in the case to consider whether that is something the jury should hear about too. Who is your witness and how do you want him or her to be perceived by the jury? o Before jumping in to the mechanics of preparing a direct examination, consider the character of your witness. o Some witnesses get so bogged down in their feelings about the litigation, that they forget their own role in the overall and underlying story. o Spend time just discussing with your witnesses who they are in the cast of characters before the jury, helping them see the big picture and what they are there to accomplish. o It is helpful to brainstorm and write out with your witnesses what you are trying to achieve in your presentation what feeling you hope the jury will take away about the witness before getting deep into the mechanics of preparing the testimony. o Here is an example of what whiteboarding might yield, which of course will depend on the witness and the nature of the case: Plaintiff in an employment case Defendant corporate executive in a class action dispute Sincere Harmed Reasonable Hands on Concerned Fair
Inventor Straightforward Problem solver Accomplished Innovator Working through these traits collectively with your witness will help ensure that they are also authentic. Keep bringing the witness back to these traits in developing questions and answers. o For example, the executive that is hands-on should testify affirmatively about her role in managing her company and her knowledge of her own company s policy. She should also be prepared to avoid answering I don t know or otherwise sounding ignorant about her company s business when probed on cross examination. o The inventor should explain in her direct testimony what motivated her and what problem she was looking to resolve by her work with detail. Consider how the witness will present, taking into account the personality of your witness. This demeanor needs to be one the witness can sustain consistently on both direct and cross examination. The jury does not want to see a measured, thoughtful person on direct turn defensive and angry on cross. o What type of tone should the witness seek to have and maintain? Emotional Aggrieved Even-keeled Firm o How should the witness look? Confident Concerned Natural o How should the witness answer
Short and direct Longer narrative Drafting the direct examination In creating your narrative, the flow of the story is up to you. In many cases, covering issues in chronological order will make the most sense. But at other times, organizing specific points or topics responsive to your order of proof will work much better. Developing your examination in blocks focused on points background, the story of the individual or business, specific topics in the litigation which can be moved around will help you and your witness to respond to any changes as trial unfolds. It s important for the jury to hear from your witness. While you are there to guide him or her through questions, the jury wants to hear them -- and not you speaking. Figure out how to frame your questions so they will be manageable for the witness. o Talk through the direct questions you have with your witness to determine how best to make them understandable to your witness. You may think your questions are clear or simple: your witness may have no idea what you are trying to get at. o Let your witness revise your draft questions to put them in language he or she can follow. Consider how you will transition between sections and issues to help guide the jury (subject to what the court permits). Regardless of the points you are trying to establish with your witness, preserving his or her credibility on direct examination in anticipation of cross examination is critical. o Front bad documents: Identify the 7-10 worst documents in the case that involve your witness. These will likely be emails. Study them and discuss them with your witness. Figure out a natural way to work them in to your direct examination to allow your witness to explain the context. o Diffuse bad prior testimony: Identify the 3-5 worst admissions from your witness deposition. Hopefully, some
of those bad answers were cleaned up during a short direct at the end of the deposition. But talk through with your witness what he or she or anything that has changed since that testimony was given to work into a direct response much better than being impeached later on when the witness tries to explain. o Other tough case issues: Tackle head on any thorny issues in the case that it would be appropriate for the witness to answer so it does not seem like the witness is trying to hide something. Practicing the direct examination Run through the direct examination as many times as you can. As you go, revise questions that are not clear or trip up your witness. Work on answers to make sure the witness is comfortable with the length and substance. If the witness is having trouble remembering key points, figure out key words in your direct that will help jog his memory. Use the actual demonstratives and documents the witness will see on the stand so she is not struggling to understand or read them once already on the stand. Have others on your team serve as mock jurors sitting where the real jury will be positioned. This will allow your witness to practice turning and facing the jury and will relax some of the pretestifying nerves. While the above are meant to serve as some tools and tips for helping achieve a successful direct examination, they will vary by type of witness and case. Most importantly, for key witnesses, they should walk away feeling they had a chance to tell their story and present the facts with an attorney as their guide.