Direct Examination:

The Art of
Communication

Mastering Powerful Cross Examination,

Openings & Closing Statements
October 25, 2012

Trace Blair
Haynes and Boone, L.L.P.
trace.blair@haynesboone.com

I. INTRODUCTION
There is a common thread that runs through all good trial lawyersand all successful individuals
in general. It is the ability to communicate effectively. In this article, I will reveal my thoughts
on what is likely the most important and most often overlooked arrow in the trial lawyers quiver
of communication toolsthe art of creating an effective direct examination. Lawyers who have
the ability to deliver scathing cross-examination and eloquent closing arguments are common.
But the one constant among the few truly gifted trial communicators is the ability to organize and
deliver the theme of their message and argument through well organized direct examinations.
Direct examinations have earned a reputation as being boring. Direct exams present the nuts and
bolts of your case. It is the who, what, when, where, how and why that is crucial to convey to
the jury. But long narratives presented in chronological order that plod through a mountain of
seemingly irrelevant details are worse than a conversation with your mother-in-law on the
Richter scale of excitement. The skilled trial lawyer who has done his homework and taken the
time necessary to prepare can avoid having his direct examination viewed by the jury as a strong
sedative.
The cardinal rules of the game mandate that direct examinations be conducted with a specific
purpose upon which both the lawyer and the witness remain focused. The direct should be clear
and memorable, for if the jury does not understand and remember the testimony, it is absolutely
worthless. It must deliver every necessary detail, yet be brief and pointed. In addition, the
witness delivering the story must be credible. The following are my thoughts on various
strategies which may assist you in accomplishing these goals.
II. THE ROLE OF THE LAWYER
Consider yourself the jurys guide from the very minute the entire panel enters the courtroom
before jury selection to the last breath of your closing. Remember that the jurors will be in
foreign territorymost will be lost in this intimidating process. They will be looking for a
native familiar with the process to befriend and lead them to comfort. By the time you call
your first witness, you will have established your role as that guide, and the jury will trust you.
However, you must never confuse the importance of your role with that of your witnesses.
Despite what we might otherwise like to believe, overwhelming jury research tells us that the
outcome of your case depends on the witnesses and their credibilitynot on your skill as an
orator. Your witness must carry the ball, but you must remain in control of calling the plays.
Rememberyou are the jurys guide, and the ability to guide a witness effectively through
telling the story the jury expects to hear is the mark of the true trial lawyer.

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III. PREPARATION
The Honorable Herbert J. Stern once wrote:
A witness who knows his facts, who understands their significance
to your case, is testifying in themes rather than phrases, who is
aware of the order in which you will present those themes, and,
finally, who feels that he can defend the positions he will be taking
in his testimony-such a witness is not only very well prepared, he
is a working partner on the witness stand. Preparation for
testimony as pointed out above should be done in themes-that is,
that the witness should concentrate on the points to be made not on
the words that will be used to make them. True preparation of the
witness, then, does not focus on going through the direct like
running through a performance. Rather, the witness is prepared on
the cluster of material-sometimes out of chronological ordernecessary to make the point.
Put in less scholarly terms, your witness should be so well prepared that his testimony seems
simple, unrehearsed, and credible. The following tips will help when preparing your witness:
A.
Role of witness at trial. A trial witness role is different than at
depositioneven during the cross-examination. A deponents primary role is
simply to respond to questions asked, not to lay out his case. On the contrary,
trial is an exercise in advocacy and persuasion. A witness sole job at trial is to
prove the essential elements of the part of the case to which her testimony relates.
It is your job to ensure that witness is prepared to do so.
B.
Deposition testimony. Use of deposition testimony in trial during the
presentation of a live witness is only seen when a lawyer is trying to impeach. Be
well prepared so that it doesnt happenunless of course, you planned it.
Discuss with your witness anything that has changed since the deposition and plan
how best to present that information.
Also, prepare the witness for
misconceptions that you believe opposing counsel has concerning your witness
deposition testimony. This principle also applies to witness statements and
affidavits.
C.
Credibility. Remember the instruction that comes from the judge in the
chargethe jury is sole judge of credibility. Juries take this role very seriously.
Much of the often spirited debate during deliberations centers around the
credibility, or lack thereof, of particular witnesses. So while the substance of
what your witness says is obviously important, how that substance is delivered is
equally, if not more, important. The witness demeanor, appearance and
conviction will all be analyzed by the members of your jury.

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D.
Presentation of your witness to the jury. Recall the last time you and
two colleagues were standing in a group carrying on a conversation. The
colleague on your right was telling a very interesting, maybe even funny, story.
The storyteller glanced in your direction every now and then, but was clearly
focused on your other colleague rather than you. Recall the thoughts that ran
through your head? Did you question your importance to the storyteller? Did you
wonder why the storyteller had clearly engaged your other colleague rather than
you? Did you try to do anything about itperhaps laugh a little louder than
normal, or throw in an inopportune comment to draw some of that attention back
to you? Perhaps you simply backed out and left these two overly-chummy
colleagues and found someone more interesting to talk to. Regardless of how
you responded, Id bet the farm that, at the very least, you became distracted and
disengaged from the substance of the story being told. You quit listening to the
actual story, and focused on your own feelingswhich were anything but positive
towards the storyteller. Are juries so different than you?
The skilled lawyer searches for and finds every way possible to keep the jury
members engaged in his case, and especially in his witnesses. If the lawyer has
done an effective job of engaging and earning the trust of the members of the jury
during jury selection and opening statements, but fails to polish the witnesses
he presents, credibility may be lost in an instant.
From the example used above, you may be anticipating an instruction to have
your witness focus her attention on the jury members, forsaking all others in the
courtroom while responding to both direct and cross-examination questions. If
so, forgive me for leading you into equally dangerous territory. For in this
writers opinion, there is no better way to alienate a jury than to present a witness
that looks rigid, rehearsed, and who has obviously been instructed to stare intently
into the eyes of the jury members at all times. You must find a way to strike a
balance in the presentation of your witness so that the jury is impressed by the
confidence and communication skills of the witness without realizing ituntil it
is time to compare your witness with those of your opponents. Eye contact is an
essential tool in accomplishing this objective. Eye contact conveys confidence,
honesty, and credibility. Effective communicatorswhich is what you long for
your witness to beknow exactly who their audience is, and seek to engage that
audience to avoid the pitfalls referenced above by making brief, personal, and
entirely natural eye contact with each audience member. All eyes in the
courtroom will remain on your witness if at some point during her testimony she
locks eyes with each audience member. That audience includes youespecially
when you are asking the questions; it includes the judge; it includes the adverse
party and opposing counsel; and of course, the members of the jury. Practice with
your witness until this skill appears absolutely naturalthe day of trial is not the
time to test your witness communication skills.

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E.
Tics, Keys and Trashcans. While Im not referring to the six-legged
kind, nervous tics are just as distracting as the tick you discover following a
weekend of camping in the hill country. You will discover these types of tells
while role-playing in preparation for either deposition or trial testimony. Earlier
this year, I was cross-examining my star witness in preparation for what I
expected to be a very difficult deposition. As I turned up the heat on my own
witness, I began to notice that, following his answer to every difficult question,
his left cheek would twitch and a soft, but recognizable, smooching sound came
out of his mouth!! I was horrified and, after talking with the witness once the
role-play had ended, it was obvious that he was completely unaware of his
involuntary gestures. These are the kinds of signs that all good poker players
yearn to see in their opponents. At the very least, these unconscious and almost
unrecognizable tics indicate nervousnesswhich can sometimes be mistaken for
dishonesty. Once you realize you are dealing with this situation, look for a good
set of keys and a metal trashcan. Without telling your witness your plan, begin
your role-play again and prod the witness into repeating the distracting habit.
When you see itBANGthrow the keys into the trashcan. Then, after you
have resuscitated your witness, explain your theory and continue practicing until
the horrid noise of the keys hitting the metal can is a distant memory. It will not
take long. This method works equally well for witnesses who fill every moment
of silence with words like uh and ummneither of which have any place in
an effective direct examination.
F.
Familiarize the Witness with the Proceedings. In order to make your
witness appear as natural and comfortable as possible, you should familiarize your
witnesses with courtroom procedures. Bring the witnesses into the courtroom
early and show them where they will sit prior to testifying, where the jury will be,
and if possible, let each sit at the witness stand and test the microphone system to
ensure there are no surprises to interrupt the jurys first impression. Witnesses
should be informed as to how they will be called to the stand, how they will be
sworn in and, if possible, should do a walk-through of stepping in and out of the
hot seat.
G.
Rules of Evidence. The rules of evidence will be foreign to most
witnesses so it pays to educate them on the particular rules that could come into
play during their testimony. Identify the areas of your witness testimony that you
expect to draw objections, and prepare yourself and your witness to respond to
whatever the outcome of opposing counsels objection may be. Many times
objectionable testimony can be avoided if such testimony is identified in advance.
H.
Demeanor while not Testifying. It is extremely important to discuss
courthouse etiquette and demeanor with all witnesses that will be present in and
around the courtroom before and after their testimony is presented. Trials do not
occur in a vacuum, and jurors often encounter witnesses and parties while on
breaks, at lunch, and while entering and exiting the courtroom and courthouse.

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Witnesses who do not maintain proper courtroom decorum at all times will lose
credibility with the jury. For example, a witness seen joking or laughing in the
midst of a somber trial will be viewed negatively by the jury.
This principal is especially relevant to your client or client representative who sits
at counsel table during the trial. Jurors will often look directly at the parties when
they believe an important fact or critical testimony has been offered, searching for
a reaction. There should not be one. Instruct your client representative to remain
calm, cool and collected, even expressionless. Grinning, sighing, animated facial
expressions, flopping back in a chair, and even raised eyebrows can sometimes
reveal more information than you want conveyed. Whispering is almost always a
mistake. If your client needs to communicate with you, have him inconspicuously
write a note on the pad you previously placed in front of him.
I.
The Rule. The rule governing the exclusion of witnesses from the
courtroom reads, [at] the request of a party, the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses1 Your
opening statement is not testimony. Your witnesses should be present to hear
your opening statement so that they can gain an overview of the entire case.
IV.

CONDUCTING DIRECT EXAMINATION

A.

Never Ask, What, if anything, happened next?

Most lawyers are relatively relaxed when it comes time to prepare their direct
examinations because most leave the entire storytelling burden to their witnesses.
Such lawyers can be seen slouching in their chairs or leaning on the podium,
content to pepper their witness with the old standby what, if anything, happened
next question which presumably is the only way to avoid a leading objection.
The burden this approach places on your witness is entirely too heavy and is the
root of most direct examination disasters.
In his book The How-To-Win Trial Manual, the Honorable Ralph Adam Fine
writes:
The what happened next question makes religious any lawyer
who asks it, because he or she is praying that the witness
remembers the script. Of course, very few witnesses do remember
the script. Moreover, if the witness does remember what to say,
more often than not it will sound as canned as it is. When
asking the what happened next question, a lawyer will often get
an answer he or she did not expectone that either undercuts the
argument or derails it.

See Rule 614, Texas Rules of Evidence.

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All law school graduates know that you cannot lead a witness through a direct
examination. First, the rules prohibit it, but more importantly, a witness that is
truly lead through his story is unimpressive. A leading question is one that
suggests the specific answer the lawyer seekshowever, that does not mean that
you must make your direct examinations an exercise in mind reading. In all but
the most radical judges courtroom, you may legitimately suggest the topic of the
answer without the question being leading and without giving the jury the
impression that you are feeding the desired answers to your witness. Therefore
toss the what happened next? and its equally dangerous counterpart, did you
notice anything unusual? questions out of your direct examination vocabulary. If
you insist on asking either of these two questions, you may as well just ask your
witness to tell me something interesting that you think is relevant to this case.
Your witness answers will be equally unpredictable and rarely will help you
drive home your point. Consider the following example:
You are defending a case involving an automobile accident that occurred on
Interstate 10 just east of Houston. Your defendant was driving a dump truck
when the plaintiffs vehicle sideswiped him and careened off the road. You are
conducting an examination of a driver who arrived on the scene shortly after the
accident occurred. You intend to establish that the streetlights werent functioning
properly at the time the accident occurred.
Q: What time did you get off work?
A: 10:30 p.m.
Q: What if anything did you do next?
A: Well I went to my car and headed home.
Q: What happened next?
A: I stopped at the convenience store for a six-pack.
Q: You didnt drink any did you?
A: No.
Q: What did you do after you left the convenience store?
A: Got back on I-10 and headed towards home.
Q: Do you remember what the conditions were like as you approached the site of
the accident?

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A: Yes, the road was dry and traffic was light as it usually is at that time of night.
Q: Do you recall anything unusual about the conditions of the road as you
approached the site of the accident?
A: Surethere was a dumptruck sitting in the middle of the road and a car in the
median between the highway and the access road, flipped upside-down.
What now? Youll be left no choice but to rehabilitate this witness to get the
information regarding the lights that you know to be true, but the damage is done.
Perhaps the following would be more effective:
Q: What time did you get off work?
A: 10:30 p.m.
Q: Do you usually get off work at 10:30 p.m.?
A: Yes, I work from 2:00 p.m. to 10:30 p.m., Monday thru Friday.
Q: What is the route you normally take to get home after leaving work at 10:30
p.m.?
A: I travel east down Interstate 10 to the Katy Mills exit which is close to my
home.
Q: Describe for the jury the characteristics of the highway in the area where the
accident occurred on a typical night?
A: Well, the highway is four lanes there and traffic is typically relatively light at
that time of night.
Q: Are there any street lights along that section of the interstate?
A: Yes, that section of the highway is lit up by street lights that run along the
center median of the interstate.
Q: Let me take you back to the night of the accident, October 10, 2004. After
you left work, did you follow your normal path down the interstate towards your
home?
A: Yes I did.
Q: How was the traffic that night?
A: It was light as usual. There werent very many cars on the road.

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Q: Was the pavement wet or dry?

A: It was dry. It had not rained that day.
Q: Do you recall anything about the street lights in the area where the accident
occurred?
A: Yes. For some reason the street lights werent on that night.
Q: Why do you recall that?
A: Because after I stopped to see if I could help, they came back on.
The point is, you must do everything in your power to maintain control over the
focus and direction of your direct examination without giving the impression that
you are feeding the desired testimony to the witness. Using this method, you can
turn an otherwise unpredictable and potentially harmful exercise into an extension
of your argument to the jury. You have guided the witness to the exact place you
want him (and the jury) to be.
B.

Listen

In his book How to Argue and Win Every Time, Gerry Spence writes:
If I were required to choose the single essential skill from the many
that make up the art of argument, it would be the ability to listen. I
know lawyers who have never successfully cross-examined a
witness, who have never understood where the Judge was coming
from, who can never ascertain what those around them are plainly
saying to them. I know lawyers who can never understand the
weakness of their opponents case or the fears of the prosecutor;
who, at least, can never understand the issues before them because
they have never learned to listen. Listening is the ability to hear
what people are saying, or not saying as distinguished from the
words they enunciate.
At no time in a trial is it more important for you to concentrate and focus on
listening to the witness than when conducting a direct examination. If you dont
concentrate on the answers to the questions you ask, you could very easily miss
critical information contained in the answer. In addition, it is extremely important
to keep your finger on the pulse of the jurys perspective of your witness. If you
arent listening with each and every one of your senses, you will be unable to
determine the jurys perception of your witness and the likelihood of the jury to
understand the answers offered.

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The single biggest obstacle to active and effective listening is the use of, and strict
adherence to, written questions. Like memorized opening statements and closing
arguments, scripted direct examinations are nothing more than a crutch, are
usually ineffective, and at times can be disastrous. It is next to impossible for a
human being to actively listen to the answers to his questions, while at the same
time think ahead to the next question or, even worse, read the next question that
he plans to ask. Stories of lawyers making buffoons of themselves are common
on the internet joke scene and are directly attributable to the failure to listen to the
answers their witnesses have given:
Example 1:
Q: Can you describe the individual?
A: He was about medium height and had a beard.
Q: Was this a male or a female?
Example 2:
Q: She had three children, right?
A: Yes.
Q: How many were boys?
A: None.
Q: How many were girls?
Im not suggesting you should wing it. Judge Herbert Stern suggests writing
out the answers that you want to elicit from your witness and asking a series of
questions designed to elicit that answer. Other suggestions include using more
detailed notes but only as a flexible mobile tool that enable you to drive home the
key points desired with that particular witness. Regardless of the method, use
written materials only to help you identify where you want to go with the
particular witness and the information necessary to arrive at that destination.
Active listening will also enable you to use a technique in questioning witnesses
commonly referred to as looping. Looping allows you to reinforce an important
point by tying a question to a previous answer so that you imprint the fact into the
jurors minds. In sum, direct examination should be viewed as communicating
with your witness, and active listening is a necessary component to any effective
communication.

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C.

Organization

The overwhelming majority of direct examinations are conducted in an entirely

chronological fashion. For instance, the typical direct examination of a plaintiff
in a personal injury case begins with the plaintiffs background and a description
of the plaintiffs life before the accident occurred, then the acts and events that led
up to the accident at issue, then the accident itself, proceeds through the medical
treatment and damages, and ends with how the accident has affected or changed
the plaintiffs life. If you believe the theories that jurys attention spans are
relatively short and that at any given time during your witness testimony you
may only have one-third of the jurys attention, this boring and tedious method of
presenting your witness is, more often than not, ineffective and unpersuasive.
Rather, consider organizing your witness testimony in a series of separate subchronologies or sub-stories that can be organized in a topical format.
Consider also the recognized theory that juries tend to best remember the things
they hear first and last. If your witness testimony is broken up into several minichronologies, it isnt difficult to arrange the testimony so that the most important
pieces of the puzzle are injected at the beginning of the testimony when the jury is
fresh and most likely to be attentive, and just before the cross-examination when
the jurys interest will likely be peaked. In addition, this method allows you to
preempt any harmful facts that you have chosen to bring out on direct by placing
them in the last quarter of the testimony you intend to offer. In doing so, you
have a better chance of the jury perceiving the bad facts as relatively
unimportant.
V.

THE REDIRECT
A.
Purpose. Redirect is intended to permit the witness to explain answers
given on cross-examination and to amplify new material elicited for the first time.
Sims v. Brackett, 885 S.W.2d 450, 455 (Tex. App.Corpus Christi 1994, writ
denied). The purpose of redirect is to prevent the jury from being left with a false
and incomplete picture created by cross-examination and counsels ability to use
leading questions. Id. It has been said that redirect examination for this purpose
is a matter of right. Id. Further, all the rules of direct examination apply equally
to redirect examination. In other words,

leading questions are prohibited

witnesses may not testify in narrative form
testimony must come from personal knowledge
lay opinions are limited to sensory perceptions
the proper foundation must be laid to refresh a witness recollection.

Latitude to stray from any of these guiding principals, however, is a matter largely
left to the discretion of the court.

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B.

Should You Ever Purposefully Save Evidence for Redirect?

Lawyers and scholars alike often disagree on the wisdom of withholding

information during the direct examination so that it may be brought out during the
redirect examination. Some suggest there should absolutely be no planned
redirect examination. Lawyers of that school believe that redirect should only be
used to clarify any confusion that has resulted from the cross-examination all the
while keeping the anticipated recross-examination in mind. This is certainly the
best approach to use with respect to evidence that is crucial to establish and
support your primary argument or prove up your claim or defense. Remember,
while our rules of procedure and evidence grant the court discretion to allow wide
latitude in redirect examinations, you may be prevented from venturing outside
the scope of the cross-examination.
However, there are times when reserving information to present for the first time
on redirect can be extremely effective. For example, a witness may have given a
prior statement that is arguably inconsistent with his direct testimony that you
expect your opponent to bring out during the cross-examination. If there is a
perfectly reasonable or irrefutable explanation for the perceived inconsistency, let
your opponent make a big deal of the perceived problem during his crossexamination. On redirect, using a few simple short questions, you can take the
wind out of your opponents proverbial sail.
C.

Waiving Redirect

One of the most difficult things for a trial lawyer to do is resist the desire to have
the last word by waiving the right to redirect a witness who has just been crossexamined by the opponent. Yet sometimes dismissing your witness, rather than
attempting to rehabilitate him, can be the best decision.
First, there is no need to ask additional questions if your witness was not terribly
damaged by the cross-examination. In addition, you must learn to recognize
damage that cannot be repaired. One of the worst mistakes you can make is to
surprise a witness with a redirect question for which the witness is unprepared.
Finally, remember that a redirect examination exposes the witness to another
cross-examination. If you waive the redirect, there can be no additional crossexamination.
In sum, remember the advice that Thumpers mama gave him in the Walt Disney
movie, Bambi---If you dont have something nice to say, dont say nothing at
all. For our purposes, if you dont have anything good to say on redirect, dont
say nothing at all.

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VI.

ANTICIPATE OBJECTIONS
Anticipating and preparing to respond to opposing counsels objections is crucial
to maintaining a smooth presentation throughout your direct examination. Juries
pay close attention to objections made and will scrutinize the substance of your
response and the demeanor with which it is delivered. In order to maintain that
trust with the jury and the perception you have earned of being in control of the
courtroom, you must be prepared to respond. When applicable, cite rules, page
and line numbers of supporting deposition testimony, exhibits and even case law
with unquestionable confidence. In addition, plan ahead for the unlikely
occurrence that the judge, in a weak moment, may rule against you. Following a
sustained objection, many lawyers stutter and stammer about, confusingly trying
to get back on track. Again, such a response will ruin your rapport with the jury.
Finally, never pass the witness after an objection to one of your questions has
been sustained.

VII.

OTHER GUIDING PRINCIPLES

A. Keep it Short and Simple
There are many reasons to design your direct examination to remain short and
simple. First, you have the capability to impress the jury without the use of legal,
complex and intellectual words and phrases that no one in the courtroom but you
will understand. Remember, your goal is to engage the jury and convince them
that you are trustworthy. By now, you are well aware that lawyers come out low
on every public perception poll that has ever been taken. Simply put, you do not
have to talk and act like a lawyer in order to be effective. Save the wherefores,
henceforths, plaintiffs, defendants, subsequent theretos and all that legal jargon-all that mumbo jumbo that scares and confuses--for your legal briefs.2
Next, believe what you hear about the jurys short attention span. Using short
pointed questions will prevent your witnesses from rambling on into lengthy
narratives that will lose the jurys attention quickly.
B. Diagrams and Demonstrations
At your next opportunity, watch the way a jury responds during an otherwise
boring direct examination at the first indication that the witness is about to use a
diagram or make some kind of demonstration. Typically, and at least for the next
short while, you will have the jurys full attention. So figure out a way to
incorporate exhibits or demonstrations within your direct examination. Exhibits
tend to give some validity to the testimony that has already been given, and can
also be used to allow the witness to repeat critical testimony--and repetition is
your friend.

See Maggiano, Michael, A Practical Approach to Witness Examination, 2004.

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BIBLIOGRAPHY

Dorsaneo, III, William V., Texas Litigation Guide 120A.52 (2005).

Fine, Ralph Adam, The How-to-Win Trial Manual: Winning Trial Advocacy in a
Nutshell (2001).
Jones, Frank C. and Varner, Chilton Davis, Direct Examination: Making the Facts
Understandable.
Lavin, Terrence J., The Act of Direct Examination (June 2003) at
http://www.illinoisbar.org/member/jun03lj/p305.htm.
Maggiano, Michael, Evidence with Impact: A Practical Approach to Witness
Examination (2004) at http://www.maggianolaw.com/articles/evidence.htm.
Persuasive Storytelling Using Direct Examination at
http://www.srlegal.com/articles/storytelling.htm.
Persuasion at Trial: Direct Examination (Frederick, Jeffrey T. Ph.D. ed., 2005) at
www.nlrg.com/jrsd/patseries/direct.html.
Rawdon, Jr., Richard M. Listening: The Art of Advocacy (2000) at
http://library.lp.findlaw.com/articles/file/002372/001690/title/subject/topic/civil.
Spence, Jerry, How to Argue and Win Every Time, 67 (1995).

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