Trial direct examination

Q: Dr. Assume that the defendant stated that he wanted others to make sure the plaintiff could walk prior to discharge. Assume further that the defendant admitted he made no note to that effect and that he made no order to that effect. Do you have an opinion within a reasonable degree of medical probability as to whether the failure to make such a note was a departure from accepted standards of medical conduct?

Many times, a plaintiff will need to put hostile witnesses on the stand in order to make out a prima facie case, such as situations in which the defendant and their employees are the only ones who can testify regarding the prior existence of a dangerous condition. In any case, a plaintiff can score points with a jury by starting out calling the adverse or hostile witness, skillfully destroying his credibility and establishing the improbability of his story.

In order to accomplish this, it is vital that attorneys use those skills traditionally reserved for cross- examination as the framework for a successful direct examination of an adversarial witness. Becker v. Koch, NY []; Gornwell v. Robert D. Click for a free consultation. Posted on May 6, Right to Ask Leading Question The advantages to placing a hostile witness on the stand as the first witness in a case are as follows: First, this approach allows you to know, in no uncertain terms, exactly what position the defendants are taking on certain issues in the case.

A Practical Example Perhaps nowhere is this technique of calling hostile witnesses to testify more widespread than in medical negligence cases. Start by posing leading questions that suggest answers with which any reasonable witness cannot quarrel: Q: To the extent you could, you did what was necessary to help the patient? Q: Your goal, at all times, was to care for the patient? Q: Your treatment centered around helping the patient, correct?

Q: Obviously, many medical health practitioners care for the patient? Q: You have the ability to make notes in the chart? Q: You have the ability to write orders in the chart? Q: Notes and orders allow others to know exactly what treatment you wanted for the patient? Once again, voice of reason questions should be used to set down the foundation for the opinion questions: Q: Would you agree that notes [or orders] serve an important function in patient care?

Q: They can help prevent miscommunication? Q: They can help prevent misunderstanding? Q: In other words, notes spell out in clear terms what should be done for the patient? A: No. Stress the absurdity of the position taken by the defendant: Q: To be clear, your position is that this is not a departure? Thus, if your client intends to commit perjury, you must counsel him or her against taking the stand.

If they insist, you may have to withdraw, or possibly even inform the court. First, and perhaps most importantly, you must structure your questioning.

You must steer the conversation, so that it touches upon the points that need to be addressed. Many trial advocacy textbooks talk about how on direct, unlike on cross, you are not the star. Instead, the witness is the star. Thus, it is important to make the story shine so that it will resonate with the jurors. For that, you must be able to paint vivid images on direct examination. T-Funnels, discussed further down this page, will help you. Preparing a witness is not the same as coaching a witness.

Coaching a witness is telling a witness what to say. You cannot coach your witnesses. You can and should , however, prepare your witnesses. Witness preparation involves getting your witnesses comfortable with the trial process, so that they present their story in the best possible fashion.

Before I get into the details of their case, I generally give my clients a standard testimony lecture included at the bottom of this page , in which I explain what they can expect during their testimony, and how I would like them to react. After this, I run through the direct with them, but, at first, I make it broader than I would for the trial.

I ask them about everything: how far they went in school, their jobs, their children, their history with drugs, etc. I do this hoping to stumble on something good that I may not have otherwise asked. Perhaps they do volunteer work, for example. I might ask them about that during their trial testimony, before I get into the substance of their case. I also do this because I want to know the bad stuff.

If they got kicked out of school for fighting, I want to know that. If they have five kids in foster care, I want to know that too. The purpose of the meeting is to get the jury to think of your client as something other than a criminal. Instead, they are a father, a student, a worker, etc.

Keep the meeting brief. Again, be broad. Ask about everything. Based on what you learn, decide on how you want to arrange your examination. Explain to your client that you want to present that information to the jury in detail, and let him know how the T-Funnels work. Although I recognize that, with a misdemeanor caseload of several hundred files, it may not be practical, it is important to rehearse the direct several times.

There is no excuse for this not to happen in a serious felony case. You must also practice cross examining them. Better yet: have a colleague do it. Really put them through their paces. Make it a worse cross than anything they could encounter at trial, so that their actual testimony will be easy by comparison. First, you must explain the process. Second, help them with their demeanor.

Some clients are quick to anger. Warn them that the prosecution is going to try to bait them. If they take the bait and argue or yell, they are virtually guaranteeing a conviction. Helping them control their tics is a relatively easy way to keep them from distancing themselves from the jury.

Indeed, the only way for them to perform well on direct is for them to be authentic. But polishing them is not the same as changing them. Dress them up. Clean up their language. Counsel them on keeping their temper.

The principle behind the use of T-Funnels is simple: when you arrive at a point in the direct examination that you want the jurors to pay particular attention to, use increasingly precise questions to funnel their attention to details. For example, I once had a case in which my client was charged with Home Invasion and Aggravated Battery. Specifically, he was alleged to have entered an apartment for the purpose of beating his girlfriend — and then to have beaten her.

If he entered for a lawful purpose, such as wanting to talk to her, then he was not guilty of that charge. If he entered for an unlawful purpose, such as wanting to beat her, he was guilty. As a response, attorneys must be prepared to resolve the objection and follow it with questions that will help the witness focus and avoid getting untracked.

An attorney must address and resolve these obstacles and present the testimony of witnesses persuasively in a manner that the jury can clearly understand. Witnesses and their testimony must be presented clearly and logically so that witnesses describe the events they observed as a component of the overall story, each building the elements of a cause of action or defense.

It is not enough to present enough evidence for a prima facie case but it is also necessary to make such evidence persuasive and memorable. Attorneys must persuade juries to decide in favor of their clients and direct examination is an essential, key component of achieving it. An attorney-advocate must have an effective arsenal of weapons in her trial advocacy toolbox.

Not all law schools emphasize trial advocacy skills like the California Desert Trial Academy. The CDTA was founded with the philosophy of not only teaching students the substantive law, but on training, educating, and developing students to be exceptional attorney- advocates.

The development of trial advocacy tools is essential to success in any judicial or administrative setting. Call us today at or find out more online here. Share Facebook Twitter LinkedIn. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits.

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