By Donald F. Paine

Introduction

Several years ago I wrote about Irving Younger’s Ten Commandments of Cross-Examination¹, using General Moira Lasch’s questioning of William Kennedy Smith as an illustration of how not to do it. Professor Younger also spoke about direct examination.² It is to him and to Rusty Reviere of the Madison County Bar, who prepared a helpful handout for Tennessee Bar Association seminars, that I am indebted in composing my Ten Commandments of Direct Examination.

I. Thou Shalt Be Prepared.

In order that we be prepared to try a lawsuit, we must prepare our witnesses. The historical lawyer lingo for that process was “horseshedding,”³ modernly corrupted to “woodshedding.”

Witnesses unfamiliar with the courthouse need to be taken there — to the very courtroom where the case will be tried. Go early some morning before court opens. Let the witness sit in the witness box, and point out where each of the players will stand or sit. It wouldn’t hurt to stick around to watch the judge in action. While this guided tour is unnecessary for each and every witness, it is essential for the client and crucial witnesses.

A number of lawyers I know conduct a mock trial with representative “jurors,” often in a specially constructed room within office facilities. At a recent Tennessee Trial Lawyers Association seminar, Kathryn Barnett of the Nashville Bar spoke on the benefits of focus groups, randomly selected citizens who heard truncated versions of the evidence and whose deliberations were videotaped. If the client and key witnesses testify to the focus group, that may lessen anxiety on trial day.

Explain to witnesses the rule of sequestration, including the ban on discussing testimony with other witnesses. Explain also that objections are likely during your direct. The witness should shut up until the judge rules.

As to one witness — your client — tactfully discuss what he or she will wear to court, including jewelry as well as clothes. Some think Bambi Bembenek was damned for couture sin in her murder trial (“I wore whatever was on the next hanger in my closet”). I doubt that is true, but don’t be caught by surprise on the morning of trial.

II. Thou Shalt Be Brief.

The reason is identical to that justifying a brief cross: there is a better chance of not screwing up. If pretrial preparation is what it should be, it will not take long to convey the principal nuggets of information to the jury.

Rusty Reviere suggests writing out points to be covered, but warns against writing out questions. I heartily agree. My preference is to put the points on a single 3 x 5 card, which fits unobtrusively in the hand.

Jurors do not like a long and tedious examination. If your opponent is long-winded, a lengthy cross is likely to contrast unfavorably with your brief direct. And there is always redirect available to clear up new matters elicited during cross-examination.

III. Thou Shalt Not Lead.

Has it ever occurred to you that lawyers on the Court Television Network do not know how to ask a non-leading question?⁴ How many times have I flipped on the television thinking I must be watching a cross-examination, only to discover that the lawyer was conducting an incompetent direct examination?

This is elementary hornbook law. As expressed by Dean McCormick, “A leading question … is one that suggests to the witness the answer desired by the examiner.” I have written on this subject earlier,⁵ but it’s worth repeating the major exceptions to the prohibition against leading on direct:

1. Introductory facts

2. Young or disabled witnesses

3. Hostile witnesses

4. Facts establishing evidentiary foundations

5. Uncontested or inconsequential facts

IV. Thou Shalt Use Plain Words.

I know, it’s hard to do if you’re a lawyer. But our position will be more persuasive to the jury if it is understandable, which means both questions and answers should contain only words used in everyday conversation by everybody.

We can make an exception for expert testimony, but only if the expert first explains scientific terminology in language that layfolks can grasp.

Given world enough and time, I may someday compile a list of artificial “no-no’s” to avoid. For now, let it suffice to embarrass ourselves with perhaps the most stilted verb in both civil and criminal litigation: “to exit the vehicle.” Did anyone involved in a lawsuit ever simply “get out of a car”?

V. Thou Shalt Converse With Your Witness.

Assuming proper preparation, the direct examination should be a friendly conversation. That tone helps put the witness at ease, and it appeals to the jury. Here are two human beings explaining the facts, one by questions and the other with answers.

Professor Younger suggests that the questioning should establish a rhythm, and he uses the opening notes of Beethoven’s Fifth Symphony as an analogy. Here’s how he turns it into courtroom words:

Q. Were you there?

A. Yes.

Q. Was it 10 in the morning?

A. Yes.

Q. Was the sun out?

A. Yes.⁶

Q. What did you see?

A. [Witness gives answer.]

Normally one should not put a witness on autopilot. Rather, the lawyer intersperses questions through the witness’s narrative. This breaks the monotony, and I’ve encountered some judges who insist upon the procedure.

An exception is made for experts, who often give a classroom lecture to the jury. I recall a trial years ago where my adversary sat down at counsel table while his expert wowed the jurors with erudite talk and charts.

Then there’s the Michael Jackson⁷ exception. As I pen this, I’m listening to an audiotape of the singer’s testimony in a 1994 Denver copyright trial. He was sued, unsuccessfully, for infringement concerning “Dangerous.” His lawyer turned him loose and let him explain how he composed the song, at intervals beating rhythm⁸ on the witness stand and singing his little heart out.

Finally, should we instruct our witnesses to look at the jury as they answer questions? I agree with my Brother Reviere that normally we should not. He observes: “This generally comes off as rehearsed and unnatural.” He makes an exception for experts, and I would too. Again, experts often give prepared lectures, and the rehearsed aspect is to be expected. Another exception — of mine — is to ask a lay witness to turn and face the jury to state the answer to a crucial question where credibility is essential.

VI. Thou Shalt Listen to Your Witness’s Answers.

This admonition is just as important to the direct examiner as the cross-examiner. Certainly we don’t want our witness to give a devastating answer without attempting explanation or — in extreme instances — a request that the witness be declared hostile. With favorable or neutral answers, we want to listen carefully in order to ask logical follow-up questions.

If we don’t listen to the witness, how can we expect jurors to do so?

VII. Thou Shalt Ask the Witness to Explain.

We know not to do this on cross-examination. The explanatory answer is likely to bury us.

On direct, explanations are very much in order. They should be the natural result of horseshedding. Explanations help to emphasize the integrity of the primary factual assertions the witness is called to convey.

Especially with the expert witness are explanations helpful in driving home a salient point. Under Evidence Rule 705 we are no longer bound to ask experts hypothetical questions. I like this four-part approach:

1. Qualifications

2. Research and methodology (crucial under Daubert/McDaniel to satisfy the gatekeeper)

3. Opinion

4. Explanation

A thorough explanation of how the expert arrived at the opinion can nail things down.

VIII. Thou Shalt Anticipate the Cross-Examination.

If you anticipate that bad facts will be elicited on cross, it may be prudent to bring them out on direct to blunt the impact and persuade the jury that you aren’t hiding things. You can also get an explanation, something the cross-examiner may not call for.

I read somewhere that there’s a downside — the opposing lawyer may not know the dirt you’re revealing. Respectfully, I believe we should count on other lawyers doing their work. Given extensive discovery procedures available to us, it’s unlikely that the cross-examiner will not have dug up the dirt.

IX. Thou Shalt Know the Rules for Present Recollection Refreshed and Past Recollection Recorded.⁹

The rules are simple, but often violated. Let’s see.

Present Recollection Refreshed involves four steps:

1. Witness has memory lapse

2. Show document to witness, asking for silence during reading

3. Take document out of witness’s hands

4. Ask witness to testify to jury from refreshed memory

Happily for trial lawyers, Past Recollection Recorded also involves only four steps:

1. Insufficient recollection of witness today

2. Document made or adopted by witness

3. When facts were fresh in witness’s memory

4. Document was correct when made

X. Thou Shalt Know How to Make an Offer of Proof.

The late and great Justice William J. Harbison told me years ago that he observed while reading trial transcripts on appeal that many lawyers did not know how to make an offer of proof. Objections are often sustained, as you and I know. So how does one “protect” the record?

With documents and things, it’s wonderfully easy. Ask the court reporter to mark (or tag) the exhibit for identification. Show it to opposing counsel, then show it to the witness and lay a foundation for authentication and any other principle — such as a hearsay exception foundation. If you catch an objection and the judge sustains it, simply hand the exhibit back to the reporter. It goes up with the record.

Most mistakes occur with testimonial evidence, but again making a formal offer is not difficult. The key is getting the witness’s words, which the judge won’t let the jury hear, before the appellate court. You can whisper a summary at the bench out of earshot of the jury, but every appellate judge I’ve asked prefers a verbatim transcript. Tennessee Evidence Rule 103(b) gives you an absolute right to make a question and answer offer, and we ought to take advantage of that right. During a court recess or even at the end of trial day, assemble in the courtroom the witness, both counsel and the court reporter. Ask your questions and get the witness’s answer. Everything is taken down and goes to the appellate court with the rest of the transcript of evidence.

Conclusion

Good direct examination takes preparation and skill. It deserves the equal attention with cross-examination.

An excellent example of how to do it right is available on videotape. I have in mind Florida v. William Kennedy Smith, highlights of which are available from Court Television Network (212-973-2800) for around thirty bucks. It shows defense attorney Roy Black following each of these ten precepts. And he won the war.

Endnotes

1. Tennessee Bar Journal, March/April 1992.

2. A transcript of his remarks is available in The Advocate’s Deskbook at page 183 (Prentice Hall, 1988).

3. The term relates to the sheds next to courthouses before lawyers had cars.

4. Exceptions include some able Tennesseans.

5. See the March/April 1998 issue of the Journal.

6. Note that the leading is permissible because these facts aren’t in dispute.

7. Not the beer guru; the other guy.

8. That’s a “bass lick,” folks.

9. See this column in the October 1999 issue of the Journal.

Donald F. Paine is a past president of the Tennessee Bar Association and a partner in the Knoxville firm of Paine, Tarwater, Bickers, and Tillman. He was elected to membership in the American College of Trial Lawyers and the American Law Institute. Paine lectures for the Tennessee Law Institute, BAR/BRI Bar Review and the Tennessee Judicial Conference. He is reporter to the Supreme Court’s Advisory Commission on Civil Procedure. He is not a member of the American Bar Association.