The 3 Rules of Excellence in Direct Examination
It’s been said that building a successful case is like carefully piecing together a mosaic using facts. The purpose of direct examination is to elicit from your witness the
evidence you need to satisfy the elements of your case. It is not merely a gesture in a general direction, but rather a carefully laid out course of action. These three rules will improve the effectiveness of your direct examination.
Rule #1. Remember the trier of fact is only human. Humans crave logic. We need things to make sense. You don’t want the trier of fact expending energy or attention trying to understand your version of the facts. Remember humans create pictures in our minds, a skilled advocate has the ability to place their “picture” of the case, before the trier of fact. Your questions should guide both your witness and the trier of fact through the relevant “who, what, where, why, when and how” of your case. Ask questions that allow your witness’s answers to reconstruct a logical picture as detailed and as vivid as possible.
Rule #2. Remember your witness is only human. Our ability to perform tasks (including recall!) diminishes under stress. To avoid this pitfall prepare your witness factually, as well as emotionally. Explain to them the bigger picture of the case and their role, specifically their evidence which needs to be heard by the trier of fact. Ask your witness the questions you intend to ask, beginning with introductory questions such as—name, age, address. This is important as it allows the witness to recall and answer confidently, helping to build their confidence level and to reduce any nervousness. Finally, encourage your witness. Both encouragement and preparedness will lead to a better performance.
Rule #3. Remember how humans remember. Arrange your questions in an order that tells the story, but not necessarily in chronological order. Huh? Although this approach might seem counter-intuitive, let me ask you this: Have you ever been into a car accident? When you retold the incident, did you ever begin with what you ate for breakfast that morning? Unlikely. You probably began at the event itself, “ I got hit by another car on my way home!” Then you went back and filled in the details. When you present your witness’s version of the facts through questioning in this chronology, you take advantage of the principles of primacy and recency which states people (even judges) have a tendency to focus more closely on what is presented first and last. Your questions should encourage your witness to begin with the incident, followed by a chronological explanation of the facts leading up to the incident. This way the trier of fact will have heard what may be the most important part of the testimony, a second time and will remember the key facts that much better throughout the trial and in closing arguments.
These three rules can aid in helping you to build the “fact” mosaic of your case, a very important picture for you as the advocate, but even more so for your client.
Kevin Sambrano is a human rights paralegal practicing in Toronto. Do you have a human rights issue we can help you with? Contact Sambrano Legal today at 647 860 8339 or through the contact link for a free consultation. Or you may visit www.sambranolegal.com
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 Arlene Blatt and JoAn Kurtz, Advocacy for Paralegals, Edmond Montgomery Publications 2009 p. 49
 J. Alexander Tanford, The Trial Process: Law, Tactics and Ethic.4th ed., (LexisNexis, 2002). p. 201
 Ibid., p. 218
 Faculty, Criminal Law Department, The Judge Advocate General’s School, The Art of Trial Advocacy July 1998, The Army Lawyer • DA PAM 27-50-308