Trial Counsel for Law Firms

Fundamentals of Direct Examination

In order to fully appreciate this article on direct examination, it is a good idea to start with the Fundamentals of Cross-Examination as this article on direct examination builds on the article on cross-examination.

While cross-examination may be more important to a case in that evidence from the opponent can be the best source, effective direct examination is still crucial.

It is recommended that each witness be prepared for cross-examination first, to identify key areas for challenge and then be prepared for direct examination second, as this will generally be less contentious. Although this takes time and effort, it results in excellent testimony and will be helpful in preparing the witness.

 

3 Rules of Direct Examination

There are 3 rules of direct examination:

  1. Open-ended questions only;
  2. One guide post per question; and
  3. Build towards a specific goal.

Open-ended questions let the witness give the information and maintain the focus on the witness. One guide post per question keeps the witness on track and guides the story told by the witness. Building towards a specific goal means that the story is being built with purpose: to support the theory of the case.

 

Preparation Charts

The first step in preparing the direct examination is the same as for cross-examination, the preparation charts, a sample of which appears below:

hassell-trial-counsel-direct-examination-preparation-chart

Putting together the preparation charts is discussed in detail in the Fundamentals of Cross-Examination and involves a through review of all evidence and organising it by topic, referencing the source and fact.

 

Chapters of Direct Examination

Having prepared the topic charts and the cross–examinations, the topics and contentious issues ought to be clear and direct examination can be prepared working off of the topic charts.

Here is what the chapters of direct examination will look like:

hassell-trial-counsel-direct-examination-chapter

At the top left the words “direct examination” are used to make it clear these are for direct examination as opposed to preparation or chapters of cross-examination.

The topic is in the center of the page and is worded as narrowly as the topic needs to be. One page is used for each topic. The topic pages can be grouped together by event with events organised in chronological order if that is the preferred method of presentation.

There are three columns:

  • Source is for the location of the information, be it documents, examination transcripts or client interviews. Using abbreviations for the source is helpful. For example MH-CR P34-L12 could mean Michael Hassell’s cross-examination at page 34, line 12. This makes it possible for the cross-examiner to check the source anytime during preparation or at trial.
  • Open-Ended Questions are the facts that relate to the topic. Remember to include non-facts such as “I did not see…”
  • Tactics can be inserted in advance, for example exhibits to introduce. Also, the testimony of previous witnesses directly on point can be noted.

 

Conclusion

Thorough, systematic preparation gives the examiner confidence and control. With all fundamentals taken care of, the examiner can turn their mind to advanced direct examination techniques that will elevate the examination in terms of impact and persuasive value.

 

This article is courtesy of the Ontario Civil Trial Manual

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This manual is trial information, not trial legal advice.

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