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. This article also puts a direct examination spin on Pozner and Dodd’s Cross-Examination Science and Techniques which focuses 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:
- Open-ended questions only;
- One chapter at a time; and
- Build towards a specific goal.
Open-ended questions let the witness give the information and maintain the focus on the witness. One chapter at t time 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.
The first step in preparing the direct examination is the same as for cross-examination, the preparation charts, a sample of which appears below:
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:
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 Mick 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.
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.
Ontario Civil Trial Manual
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