Chapter 6 DIRECT EXAMINATION

1 Chapter 6 DIRECT EXAMINATION INTRODUCTIONThe DIRECT EXAMINATION of witnesses is the most important part of the may be more exciting and closing argument more eloquent,but it is the DIRECT EXAMINATION of your own witnesses that will determinewhether the jurors hear, understand, and remember the facts upon which yourcase is , DIRECT EXAMINATION often is done poorly. Witnesses are notpresented effectively, and attorneys fail to elicit coherent evidence from cannot just put a witness on the stand and ask, What happened? Yourdirect EXAMINATION must elicit what the witness knows in a manner that helpsthe jury understand, remember and believe it. Several obstacles stand in yourway that must be overcome:cYour witness is only human. A witness may know only a portionof the entire story, may have a poor memory, and even maycontradict other testify only in response to the questions you ask, whichplaces a burden on you to be comprehensive and rules of evidence limit the form of questions and the contentof testimony.

2 Many rules, such as the hearsay rule, defy commonsense, make telling the complete story difficult, and make testimonydifferent from normal opponent can object and interrupt testimony, diverting theattention of the separation between DIRECT and cross- EXAMINATION may resultin one topic being discussed at two different times, separated byan hour or more of unrelated goal of a good DIRECT EXAMINATION is to overcome these obstacles andpresent the testimony of witnesses in an understandable and persuasivemanner. This requires a clear, logically organized presentation in which eachwitness describes the activities he or she observed or participated in. Itrequires that you concentrate not only on presenting enough evidence to makeout a prima facie case, but also on making that evidence persuasive andrememberable.

3 A legally sufficient case is not enough you must persuadea jury that your client deserves a favorable verdict. DIRECT EXAMINATION canhelp accomplish this goal only if it is carefully prepared and makes DIRECT EXAMINATION effective? Most trial practitioners agreethat it is based on two fundamental the witness dominate the DIRECT EXAMINATION . You should makea conscious effort to be as unobtrusive as possible by standing201 0001 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:22) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST1 out of the way, keeping your questions short and simple, andtrusting your your witnesses in advance to give complete and descriptivetestimony. The better prepared your witnesses are, the easier it willbe for you to fade into the background and let them tell their ownstories.

4 EXAMPLE OF A DIRECT EXAMINATION1 PLAINTIFF S ATRTORNEY : We call the plaintiff, Barry Phillips. [Plaintiff walks to the witness stand with the aid of a cane.]BAILIFF: Raise your right hand. Do you swear or affirm to tell thetruth, the whole truth and nothing but the truth?WITNESS: I : What is your name?A: Barry : Where do you live?A: 1130 South Stewart Avenue, here in : How long have you lived here?A: All my life, forty-eight years. I moved into the house on StewartAvenue eighteen years ago when I got : Any family?A: Yes, my wife Kerry, and two children, Laura and Kim. Laura issixteen and Kim is : Where do you work?A: Finderson Engineering and : How long have you worked there?A: Twenty-three years. I started as a draftsman, and rose to chief fieldengineer.

5 Then I was in the bus wreck and my knees got all smashedup, and now I m back working as a draftsman : Let s start at the beginning. Where did you go to school?A: In 1972, I graduated from Englewood High School and enteredIllinois Institute of Technology to study design engineering. I didsome graduate work at , and then got a job with FindersonEngineering in : Doing what?A: I started as a draftsman. That s the usual entry level position. Youdo final drawings of other people s construction : How was your health back then?A: It was fine. Except for the flu, I had never really been sick. I hadno problems as far as I Adapted from FRANCIS X. BUSCH, LAW AND TACTICS IN JURY TRIALS, vol. 3: 397 418 (1960).202 DIRECT EXAMINATIONCH. 6 0002 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:22) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST24 1/1 Q: How about your legs?

6 A: They were fine. I broke my right leg once sliding into third basein a freak accident. I was playing on the company softball : When was that?A: In : What happened to your leg?A: I guess it healed. I was able to play softball the next year, and itnever gave me any problems : Will you describe your jobs over the next few years?A: Sure. In 1985, I was promoted to the position of estimator. In 1987,I was made an assistant design engineer and later that same yearI was promoted to field engineer. In 1993, I was made chief : What were your responsibilities as chief engineer?A: I supervised all on-site architectural engineering projects forFinderson. That meant I had to travel all over the Midwest. Wemight have as many as six construction projects going at once. Thiswas what I had always wanted to do.

7 I usually delegated most ofthe preconstruction planning, but I loved to DIRECT the actualconstruction. That is when most of the crucial decisions had to bemade. For instance, we might be working on the steel frame fora twenty-story building, and a steel worker would notice that thegirders were not lining up properly. Then it was a challenge to findand correct the problem. Sometimes it was a risky job. I had to beable to climb around the steel framework like the steelworkers,testing for alignment and tension and so : Did this job require a good memory?A: Yes, of course. You have to be able to remember lots of details aboutdifferent projects. You can t carry sixty sheets of blueprints withyou when you re climbing steel girders twenty stories above : Directing your attention to April, 2002, were you still working aschief field engineer?

8 A: : At what salary?A: My base salary was $95,000 a year. I also averaged about athousand a month in bonuses based on the completion of projectsunder : Do you remember the events of April 20, 2002?A: God, yes. That was the day of the bus : What happened? Start at the beginning of the : Well, my car was in the shop, so I went to catch the bus to get towork. I walked to the corner of Stewart and Miller Street and goton a downtown bus. OF A DIRECT EXAMINATION203 0003 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:22) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST73 Q: About what time?A: About 8:20 : Did you pay your fare?A: : What kind of bus was it?A: A regular city bus that said Bayshore Transit Authority on the : What did you do after you boarded the bus?

9 A: I sat down in the second seat, next to the window, and startedreading over some preliminary estimates prepared by my : Can you describe the seating in more detail?A: Sure. I was in a two-person seat, next to the window. There wasno one beside me. I was facing the front, on the right side. Therewas one seat in front of : Did anyone sit there?A: Yes, one person, but she got off before the : Did you know anyone else on the bus?A: No, I rarely ride the : How much space was there for your legs?A: Well, of course I never measured it, but it was pretty close, sortof narrow for your legs. I would say six to eight inches or : Would you say more or less room than in a coach airplane seat?A: About an inch or two less. My knees brushed against the seat backQ: What did that seat back look like?

10 A: It was a flat sheet of metal of some kind, probably : Do you have any familiarity with scale models?A: Of course, we work with scale models all the time in : Would you be able to recognize a scale model of the bus your wereriding?A: Sure, I think : Your honor, may the witness step to the table and examineplaintiff s exhibit one?COURT: : Mr. Phillips, look at the exhibit. Can you tell what it is?A: Yes, it s a good scale model of the inside of the bus I was : Is it fair and accurate, especially with reference to the front seats?A: : What about the view out the front window?204 DIRECT EXAMINATIONCH. 6 0004 VERSACOMP ( ) COMPOSE2 ( )07/31/02 (13:22) The Trial Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST114 A: Yes, that looks : Will this exhibit help you in explaining what happened next?