Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words.
Advance Planning
Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury. This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.
I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.” The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture. Everyone needs to understand the case theme and how their testimony fits in. I go through the entire disputed transaction from start to finish. This orients the witnesses to the case strategy, fills them in on events they did not witness and can elicit important ideas that did not arise in pretrial discovery.
Rehearse Testimony
Witnesses need to prepare for the unfamiliar habitat of the courtroom witness box – sit tall, shoulders square, speak clearly, make eye contact with the judge or jury, keep a measured pace, listen carefully to the question, don’t become angry or interrupt, wait for the judge to rule if there is an objection.
Once we finish mechanics, I go over their testimony, at least the subjects, if not a mock examination.
I tend to represent entrepreneurs who founded successful companies. The focus and determination that made them great business executives can be a challenge to how they present in court. They sometimes ask me what they want me to, or what they intend to, “prove” or “show.” Certainly, the witnesses should know the issues in the case, so that if there is a helpful fact that is responsive to the question posed, they should raise it. However, I tell my witnesses they are not there to provide a lecture or argue the case but are there to answer questions truthfully. I teach that making up an answer that sounds clever or directive but which can be proven untrue can be toxic.
There are trial consultants who will meet with witnesses to improve their presentation. This may be important with witnesses who are particularly anxious, emotional or difficult.
Adapt your draft outlines as you work with the witnesses. They are the way they are and can’t transform instantly inside the courthouse. Some can only explain concepts generally, others excel at detailed explanation, some have better or poorer memories. Figure out who covers which points best and adjust.
I had an elderly witness in a financial elder abuse case who had strokes that impacted her memory. I could not get her to recall key events in the correct sequence, but she always knew how she felt. I abandoned my early draft outlines. At trial, I ordered my questions chronologically, without ever asking what event came next, and had her tell the jury her feelings. The examination was emotional and compelling and helped procure a winning verdict.
Courtroom Presentation
Ask questions about the witnesses’ background to make them relatable and orient the jury to any important study or experience.
Ask simple and open-ended questions. Listen to the response and, if needed, prompt follow up. “Why?” “How did that happen?” “Please explain.” If the witness jumps to a conclusion without foundation, go back and ask how they know the answer to be true. If your witness rambles on, don’t interrupt mid-sentence, but look for a pause, give a signal like a raised hand and say you wish to “unpack” or “break down” the multi-part answer. Be prepared to adapt your approach if the witness is particularly nervous or veers off track. One could tell a witness not to worry and provide their best explanation, or direct the rambler that you want to complete subject X before moving on to Y.
Moderate the pace of questioning. One can encourage witnesses to slow down for the benefit of the poor court reporter.
When moving to a new subject, say just that to orient everyone in the courtroom to the topic shift.
When using direct examination to introduce exhibits, I ask pointed questions, like the date, sender and recipient of an email, then an open question like “what is this?” If needed, establish foundation by asking “is this a true and correct copy of [describe exhibit]?” Don’t forget to move the exhibit into evidence, either then and there or at a break.
Use visual aids. People learn best when words are combined with visuals, including color, graphics, words and numbers. Have the witness walk the jury through a slide, whether a demonstrative or an admitted exhibit. If the case turns on a few key phrases, blow those up and linger over the subject. Ask them to read the point out loud and whether they discussed or how they applied that term.
Finish with a bang. Conclude with a few questions that emphasize the key points, underscore the theme and brand your witness as credible and reliable.