Direct examination is its own unique skill set which is sometimes taken for granted by practitioners. The reason for this is because it can seem like such a simple task. It doesn’t require the intricate preparation of cross examination because there are typically no impeachments necessary. Favorable witnesses are easier to navigate than hostile witnesses at times. That being said, we need to always follow the fundamentals of direct examination. Beyond the fundamentals there are specific tactics which should be employed specifically in the plaintiff’s personal injury trial. To that end I refer you the works of David Ball who has written brilliantly on the subject. Much of the following comes from David Ball’s teachings on plaintiff’s advocacy.
When we conduct Direct Examination, we need keep our line of questioning simple and to the point. Trials are complex animals. While the trial attorney may take weeks or months preparing for trial the jurors who view the trial know nothing of the facts of the case prior to the trial. The way that information is communicated in trial is not a traditional form of communication. It is awkward and convoluted at times. Trials can take days, weeks, or months. To compound things further, jurors today have short attention spans thanks to the technology that puts information in front of us with such immediacy today. Thus we as trial lawyers need to be more succinct than ever. We need to focus on topics that are relevant and important. We need to weed out any and all peripheral information. So when you decide what information to include or not include think to yourself whether the information you are about to elicit will help your juror make a decision on the verdict form. If the answer is a no then cut it out of your examination.
Thus, when we begin our opening statement we need to cut the riff raff “hello, how are you, where are you from” business. Get straight into it. And get into the information that is directly relevant to the jurors in making a decision. Otherwise you will bore the jurors and they won’t pay attention to your important information. Worse yet, if you bore the jurors too much they will resent you for it and that will adversely affect your client’s case. So cut all of the warm up soft ball pitches and get to the point. To this end you need to thoroughly prepare your witnesses. If you haven’t rehearsed your direct several times with each of your witnesses then you can expect your witnesses to delve into more information than is necessary. You will as a result have to cut your witnesses off and put them back on track too often. This causes confusion and ambiguity. Ambiguity is your enemy in plaintiff’s injury trials. You have the burden here. If the jurors can’t follow the case they will not rule in your favor. So practice with your lay witnesses. Practice with your experts as well. Your experts may like to go on and on about details which are difficult to follow and too complex for other non-experts to follow. So cut all this information from your experts as well.
To this end keep a tight rein on your witnesses on direct. Don’t ask them too broad of questions such as “what happened next” or “go on” or “tell me more about that”. Although these can be great direct examination questions they leave too much control in your witness’s hands. The danger is that the witness will miss crucial facts which you need to present to the jury. If your witness is well rehearsed you may get away with it. However, better yet to keep your questions tight and controlled. “Where was the employee looking as he pushed the liquor cage”? “How fast was he moving”? “Where was the employee at this time”? In this way you limit the amount of information that comes in. More info will bog down your jurors and result in a defense verdict. As always keep your questions short. Don’t ask compound questions as they require compound answers. Remember that more is less.
As you begin to develop your direct examination you will first need to determine the order of your witnesses. Who you put on as your first witness should be well considered. Remember the importance of primacy. The interpretation your jurors make early on in the case will likely be held through the remainder of the case. Thus you first witness must be strong. To this end don’t pick a first witness who can be impeached. Pick a witness who the defense will fail miserably while trying to impeach. In this way the jurors see the strength of your case right off the bat. If your first witness gets impeached you lose credibility for the remainder of trial. To that end, make sure that this first witness is unbiased. For instance don’t put your client’s husband or wife up as the first witness. This witness has a clear stake in the outcome of the case. Put up a witness who has nothing to gain through the litigation. Also make sure that this first witness can talk about the defendant’s actions. This case is about what the defendant did. Focus on the Defendant’s actions. So you will want to put up a witness who can speak on this topic. Someone who was present when the injury occurred. Someone who was present when the Defendant did some action which ultimately resulted in harms and losses to your client. Ideally this same witness can then speak to some extent on the injury incurred by your client. Perhaps the witness watched as the casino employee pushed the liqueur cage into your client. Perhaps they saw that the employee was looking at his phone when he was pushing the cart or that he was otherwise distracted. Perhaps the witness also saw your client as she was stuck by the liqueur cage and further saw the grief encountered by your client. This makes for a good first witness. Put the witness on to speak about the Defendant’s actions and the harms endured by your client.
When you do finally put your witness on the stand, you need to be careful how you present her. The tendency of course is to ask her about all of her pain and suffering and how bad she hurts and what not. This intuitively makes sense as we are indeed asking for money to compensate her for these harms and losses. Unfortunately this is not what your jurors are going to want to hear from your client. No one respects a whiner. No matter how bad the injury or the devastation, people don’t want to you hear your client whine about it. So with your plaintiff on the stand focus on the positive. Focus on what your client has overcome. How she has learned to live with the use of only one arm. Have her talk about how she has struggled and persevered since the injury. This does a couple of things at once. For one it describes what your client is limited to. But secondly and more importantly it describes your client as an optimist, as a fighter, as someone who is trying to make their own plight better. This is much preferred to an individual who is only willing to ask for money from others but do nothing on his or her own to improve the situation. As legendary plaintiff’s lawyer Moe Levine would say, focus on what your client has left rather than what your client has lost. Moe Levine was the most brilliant plaintiff’s trial lawyer of his time because he had this type of insight. He would tell you to focus on what your client has left rather than what your client has lost.
When you put your other character witnesses on the stand you can systematically go through them asking them about the before and after of your client. Ask these witnesses about who the plaintiff was before the injury. Ask them who she is now. These are some of, if not your most, important witnesses so do not take these witnesses for granted. You need to scour for these witnesses. If your client tells you she has no friends don’t stop at this. Go to the client’s grocery story and talk to the clerk. Talk to anyone who has contact with your client. Even a little insight into who your client was before and after the injury from these types of witnesses is incredibly powerful. Also, David Ball will tell us not to just put one or two of these witnesses on the stand. Put a bunch of them up. Maybe ten or 15 of them on the stand. Don’t spend hours with each one but spend a short period of time with each one getting each and every one of their own perspectives on who your client was before the injury and who she is now. Have them talk about what your client could do before the accident and what your client is limited to now.
You need to interview your witnesses thoroughly. Most witnesses will not be the greatest storytellers. Find out which ones are good. You want witnesses who can tell actual stories from experiences they had with your client either before or after the injury. These can be very basic stories. Perhaps this witness can talk about how he would always see the plaintiff out in her yard every morning in her garden before the accident. The witness can then talk about how he no longer sees your client out in her garden. The witness can go on to talk about how her yard used to be so beautiful but how it isn’t so beautiful anymore.
These are just some of many tips to be employed in a plaintiff’s injury trial. As stated, most of this information comes from legendary trial consultant David Ball. Please read any of his many publication on plaintiff’s trial advocacy if you are seeking a thorough understanding plaintiff’s trial advocacy.