The 4 lamest words used to conduct direct exam of a fact witness

  Photo:  A chiropractor showing the jury the proper way the plaintiff needs to lift to protect his back while working in construction.  Problem is he has a knee injury too.  So now the jury can see the dilemma.

Photo:  A chiropractor showing the jury the proper way the plaintiff needs to lift to protect his back while working in construction.  Problem is he has a knee injury too.  So now the jury can see the dilemma.

Drive up to the gate.  Pay $15 for a parking pass.  Drive 100 feet forward and turn left.  Find a space and park.  Am barefoot.  Slip on shoes.  Exit car.  Walk around the side of the building.  Open the doors.  Am now inside the UW school of law.    Head down the hallway to room 138.  Open the door.  It's a big theater styled space.  Walk down the stairs to the front.  Give Bill Bailey a hug.  He’s a full time professor there for now.  This is the big lecture class for the trial advocacy program.

Students wander in.  Set up their laptops.

For the next hour Bill and I scare them witless. We undo their preconceived ideas about what direct exam should look like.

Me:  Getting the exhibits in – that’s worrisome for a student/new attorney.  Making sure the outline contains all the necessary questions – that’s doable with preparation.   You are all smart.  You are all in law school.  So you will know all the little bits and pieces you need to get in.  That isn’t the tough part.

Students:  Uhhhhh. Blank faces.

Me:  There are four words that we use when conducting direct of a fact witness.  They are lazy, passive, unexciting words.  You will find yourselves using them in court.  Perhaps even for years.  One day, you will remember we talked about this in class.  And maybe be able to change this pattern.

Students:  Look at me like a jury during  the first few minutes of voir dire when you can’t read anything about them.  Except their lack of connection with you.

Me:  Direct exam isn’t about just getting the evidence “in.”  It isn’t solely an exercise in data entry.  The jury will tune out if you don’t hook their attention.  And they will rule against your client unless they can see that your side is correct.    It isn’t up to the witnesses to do all this on their own.  It is your job.

  • If you heavily prepare your witness in advance with a memorized script – guess how believable that testimony will be at trial.
  • If you just lay everything out in a linear, logical, fastidious, monotonous fashion – guess how many jurors will still be listening to the testimony after three minutes.
  • If you have witnesses testify about lists of information without adding any color, warmth, humanity or context – guess how impactful that testimony will be.
  • If you take on a passive role and expect the witness to win over the jury every time – guess how often that will happen.

Bill and I engage the students.  We role play, practice asking provocative questions, talk in present tense, use diagrams, and act out stories.

Some of the students are now relaxed, smiling and engaged.  Though I can't quite turn the gentleman in the tie and lilac shirt seated in the front row who quite clearly suspects I’m bonkers.

Hug Bill goodbye.  Walk up the stairs.  Back down the hall.  Out through the doors.  Around the side of the building.  Hop into car.  Take off shoes.  Drive to gate.  Give secret code.  Get $15 back.

Post script:  So what are the ten lamest words used to conduct direct exam;  "And then what happened...”