Today’s column takes its title from a seminar presented in Scottsdale, Ariz., during last month’s annual meeting of the ABA Litigation Section. Schools of Buddhism aren’t often invoked at such events, but perhaps they should be. A distinguishing feature of Zen is that freedom of the mind cannot be obtained by practice alone, but must come through direct and immediate insight.
Direct and immediate insight is what the advocate needs to put into action while questioning witnesses. As presented at the program, the Zen of direct and cross-examination is all about absorbing technique to the point of applying it instinctively in the courtroom.
Participants included professor Steven Saltzburg, professor of trial practice at George Washington University School of Law; Terence MacCarthy, federal public defender for the Northern District of Illinois, JoAnn Epps, professor and associate dean at Temple University School of Law, Stephanie K. Pell of the Counter-terrorism Section of the Department of Justice, Judge Marvin E. Aspen, of the U.S. District Court for the Northern District of Illinois; and yours truly as co-organizer and moderator.
The theme of the program was that in mastering the art of witness examination, each advocate must adapt theory to his or her own style and to the situation at hand. In the heat of battle, you can’t pull out the trusty rulebook and search for Rule 13. Rather, you need to become so comfortable and familiar with the theory that you can instantly put it into practice almost without thinking.
What follows are some insights offered at the program regarding direct. Next week, we’ll turn our attention to cross.
The purposes of direct examination are to argue your case through conversation with the witness; prove the elements of your case; and immunize your witness from cross-examination. As you seek to accomplish all this, consider the arrangement of your examination. Using the doctrine of “primacy, frequency and recency,” present your strongest witnesses at the beginning and end. Similarly, lead and conclude each examination with the most salient testimony.
No matter where they fall in the lineup, you want to engage all your witnesses with vigor. Avoid lazy questioning. A typical direct might go like this: “Well, tell us what happened? What happened next? What did you do then?” This tack is unimaginative and can lead to unsatisfactory answers. It’s better to bring out details to impress the jurors and engage their minds.
Here’s a sample examination of a witness testifying about a bank robbery:
Compared to asking the witness to ‘tell us what happened,’ this approach yields more vivid and memorable testimony. At the same time, it’s important to appreciate that you need not bring every detail to the attention of the judge or jury. In deciding which facts to emphasize, remember the theme of case and selectively seek out testimony that will support it.
Doing so will help give your examination structure. So will the use of transitional statements, such as “I would now like to discuss with you what happened after the defendant entered the bank.” This is a helpful way to anchor in the minds of the juror the points you wish to emphasize.
Similarly, aof exhibits and demonstrative evidence can be a helpful way to corroborate testimony. After the witness describes the trench coat, you might show the garment to the witness and ask if he can identify it as the one the defendant wore.
Think of a direct examination as a camera focusing on particular scenes. Zoom in on particular details, using exhibits to corroborate crucial testimony. Speed up and be more general when specific details are not required. Then slow down, painting the picture with precision and creating a rhythm to captivate the listener.
Always develop foundations to enhance credibility. Before you ask a witness to describe something, you want to carefully establish his or her authority on the matter. If you need a woman to identify the man who robbed a co-worker’s office, you might start off by asking her about her background. She could point out that she has a Ph.D. and supervises 500 people at the company where the theft occurred. After a careful review of her history, the ultimate identification becomes more impressive. In closing arguments, you can argue that such a witness, a responsible supervisor of many years, would not make an identification unless she were sure of it.
Style and delivery are also critical aspects of direct examination, as they are of all advocacy. Where you stand in the courtroom when you conduct the examination is important. You may want to stand by the jury and ask the witness to tell “us,” as if you are part of the jury. Be careful that your body language does not contradict the mood you are trying to create. For example, don’t frown if you get an answer that you don’t want, and never lose your cool.
If you can internalize such techniques, you may reach that Zen-like state in which your every question and decision rise out of you without laborious consideration. It’s not Nirvana, but a flawless direct examination is a satisfaction that can save your case, if not your soul.