The Engaging Direct Examination
A poorly executed direct examination can lose the jury or bore them to snores. There are many ways to disengage the jury from your direct. Use the windshield wiper method (“What happened next?” “What happened next?” And then what happened?”). While this may elicit the information, it can be as mind-numbing as watching your windshield wiper go back and forth. Call an expert who constantly speaks in technical terms that jurors can’t understand. Allow a dull, monotone voiced witness to drone on, thus sucking the oxygen out of the courtroom. Have the witness never once look at the jury. Only elicit words, words and more words from the witness.
What follows is a list of HOW TO KEEP THE JURY ENGAGED DURING THE DIRECT:
Exhibits and Demonstrations: Break up the direct examination by spacing out the introduction of exhibits. This will enhance the presentation, change its pace and break up the testimony so that the jurors are not just listening to words. Most importantly your jury will have a significant number of predominantly visual learners. A demonstration will enliven the presentation and bring reality into the courtroom.
Variations in the Questioning: How you ask questions can keep the jurors’ interest. Vary tone of voice and volume. Embrace courtroom silence. If the witness gives a particularly good answer, remain silent and let the answer sink in. Change how the questions are phrased (not “What happened next?” repeated). Shift the tense from past to present tense to bring the action or scene to life. For instance: “When you enter the intersection, tell us what you see on your right?”
Directions: Keep the jury informed of where you are, where you are going and what they have heard. You need not tell a linear story during the direct. You can flash forward in time, flash back in time and even freeze on a subject or scene. But, wherever you go, the jury should not get lost. This can be accomplished with declarative sentences, such as, “Now, let’s move ahead to when. . .” Or, freezing on a subject, “Now, let’s discuss the scaffold.” While these are not questions, they normally are never objected to because people in the courtroom want to follow the testimony. Juror attention can be directed to what they have heard by using the looping technique, which involves incorporating the witness’s answer into the next question. For example, the witness answers, “I put on the brake,” and the next question is “When you put on the brake, what happened next?” Looping repeats and highlights the testimony, and thus directs the jurors’ attention to the answer.
Energy: An antidote to counteract the poison of a dull direct is your energy. Ask questions with enthusiasm, informing the jurors that you want to know the answer. Sound interested in the answer. Energetically ask questions that the jury would want answered.
Witness Speaks to the Jurors: A common mistake on direct examination is to have the witness speak to the lawyer when answering questions. The only people in the courtroom who matter for the witness are the jurors because they are the fact finders. The jurors are the people to whom the witness should speak. During witness preparation, you can tell this to the witness and explain that the jury’s only job is to find out what happened. They are like the witness’s neighbors and have no axe to grind. They want to find what is true. Therefore, the witness should look at them and speak to them. If the court permits, counsel should stand behind the far end of the jury box away from the witness so that the witness is looking across the jurors towards counsel. During preparation, inform the witness that this placement is a cue to the witness to look at the jurors. Counsel can explain the positioning to the jurors with the first witness: “Mr. ____, I’m standing back here so that you will speak up so juror number 6 here can hear you.” This positioning results in the spotlight being on the witness and the jury looking at the witness as opposed to looking at the lawyer who asks the question and then to the answering witness as though the jurors were watching a tennis match. If necessary because the witness looks away from the jurors, you can nudge the witness’s eyes back to them by saying, “Could you tell the jury. . .”
Direct examination provides the building blocks for the case, and therefore it is critical that the jury be engrossed during the examination. Additional practice pointers are provided in Trial Advocacy: Planning, Analysis and Strategy, 3rdEdition.