Podcast - Direct Examination: Asking Questions in the Right Order
In the latest episode of the "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small shares insights on strengthening direct examinations. He stresses that every question should advance testimony in a logical flow. Mr. Small also explains the importance of establishing adequate foundations before delving into substantive details. Listeners will learn to avoid "how do you know" questions that risk sounding leading or casting doubt. He notes proper order and phrasing also matter when introducing documents or physical evidence.
Tune in now to gain strategic best practices for optimizing this pivotal element of any case.
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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.
Dan Small: Every direct examination should unfold in a logical sequence. That principle applies not only at the macro level, where testimony typically begins with the introduction of the witness, followed by the setting of the stage, then the telling of the story in a chronological manner, but at the micro level as well. Whether you want the witness to describe what happened, or you're trying to get a document into evidence, or whatever you're trying to do, it helps a great deal to ask your questions in a disciplined and logical order.
For example, it's often necessary to establish that a witness has a factual basis for his or her testimony before you jump into the middle of the testimony itself. This comes up in many contexts and has many labels. Laying a foundation, establishing personal knowledge and so on. It's usually pretty simple stuff, and it's always the same idea. Set the stage. Make sure there's enough to move forward. So, for example, where were you? In a position where I could see. What did you see? The event. Or where were you? In a position where I could hear. What did you hear? The statement.
For some reason, though, lawyers often ask questions like that in reverse order. What happened? The event. Well, how did you know that? I was in a position where I could see. What is this? The relevant object. Or how do you know it's a relevant object? The explanation. A good rule of thumb is that if you have to ask the witness, how do you know that, you have asked the questions in the wrong order. It should be obvious to the jury and to the judge how the witness knows.
Most of the time it doesn't matter very much, and your opponent or the judge will let it slide. But sometimes it matters a whole lot, and logically it's the right way to do it. Regardless, it's less effective to do it the wrong way. Here's an even uglier example. Do you have an understanding as to what happened? Yes. What is that understanding? That the event happened. What is that understanding based on? I saw it. This is technically incorrect. It may draw an objection, and it's pointless. Don't do it that way.
The same principle applies to laying foundations for admitting documents. Here's the right order: Did you prepare a draft contract? Yes. I'm showing you what's been marked as exhibit three. Do you recognize it? Yes. What is it? It's the draft contract. And here's the wrong order: What is this? It's the draft contract. How do you know that? Well, I wrote it. Again, it doesn't usually matter, but sometimes it does.
The admission of an object can be even more challenging. It often requires proof of a chain of custody. If so, the order of the questions may be very important indeed. For example, if the witness needs to go through a number of steps to authenticate a firearm, take the witness through those steps: first recovering the gun at the scene, tagging it, noting its serial number, placing it in an evidence envelope and so on. Wait until the end to ask the key questions. What did you do with the firearm after you found it? I photographed it, tagged it, wrote down the make, model and serial number, put it in the evidence bag and put it in the evidence locker. When did you see it? This morning, when I took it out of the evidence locker. How does a tag or serial number compare to the tag serial number you put on it that day? It's the same. Is this item in the same condition as when you found it? Yes. What is it? It's the firearm that I recovered at the murder scene. There it is. You've brought the judge and the jury with you. They understand why the witness can testify the way he's testifying or she's testifying.
In practice, trials are often sloppy affairs. There's really no reason why that should be so. Try to be disciplined and correct as to all things large and small. Great athletes work constantly on mastering the details and doing things right so that in the heat of battle, doing it right will come as second nature. Why did you always see Tom Brady on the sidelines throwing a ball during the game? You think he doesn't know how to throw a football? No, but he's practicing so that in the heat of battle, doing it right will come as second nature. That's a great model for trial lawyers to follow. Practice doing it right.