IN OUR OPENING STATEMENT WE have told our story. The complete story. Now we’re here to prove it. But remember, the key to direct examination, as in every element of the trial, is we. It begins with us. Everything, everywhere, begins with us. We are it. If we haven’t dis-covered our story and its theme we can’t lead a successful direct examination. If we physically haven’t been to the scene we can’t do a direct examination. If we can’t live for the moment inside our client’s hide, we can’t do a successful direct examination. If we haven’t spent the necessary time preparing our direct examination will be of little value. And most assuredly, if we can’t tell the story effectively, our direct examination will be more confusing than enlightening.
The direct examination is also storytelling—telling the story through the lips of the witness. Our job is to help the witness tell the part of the story the witness knows.
Preparing, not coaching, the witness. Let’s first disabuse ourselves of a myth designed to sully this whole business of the preparation of direct examination. The preparation of a witness to testify is not the ignominious, illegal, immoral act often referred to as “woodshedding” the witness, or coaching him, as is often the attack by our opponent if he has nothing better to say on cross-examination. As we shall see in the chapter on cross-examination, this attack on the witness is virulent and, unless the witness is prepared, it can do him and our case great damage.
It is something approaching malpractice for a lawyer to fail to prepare his witness to take the stand. For the lay witness, his first experience on the witness stand can be daunting. The witness has likely never before tried to tell a story in a place as unfriendly as a courtroom. Slip inside the witness’s shoes for a moment. You are called to the witness stand. You look around you. The place looks more like the chapel in a funeral home than a place in which to tell your story, and you begin to feel like you may be mistaken for the body. The judge is not your friendly undertaker. He is not there to comfort. He is there to fulfill his own agenda, whatever it may be.
The judge, in black, looks down on you with an appalling dark countenance. Across from you sit the opposing counsel, crouched like tigers about to spring on you, the helpless prey caught in a dead-end crevice. Your own lawyer looks pale and nervous and begins asking you questions you had not anticipated, questions you have to think about. Sometimes he doesn’t even look at you when he asks them, his eyes glued to his notes like a choirboy. One thing is certain: Your lawyer isn’t listening to what you’re saying because he can’t listen to you and read his notes at the same time. “For God’s sake,” you say, “I wish somebody had prepared me for this nightmare, and if not me, that someone had at least prepared my lawyer.”
Tutelage is divine. Coaching, on the other hand, occurs when the lawyer tells the witness what to say, despite what the truth may be. Such a lawyer should have his license lifted and be prosecuted for a conspiracy to commit perjury. A witness who would tell a lie that was foisted on his lips by the lawyer should face the same music.
Preparing the witness to testify is something quite different. We first want to discover the story from him. We’ve seen in a previous chapter how that can be assisted through psychodrama. But another review of the process may be instructive. Let’s suppose our case is one in which our client Derrick Smith has been wrongfully assaulted and beaten by two police officers. The suit is for damages against the city for the officers’ brutality. Our witness, a passerby, is going to testify about what she saw.
Let’s take on the role of the examining lawyer, remembering that in direct examination, as distinguished from cross-examination, the star of the drama is not the lawyer but the witness. Let’s first have the witness take us to the scene. Shirley, we’ll call her.
“Where does this incident take place, Shirley?”
“It’s an apartment complex on Bath Street.”
“As you face the building from the street, tell us what this apartment house looks like?”
“It’s a brick building with three stories—one front door. The bricks are smudged with a lot of smoke and grime. There’s graffiti under one window. Some of the windows on the third floor have no curtains over them, and some have cardboard to cover where panes of glass have been broken out.”
If the witness can’t produce this kind of detail, then we have to go with the witness to the scene and point out all of the details of the surroundings that we will want her to testify to in the trial. We could use a photograph. But a detailed picture from the lips of the witness provides us with the assurance that the witness has been there and that the witness is observant. Moreover, having her describe the scene in detail is a way for the witness to become comfortable with this peculiar way we are required to communicate with people in the courtroom.
We’ll continue setting the scene. “How do you get to the front door of the apartment house?”
“A concrete sidewalk leads to the front door through a gate.”
“As you look at the gate, what do you see?” Note, we are not asking the witness to tell us from her memory what she saw. She is there, now.
“It’s broken and hanging on one hinge.”
“What’s it made of?”
“Sort of iron work. You know, with those scrolley designs in it.”
“Open the gate for us.”
“It’s already open and hanging on that one hinge.”
“What do you see beyond the gate?”
“The front yard. Small, about this big.” She motions to the size of the fifteen-by-twenty-foot room we are in.
“What do you see in the yard?”
“I see a poorly tended lawn, mostly brown.”
“Is there a smell about the place?’
“I suppose.
“Oh, I guess it’s a stale, heavy odor that comes from the street, the cars whipping by—it’s hot and muggy smelling. I think there is a taint of garbage there as well.”
“As you approach the scene, what do you hear in the background?”
“The droning of traffic, the gunning of car engines. The hollering of people across the street.”
Perhaps there will be objections to this kind of detail. The court and counsel may not be used to a thorough scene-setting that takes into account all of the senses. But we already see that this brand of scene-setting not only creates credibility for the witness and helps her become adjusted to the courtroom, it also does a good deal more than a photograph could do, which is merely a two-dimensional image that cannot recreate sound, smell, and feel. I am not suggesting we not use a photograph, but that our scene-setting go beyond it.
“What time is it now?”
“It’s two in the afternoon.”
“What month and day of the year?’
“July twenty-eighth. It’s hot.”
“How do you know?”
“Because I can feel the heat.”
“Are you sweating?”
“Yes.
“Exactly where are you in this scene?”
“I’m walking along the sidewalk of the street. I am at the intersection of that sidewalk and the smaller concrete walk that leads to the gate and to the apartment.”
“Perhaps you can get up now and stand where you were standing.” The witness can get up from her chair and choose a spot as the place where she was standing.
“Where are you going at this moment?”
“To the store to get some groceries for dinner.”
“What’s going on at this moment?”
“I see this African-American man trying to get into the door of the apartment house.”
“How far away from you is the door to the apartment house?”
“About twenty feet.”
“Show us where the door is.” She walks about twenty feet to a place she designates as the front door.
“Let’s put a chair here to designate the apartment door.” These simple visual aids help make the scene real.
“Describe this man.”
“He’s thin, about thirty I’d say, about five-feet-eight. He has balding hair.”
“What is he wearing?”
“He’s in a pair of floppy brown pants, a pair of worn, white tennis shoes, and a white T-shirt.”
We are about to ask our witness what she is seeing (not what she saw). Keeping this in the present tense allows us to bring the jury into the action.
“Where’s the man you’ve described?”
“He’s at the door of the apartment house. The man is trapped at the door. He’s trying to unlock it and one officer is running around the apartment house from one direction and the other from the other direction.”
We ask the witness to take the position of the African-American man as she saw him. She walks over to the place designated as the apartment door and lies down on the floor where she remains during the following questions.
“What happens now?”
“A couple of police officers are holding him down and beating him with night sticks.”
“Do you recognize any of the officers today in this courtroom as the ones you are now seeing at this scene?”
She looks up from the floor. “Yes.” She points to the two officers who sit at counsel table with their lawyers, their ferocity hidden behind glumness and scowls.
“Do you recognize Officer Bates?”
“Yes.”
“And Officer Harlow?”
“Yes. They’re the ones beating on this man.”
“Do you recognize the man who is being beaten?”
“Yes. He’s at your table.”
“Like you recognize anyone. He is himself. I would recognize him anywhere.” Our witness is still on the floor.
“What is happening to you?” The “you” then serves to convert the witness into our client, Derrick Smith.
“I am being hit over the head and across my body by Officer Bates.”
“What are you doing?”
“I am yelling, ‘Don’t hit me! Don’t hit me. Please don’t hit me again.’ And I am crying and screaming.”
“What is office Harlow doing now?”
“He is hitting me as well.”
“What are you doing?”
“I am putting my hands over my head like this. Then when they hit my body, I try to protect my body.”
I ask Shirley the witness to get up, and I hand her a ruler. “Assume this is the night sticks of the officers, show us what Officer Bates is doing to Derrick Smith who is still lying there on the ground.”
“He is striking Mr. Smith with his nightstick like this.” She beats at the place where she previously lay.
“And will you show us what Officer Harlow is doing now.”
“He is striking Mr. Smith like this.” Also beating the imaginary man on the ground.
By this process the witness has taken the roles of four people in this drama, the client, Derrick Smith, the two officers, and herself. She is testifying to what she saw, but it is testimony that is put into action. Had she testified in the usual manner of an eyewitness, she would have simply told what she saw—“I saw the officers beating on Mr. Smith and he was yelling for them to stop.” But putting the scene into action creates a more vivid, accurate picture. In truth, we are not coaching the witness, she is educating us.
And remember two simple things about the direct examination: Again, the star is the witness, not the lawyer. And secondly, the lawyer directs the jury to the star with open-ended questions, the who, what, where, why, when questions, the how questions. The lawyer does not lead unless he must—in response to a blank face from the witness, or because the witness is straying, or when emphasis is called for. The leading question is always there to save us.
Facing potential objections. Of course, I’m interested in the objections that are made to this kind of testimony and the lawyers’ fear of their embarrassment at the hands of an oppressive judge. But in the courtroom there are forces at work that inhibit objections. First, the court isn’t likely to interpose an adverse ruling without an objection from our opposing counsel. Our opposition may or may not object. Often he will be taken into the story and see no valid opposition to it, except that it is something new. He may be curious. More to the point, he may be concerned that his objection to this interesting form of giving testimony—words in action—may cause an adverse reaction by the jurors, who want to see what is going to happen and will resent his interrupting it.
We hear objections like, “This is not testimony, this is acting.” The response is that we are interested in the truth. Words with action provide us with a much more vivid view of the facts than mere words alone. Often witnesses are not especially articulate. They have to choose the correct words to tell what happened, and many are not good at this, especially under the unrelenting pressure of the courtroom. When we see the action along with the words, the picture becomes more clear.
The objection may be that the action of the witness cannot be recorded by the court reporter. But a better picture of what happened, brought to reality by action, ought not be victimized by the limitations of courtroom technology. If there is an honest concern that the action of the witness can’t be accurately reported for the appellate court, then the trial court can order that the testimony of the witness be recorded on video, which the appellate court can review and which is much easier and informative for them than reading the dry, impoverished transcript that is void of most of the truth. The printed word in the transcript does not reveal voice intonations, nor the emphasis on words that can change the entire meaning of those words, nor the facial expressions and body language of the witnesses. The experts tell me that less than twenty-five percent of meaning is conveyed by the spoken word itself. A much smaller percentage is conveyed by the cold word on the page. And the attorney can always make the standard report to the record, “Let the record show that the witness is … [whatever the witness is doing].”
Back to our courtroom drama: “Perhaps, Shirley, you can retake the position where you are watching this scene take place.” She walks back to the place on the sidewalk where she witnessed this assault. “Could you tell us what you are thinking now as you watch this?” This question probes into a richer source of truth. Her thoughts will show us a deeper understanding of the facts. Her interpretation of what she sees is not only relevant but tells us what is otherwise unknowable.
“I am thinking, what is going on here? This is horrible. They are killing this man. He is surely going to be murdered in front of my eyes. I have never seen a murder before. I had better run and get out of here. Maybe they will kill me.”
“Do you say anything to the officers?”
“No.”
“So, what do you think you should do?”
“The first thing I think is, I had better call the police. Then I realize that they are the police.”
“What do you do next?”
“Suddenly, I don’t know why, but I run over to them and grab that Officer Bates’s arm and holler at him, ‘You are killing that man.’”
“Show us.”
She goes to the place in the room where the officers are beating Derrick and shows us how she grabbed the arm of the officer. At this point this drama can be acted out with others taking the role of the police officers and our client. And even in the courtroom the witness can be asked to use, say, one of our attorneys at the table to stand in for Derrick and the bailiff to stand in for the officer to show us what happened.
“How are you feeling as you grab the arm of Officer Bates?”
“I’m scared. I’m afraid he might hurt me.”
“What happens next?”
“He throws me aside with just one big swing of his arm, like this. [Showing us.] He knocks me away about five feet.”
“And what, if anything, is he saying?”
“He says, ‘Get the fuck out of here, bitch.’”
“What is he doing now?”
“He is beating at Derrick again.”
“And what are you doing?”
“I grab his arm again.”
“Show us. And what is Officer Bates doing now?”
“He gets up from where he is beating on Derrick and he pushes me up against the wall and he’s saying, ‘I’m going to arrest you for interfering with the official duties of an officer.’”
“What are you thinking now?”
“I am thinking, ‘What am I going to tell my mother if he puts me in jail?’ He is holding me up against the wall of the apartment house and he is putting handcuffs on me. He says, ‘What’s your name, bitch?’ and I tell him, ‘Shirley MacCall,’ and he says, ‘Where do you live?’ I say, ‘324 West Park.’ And he says, ‘Okay bitch, how old are you?’ I say, ‘Seventeen.’ And then he takes off the cuffs from me and says, ‘Get the hell home to your mother.’”
“What is going on with Derrick?”
“They have quit beating him. He is lying on the concrete walk unconscious, face down.”
“How do you know he is unconscious?”
“Because he isn’t moving. He is bleeding from the nose and mouth.”
“What are the officers doing?”
“Officer Harlow is calling an ambulance on his walkie-talkie radio.”
“What are you doing now?”
“I’m running home.”
When Shirley appears in court as our witness she will have had the opportunity to reexplore in depth what happened at the scene. She will go into court nervous, but ready. She knows what her testimony will be, the story that she will be telling. Her testimony will be elevated a notch above what we might ordinarily hear in court—a witness groping for words to express something that took place in the past, a scene that is rendered in the usual abstract, sometimes-fuzzy language that leaves the jurors to create their own mental picture that will not accurately portray the events.
For years I have suffered and struggled with direct examination. I repeatedly, habitually, found it necessary to lead the witness who, under the heat of the courtroom, suddenly couldn’t tell what he knew. But I found that the use of the psychodramatic technique opens the doors to discovery. The witness often doesn’t know all that he knows until he plays through the scene. We learn it along with the witness. We are not coaching the witness. Once more, the witness is teaching us.
Being upfront with the jurors about our preparation. What happens to our case if, after having prepared our witness to testify in the manner just illustrated, opposing counsel asks on cross-examination the following, and in the following manner.
“So, Miss MacCall, have you met with Mr. Spence and gone over your testimony?”
“Yes.” Some of the less sophisticated jurors are now aghast. Mr. Spence, the supposedly upright and ethical lawyer, has been coaching his witness.
“And when did you meet with him?”
“Last week. In his office.”
“Who was there?”
“Mr. Spence and his son Kent.”
“And did you put on this dog and pony show there for them?”
The questioning goes on in this manner, creating an unnecessarily mortified witness. (The Latin root of the word is mortis—death.)
We easily could have avoided this disaster. At the very beginning of Shirley’s testimony our questioning would go this way.
“Shirley [some courts object to calling a witness by his or her given name, in which case it is Ms. MacCall], have you and my staff met before you took the stand today?”
“Yes. We met at your office a week ago.”
“What did we do there?”
“You asked me to show you what happened. And what I saw.”
“Did you show me?”
“Yes.”
“How did you do that?”
“I showed you where this happened, and I showed you and told you what the people there did and said.”
“So, did this help prepare you for your testimony today?”
“Yes.”
“And I can say, Shirley, that you helped me understand it as well.” An objectionable but harmless comment that puts the preparation into correct perspective.
The client as witness. I have already discussed the inherent danger of calling the client as a witness in the criminal case. But in the civil case the issues are different. If we don’t call the client, which we must, the defense surely will. In the civil case, the client is an imperative part of our case—he is what the case is about. We are not, as in the criminal case, defending. In the civil case we are the prosecution. We are going forward with the evidence. We are It. The burden is on us. Our client is the victim, the injured, and we want justice—all the justice we can pack into the verdict. The client’s story is at the heart of our case. The client is our case. Often I hear lawyers talking about their search for experts and for witnesses who will buttress their case. I think of the wise doctor who understands that his patient knows more about his patient’s condition than the doctor, that the first source of information about the patient’s case is the patient. And so it is with our client.
When I hear lawyers seeking answers in their cases I ask them, “Why don’t you just go talk to your client? Your client is the expert in his case. He has lived it every day and dreamed of it every night. He has explored untold dead end alleys. He knows the forest out there. He may be confused. He may not know the law. He may be clouded with a haunting anxiety about it. He may be harried by outside forces, but he knows his case better than anyone in the world.”
Too often lawyers see their clients as those bothersome, whining pests who are always demanding and always unreasonable. They may be all of the above, but they know their case the best. They are the wellspring from which all knowledge originates. They are not just somebody who happened to stumble through our office door and signed a fee agreement, and who now is constantly bothering us about why the case is moving so slowly.
If we are to do a direct examination, and do it right, we ought to go sit with the client at his house. That’s where he spends his life. Let’s look at his bedroom, his bookshelf—even inside his refrigerator. Let’s see what he does with his painful days and lonely, misery-filled nights. If we represent a quadriplegic we ought to spend the night. Bring a sleeping bag. See the family. See their caring, their struggle, and how his damnable injury has imprisoned them—and see their heroic cheerfulness and love as well. We should watch our client struggle into bed at night and out again in the morning. See how they insert the various tubes into his body. See how helplessness is really defined. He cannot lift a spoon to his mouth. He cannot move his bowels without assistance. His state of being demeans every essential quality of human existence. His lust for life is buried beneath pain and misery and degradation. If we want to know what his case is about, we should live with him for at least one day and one night, especially considering the fact that he will live with it until the grace of God intervenes. If we want to know what it is like to be a quadriplegic, let us become one with our client. If we do, we will not only learn what it’s like, our lives will be changed by it. We will go into the courtroom having visited the heartland of our case, the dark, haunting, lonely interior where our client lives and will live the rest of his life.
To prepare for this witness we must to go to the accident scene. If we know little about the scene, how can we begin to understand the story? So the accident took place at an unguarded railroad crossing? What do we see there? The long, steel curve of the tracks and a train barreling down on the unguarded crossing. What about the high weeds the railroad let grow up at the crossing? Let’s wait until a train roars by. Can we hear it? The frightening, descending sound. What are the smells in the air? Can we smell the diesel from the engines? If we have not been there we cannot accurately bring the scene into the courtroom.
I am amazed at how often counsel have never been to the place of the accident. I am appalled at how many lawyers go to court and have never sat in the automobile that crashed. We lawyers are bookish by training, and many think we can learn all we need to know about the case by reading the reports of the experts and glancing at the photographs.
The idea of helping our client on with his prosthesis, or slogging through the mud where the car rolled over, the very notion of getting hands or feet dirty, or the lungs filled with the reality of the scene, is often abhorrent to those who see themselves as the ladies and gentlemen of the bar. And when the verdict comes in against them these same ladies and gentlemen sit in their plushy offices and appeal their lost cases to other ladies and gentlemen who occupy soft-seated thrones on the courts of appeals.
I recall as a young lawyer representing a woman who lost her daughter in an accident caused by a defectively manufactured automobile. Her daughter was the hub of her life. The mother was devastated by her daughter’s death and bore a deep hunger for justice. But when she got on the stand and we began to discuss what it meant to her to have lost her daughter she seemed cold and distant. The jury returned a verdict for her, but it was ten percent of what the verdict should have been. I talked to one of the jurors after the case, who told me that the manufacturer was negligent and that the company ought to pay, but the mother seemed not to care much about her daughter. She seemed so mechanistic, so matter-of-fact about it. Not a tear, not even an approaching tear, not a quaver in her voice. My client had been so afraid of showing emotion, so fearful of being herself, that she froze into emotional ice.
We must spend time with the client, emphasizing that they have our total permission, and the court’s and jury’s as well, to be who they are. I am not talking about maudlin sentimentality. I am talking about being real. Real persons have feelings. Real persons cry. Real persons even show anger when it is appropriate. Real persons can smile though their tears. It is all right, indeed, it is imperative, that we be who we are in or out of court.
Preparing the witness for cross-examination. The prospect of our opponent’s cross-examination can be frightening. Nothing protects the witness against fear and anger better than preparation.
The witness who takes the stand becomes the target. In many ways his function is that of the soldier on the front line. If the opponent can kill him it brings the war that much closer to an end. We are still barbarians who use words instead of swords. The courtroom becomes an arena of human struggle. But, if we understand the nature of the trial, we can prepare ourselves and our witness to survive and prevail.
Here is something we might say to Shirley, or even to a seasoned expert—perhaps especially to one of them.
“You are going to testify. As you know, our opponent will likely try to attack your testimony in some way.” (Before we are finished with our preparation we’ll have subjected our witness to our own cross-examination.) Continuing, we might say, “When we are attacked, it naturally makes us afraid. When we’re afraid, we sometimes get hostile. We want to hit back. We strike back. We fight. It’s only natural to be angry.
“If Attorney Jones can make you angry he will have won. Remember the three Cs of a good witness: It’s for you to remain courteous, calm, and considerate. The more hostile he gets, the more anger you see from him, the more you know you are winning, and the more courteous, calm, and considerate you become. Anger in the courtroom is the blood of the battle. I want it to be theirs, not ours.”
Then I might add: “Now, let’s talk about the reality of a trial. Although a trial has monumental consequences, I have never lost a witness. Nobody ever really dies on the witness stand. If it were otherwise, they would have to kill me first. In the end, there is nothing for us to be afraid of and therefore no reason to react to our fear. The only thing we really have to be afraid of is ourselves, and as long as we remember the three Cs and never let the truth be tainted, we’re going to win.”
I tell the client it is proper to say, “I don’t know,” if the client doesn’t know. I say, “Don’t guess and don’t add anything that is unnecessary to give a full and honest answer. If you make a mistake, simply say you made a mistake. The truth is always the safe port, even when it hurts. Don’t be afraid of the cross-examination. I will be there to protect you against any improper questions. And one thing for sure. Be absolutely as fair and friendly to the cross-examiner as you are to me. Remember the three Cs.”
To ignore that last bit of advice is a form of courtroom suicide. I give it a name: the “my team” syndrome, which is to say that if you are on my team I will be kind, generous, and courteous—always courteous. But if you are not, I’ll turn into a raging scold and I’ll fight you on every word—about everything and anything. I do not want my client or any of my witnesses to be stricken with the “my team” syndrome.
We readily see how it works: We are coasting along with our direct examination, telling our story, and making our points. It all looks so just, so reasonable. Smiles and sweetness and all manner of brotherly love prevail between our witness and us. Then, up jumps the other side’s lawyer to cross-examine, and in response to his first question everything changes. I acknowledge that it’s hard to be well mannered and courteous with opposing counsel shaking his long, bony finger in our faces. One tends to get snappy. Indeed, too often our witness’s face tightens, his voice lowers about two octaves, and he turns as sour as old socks. If he were a dog his hair would be standing straight on end. He is ready to fight. He is all but baring his teeth—and I have seen witnesses bare them. Horrid sight—watching our dear, avuncular witness transformed into an attack dog before our eyes. Our witness meets the cross-examiner’s first question with an answer tainted by poorly concealed loathing, and he quibbles over every word. The war may be lost right there.
If our witness had been able to treat the cross-examiner in the same tone and with the same openness and grace as he treated us when we were asking the questions, the tide would have immediately turned. The cross-examiner would likely get testy himself, frustrated that he could not shake this witness’s cool nor pierce his sober honesty. The harder the examiner tries with this kind of witness, the worse trouble he gets into, leaving the jury to believe he is the inquisitor on a witch hunt.
The need for the preparation of our client and all of our other witnesses is only too clear. The last words I say to my witness before I call my witness to the stand are, “When Mr. Jones gets up to cross-examine you, pretend that he is your friend, someone you can trust, a nice man who has to be gently straightened out on a few things. View him as one who is somewhat disadvantaged because he doesn’t know the truth of this case. I do not mean that you should patronize him. No. I mean that you should treat him kindly—as you would treat me if I made an error concerning your case.” Often this provides the witness and ourselves with a vision of the cross-examiner that can guide the tone of our witness’s answers to the cross-examiner.
The critical interplay. We are watching the typical direct examination in the courtroom. Our witness is sitting on the stand clutching the arms of the witness chair. His knuckles are white. Then he crosses his arms as if to protect himself from the spears the attorney is about to throw at him. The lawyer asks his first question:
“State your name.” (Is that friendly?)
“John Peacock.”
The lawyer is looking at his notes as he asks the next question. “Where do you live?”
“Twenty-six Broadway.” The lawyer is still looking at his notes, groping for the next question he has written out, notes to which he is welded like the second head of a Siamese twin.
“So, on the night in question, where were you?”
“I was over in Jersey visiting my sister.”
“So, what did you see at your sister’s place on the night in question?”
The questioning goes on, the lawyer bound to his notes and never listening to what the witness is saying, because he cannot listen and read his notes at the same time.
The critical interplay between the witness and the lawyer has been destroyed by the lawyer. He is not interested in the witness, so why should the jury be? He isn’t listening to the witness, so why should the jury? Nothing is happening between them. From the witness’s standpoint, the witness feels as if he has been abandoned by the lawyer—dumped up there on a hard, unfriendly chair and then interrogated as if he were dead meat and the lawyer a blind butcher.
A critical interplay exists between all of the parties in the courtroom. We want the jury invested in this—especially the jury. So the questioning may go like this:
“And so, Mr. Peacock, tell the ladies and gentlemen of the jury what is happening now?” We are looking directly at the witness as we ask the question, and we will gesture from the witness to the jury so that the witness now turns to the jurors to answer. Question after question is prefaced with, “Tell the folks on the jury …” this or that. We should also bring in the judge when it’s appropriate. “Explain to his honor …” whatever the issue is. I have even brought in opposing counsel by saying, “Tell Mr. Jones seated over there what you’re actually seeing.” Such a question is designed to refute something the opposing counsel has said, for example, in his opening statement. The goal is to bring all of the parties to the party. Leave no one out. And remember, if you leave a juror out, he will likely leave you out.
Listen to what the witness has to say! We ask, “What was really said?” I see lawyers who let the witness lead them into deep, unfocused forests from which there is sometimes no return. We listen with a focused ear, so that if the witness strays like an exploring puppy we can bring him back. And we listen to hear what the witness may be saying beyond or behind his words. When we listen and both the lawyer and the witness are in the moment, a connection occurs that can touch the sublime.
Formatting the drama—whom do we call first? In a civil case I often hurl myself directly into the battle. I, the plaintiff, carry the burden of proof. What better tactic than to launch a frontal attack. But the attack must be gracious and fair. It must not be bellicose and belligerent, because the moment we bully, the tide has already turned against us.
The jury has just heard our opening statement and the defendant’s in response. Who is right and who is wrong? The jury is waiting to see. If we call the opposing party as our first witness with a well-conceived cross-examination we may make magnificent leaps forward. Often the opposing attorney has not taken the time to prepare his witness. Often the witness is shocked and takes the stand soaked in anxiety.
I want the order of witnesses to tell the story in a logical and persuasive way. Just as we cannot tell the whole story in one sentence, so, too, the story of our case cannot be told with one witness. Our story has already been told to the jury in the opening. The order of our witnesses should complement that.
In a civil case, the story usually begins with a happy, healthy person who one day is met with the negligence of the defendant and is injured or killed. The dramatic format of most movies is instructive. We observe how the director wants us to care about the protagonist before the horrible events descend upon our hero. If we do not care about him, no matter what happens to him the movie will be a flop. Heroes have a role. Their role is to be admired, even loved. Villains have a role. Theirs is to be rejected, even hated. Most drama is couched in this simple formula. If we do not care about the hero or do not wish all manner of evil to befall the villain, we have no drama and, in court, we have no case.
Considering this, the director in the movie shows the hero coming home to his little house, giving his adoring wife a kiss, and tussling with his children before he tucks them lovingly into bed. The director smears the hero with his super-good-guy brush. We see him as the kind of person we might want to be ourselves. We may see him struggle against unreasonable odds, see him rejected or scorned for his heroic stand. We want him to win. The dramatic conflict is always between the hero with whom we identify and the forces of evil he must overcome. In the movie we become the hero. We experience his fear. His fear becomes ours. And the drama moves step by step, just as it does in the courtroom, witness by witness—until the climax is achieved.
We like movies with a happy ending. In the civil case our plaintiff has been injured, perhaps killed. The injuries the plaintiff suffers are severe and shocking. In the criminal case our innocent client has been charged with some horrible misdeed and faces prison or execution. But the movie director has the power to cause the story to end happily, so that the audience walks out of the theater feeling good, fulfilled, and inspired. Our story in the courtroom can end happily as well. In the civil case the jury can return justice in an award of dollars that will compensate the plaintiff for his injuries or the loss of a loved one. In the criminal case, the happy ending can be the jury’s delivering freedom to the accused. But none of this can occur without our having first made our client the hero.
We remember the old saw, “Heroes are made, not born.” We make our hero at the outset. We have told his story to the jury in the opening, where he is portrayed as someone we, as his attorneys, care about; because we care about him our caring is transferred to the jurors. Now, as we call the witnesses, we hear live people describing our client as an attractive person. If he suffers from certain warts of life we present them. He, as we, is not perfect, but we understand him and we want him to win. So, the order of our witnesses and the telling of their stories is usually scripted for us.
In the civil damage case where the plaintiff has been horribly injured we might begin by calling a friend or a member of the plaintiff’s family to explain to the jury who this man was. We will show him as a happy, caring father, a man devoted to his family, and a hard worker. Perhaps we will call his former boss or a fellow worker. Perhaps we will call a child to simply testify about how Daddy was before he was hurt and what they did together. (We may have to recall the child later on to testify about how all of this has changed, how Daddy is no longer able to go fishing, to go to the ballpark, to teach him how to pitch or swim.)
After we have created our hero we will then take him to the scene of the event that injures him. Maybe we will call his wife to the stand to tell how she said good-bye to him in the morning and how they were to each other as he left, not knowing what fate lay ahead. (Again, as with the child, we may have to recall the wife at a later time.) There will be witnesses to testify as to what happened in this tragedy. We will re-create the negligent acts of the defendant, the scene, the horror, the injuries, the pain, all of the facts surrounding this preventable accident.
We will likely put our client and the damage experts on the stand at the end. We will not overdisplay our client’s injuries because, as humans, we have the ability to become callused to the pain of others in order to save ourselves a mirrored pain. We display the stump of our client who has lost his leg in the accident, or we witness the horrible disability of a brain injury, or the utter helplessness of quadriplegia. But to flout these horrors to the jury leaves them feeling that their emotions are being manipulated, and a backlash can occur. People do not want to be used. We love heroes who, although horribly and unjustly injured, smile through their tears. We want to come to the aid of those who bravely face their unjust fate. We, as jurors, want to exercise a power over fate and deliver justice. And, in the end, the lawyer, not the client, will demand retribution.
For the lay person: direct examination and its application out of court. As we have already seen, calling witnesses to support our story is not a function limited to the courtroom. In a sales meeting where we want to know what is going on in the field, we call a salesman to tell us. If there are defects in the plant processes, management wants to know them firsthand and calls a worker. In a city council meeting where the issue is a zoning change, the proponent, a citizen, may ask a neighbor to stand and speak on the need for the change. Before the hospital board, a patient whose diagnosis was missed may appear when called by the staff to illustrate the need for newer equipment. The use of testimony in out-of-court proceedings is a powerful way of presenting the case.
We have already discovered the story. We have told our story as our opening statement. Now we call the witnesses to support the story, remembering that the principles, the ideas, and the techniques we’ve discussed concerning the presentation of our witnesses in court for their direct examination, apply in most part in parallel to out-of-court cases as well.