Direct Examination

• Author: Ike Vanden Eykel
• Pages: 14-15

14 FAMILY ADVOCATE www.shopaba.org

Being a good trial attorney requires an ability to

prepare for and produce something in the court-

room that appears easy and uncomplicated but in

practice is both dicult and challenging—how to

make something that has the real possibility of

being boring enough to put the trier of fact to sleep and can

actually harm your case into a production that will be well

received by the judge (if you are trying your case to a jury,

this article is very applicable as well). If the judge, during

your direct examination of a witness, is tempted to balance

and clean up their check register, you have a big problem

getting your point across.

ere are rules to follow with doing anything well. A lot of

seasoned trial attorneys have opinions on direct examination

techniques, but let’s break it down so you can develop eective

direct examination for your next courtroom encounter.

Organize—O utline Your Objectives

is topic seems pretty basic, but it is where you should be

starting in your preparation for a hearing or trial. Without a

good road map that shows where you are headed, you are

likely to lose your way during the process, and this can be

very problematic.

No one witness is going to normally carry you to victory

in a contested matter. If you know what you need to get into

your record and want it heard and understood, it is always a

good start to make sure you have down everything you need

to get across to the judge. Identify what witnesses can get

your points into evidence so nothing is overlooked or

omitted. You may be able to drive a point home with more

than one witness, which can be very helpful as long as it is

not taken too far. Beating a dead horse is rarely a productive

exercise in court.

Witness Training—Mechanics

Attorneys are very comfortable in court. Witnesses are

normally not comfortable in court. You need to make sure

your witness knows what to expect before they get on the

stand to testify.

It is important to point out that I am not talking about

making sure they know the exact answer you want to every

question in your outline. What is important is that your

witness understand the mechanics of successfully getting their

testimony heard and considered by the judge. An example of

mechanics is that it is rude and annoying to start responding

while the person asking the question is still talking. at

person may in fact be the judge in some instances. A person

called in to testify in court is expected to be nervous and may

very well make this type of mistake innocently unless you have

worked with them to understand what is going to happen,

how long it will last, what the rules in court are, and how

objections work, to name a few. ere are many styles and

techniques for training witnesses, and you can nd articles

devoted to just that topic. What is important is that you make

sure this is on your preparation agenda.

Exhibits and Summaries

It is very helpful to include exhibits and summaries as part of

your delivery of direct examination. Several things are

accomplished if this subject is included in your preparation.

First and foremost, you normally are going to have written

documents that you need to make part of the record. You

should have an exhibit list, and you need to make sure which

witness will be sponsoring which exhibits. is process can

easily drift into the boring category, so make sure you do the

important steps of having your exhibits remarked and

organized with the proper number of copies made and

Direct

Examination

BY IKE VANDEN EYKEL

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.