Direct Examinations

In personal injury law, an “examination” occurs when a lawyer questions a witness. If the witness is hostile (e.g., the plaintiff’s lawyer is questioning the defendant’s witness), it is a cross-examination. If the witness is friendly (e.g., the plaintiff’s lawyer is questioning the plaintiff’s witness), it is a direct examination. Below are some tips for conducting direct examinations.

Deposition vs. Trial

Deposition vs. Trial

The two most common uses of direct examination are in a deposition and at trial. A deposition is a Q&A session conducted under oath in a private setting before trial. Judges or juries are not present for depositions. Generally, most of a witness’s answers will be admissible evidence at trial. 

Trial is another occasion when a lawyer can directly examine a witness. It is not unusual for a lawyer to ask similar questions of a witness under direct examination in a trial setting as the questions the lawyer asked them in their deposition. 

Accordingly, it is important that the lawyer and the witness work together before the trial to make sure that the witness does not contradict himself or herself. The opposing party will likely seize upon any contradiction between deposition testimony and trial testimony to discredit the witness. 

Bad Questions to Ask During a Direct Examination

Following are some examples of the types of questions a lawyer should not ask during direct examination: 

Leading Questions

“Isn’t it true that you were at home at 10 p.m. on the night of the accident?” This question is leading because it includes the desired answer within the wording of the question. Leading questions force a response that may or may not be true. A better question would be, “Where were you at 10 p.m. on the night of the accident?” 

Questions That Call for Inadmissible Hearsay Answers

“Who did the police report blame for the accident?” A better approach would be to question the police officer who wrote the report. Such questions result in hearsay, which is generally not admissible in court, as it is difficult to establish the credibility of someone who is not present. 

Compound Questions 

“When you arrived at the scene of the accident, did you see the defendant holding a gun, and did he appear agitated?” Compound questions often result in confusing or even inaccurate testimony. 

Questions That Call for Answers Beyond the Expertise of the Witness 

“Could the patient’s condition be caused by a herniated disc?” If a lawyer asked a lay witness a question like this one, it would be inappropriate, as a lay witness would not have the knowledge or experience to answer it. However, if a lawyer asked a medical witness expert (e.g., an orthopedic surgeon) this question, it would be an appropriate question to ask. 

Vague Questions

“Tell us everything that happened the night of the accident.” While such questions may be allowed, they are the kinds of questions that invite witnesses to ramble and give incoherent answers. 

Overall, a lawyer has broader latitude to ask a variety of questions in direct examination than in cross-examination. Either way, the opposing party’s lawyer can object to inappropriate questions.

Good Questions to Ask During a Direct Examination

Following is a list of the types of questions that a lawyer should ask during direct examination:

Open-Ended Questions 

“Can you describe what you saw in the warehouse on April 6, 2023?” Open-ended questions are designed to give the witness a chance to tell their side of the story. Don’t make them too open-ended — they should encourage a certain amount of focus on relevant events. 

Questions That Help Establish the Witnesses’s Background and Credibility

“How long have you known the defendant?” These questions are designed to establish a witness’s credibility for fielding other questions on a particular subject. This is especially important for expert witnesses.

Questions That Elicit Specific Facts That Are Favorable to Your Case 

“Where exactly were you when the accident occurred?” The purpose of these questions is to get the witnesses to address specific facts related to an incident. 

Questions That Refresh the Witness’s Recollection 

“Does this refresh your recollection of the positions of the vehicles?” By showing a witness key pieces of evidence, a lawyer can effectively refresh their memory and get more information from them. 

Questions That Summarize Testimony the Defendant Has Already Offered

“So, to be clear, you saw the defendant leaving the building at approximately 10 p.m.?” These questions allow witnesses to clarify their answers, making the record more precise. 

The foregoing is only a short list of the numerous types of questions that you ask on direct examination. Before a deposition or trial, it would be wise to review your questions.

The Narrative Strategy

A trial lawyer’s job is to convince the judge and jury that their client’s position is the right one. One important aspect of human psychology is that we respond better to facts and reasoning if they come in the form of a story rather than a simple list of facts and reasoning. A lawyer who effectively uses direct examination to weave a story that the judge and jury can relate to could win their client’s case.

Don’t Attempt Direct Examinations on Your OwnDirect examination, as well as cross-examination, is an art form that is difficult to master. Do not try to handle direct or cross-examination on your own. Consult the help of an experienced trial lawyer to handle direct examinations and other legal proceedings at (337) 399-9000.