The Direct Examination Dance

With all of the television shows these days dedicated to litigation, I am sure that most adults are aware that parties to a lawsuit cannot merely take the witness stand in court and spill their story. Rather, when a party, or a witness, takes the witness stand, the person must engage in a very deliberate and methodical exchange with either his or her attorney or the judge. I compare this exchange to a dance, like the Tango or the Waltz. Some people who are unaware of, or who do not care about, the sophisticated process involved in giving testimony essentially “bump and grind” on the stand, and recklessly express their opinions and emotions and launch into personal attacks. However, this sort of sloppy and dirty testimony will not get them very far with the judge and may even result in sanctions.  There are two main ways parties and witnesses communicate their stories in court and these ways are direct examination and cross examination. I will address direct examination only in this portion of my newsletter.

When I prepare my clients and witnesses for direct examination, we spend a few sessions going over the steps. Like any style of dance, you need to practice getting used to the style of communication the judge expects and what, ultimately, will convey your case in the best possible light. The main challenges for parties and witnesses center on patience and trust. Most want to take the stand and immediately get to the meat of their story or, in dance terms, do the lift and then the dip. But, like dancing, you have to introduce yourself and your skills and lead up to the grand finale. You have to build up credibility that you are, indeed, competent and reliable and truly deserving of the judge’s time and attention.

For example, say, in a child custody case, if you are the child’s teacher giving testimony on behalf of the mother you likely do not want to begin your testimony with “I did not even know Sammy had a dad because I never saw him.” This is doing the lift and then the dip first. Rather, you want to introduce yourself, talk about how long you have been a teacher, talk about your experience with children, how you know Sammy and Sammy’s mother, and how often you have seen Sammy’s mother and father. Then, once you have established your credibility, competence and reliability, you may then do your lift and dip. This is the “patience” aspect of the direct examination.

The next aspect is “trust.” In the example above, the teacher cannot merely tell the court in a giant monologue how she or he has acquired knowledge of the relationship between Sammy’s dad and Sammy’s education. This is like one dancer doing all the steps without the other dancer in, say, the Tango. It does not work. There are rules regarding whether testimony from a witness or a party is admissible, just like there are rules governing the steps of different dances. These rules are not suggestions and a party or a witness can completely undermine his or her case by failing to follow them. So, how do you follow these rules? One way is short answers; think one or two sentence responses to your attorney or judge’s questions. This is where “trust” comes in because if you have not practiced your direct, if you do not trust that, as a result of this practice, your attorney will, eventually, get to your point (the lift and the dip) then you may risk giving testimony that is not admissible and, worst case scenario, having all of your testimony stricken.

As you prepare for your direct examination, review the points above with your attorney and remember that practice, patience and trust are key. Practice your direct examination with your attorney, even if it will cost you a little extra money, because the time spent could mean the difference between success and destruction.

This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this blog should be acted upon without first consulting with an attorney. Should you have questions about the content of this blog, please arrange to discuss via a consultation.