Trial Advocacy
Tips on Narrative Direct
Examination
New York Law Journal, Thursday, September 23, 2004
Ben B. Rubinowitz and Evan Torgan
If you were to ask a group of lawyers what was the most
important part of a trial, the answers would meet with wide
variation. But unquestionably, the responses would include jury
selection, opening statements, cross-examination, and, of
course, summation. Certainly, we have all heard stories from
trial lawyers describing a brilliant cross-examination, a
captivating opening statement, or a riveting, spell-binding
summation. Clearly, these are all the parts of trial where the
lawyer's skill shines through. If analyzed carefully though,
these are also the parts where the trial lawyers do most, if not
all, of the talking.
It is a rare event for a lawyer to speak in glowing terms of
a magnificent narrative direct examination. Perhaps this is so
because narrative direct is the one part of the trial where the
lawyer, to a large extent, remains silent. Indeed, if done
properly it is the witness who shines on direct examination. The
lawyer merely provides guidance to the witness to tell a story
which lends support to the final argument. But the witness
cannot shine without a clear understanding of the methods
employed for conducting a powerful narrative direct.
Leading v. Non-leading Questions
Typically, leading questions are not permitted on direct
examination. A leading question is, simply put, a question which
suggests the answer. There are, however, times when leading
questions are permitted on narrative direct. Most often, leading
questions are permitted to bring out pedigree information or
factual data which is not in dispute. Rarely will an objection
be sustained in these areas since most judges want to move the
trial along and leading, in these instances, serves to promote
judicial economy. It is when the heart of the matter is being
discussed that leading becomes improper. Recognition of the
types of questions that commonly result in sustained objections
on direct is essential to conducting a powerful narrative
direct.
Questions that begin with the following words detract from
allowing the witness to narrate a story: did, didn't, were,
weren't, have, haven't, had, hadn't, could, couldn't, should,
shouldn't, and so. If answered responsively each of these words
at the start of a question calls for a "yes" or "no" answer. For
example:
Q: Did he walk into the store?
Q: Did he take out a gun?
Q: So, he held the gun to the woman's head?
These questions merely seek confirmation. In actuality, it is
the lawyer who is testifying.The better approach on direct is to
begin the question with words that call for and force the
narrative: who, what, when, where, why, how, describe, explain,
elaborate, define, or tell us.
These words at the beginning of a question invite the witness
to talk. They also prevent the witness from answering a question
with a "yes" or "no" response. For example:
Q: Where did he walk?
Q: When did he enter the store?
Q: What did he do when he entered the store?
Q: Tell us, step by step, what happened at that moment.
Transition and Headings
Once you have allowed the witness to narrate a story it is
essential to give the trier of fact guidance as to the next
subject area. Clearly, providing an appropriate transition not
only allows you to cue in the witness but signifies to the trier
of fact the next subject area to be discussed. Often, the
easiest way to provide a heading or transition is to direct the
witness' attention to two out of three of the following
subjects: the date, time and place. Direct the witness'
attention to two of the three and inquire about the third. See
McCloskey/Shoenberg, Criminal Law Deskbook,¶ 16.05 [4]. For
example:
Q: Let me direct your attention to June 12, 2004 (date) at
12:00 noon (time). Where were you? (place) or
Q: Let me direct your attention to the store (place) on June
12, 2004 (date). What time did you arrive?
Although transitions may involve directing a witness'
attention to a certain date, time or place, they do not have to.
Transitions or headings allow you to focus on an entirely new
subject area. Take, for example, a
medical negligence case.
Here, the transition allows you to focus on a new subject:
Q: Calling your attention to the point in time when the
patient's endotracheal tube became dislodged, where were you? or
Q: Focusing your attention on the point in time when the
patient's endotracheal tube was removed, describe what happened
with respect to the patient's oxygen saturation levels.
Emphasize a Key Point
Throughout each phase of the trial everything must be done
with an eye toward summation. At no point should you move to the
next subject area until you have made certain that you have
brought out sufficient factual material to support a cogent and
compelling argument on summation. There is a tendency on direct
examination to move the story along by asking the simple
question: What happened next? The problem with this question is
that it fails to emphasize and reinforce key points that are
useful for summation.
Take the following example in which a lawyer uses this
question without appropriate emphasis:
Q: What happened next?
A: The man took out a gun.
Q: What happened next?
Q: He walked out of the store.
The better approach is to frame the crucial point in time and
emphasize the key facts by using parts of the significant answer
to reinforce that which you want to highlight:
Q: What happened next?
A: The man took out a gun.
Q: When he took out that gun, where were you?
Q: How did he take the gun out?
Q: How was he holding the gun?
Q: When he held the gun, what were you doing?
Q: Describe exactly what he did with the gun?
Q: Before he left the store, where did he point the gun?
Needless to say, this series of questions paints a better
picture for the trier of fact.
The method is portable. Consider the medical negligence
example again. Assume a pulse oximeter's alarm sounded during
the course of an operation after an endotracheal tube was
removed. Not only must you highlight this fact, but you must
emphasize the amount of time that went by before remedial
medical action was taken. Although you could ask a nurse, "what
happened next?" that question fails to bring out the drama of
the event. The better approach is to highlight the fact by using
key words in many questions for better emphasis:
Q: When the alarm on the patient's pulse oximeter went off,
who was present?
Q: At the point when the alarm was ringing, what did you do?
Q: When the alarm first sounded, how many doctors were
present?
Q: For how long a period of time did the alarm ring before
corrective measures were taken?
Q: Describe the patient's oxygen saturation levels from the
point in time when the alarm first sounded to the point when the
alarm went off.
Q: How many medical personnel responded during the time when
the pulse oximeter was ringing?
Listening
For every tip that can be given about direct examination
there is none more important than listen to the answers given by
the witness. Too often lawyers rely on their pads ---- on
written questions prepared well in advance of trial, and assume
that the witness will give the same response that was given
during the initial preparation. At times witnesses are
overprepared and their unfamiliarity with the courtroom
surroundings, combined with a good amount of in-court anxiety,
can spell disaster for a lawyer who relies on notes, reads his
questions, and fails to listen carefully to the answer:
Q: Where do you live?
A: 31 years old.
Q: How old are you?
A: Two children.
Q: How many children do you have?
A: I was never hospitalized before.
To properly conduct direct, you must not only listen
carefully to the answer offered by the witness but must
continually evaluate the sufficiency of the response given in
court. If the answer has not made a specific point clear to the
trier of fact, put down the notes and ask another question which
allows for a complete answer. When dealing with critical facts,
don't leave the subject area until you are convinced that you
have sufficient ammunition to make a compelling argument on
summation.
Don't Argue
Once you have mastered the technique of asking
objection-proof questions on direct, you must be prepared for
the inevitable. There will undoubtedly come a time when your
adversary will object to an absolutely proper question for the
wrong reason. Worse than this, however, is that the court will
sustain the objection for the wrong reason:
Q: Describe his face.
OBJECTION: LEADING
THE COURT: SUSTAINED
You get no mileage by arguing with the court in this
situation. By arguing with the court and trying to explain that
a mistake was made you are, unfortunately, accomplishing two
things: First, you are distracting the jurors attention from an
important subject by breaking the momentum and the flow of your
direct examination. Second, you run the risk of annoying or
embarrassing the Judge.
It is a far better approach to argue with the court only when
absolutely necessary. In this instance, the better approach is
to back off and rephrase the question.
Q: Let me direct your attention to the point in time when you
first saw the man. Describe what he looked like.
Q: What color eyes did he have?
Q: What color hair did he have?
Q: What else, if anything, did you notice about his face?
In almost every occasion the better approach is to try and
rephrase the question using the objection as a source of
strength. If rephrased properly, the improper objection will
merely serve to highlight the fact that your adversary does not
want the jury to hear the witness' damaging testimony. The
objection has, in fact, bolstered your cause by drawing special
attention to the new subject.
Conclusion
In sum, the mark of a great direct is that the lawyer's
skills may go unnoticed. By insuring that the witness has told a
dramatic or compelling story, the trial lawyer has paved the way
to victory, while delaying his moment in the spotlight to other,
more appropriate, parts of the trial.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
New York Medical Malpractice Lawyers at Gair Gair Conason, Steigman
& Mackauf have more than 40 years experience in representing plaintiffs who have been injured or died as the result of medical malpractice.
