Direct Examination: The Basics

   NOTHING IS more overlooked in trial practice than a good direct examination. Most of us do not devote enough time to its preparation and execution.

   Before beginning, determine all the areas you must cover to make a prima facie case. Prepare your witness carefully and thoroughly. Utilize the basic tools of direct examination: open-ended, non-leading questions that call for a narrative response. As a general rule, do not ask leading questions - questions which contain within them the answer, suggest the answer or call for a yes or no answer - or your direct will be interrupted with sustained objections. Do not be outwardly repetitive to avoid the classic objection of "asked and answered." And do not be the star. Blend into the background, allowing your witness to be the featured act.

   To elicit narrative responses, begin each question with any of the following

words: "Who," "what," "were," "when," "how" and sometimes "why." Employ these words throughout the direct examination. Since most directs begin with pedigree or background information, utilize these skills from the start.

   Q: What is your full name?

   Q: Where do you live?

   Q: How long have you lived there?

   Q: Who do you live there with?

   Q: How long have you been married?

   Q: What is your wife's name?

   Q: How many children do you have?

   Q: What are their names?

   Q: How old are they?

   Q: Where do they go to school?

   Q: What is your educational background?

   Q: When did you graduate from college?

   Q: What do you do for a living?

   Q: How do you like your job?

   Q: Why did you go into that avenue of employment?

   Although you could technically conduct an entire direct using who, what, where, when, how and why, the occasional use of transitional phrases is critical. For example, once getting through the witnesses' background information, you may want to get to the facts of your case. The easiest way to do this is with the following type of question:

   Q: I direct your attention to May 2, 1999, at approximately 2:30 in the afternoon; where were you at that time?

   Notice that you are basically telling the witness the date and time of the relevant incident, and asking the witness to tell the jury the place it occurred. This type of transitional question allows you to place the witness in the precise spot you would like to begin the actual testimony.

   Although these types of questions are technically leading, they are considered transitional questions making leading permissible.

   After using this transitional question, revert back to your open-ended, non-leading questions. Go back to who, what, where, when, why and how, following up with "what happened next," "what happened then" and questions like that:

   Q: I direct your attention to Sept. 15, 1999 at approximately 10:30 in the morning; where were you at that time?

   A: I was in my car at the intersection of Third Avenue and 42nd Street.

   Q: What were you doing at that time?

   A: I was driving.

   Q: Where were you going?

   A: I was going to do volunteer work at a soup kitchen.

   Q: What happened next?

   A: I was stopped at a light and struck from behind.

   Q: How long were you stopped before being struck from behind?

   A: About 10 seconds.

   Q: What was the impact like?

   A: It was very severe.

   Q: What do you mean by that?

   A: The crash was loud and it threw my body within the car.

   You should add to your repertoire short, to the point, questions to allow the direct to flow more smoothly. Words like "describe" and "explain" are very helpful. Phrases like "what happened next" can get you through most of the direct.

   Q: Describe for us how your body was thrown within the car.

   A: My head and neck were thrown backwards and forward, and my head hit the steering wheel.

   Q: How did you feel at that time?

   A: I felt dizzy and my neck hurt.

   Q: Explain what you mean by your neck hurt?

   A: It was stiff and I had sharp pains going into my shoulder area.

   Q: What happened next?

   A: I just sat in the car.

   Another transitional phrase used to direct the action to another time or place is, "Did there come a time that ...?" The language sounds archaic and convoluted, but it contains words of transition that are recognized by courts and lawyers throughout the state as phraseology consistent with direct examination.

   Q: Did there come a time that an ambulance arrived at the scene?

   A: Yes.

   Q: What happened next?

   A: The attendants approached me and asked me some questions.

   Q: Without telling us what they said, tell us what they did as a result? [This is a good way to avoid a hearsay objection].

   A: They put me in a neck brace with a back board and placed me on a stretcher and then into the ambulance.

   Of course, you want to vary the types of questions within the direct examination to avoid juror boredom. Therefore, avoid the constant follow-up questions involving the words, "What happened next?" Instead, encourage the reluctant witness with simple words as, "continue"; "proceed"; "go on." The following questions are a good example:

   Q: What happened once you arrived at the emergency room?

   A: A nurse approached me.

   Q: What happened next?

   A: She looked at my leg and left to get bandages.

   Q: Continue.

   A: She cleaned the wound, put the bandages on and called the doctor.

   Q: What happened then?

   A: The doctor came in and looked at me.

   Q: Proceed.

   A: He took the bandage off, admitted me to the hospital and sent me to X-ray.

   There are times that you may want to highlight certain testimony that was already given during the direct testimony. Repetition wins cases. The problem is that you cannot blatantly be repetitive, repeat questions or characterize past testimony. For example, say the witness in a criminal case just testified that the defendant thrust a machete deep into the chest of the victim. What you cannot do is simply repeat the direct testimony by asking, "You just testified that the defendant thrust a machete deep into the chest of the victim." Nor can you ask the same question the same way to elicit that dramatic testimony again. What you can do is utilize the following technique known as "double direct":

   Q: After the defendant thrust the machete deep into the chest of the victim, what did he do next?

   Q: After the defendant thrust the machete deeply into the chest of Vicky Victim, what, if anything, did he say?

   The following example of double direct involves the questioning of a plaintiff in a personal injury case. You have just elicited testimony that the plaintiff felt knifelike pain shooting from his back, down to his right leg.

   Q: How did you feel after the accident?

   A: I felt pain in my lower back with a knifelike pain shooting down my right leg.

   Q: How much time elapsed from the accident until you felt this knifelike pain shooting down your right leg?

   A: About two minutes.

   Q: During the two minutes prior to feeling this knifelike pain shooting down your leg, what were you doing?

   A: I was lying in the backseat of the car in shock.

   Q: Once feeling this knifelike pain shooting down your leg, what did you do next?

   As you can gather from reading these types of questions, you can only use this type of technique one or two times during each examination.

   Leading questions are defined as those that suggest the answer, contain within them the answer or call for a yes or no answer. Aside from asking questions that begin with who, what, where, when, how and why, stay away from prefacing questions with words that will always call for a yes or no answer. Any question beginning with words like "did," "didn't," "does," "doesn't," "is," "isn't," "aren't," "will," "won't," "can," "can't," "could," "couldn't," "would, " "wouldn't," will always call for a yes or no answer. Here is an example of what not to do:

   Q: Did you see the accident?

   A: Yes.

   Q: Does your back hurt?

   A: Yes.

   Q: Are you currently employed?

   A: Yes.

   Instead, change these questions to the following non-leading form. It will save time, be more proper and be more interesting to the fact-finder:

   Q: What, if anything, did you observe?

   A: I saw the accident.

   Q: What part of your body bothers you?

   A: My back.

   Q: Where do you work at the present time?

   Sometimes leading questions are unavoidable during direct testimony. There are times that the witness freezes up, has a complete failure of recollection, and your attempts to refresh the witness' recollection fail. If you must, ask the question in leading form, reverting back to non-leading form after receiving a sustained objection, yet refreshing the witness' recollection, nonetheless. The following questions and answers demonstrate this approach:

   Q: What did the defendant have in his hands at the time he threatened you?

   A: I know he had black gloves on.

   Q: Did he have anything else?

   A: I know he had on those black gloves.

   Q: Did he have a gun in his hand?

   By counsel: Objection, your honor, leading.

   The Court: Sustained counselor, do not lead.

   Q: What, if anything, did the defendant have in his hand?

   A: A gun.

   Another way to do the same thing is just to suggest the answer but in typically non-leading, open-ended form. Take, for example, a case where the defendant was driving while intoxicated, and yet you are having difficulty eliciting from your witness that she smelled alcohol on defendant's breath:

   Q: After the accident how close did you get to the defendant?

   A: I was standing next to him.

   Q: What did you notice about him at that time?

   A: He was just barely conscious.

   Q: Did you notice anything else?

   A: No.

   Q: What, if anything, did you notice about his breath?

   By defense counsel: Objection. Leading the witness.

   The Court: Overruled.

   A: He smelled of alcohol.

   As you can see, the question began with "what, if anything," language clearly evoking the nature of direct examination. Therefore, the court permitted it in this instance. Even if the court had not allowed the question, counsel could have easily reverted to purely non-leading form, confident that the witness had her memory refreshed about the obvious smell of alcohol on the defendant's breath.

   Direct examination is an overlooked art within trial practice. Preparation should be just as thorough as any other part of the trial. It is generally best to take a witness chronologically through the relevant facts that bring him to the witness stand. Avoid objections by asking non-leading questions that call for a narrative response from the witness. Make the witness the star and, as the lawyer, blend into the background. Stick with sentences beginning with who, what, where, when, how and why to ensure the non-leading nature of direct. Organize the examination starting with background or pedigree information, sparingly using transitional questions, and following up with words like describe, explain, what happened next, proceed, go on and continue. Only lead when you have to in order to avoid an outright dismissal, a loss or a legal malpractice suit. An artful direct can go a long way in convincing a jury to find in your client's favor.

 SECTION: NEWS; Vol. 228; Pg. p. 3, col. 1

LENGTH: 1511 words

HEADLINE: Trial Advocacy

The "Freeze-Frame" Technique: A Method for Exposing Key Points

BYLINE: By Ben Rubinowitz And Evan Torgan; Ben Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. He also is an adjunct professor of law, teaching trial practice at Hofstra University School of Law, and is a team leader at the National Institute for Trial Advocacy. Evan Torgan is a member of Torgan & Cooper. He is an adjunct professor of law, teaching trial practice at Benjamin N. Cardozo School of Law, and is an instructor at the National Institute for Trial Advocacy. Richard Steigman, an associate at Gair, Gair, assisted in the preparation of this article.

BODY:

   IN EVERY trial there are facts that must be presented to develop the strong points of your case. Proper emphasis on these points at various stages in the trial can work to support your position during final argument. Although there are many ways of emphasizing key points during the trial, one of these techniques, known as the "freeze frame" approach allows you to develop a point, emphasize it, and make the importance of that point unmistakably clear to the jury.

   Although life moves quickly, it is, in reality, nothing more than an infinite series of frames, strung together in the same manner as an illustrator creates a cell for a cartoon. To maximize the impact of any quickly evolving event, the trial lawyer should attempt to break it down into those multiple snapshots, revealing all of the emotions, thoughts and actions that make up one short period of time.

   Careful consideration must be given to the moments that you choose to emphasize. You may, of course, focus on one particular event for liability and a different moment in time altogether for damages. Once you have your primary focus in mind, you can utilize this technique throughout the trial's phases, starting with your opening statement, continuing through your witness' examinations and concluding with your summation, all to emphasize the importance of the moments you have selected.

   The opening statement is unquestionably one of the first real opportunities to persuade. It is at this point of the trial where emphasis must be placed on key points or you will have lost a golden opportunity to persuade.

   Take, for example, a wrongful death case in which a young girl was killed in an auto accident while being driven to school by her father. In support of his client's [father's] claim for zone-of-danger damages a lawyer could state in simple terms that:

   A truck hit the car. The next thing the father knew was that his little girl was injured. ... The next thing he knew was that his little girl was dead.

   The problem with this approach is that it is flat and fails to emphasize the importance of the father's actions and reactions. Indeed, it fails to emphasize his own emotional suffering in witnessing the death of his daughter.

   The better approach is to work with the "freeze-frame" technique to paint a vivid picture in the minds of the jurors as to exactly what was happening at that particular moment in time. You are, in effect, telling the jurors, to "freeze this moment in time."

   Take for example, the same set of facts using this technique by freezing just one moment in time:

   Ladies and gentlemen, it was at this point in time when the truck slammed into the car. It was at this point in time when [the father] realized only too clearly that it was his daughter's side of the car that was struck. It was at this point in time when he knew he would have to turn back and look at his daughter. And it was at this point in time when he looked and saw the one thing he hoped he would never see - and the one thing he will never, ever forget. This was the moment he saw his daughter covered in blood, with blood coming out of her nose, mouth and more importantly, her ears. This was the time he realized his daughter was gasping for air.

   It was at that moment that [the client] never felt anything as painful in his life.

   Obviously, this technique paints a more dramatic impression of the horror of the moment.

   The technique, however, is not limited to opening statements. It is an approach that can be used at every part of the trial. For example, on direct examination, too often lawyers fail to emphasize key points that would unquestionably support their argument on summation. Taking the same set of facts, the questions that are usually asked are ones like these:

   Q: What did you do after impact?

   Q: What did you see?

   Q: What happened next?

   The problem with these questions is that they fail to impress in the minds of the jurors the horror of the events that just took place. The better approach is to expand the moment in time by "freeze framing" these crucial moments. A transitional phrase such as "I'd like to direct your attention to a [specific time]" or "I'd like to focus your attention on [a specific point]" can help you achieve your goal. Consider the following questions in contrast to the above

example:

   Q: I'd like to focus your attention on the moment just before impact. Where were you looking?

   Q: At that moment what did you hear?

   Q: When you heard the sound of brakes screeching what was the first thing you did?

   Q: What was your first reaction?

   Q: At that point what was your most important concern?

   Q: Tell us exactly where you looked?

   Q: Tell us step by step what you did as you turned to look at your daughter?

   Q: Tell us exactly what you heard as you turned?

   Q: Tell us what you saw?

   Q: Describe [your daughter's] face when you first looked at it?

   Q: At this point in time how did you feel?

   Q: At that moment in time describe your reactions?

   The "freeze-frame" approach is not limited to dramatic proof related to pain and suffering. It is a technique that is portable and can be used on cross-examination to expose the lack of credibility of a witness. It can help turn what might otherwise be a minor point into a major one. A deceptive act that takes a second to transpire is likely the product of great thought and planning by the actor. Instead of exposing a lie or a deceptive answer with just one or two questions, the "freeze-frame" technique will allow you, as the examiner, to expand the deception thus allowing the jurors to develop a clear distrust of the witness.

   Take, for example, an accountant who prepared a quarterly statement for a large company and knowingly changed a few numbers to make the statement seem more favorable than it actually was. On direct, his lawyer tried to diffuse the change by having the accountant explain that it was only a "minor" one. While a lawyer could, on cross-examination, force the witness to admit his wrongdoing, unless the point is emphasized it will lack power:

   Q: You made the change, true?

   Q: You knew that was not proper, correct?

   Through the use of the "freeze frame" technique, you can demolish the witness ' credibility. By focusing on one moment in time surrounding the wrongdoing you can pose a series of questions that serve to undermine the witness' credibility. Simply set the witness up and knock him down by "freezing" that one period of

time:

   Q: When you prepared the statement you knew others were relying on you for accuracy, true?

   Q: Stockholders and board members relied on you, correct?

   Q: You knew that your results would be published?

   Q: Before you made the change, you thought about it, true?

   Q: At that point in time you knew you could either tell the truth or you could choose to deceive?

   Q: At that point in time you made your choice, true?

   Q: Your choice was to present information that was less than truthful?

   Q: At that point your choice was to present information that was less than honest?

   Q: At that point in time you took it on your own to falsify a record?

   Q: And at that point in time you were able to look others in the eye and make them believe you were telling the truth?

   Q: At that point in time you never chose to reveal the change, however slight you say it was?

   Q: Because you believed you could get away with it, true?

   The remarkable part of this approach is that by expanding one moment in time you not only focus on that witness' past conduct but you give yourself an opportunity to bring the point home by linking his past conduct to his present testimony during cross-examination:

   Q: When you made the change you were the only one who knew of the inaccuracy, true?

   Q: You were able to look others in the eye and make false representation, correct?

   Q: You wanted them to believe you?

   Q: You successfully convinced them the information was true?

   Q: Even though you were aware of the deception?

   Q: Simply put, you were good at making others believe you when you were telling less than the truth?

   Now bring it home by allowing the jurors to realize the connection between his past conduct and his in-court testimony:

   Q: Today, you are speaking to the jury?

   Q: You have the ability to look them right in the eye?

   Q: You certainly want the jurors to believe you?

   Q: Just like you wanted the others to believe you in the past?

   If you have presented the proof in your case utilizing this technique, it will be easy to give a closing statement that recites the step-by-step account of the events on which you want the jury to focus during its deliberations. Under the best of circumstances, you will succeed in focusing the jury's attention so clearly on the key moments of your case that it will already be favorably disposed to resolving the disputes in the case your way. Under all circumstances, this technique helps the jurors answer your adversary's arguments, as you have provided them with a lasting impression of the events that entitle you to a favorable verdict.

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