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Monday, November 22, 2010

Direct Examination – Changing the Story from Plainly Dull to Participant 3D.


Whether from the public gallery, or the bench, or just watching our students ‘have a go’ there is a depressing ambience whenever the advocate is a slave to their witness statement: their eyes and then their brain and then their voice pushing out widget words lifted from the page and thrown against the witness for a response. It gets worse: oh so typically the advocate does not engage with the response but is again and again taking the same path to throw out the next question.
Too many advocates wrongly believe that they have mastered ‘direct’ when they can: use open questions (who, what, when, where, why and how); occasionally insert some of the last answer into the next question; state their topic and have a smooth transfer to the next topic; and, avoid having sustained objections from their opponent. Typically these advocates stand tall, face their witness for sustained eye contact, and maintain a dominating voice.
One should never assume that a ‘grand look’ guarantees the right result. These days it is often easier, quicker and cheaper to demolish an imposing old courthouse and build a new one, rather than trying to renovate something that is solid, but was not well designed and is inadequate for today’s needs. But even the worst building has its admirers who will fight for its retention. Advocacy teaching has its parallel: teaching the young and open can be easier and more rewarding than battering at ingrained years of bad, but trusted technique.
Let’s take a very straightforward example: where to look and who to dominate. Is that ‘standing tall’, eye to witness advocate getting something right? Old advocates think the focus should be on them. That’s what they were taught or told. That’s what they have been doing and will do until the door closes behind them after their last trial. Others will say that the witness should face the decision maker and be the focus of attention. Then there’s the occasional judge who interrupts direct to tell the witness to stop looking at the jurors and look at the questioner. Why? Because that’s the polite thing to do and (so the judge thinks) much more important than paying attention to those who must listen to the message and assess both message and messenger.
So, what’s the right way? We start, as persuaders always should, with the decision maker’s objective needs and subjective wants. We note that the success of a direct is the result of the team effort of witness and advocate. Both message and messenger are evaluated by the decision maker. So, when the witness looks and sounds OK then the technique is to boost attention to the witness and downplay the advocate. This is done by having the witness share the information with the decision maker and by the advocate reducing their physical presence so that he or she does not distract the audience. The reduction is achieved by keeping one’s voice level below that of the witness and avoiding eye contact with the decision maker. Conversely, when the witness repels (because of reputation, prejudice, or both), it makes sense to draw the decision maker’s attention to the advocate and keep that attention away from the witness. In this situation the advocate looks toward the decision maker.
Does that leave any situation when the witness and their advocate should be looking at each other (and thus away from the decision maker)? Yes. A fragile, vulnerable witness needs the reassurance that comes from eye contact with their advocate. The downside to that act of kindness is that the fragile witness, like every other witness, must then face cross examination from the opponent. The witness who eyeballs an experienced, competent cross examiner has a death wish. Given that many cross-examiners derive their ‘energy’ from eye contact with the target it seems almost tragic to reassure the witness through eye contact during direct so that they are more easily controlled during cross. This is the court room parallel to healing the sick convict so that he goes to the gallows healthy.
Taking notice of likely cross examination and making one’s witness as small a target as possible is another requirement for direct that is too often ignored. Before trial the essential case analysis calls for identification of the strong and weak points in the case, coupled with devising an approach that gives the witness the best chance to resist a cross examination assault that is mounted on one or more of those weak points. That ‘best chance’ usually combines a few steps. The first is raising the weakness during the direct but after the witness is well settled and has created some favourable rapport with the decision maker. The second element is to confess to the weakness. This can be done by a combination of advocate statement and witness endorsement. For example, ‘Let’s now turn to discuss something that you wish had never happened. Please tell the jury what it was that still shames you about that time’. Witness bares soul to jury. The third step is connecting that answer directly to the point in the case where the opponent was certain to use it, ‘ Now, concerning the issue of X, what do you say about the effect of the matter you have just shared with the jury’.
The opponent will still go there. The urge to attempt humiliation seems to linger even after the target has bared their imperfections. There is no longer the chance of a long drop exposure. What’s left is nothing much more than kicking a poor horse when it’s down. With luck the opponent’s overt irritation at having been deprived of a stunning point will induce in the decision maker some resentment towards the opponent and some sympathy for your witness.
Such sympathy is an aspect of your witness’s credibility. In common parlance ‘credibility’ means ‘able to be believed’. But within a trial a witness’s credibility has a broader meaning: it encompasses the whole gamut of reactions that each decision maker has to the witness, some on the positive side and some on the other side. It touches on reputation, trustworthiness, reliability, believability, sincerity, on that attractiveness which goes beyond physical attributes and finds a person, in spite of their faults and limitations, to be likeable enough to be accepted.
Direct examination, as a team telling of a story, requires attention both to the message content and to acceptability of the witness messenger. It’s common enough to devote the early questions in a direct to getting out the background of the witness. This is often a checklist recitation of the usual boring stuff which, as always, is justified on the basis that it was taught, or suggested, early in an advocacy career and has just become a habit. With a little more thought it is justified as helping to settle the witness because they are unlikely to give wrong answers. But that thinking is still inadequate. First impressions matter – some say they are critical. Background information must attract the decision making audience. It must give them a reason to have an interest in the witness and her or his story. As the story unfolds so must the witness’s relationship with the audience develop so that the credibility, the acceptability, is enhanced.
The advocate, as the witness’s team partner, can contribute by keeping a low profile, waiting silently for the audience to consider the witness’s last answer before asking the next question, using their questioning voice to forecast the interest and importance of the next answer, and moving from one topic to another with a storyteller’s skill.
Before James Cameron changed the face of cinema with his 3D Avatar I found it useful to explain the ultimate goals of direct to students and clients by reference to some aspects of traditional Japanese Bunraku puppetry. The main puppeteer is visible to the audience - often colourfully dressed, while the other operators are dressed in black and are visibly invisible. Bunraku is story telling on eternal themes, using voice, action and the passage of time. It is 3D. It requires team work and done well, draws the audience into the play. Unfortunately it is no longer popular so Cameron came along just in time. Cameron takes the audience right into the action, so much so that only our sense of smell is ignored. To be on Pandora with Jake in avatar form as he rides first the flying, soaring smaller banshee and then the giant banshee ‘toruk’ as it dives and climbs in the mountain air spaces is to be a part of his journey.
To have Jake capture a court room audience with that story - without Cameron’s film - would require the advocate to be with Jake, seeing what he saw, understanding the excitement and the emotions, and asking questions that allowed both the events and the mood to be expressed. Critically this means that for Jake to tell his story in a courtroom he and his advocate need to be in two places at once. While both are physically present in the courtroom, and in separate places in that room, they are also in far away Pandora, sitting together on the back on the banshee. Thus the story telling requires the advocate’s immersion in Jake’s story because by that means the advocate’s questions will draw out for the decision maker those aspects of Jake’s account which are relevant to the hearing.
The widget word advocate has no sense of that adventure, no sense in fact of anything outside of the witness statement in their hands. Such an advocate is confined to a 2D view of the here and now. Skill progression requires that he or she learn to prioritise the information before them and to lead the information with an ear to making it interesting to the audience. Then they must understand that such prioritisation adds depth to the account in that it brings some material to the foreground and leaves other material in the shadow.
The next step is to be conscious of the passage of time in a story and to use that realisation to add pace – be that slow, quick, or variable – to the story telling. Finally there is the magic of taking the audience into the story, magical because its effect is to have the audience with the witness and thus accepting of that perspective.
To take the courtroom audience into an imagined world of past events requires setting a common ‘environment’. A group watching a film are all seeing and hearing the same images. Each member of a group listening to a story can ‘fill their head’ with a different imagined world, a different Pandora. That won’t do, not when there is jury that must be persuaded. A commonly experienced 3D world is required. For advocates this means the skill of working quickly and well with the witness to establish a base line position in the court room so that the audience is drawn to see the following scenes from the common baseline, be that the jury rail of the front of the public gallery or some other ‘line’ in the court room. Of these options where there is a jury the jury rail is best because it means the jurors stay where they are, but the advocate and the witness must describe everything as though they too were among the jurors.
The court room, being the place in which the jurors can see and hear, becomes the touchstone for ensuring that descriptors of distance, direction, lighting, and noise are commonly experienced. If the jury rail is the baseline then short distances are to points in the court room from that rail. When using a diagram it is a good idea to have the witness orientate that diagram so that the jurors understand it from their perspective, ie the jury rail again. Directions are given from the baseline: ‘If looking straight ahead from the jury rail is 12 o’clock, then your direction was what number from 1 to 11?’
Film audiences are drawn into the story by the director’s craft. Storytellers draw their listeners into the story. The advocate too must draw the decision makers into the witness’s story by the skill of setting the scene, prioritising the events within the story, and creating an atmosphere within the court room – all through teamwork with the witness. The advocate directs on direct. That’s persuasion.
Hugh Selby (c) November, 2010.


  1. Hugh makes some important points about the inability of most students to move beyond a two-dimensional approach to direct examination. In a teaching environment, I think this is at least partly the fault of two-dimensional case files. It is difficult for mock trial witnesses to meaningfully relate events they haven't actually experienced but have rather only read about in the file.

    One way to get around this problem is to use film clips. Both Hugh and I use short film clips in our classes. We have the witnesses watch the clip, so they've come as close to actually experiencing an event as we can provide in a teaching environment. This makes for a much stronger direct examination experience.

    I've never tried using a film or film clip as the basis for an entire case file. I don't know if it's feasible or how much work it would be. But the technique works quite well for direct examination exercises.

  2. Many thanks for the essay by High Selby. It is superb! I have already put it's message into practice. This fall I have been meeting with six deputy prosecutors on Friday afternoons. We do one hour all together before individual sessions during which I offer assistance to their trial preparation and or comments on the actual trial.

    I distributed the Selby essay to the deputies early in the week. Along with the essay I provided a copy of a paramedic's report and told them that the victim would not testify in an Attempted Murder case; that people in the same house as the victim and defendant heard them arguing - she was very loud and angry - then they heard a gun shot; when the defendant came out of the room he said it was an accident and the victim called out he's lying. The defendant left; the people in the house called 911. The paramedics, police and firefighters all arrived separately - the paramedics were last.

    My instructions were to read the Selby essay, the paramedic report and select 3 points the paramedic supplies, then select the one they thought most important and prepare a 3 to 5 minute direct of that portion of the total direct which covered the point selected.

    During the performances the listening deputies wrote down the point they heard. Sometimes it was not performer's goal.Several deputies selected the location of the injury, some the evaluation of the victim using the ABC and Glasgow methods which they had the witness explain. No one selected urgency, speed, or the paramedic's effort to get the victim to the hospital ASAP.

    After a discussion and referral to the essay's suggestion that the lawyer try to put the jury in the position of the witness we did a second round. This time deputies worked on creating a sense of urgency. They brought out facts that helped them accomplish this goal; however their own stilted language, long question filled with clutter, and difficulty staying on point detracted from their goal. By round three everyone was on board, able to discern what worked and what didn't when listening to each other.

    This week I plan on having them re-read Selby's essay and the report and within 3 minutes develop the major point needed in crediting the witness.

    These exercises are definitely advanced directs. I think that trial team members will benefit from them as well as practicing lawyers.
    Happy Holidays!