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Sunday, May 15, 2011

A Short Introduction to Direct – a student guide.

What we and our witness are trying to do on direct.

1. Recreate with words and visual aids a little bit of history. We want to take our audiences into that history as though they were there, on our side;

2. Hence we want to emphasise (bring to the forefront) those aspects of the story that are important to us; and,

3. We want to downplay/minimise those aspects of the story that are vulnerable to attack by our opponent such as: limited opportunity to see/hear; character defects; and, outside common experience.

Who are our audiences?

1. the decision maker for whom we need to make both the story and the witness attractive;

2. our witness who needs both to trust us, and believe that working together we can do it better than the witness could do it alone;

3. our opponent who is looking for ways to successfully cross our witness (because of what our witness says or omits to say); and,

4. other lawyers, students etc. who want to know if we’re any good.

Techniques that we use.

1. We get ourselves ready to perform by following a routine that turns our anxiety into a positive. So we have a rehearsed stance, we have used our ‘anxiety control techniques, our notes - that list just the topics and any cross references -are where we want them so we can mark off our progress, and we have carefully taken in the ambience of our performance space;

2. Because we know the story we divide it into chapters/segments/episodes and use those as stated topics, so as to keep the audiences – all of them – up to date and following the route that we have planned;

3. To have others visualise the scene we must go into the scene with our witness and be able to see, hear and feel it. Hence as we ask questions we do so from a place within the story. We may be standing at a bar table but our mind, our imagination, and our intelligence are operating in another place;

4. We generally use open questions that include ‘how, why, when, where, what, and who’ because these allow the witness to explain. Each question is at least partly fuelled by the previous answer. What’s more our questions:-

Are always short;
Rarely use noun and verb describers;
Raise one point;
Actively respond to the unexpected; and,
Let the witness establish the story incrementally, like pieces in a detailed jigsaw puzzle.

5. We use closed questions on matters that are not in dispute when it’s efficient and effective to do so. So, for example, as defence lawyers we do not have our client repeat all the material led by the prosecutor/plaintiff with which we agree. Instead we say, “This [describe] is agreed, isn’t it?”. However, we don’t use closed questions on our expert’s qualifications and experience because it might be efficient – and our opponent may be happy to concede our expert’s expertness - but it’s not effective to quickly pass over our expert’s expertness in front of a jury;

6. We follow the guideline of start and finish strong, with the weak stuff buried in the middle:-

We have a timeline – a neutral, but comprehensive demonstrative aid - to share with everyone. It follows that we are not bound to elicit the story in the same time driven sequence in which the witness’s statement was written;
Something strong means something that the witness can be strong about (ie. the witness will perform well. It’s a loser’s approach to start with a strong content point that the witness ruins because the witness is unsure. Remember that the messenger leads the evaluation of the message); and,
Where the witness presents well then we have them talk to the decision maker and we downplay our own presence, eg. by looking down/away and keeping our voice volume below that of the witness. [cf, if the witness lacks ‘presentation goodness’ then they face us and we attract the decision maker’s attention to us.]

7. We use visuals as early as possible – and have copies for everyone- because they take people where we want them to go and they provide a common basis for understanding:-

We make sure there is a simple base line and that everyone in the audiences is on that base line;
We either have distances marked within the visual or we share present sensory experience in the court room to show equivalent distances;
We use the clock face on the court wall to show directions; and,
We talk about interference, be that lighting, noise, fixed obstacles, moving obstacles, lack of time, and do our best to minimise its negative impact.

8. We respect our audiences by: -

Speaking slowly and clearly;
We let our witness know that we are listening by using part of their answer in our following question/s and giving them occasional eye contact (with more eye contact for the more vulnerable witness);
We are silent after an answer, so that the decision maker can absorb the answer, consider its implications, and make any notes. We can sip water;
We sit when our opponent makes an objection and we think before we respond to that objection; and,
We are responsive to emotional demands, such as crying by the witness or shock by the decision maker. We don’t pretend it didn’t happen.

Hugh Selby © May, 2011.

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