Sample Direct Examinations at Trial in Personal Injury Case

Glory comes from cross-examination. But you cannot win your case by destroying the defendant’s case. We have the burden of proof. You win your client’s case in your direct examination.

Winning a personal injury case is about pulling together the facts. Direct examination is where you get those crucial facts are established. Here are sample outlines and transcripts of direct examinations in accident, product liability, and medical malpractice cases:

Direct Examination Is Harder Than It Looks

Jurors come into the courtroom with expectations partially fueled by the popular media’s portrayal of the legal system. When you call a witness, they do not expect you to take the witness on a long walk of the dog to set up a foundation for their testimony. Instead,  jurors anticipate crucial information. So there is pressure to deliver and deliver quickly.

The influence of media, particularly television, cannot be understated. For many jurors, their understanding of the justice system is derived from fictional TV dramas and novels. This presents a challenge because that fiction cannot always be reality. Sometimes we have important, necessary witnesses that are terrible and boring. This is the environment lawyers have to manage.

Seven Tips for Direct Examination Preparation

  1. Clarify Call Detail Before the Testimony: While you may be familiar with the process, it’s likely new for witnesses. Inform them about fundamentals, such as your objections to the other side’s questions. Provide clear instructions about the meeting place and time. Ensure they are aware and prepared for seemingly minor yet essential details. The worst witness is the one who cannot find a place to park.
  2. Get to Know the Witness: To begin preparing your witness for testimony, it’s crucial to understand them better. Engage in an open conversation with your witness about their life outside the context of the case. Get to know them personally before delving into their concerns regarding testimony. It also gives insight into their natural way of communicating and how stress might alter it.
  3. Preparation is Key: This is trite advice, but my goodness, it is true. Lawyers often prepare like crazy for cross-examination and wing direct examination. With key non-client witnesses, review the key facts and questions with them so they know what to expect and feel more at ease during the testimony. Rehearse with your client.
  4. Stop Lying in Its Tracks:  Some witnesses have a plan to lie. But most witnesses who lie do not plan to lie. They lie in the moment, worried that what they say will tank the case. You see this with time, speed, and distance estimations all the time. So you have to gently warn witnesses to avoid this temptation and remind them they do not have a responsibility to have an answer to every question.
  5. Write Out the Expected Testimony: Draft a detailed plan for the direct examination using the information gathered from the witness earlier. This procedure compels us to consider all the nuances – and where the testimony could go south. It also emphasizes the importance of precise wording.
  6. Do a Mock Cross: You need to do a comprehensive and in-depth as a proficient cross-examination would be during the actual trial. This is really hard to do with witnesses you are worried are shaky because you are afraid to break the egg. But that is all the more reason why you need a mock cross.  Ideally, a different attorney than the one managing the witness during the trial should conduct it, particularly if your relationship with the witness is at all shaky. The session should mimic the examination approach and methods of the opposing counsel.
  7. Coach the Witness to Answer the Question Asked: Witnesses know what they need to say, and they cannot wait to get it out. Make sure they understand this temptation and know they should resist it.

Ten Tips for Direct Examination

Most personal injury lawsuits are won on direct examination. Here are ten tips t for an effective direct examination:

  1. Open with a Strong Start: Again, jurors expect much on direct examination. Even if you cannot deliver fireworks, start with something that gathers attention even more, laying your foundation if possible.
  2. Use Open-Ended Questions: Avoid leading questions that can be answered with a simple “yes” or “no.” Instead, use questions encouraging the witness to share their account in their own words so you do not have to ask the awkward “go on” question.
  3. Maintain a Logical Flow: Organize your questions logically, guiding the witness to narrate the events chronologically or in a manner easy for the jury to follow.
  4. Clarify Technical Terms: If your witness uses jargon or technical terms, ask them to explain in layman’s terms to ensure the jury understands. Juries like lawyers and witnesses who teach them things they need to know in a non-adversarial way.
  5. Use Exhibits or Demonstrative Evidence:  Jurors are used to a modern show. Visual aids (not bullet PowerPoints) can help clarify complex points, emphasize key evidence, and make the testimony more engaging and understandable.
  6. Avoid Overloading with Information:   Ensure your questions are not lengthy or complicated. It’s better to break down complex topics into a series of more straightforward questions.
  7. Anticipate and Address Weaknesses: If your witness’s testimony has potential weaknesses or vulnerabilities, address them proactively during the direct examination. This can take out the sting when the opposing counsel brings them up during cross-examination.
  8. Practice Active Listening: Pay close attention to the witness’s responses. If something needs clarification or elaboration, follow up with appropriate questions. This also makes you a human being in front of the jury who does not want a robot asking questions. This ensures clarity and shows the jury that you are engaged and value the witness’s input.
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