The Direct Examination

Affidavits (witness statements) vary in length and complexity, and many will contain information that is hearsay or that is otherwise inadmissible in court.  The purpose of a direct examination is to elicit the most admissible facts in an affidavit so they have maximum impact.  Attorneys and witnesses have to work closely together to see that questions are clear, that they are sequential and that they do not result in undue narration.  

Preparation to Avoid Surprises
Attorneys should not surprise their witnesses during a direct or a re-direct examination; nor should witnesses surprise their attorney.  Long before a mock trial tournament, the witness should have a clear view of what the directing attorney will ask.

Individuals who do not have courtroom experience are sometimes surprised to find that attorneys spend many more hours with witnesses prior to trial refreshing their memories and insuring that there are no hidden or unexpected “land mines” in their testimony.  Mock trial attorneys have this same obligation.  Indeed, with only one case to work on, mock trial attorneys should typically be better prepared for their witnesses than real life attorneys.

Identify Yourself
Because judges often find it difficult to keep track of who is playing which part in mock trial, attorneys often state their names either to the judges or to their witnesses each time they begin a direct or a cross-examination:  “Your honor, my name is Bill Brown, and I am here on behalf of the plaintiff.”  Or “Ms. Jones, my name is Sarah Smith, and I am here to ask you a few questions on behalf of the defendant.”  Or “Mr. Jones for the plaintiff – may I be heard?”
Lay the Foundation: 
Attorneys should begin direct examination by asking background questions to lay the foundation for subsequent questioning.  Here, witnesses will identify themselves by name (spelling the name aloud), tell a bit about their family and/or occupation, and then move into the facts that they have to present about their case.

Sequence and logic 
Sequence and logic are both vital elements of direct.  One question should lead clearly to another.  Experienced attorneys ask an early question about the witness’s relation to a case before asking about qualifications:
Q:  “Why are you here today?”
A:  “I’m the family doctor of the defendant.”
Q: “What is your educational background?”
An attorney should ask a witness where the witness works before asking how long  they have worked there.  Attorneys must establish that a witness was at a crime scene or accident scene before asking about the scene.
If there is no stipulation in the case, attorneys should be especially careful in criminal cases to establish that a crime has occurred.  

Transitional Phrases
Attorneys and witnesses prompt many objections to relevance by failing to lay a proper groundwork for their answers.  Although attorneys cannot testify, they can use transitions that explain to the witness and the judge where they are headed:  “Mr. Smith, I’d like to begin by asking a few questions about your job and your friends.”  “Let’s move on now to the day of the accident”  “Now I’d like to discuss what happened when the police arrived.”  Or “Now I’d like to ask you a few questions about how this accident has impacted your life.”

Help jurors see your witness as human
… someone just like them.  Flawed, perhaps.  But human.
Naturally, directing attorneys should present their witnesses in the best possible light. Background questions should help humanize a witness.  Attorneys may also help their witnesses – especially defendants – by beginning by referring to them by their full names and ending with their first names. (Alternatively, they should generally refer to adverse witnesses in as impersonal a manner as possible.)
Once an attorney has allowed witnesses to tell the basic facts about themselves and to establish generally likeable personas, the attorney may also try to immunize them against cross-examination. If an attorney knows that his witness has been convicted within the past ten years, which rules permit opposing attorneys to introduce into evidence, the directing attorney may take the initiative during direct and say “Have you ever had any scrapes with the law?”  The witness might then say “When I was just out of the army, I was convicted for assaulting a man who made a negative remark about my girlfriend.”  
This way, jurors will not be surprised if such testimony emerges on cross-examination.  (“So what”, they will think, “we already found out about that on direct examination, and under the circumstances we might well have done the same thing.”)  
In fact, the jurors may be impressed by the witness’s truthfulness.  After all -- they may ask themselves -- if this witness’s honesty extends even to testimony which is personally embarrassing, isn’t he likely to be honest in the rest of his testimony? 

Make the jurors focus their attention on the witness.
Remember – THIS is the testimony you WANT the jurors to hear.  The witness, rather than the attorney, should be the focus of a direct examination.  Good attorneys know that they are not there to present themselves, but their witnesses. As a consequence, good attorneys fade largely into the background while their witnesses testify.  
Although attorneys and witnesses should prepare carefully and thoroughly, their dialogue should not appear rehearsed.  Thus, witnesses should not respond to questions before attorneys have fully asked them, and attorneys should not ask further questions before their witnesses have fully answered the present one.
Similarly, on both direct and cross, attorneys should not begin each question with the same phrase or respond with a standardized answer like “okay” after each witness answer.  Watching videotapes of yourself will help you understand this.

Anticipate probable hearsay objections.
Frequently, attorneys can lay the basis for a response by laying adequate foundation.  Know the exceptions to the hearsay rule.)
Attorneys who direct witnesses should comb through the testimony prior to trial to look for points that might provoke objections, and be prepared to answer those objections.  Do not elicit testimony which you know the judges are likely to regard as hearsay.  Trying to enter such evidence and being overruled is destructive.  Jurors may consider this a sign of incompetence on your part.  If judges feel that you purposefully and knowingly acted with such disregard for the rules of evidence, they will not appreciate such antics.  This certainly will not help your client.  It is better not to ask the question in the first place.

Testimony Techniques
Lead witnesses often enhance their testimony by speaking in the present tense, conveying the idea that they are reliving the incident:  “And then what happened?”  “Well, I’m looking up at my attacker, and I see hate in his eyes, and I see his hand raised with a large stick, and then everything goes black!”  “What do you remember next?”  “I’m in a hospital room and my parents are standing by me crying.”

End on a Positive Note
Directing attorneys try to end on a relatively unassailable point, so they do not have to sit down just after the judge has overruled them.  Wise attorneys will reserve a non-controversial question or two that they can use at the end of their direct if they get an unexpected negative ruling.