Can I Get A Witness?
Some Tips on Direct Examination
A couple of weeks ago, I wrote about cross-examination. This week, I thought I would tackle direct examination. Direct examination, that is, questions directed to your witnesses, is how you will make your case.
For new practitioners, examining witnesses is one of the most daunting aspects of presenting a case. Even many experienced advocates find examining their witnesses to be stressful. Fortunately, there are dozens of other books that can walk you through the details of how to do an effective witness examination. The best book on the topic is effective direct and cross-examination by John Keker & William Brockett ($219, CEB). If the price tag is too high, you'll easily find a copy in your local Law Library.
The best way to tackle direct examination is to identify factual topics that you need to support your case, identify which witnesses can speak about each topic, and then prepare your questions ahead of time. Once you have prepared, then rehearse with your witness. Rehearsal will help you fine-tune your questions and trigger new ideas. Take note of the expected answers so that if your witness forgets an answer while testifying, you can ask a different question to get the facts.
On direct examination, your questions should elicit a story from the witness. The witness should talk much more than you do. Your question should not provide the answer - the witness should. Limit your questions to only the topics your witness has knowledge of. Their answers should never be guesses or speculation. Be careful if you use hypothetical questions. Opposing counsel (or whoever is on the other side) can reasonably object to hypothetical questions, so they should be grounded in the knowledge and experience the witness has demonstrated and relate to the topic at issue. For example, you might ask, “On a normal workday, when would you expect the first patients to arrive at the clinic?”
Sometimes a witness will provide a vague answer. You may need to clarify for them that you are asking for an estimate, not a guess. The distinction between an estimate and a guess is best explained by referring to something concrete that they can observe. I can estimate the length of the table I am sitting at; I would be guessing if I tried to tell you the length of the table in your dining room. This is an example I use with witnesses all the time. Estimates are acceptable; guesses are not.
While it is great to be prepared with written questions, it’s also important to listen to your witness’s answers. They may say something different than you expect. Their answer may need a follow-up question to elicit more information or you may need to have them clarify their answer. Don’t be so wed to your prepared questions that you miss a chance to make a clearer record.
In other words, don't overprepare. The direct examination should be conversational. The witness should feel at ease and your demeanor will contribute to that.
Also, don’t tell your witness what to say. It’s acceptable to provide them with copies of the documents ahead of time and allow them to review their testimony from other hearings. They’re even allowed to talk to you! Just remind them that, unless you are their attorney, they have to tell what was discussed if asked on cross-examination.
Direct witnesses are also necessary to authenticate documents that you want in the record. If you can get the other side to stipulate to the admission of documents, or even make them joint exhibits, that is ideal, and you DO NOT need a witness to read or describe a document that the Arbitrator can read herself. To get a document into evidence absent a stipulation have the witness identify it, and explain what its purpose is. For example,
Rep: Does the company have a policy on time cards?
Witness: Yes.
Rep: Madam Arbitrator, I’ve marked the time card policy as exhibit 3. (Hand a copy to the other side first and then a copy to the arbitrator and witness). Mr. Witness, is this the time card policy?
Witness: Yes.
Rep: I’d like to move exhibit 3 into the record.
It’s that simple. Of course, the other side might object or might have some clarifying questions (called voir dire) about who created the document or where it is stored, but that can be handled with the arbitrator. The witness doesn’t need to read it out loud or explain how it was created.
Each witness should only testify about the particular area they know. The foundation for facts that are not in dispute only needs to be given once. For example, every management witness does not need to describe the history of the company unless the union disputes it. It may not even be necessary at all. The only facts that are needed at the arbitration hearing are relevant facts that are material to the dispute.
Once a fact has been established, it does not need to be re-established. It’s okay to have a single subject witness for a short time, and it’s also okay to have one witness testify on several topics, as long as they have firsthand knowledge. Keep your case streamlined so that the arbitrator can keep track of the relevant facts that support your case.
Good luck with your direct examination! Let me know if you have any questions. I’m also curious: