The Reason Why Direct Examination is So Difficult

Direct examination is the part of trial when an attorney usually asks favorable or neutral witnesses questions that help prove his or her case. Most attorneys incorrectly assume this task is easy and their lack of preparation shows.
One challenge is that unlike normal conversations between two people, the witness cannot ask the lawyer questions. As a result, the attorney must create a conversation with the witness. Because this is unlike any conversation in real life, I believe this is the hardest part of a trial because it goes against our natural instincts.
Another challenge is that the witness is scared to death. Gallup conducts a poll each year that asks Americans what their top fears are. Public speaking is routinely the number one fear. It beats out snakes, drowning and even death. When the comedian Jerry Seinfeld heard about this poll, he joked that if you believed Gallup, it meant that the person at a funeral giving the eulogy would rather trade places with the person in the casket.
In addition, lawyers rarely empathize with their witnesses and it affects outcomes. Lawyers usually just tell their witnesses, “Tell the truth, and don’t worry about anything else.” Then, the witness gets on the stand and the lawyer instructs, “tell the jury what happened,” and the train wreck begins. The witness is not only scared of speaking in public, but the courtroom may be the most intimidating place anyone could try to tell his story. Not only is it an extremely formal setting, but the witness is under oath. In addition, there is a court reporter who is recording the exact words the witness says. Finally, there is an opposing attorney who has spent weeks preparing for his chance to tear the witness’ testimony apart.
Not only are direct examinations difficult, they are extremely important. There is a Jewish proverb which declares, “The drunkard smells of whiskey—but so does the bartender.” Your job on direct examination is to show the jurors that your witness is indeed the bartender. You want them to see that your witness is trustworthy, likeable and sober. If you don’t, the opposing counsel will certainly show them that your witness is a drunkard.
examination is the part of trial when an attorney usually asks favorable or neutral witnesses questions that help prove his or her case. Most attorneys incorrectly assume this task is easy and their lack of preparation shows.
One challenge is that unlike normal conversations between two people, the witness cannot ask the lawyer questions. As a result, the attorney must create a conversation with the witness. Because this is unlike any conversation in real life, I believe this is the hardest part of a trial because it goes against our natural instincts.
Another challenge is that the witness is scared to death. Gallup conducts a poll each year that asks Americans what their top fears are. Public speaking is routinely the number one fear. It beats out snakes, drowning and even death. When the comedian Jerry Seinfeld heard about this poll, he joked that if you believed Gallup, it meant that the person at a funeral giving the eulogy would rather trade places with the person in the casket.
In addition, lawyers rarely empathize with their witnesses and it affects outcomes. Lawyers usually just tell their witnesses, “Tell the truth, and don’t worry about anything else.” Then, the witness gets on the stand and the lawyer instructs, “tell the jury what happened,” and the train wreck begins. The witness is not only scared of speaking in public, but the courtroom may be the most intimidating place anyone could try to tell his story. Not only is it an extremely formal setting, but the witness is under oath. In addition, there is a court reporter who is recording the exact words the witness says. Finally, there is an opposing attorney who has spent weeks preparing for his chance to tear the witness’ testimony apart.
Not only are direct examinations difficult, they are extremely important. There is a Jewish proverb which declares, “The drunkard smells of whiskey—but so does the bartender.” Your job on direct examination is to show the jurors that your witness is indeed the bartender. You want them to see that your witness is trustworthy, likeable and sober. If you don’t, the opposing counsel will certainly show them that your witness is a drunkard.