Directing The Witness: Shaping Direct Exams Without Leading

When trial lawyers tell war stories, direct examination is never the star. The stories are about the opening that landed, the cross that broke the witness, the closing that tied everything together. Where cross is sexy, direct wears sandals with socks. It is treated as the necessary middle act, important in theory but unremarkable in memory. That is a mistake. Direct examination is not merely the part of trial where the lawyer steps aside and the witness takes over. It is one of the most important forms of advocacy. Yet many lawyers do it poorly, usually because they mistake the rule against leading for a command to relinquish witness control.

When I first began trying cases, cross-examination seemed easier to master than direct. Cross gives the comfort of structure. If I prepared carefully enough, including by having impeachment at the ready for every fact of consequence, then I controlled the sequence of testimony, defined the topics to be covered, and could highlight the themes of my client’s case. The architecture of the examination was mine alone.

My early direct examinations felt entirely different. They were unnerving. I had usually prepared extensively with the witness, but by the time of trial the testimony could sound rehearsed. Worse, I worried the witness would testify differently from how I expected. That fear was tied to what I thought I understood about leading questions. I was so determined not to invite a leading objection that I overcorrected. I asked questions so open-ended that the witness had to know where I was going, and how I wanted to get there, or the exam might go off the rails. If she did not, it would become difficult to restore order without asking what I assumed would be an improper question

That was a basic misunderstanding and an expensive one. I treated the prohibition on leading as though it meant I could not guide the witness to the topics I wanted to cover or present the proof in the order that best served the case. I let the witness narrate rather than eliciting her testimony in short bursts, which would make it easier for the jury to comprehend and would give me more control. I do not approach direct examination this way anymore.

Many lawyers still do. They examine in fear of the sustained leading objection and overcorrect as I once did. That fear explains the lazy questions heard in courtrooms daily: “What happened next?” “Then what happened?” “Did anything unusual happen?” Those questions reflect not fealty to some prohibition on leading questions, but anxiety at being thrown off one’s rhythm by a sustained objection. They are an invitation to confusion. Ask them of an underprepared witness, or of a well-prepared witness with an imperfect memory, or of a strong witness who becomes nervous on the stand, and you have made yourself dependent on the witness to supply not only the facts but also the structure, sequence and significance of the testimony. You will in every exam be praying that the witness remembers her script. That is too much to ask of a witness. Eventually, every trial lawyer who examines this way will hear some version of this answer:

Q: What happened next?

A: I don’t understand the question

Lawyers are taught in school that cross-examination is about the lawyer, while direct examination is about the witness. There is truth in that, but only up to a point. Taken literally, the distinction encourages the idea that on direct, the lawyer is supposed to fade into the background and let the witness “tell the story.” When that goes badly, the witness is said to have “crashed and burned,” as though the lawyer had nothing to do with it.

But a good direct examination does not demand the suspension of advocacy. A strong direct lets the witness shine, but it is shaped by the examining lawyer. The lawyer decides what subjects matter, what order the jury should hear them in and how the testimony fits the broader themes of the case. The witness supplies the facts. The lawyer supplies the structure.

It took me several trials to internalize a simple point: A leading question is one that suggests the specific answer desired. That’s all. Once I understood the rule, direct examination became easier to control without violating it. The lawyer can be focused, deliberate and efficient in direct without scripting the witness’s response.

In The How-to-Win Trial Manual, an excellent book that I re-read in preparation for every jury trial, the late Hon. Ralph Adam Fine offers a useful example from the O.J. Simpson case. The prosecutor wanted to establish that Simpson hit Nicole Brown on a particular day and that the witness saw it. This is how Fine thinks the questions should have been asked:

Q: Were you with Nicole and O.J. that day?

A: Yes.

Q: Did you see him hit her that day?

The last question is not a leading question. It does not suggest the specific answer desired. The fact that it calls for a yes-or-no response does not by itself make it leading, either. As the California Supreme Court put it in People v. Williams, 16 Cal. 4th 635, 672 (1997), “[a] question calling for a ‘yes’ or ‘no’ answer is a leading question only if, under the circumstances, it is obvious that the examiner is suggesting that the witness answer the question one way only, whether it be ‘yes’ or ‘no.’”

Put differently, a yes-or-no question is leading only when it points unmistakably toward one answer. “You saw him hit her that day, didn’t you?” is leading. “Did you see him hit her that day?” is not. If we change the facts, the distinction becomes obvious, as Fine notes:

Q: Were you with Nicole and O.J. that day?

A: Yes.

Q: Was anyone else there?

A: Yes.

Q: Who?

A: Manuel F. Cachán.

Q: Did you see Manuel F. Cachán hit her that day?

To the extent “Did you see him hit her that day?” seems leading in the first example above, that is only because we believe that we already know the answer. The lawyer is entitled to guide the witness to a point. What the lawyer may not do is supply the point’s answer.

Of course, some trial judges will sustain a leading objection even to a question like, “Did you see him hit her that day?” In my view, that is wrong. But the solution is not to dissolve the examination into a fog of open-ended prompts and hope the witness’s instincts happen to line up with our theory of the case. The better course is to adapt, circling back to ask the same question in a different way that will pass muster with the judge. Fine shows us one way to do this that I have relied on many times at trial:

Q: Did you see him hit her that day?

Counsel: Objection, leading.

The Court: Sustained.

Q: Were you with O.J. and Nicole that day?

A: Yes.

Q: Did you see them interact?

A: Yes.

Q: Tell me whether or not you saw O.J. hit her that day.

And if that, too, draws an objection, try this pivot:

Q: Did you or did you not see him hit Nicole that day?

Federal Rule of Evidence 611 and its state analogues reflect the same practical understanding. It does not impose a categorical prohibition. It provides that “[l]eading questions should not be used on direct examination except as necessary to develop the witness’s testimony.” That language reflects the obvious truth that witnesses can need help developing their testimony coherently for juries.

The best direct examinations proceed from that premise. They are not free-form conversations. They are not witness-led walks through memory. They are examinations with shape, pace and design that move from point to point with purpose. They leave room for the witness to testify, but do not transfer responsibility to the witness for organizing the proof. That responsibility belongs to the lawyer.

Cross-examination will probably always attract more admiration. It is dramatic, adversarial and easy to celebrate after the fact. Direct examination is quieter work, but no less consequential. Done well, it allows you to establish narrative, build credibility and present evidence in a form the jury can understand and remember. Done badly, it leaves all of that to chance. In short, direct examination does not become effective merely because the right witness has taken the stand. The lawyer who fears direct too much will drift through it. The lawyer who understands it, leads it.

Originally published by The Am Law Litigation Daily

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.