Three thoughts on direct examination

When leading the witness may be appropriate and permissible; that documents are used to corroborate, not present the story; and that if you redirect, be sure it really adds something to the prior testimony

2016 July

In the six months prior to writing this article, I presided over a dozen civil trials in my unlimited civil courtroom, so in that period I’ve seen more than two dozen civil lawyers question witnesses.

In nearly all cases, I have been impressed by the skill and diligence of counsel. Nevertheless, I have had a few recurring thoughts during direct examinations that I would like to share in an attempt to help you improve your ability to present your case effectively at trial.

I am avoiding obvious tips that most trial lawyers have heard before (“be prepared!”). I simply mean to identify three matters for lawyers’ consideration.

I caution that these are simply my views, some of which concern discretionary matters, and other judges may well see the same matters differently.

Leading questions

Lawyers in my courtroom all seem to know the basic rule that they are not to ask leading questions on direct examination, a rule stated in strong terms in Evidence Code section 767(a)(1). And they tend to honor the rule.

But, interestingly, I repeatedly have seen lawyers go perhaps further than they need to in observing the rule. Quite a few times I have seen an exchange such as the following, which I have made up but which is based on an employment law trial where the defendant company had called one of its witnesses and was introducing her through her work background:

Counsel: And when did you begin as a supervisor in the unit?

Witness: Well, um…it was definitely after 2003, because I know I wasn’t a supervisor yet that fall, but I’m not sure [pause]…well, actually, it had to be a good bit before the plaintiff was hired in 2005. So, um, I don’t think it was in 2005…well, I know it was before the holidays. I think it was about the middle of 2004.

As the witness ponders her answer with a couple minutes of halting testimony, the jury’s attention may wane or the witness may look unknowledgeable, even if she is simply engaged in the normal human process of attempting to recall when something happened. I have seen this process occur in various contexts recently, and each time it has seemed to me like a direct examination that was humming along smoothly has hit a speed bump; in some cases, the jury may have even been made uncomfortable watching a witness struggle to recollect.

One answer for an attorney, of course, might be to spend more time preparing the witness. But alternatively, could the lawyer instead ask the following leading question?

Counsel: And you became a supervisor in the unit in approximately June of 2004?

Witness: Yes, it was around that time.

There is authority for allowing this leading question. Evidence Code Section 767 contains an introductory clause that operates as an exception to the prohibition on leading questions, stating that such questions are allowed under special circumstances or where the interests of justice require. The comment to the rule states the following, with emphasis added:

The exception . . . permits leading questions on direct examination where there is little danger of improper suggestion or where such questions are necessary to obtain relevant evidence.

To my mind, leading questions such as the one above should not be objectionable, as there is little danger of “improper suggestion;” the attorney is simply establishing a background fact that is uncontested. Indeed, the comment later states that “preliminary matters” are exempt from the bar on leading questions.

As the examination moves toward contested matters, of course, I would sustain objections to leading questions and even instruct lawyers not to ask them. But in my recent trials, I actually have not seen this as a problem; more often, I have seen attorneys struggle by refraining from asking a leading question (sometimes due to objections to such questions, even if I’ve overruled one) where the question might be helpful to move the examination along and where I would not see it as improper because there would be little danger of improper suggestion.

Consider further, the questions lawyers ask of their expert witnesses. “Preliminary matters” are not the only type of question expressly exempted from the leading question bar. The comment to Section 767(a) also allows leading questions on direct examination for “refreshing recollection, and examining handicapped witnesses, expert witnesses, and hostile witnesses.”

When calling an expert, then, the California evidence rules do not require that a lawyer refrain from asking leading questions. The idea, presumably, is that experts know their subjects well enough that their testimony is not going to be altered because a lawyer suggests an answer.

That is, a lawyer could ask an accident reconstruction expert questions like the following on direct examination, without concern that they are objectionable as leading:

“And you calculated the force that acted on the plaintiff in this accident at 12 g?”

“You reviewed the witness statements of plaintiff and defendant, correct?”

“You used the SuperAnimation software in your reconstruction?”

A lawyer may have tactical reasons for not asking leading questions, not asking them repeatedly, or not making the questions too leading – after all, it is the witness that should be testifying, not the attorney. But attorneys should consider that they are not legally required to refrain from leading an expert even as to important matters, as they are required to do of other witnesses. For this reason, I generally overrule trial objections to leading an expert.

Documents: Best used to “supplement, corroborate or emphasize”

On several occasions in document-heavy trials, I have seen lawyers proceed in a manner like the following (again, the specific example, like all examples in this article, is made-up).

[The lawyer places admitted Exhibit 101 on the screen.]

Counsel: Let me direct you to the fifth paragraph on page two. What does that paragraph say?

Opposing Counsel: Objection, the document speaks for itself.

Court: Overruled. [The reason for overruling is that the document is in evidence and reading a portion of it might be helpful to elicit meaningful and clear testimony.]

Witness: It says, “We have run out of the 100 pounds of Arabica coffee we promised you this month. Pursuant to clause 16(b) of the contract, we are sending 100 pounds of high-end Robusto coffee.”

[The lawyer then removes Exhibit 101 and places Exhibit 102 on the screen.]

Counsel: Let me direct you to the third paragraph on the first page. What does that paragraph say?

Witness: It says, “We received your unilateral statement that you are sending us 100 pounds of Robusto coffee. Respectfully, the conditions of clause 16(b) are not met and we will refuse the shipment when it arrives. You must send us 100 pounds of Arabica coffee unless you provide documentation of a ‘worldwide Arabica shortage.’”

[The lawyer then moves on to Exhibit 103.]

The problem with this questioning, as I see it, is not that, as an evidentiary matter, the testimony is inadmissible because the document speaks for itself (though this objection is frequently made). The problem is that, as a substantive matter, the lawyer has not actually elicited any meaningful testimony from the witness. Anyone can read the admitted exhibits, and that is all the witness has done.

Thus, in a bench trial, I may conclude during such questioning that I am not left with any useful testimony from the witness – just the exhibits themselves – because the witness was asked little other than to parrot the document.

The documents are of course important to a lawyer’s case; after all, they are the tangible things that the jury takes with them when they deliberate. But, once the documents are admitted into evidence, it is more helpful if the witness’s testimony – apart from the documents – drives the direct examination, and the documents are used to supplement, corroborate, or emphasize that testimony.

The example provided above is extreme in the sense that I have included no questions of the witness other than the witness’s reading of the document. But even if there were some other questions, it still seems to me most helpful and effective if – rather than proceed by making the documents the star witness – the attorney focuses on the witness on the stand by offering testimony that could stand on its own even without the documents. For example:

Counsel: What dispute did you have with Coffee Roasters Inc. last year?

Witness: They sent us 100 pounds of Robusto coffee but they were supposed to send Arabica according to the contract. I thought that was wrong and told them so.

Counsel: How did you first learn that they were sending you Robusto coffee?

Witness: They sent me a letter.

[The lawyer then places Exhibit 101 on the screen and elicits testimony about it.]

Counsel: What happened after you read that letter?

Witness: Well, I was upset because our Hill Street Coffee Shop customers tend to be sophisticated and successful lawyers who stop by for good coffee prior to their court appearances. They don’t want Robusto, which is inferior to Arabica, as our coffee expert will testify. So, after a discussion with my partner, I concluded that Coffee Roasters Inc. was not justified in sending us Robusto and still owed us Arabica.

Counsel: Did you tell the defendant company that?

Witness: You bet. I sent them a letter.

[The lawyer then places Exhibit 102 on the screen and elicits testimony about it.]

This type of questioning is, obviously, more interesting than simply plowing one-by-one through the documents. But it is more than that. The questioning offers witness testimony of what happened, when, and why. That is evidence that could make the documents understandable, have a better chance of making the party’s case convincing to the trier-of-fact. Moreover, testimony that does more than reaffirm what is in the documents constitutes independent evidence to support a trial court’s ruling, and thus can come in handy in defending a judgment on appeal.

Redirect examination

I realized during recent jury trials that (as far as I can surmise), it is relatively uncommon that I see lawyers achieve much during redirect examination, even when they have offered an exemplary direct examination.

Why this is so is difficult to answer precisely. But often a direct examination is well-prepared, yet the redirect – which an attorney cannot plan for in the same manner – is more rambling and, at times, leaves little impression other than re-emphasizing areas that the opposing party covered in cross-examination.

A clue to addressing this may come from how I often feel during bench trials.

When I am presiding in a bench trial, a well-planned direct examination has covered everything that the lawyer thinks I need to know from the witness. After the cross-examination is finished and the witness is returned for redirect examination, the testimony that each party wanted to elicit has been presented. At that moment, I typically feel that there is little information left that I need to know from that witness. If there is a matter that I think relevant but that neither party has thought to elicit at all, I may (in a bench trial) proceed to inquire of the witness about it myself.

Given that the direct examination has already offered the testimony, the lawyer thought to be material, the main way that I have seen attorneys offer something helpful on redirect is by prompting the witness to answer a question that has been left unaddressed on cross-examination − perhaps a “why” question that the opposing counsel has purposely avoided. If such an explanation is clearly tied to the point made on cross-examination, it potentially answers a point made on cross. For example:

Counsel: Do you recall when you testified on cross-examination that you didn’t see a doctor for three days after the accident?

Plaintiff: Yes.

Counsel: Why did it take you three days to see a doctor?

Plaintiff: Because I had no medical insurance and did not think I could afford one. I was hoping the pain would just go away, but instead it got worse.

The point made on cross-examination has been answered, and answered concisely. I note it, thinking “now I know the plaintiff’s answer to that.” However I decide the case and however I ultimately judge the witness’s credibility, I now at least know the facts that each side will rely on – the defendant relies on the fact of delay in seeing a doctor (and will argue that this means the injuries weren’t very bad), but the plaintiff has offered facts that she will argue provide an alternate reason for the delay.

In most of the redirects I have recently seen from the bench, I’m not sure much more can be usefully achieved. In a bench trial, I would be impressed by an attorney who, during the opposing cross-examination, kept a list of a limited number of important points to address specifically and narrowly on redirect, and then conducts the redirect by doing so. Although a jury is a different audience from a bench officer, perhaps this is also an effective way to approach redirect before jurors: elicit any helpful testimony that directly answers the other side’s contentions on cross-examination, and, when that is done, sit down.