Conducting Effective Direct Examinations of Plaintiffs and Plaintiffs Witnesses By José J. Behar Hughes Socol Piers Resnick & Dym, Ltd.

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1 Conducting Effective Direct Examinations of Plaintiffs and Plaintiffs Witnesses By José J. Behar Hughes Socol Piers Resnick & Dym, Ltd. Time after time, plaintiff s cases are won or lost based on an attorney s direct examination of witnesses at trial. Direct examinations provide the jury s only opportunity to hear the version of events directly from the plaintiff and other witnesses. Jurors will evaluate what the plaintiff and witnesses say and how they say it. In both opening statements and closing arguments, the attorney will rely on the witnesses testimony to marshal the evidence in a way that tells a carefully crafted story that will, hopefully, persuade the jury to find in favor of the plaintiff. For that reason, direct examinations are probably the most important part of any trial. Yet, all too often, attorneys concern themselves more with what they will say during opening statements and closing arguments rather than spend the time necessary to properly plan, prepare and conduct the direct examinations of witnesses to present their client s case in the light most favorable to a jury. An effective direct examination presents relevant and competent evidence in a manner that enhances the likelihood that a jury will see things the way the attorney and the client would like. The techniques to conducting an effective direct examination vary widely and are too numerous to count. This article offers a few general suggestions for attorneys to keep in mind when preparing and examining plaintiffs and other witnesses that will strengthen the presentation of their client s case at trial. For purposes of illustration, this article will occasionally draw on a simple hypothetical set of facts to help make the points suggested: Jane and John were both hired in 2010 by Acme Products to work as customer service representatives. Jane s and John s supervisor, Joe, rated both of them satisfactory in annual performance evaluations each year. One day, John left his paycheck on his desk, and, as Jane was walking by, she noticed that John was being paid $3.00 an hour more than she was being paid. The next day, Jane filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging that Acme Products was discriminating against her on the basis of her gender by paying John more than it was paying her, in violation of Title VII of the Civil Rights Act of A week later, Joe received notice of Jane s charge of discrimination, and called her into his office. While they were meeting, he said to Jane, if you don t like working here, you can quit. Jane became angry with Joe and yelled at him. She said that she was not quitting her job, stormed out of his office and went back to work at her desk. The next day, Joe fired Jane, telling her that Acme Products was terminating her employment for insubordination. Preparing for the Direct Examination Although some things in life are more fun when unplanned and spontaneous, a jury trial is usually not one of them. Perhaps the single most important aspect to conducting an effective direct examination is preparation and then more preparation. A smart attorney tries to avoid any surprises at trial by knowing how witnesses will answer questions during direct examination (and cross examination too). Before an attorney steps into the

2 courtroom to begin the trial, she must plan for and consider at least four key issues: (1) the legal elements of the claim or claims being tried; (2) the theory or theme of the case; (3) the goals to be accomplished by calling each witness; and (4) the careful preparation of witnesses through an interactive discussion of their roles and expected testimony at trial. 1. Know the Legal Elements of the Claim All lawyers know that juries determine the facts and then apply the law to those facts as instructed by the judge. In beginning the process of preparing effective direct examinations, a careful attorney must know how the jury is being instructed to evaluate each element of each legal claim being tried and ensure that the evidence satisfies the requirements of the law. The questions asked of plaintiffs and other witnesses during direct examination will lay the groundwork for the jury in its deliberations. Because the burden of proof is on plaintiff to prove her case, attorneys who carefully plan direct examinations almost always prepare some sort of proof paradigm or proof chart to ensure they will elicit testimony necessary to permit the jury to find in plaintiff s favor. An effective proof paradigm will identify each element of each claim that needs to be proven at trial and the corresponding witness testimony and other evidence that will sufficiently establish each element. For example, as with other employment discrimination claims under Title VII, plaintiff can prove retaliation under either the direct or indirect method... The direct method requires proof that (1) the employee engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the two... The indirect method requires proof that (1) the employee engaged in statutorily protected activity; (2) she was meeting her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Majors v. General Elec. Co. 714 F.3d 527, 537 (7 th Cir. 2013) (internal citations omitted). Given the hypothetical illustration presented above, in order to establish a Title VII retaliation case under the direct method, the plaintiff s attorney must be able to establish through witness testimony: (1) what evidence will constitute the statutorily protected activity (e.g., Jane filing a charge of discrimination with the EEOC); (2) what evidence will constitute the adverse employment action (e.g., Acme Products termination of Jane s employment); (3) and what evidence will show how the statutorily protected activity caused the adverse employment action (e.g., Joe s comment to Jane that she could quit if she did not like her job and Jane s termination the following day). Likewise, under the indirect method of proof, the plaintiff s attorney must be prepared to establish through a combination of witness testimony (1) the evidence that the plaintiff was satisfactorily performing her job (e.g., Jane s annual performance evaluations); and (2) the evidence that there were other employees in positions similar to plaintiff s who were treated more favorably than her because they did not engage in statutorily protected activity (e.g., John did not complain about discrimination and was not fired). Knowing each element of each claim and what evidence will satisfy each element is critical in getting the jury to even consider the question of liability. Without carefully prepared testimony and other evidence that establishes the requirements of the legal claim 2

3 being tried, a plaintiff will not be able to survive a defense motion brought under Rule 50 of the Federal Rules of Civil Procedure at the close of her case-in-chief. Rule 50 provides, in part: If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may... (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. Fed. R. Civ. P. 50(1)(A) & (B). In short, the testimony and evidence that a plaintiff s attorney will introduce at trial must flow from the legal requirements of the claim, and she must, therefore, know how the jury will be instructed on the law so that she can prepare the testimony she will need to have the jury consider the plaintiff s case. 2. Develop a Theory or Theme of the Case In preparing for trial, a plaintiff s attorney should consider developing a predominant theory or theme that ties together the law and the facts of the case and resonates with the jury. Themes provide a framework for viewing the evidence and arguments at trial. For example, common plaintiff s themes in Title VII retaliation cases include notions of fair play (e.g., employees have a right to complain and should be treated fairly when they do) or patterns of supervisory vindictiveness (e.g., the boss who runs amok anytime his authority is questioned can add support to a claim of retaliatory conduct). Everything that happens at trial should essentially revolve around the theme, and all the testimony and other evidence presented should be tailored to bolster the theme. For that reason, when preparing questions for direct examination, a plaintiff s attorney should make certain that each witness s testimony advances or reinforces the theme of the case in some way. By doing so, jurors are more likely to remember a witness s testimony and how that testimony fits into the theme developed at trial supporting the plaintiff s case. 3. Establish a Goal for Each Witness While the direct examination of each witness should reinforce the theme of the case, a careful attorney should also establish additional goals, if possible, when determining which witnesses to call at trial. Each witness s testimony should add value in persuading the jury to see the evidence from the plaintiff s point of view, whether by establishing a legally important fact, or corroborating another witness, or admitting an important document into evidence, or highlighting a key piece of evidence. An attorney should have a specific purpose for calling each witness to the stand. A plaintiff s attorney fails if, after conducting a direct examination of a witness, the jury is left wondering about the relevance of the witness s testimony or how it fits into the case. 4. Preparing Witnesses to Testify Direct examinations are most effective when both the attorney and the witness are fully prepared. Unfortunately, all too often, attorneys busy with their own trial preparations spend too little time preparing their clients and other witnesses by discussing their roles at trial and reviewing their testimony with them. 3

4 Everyone, even the jury, expects witnesses to be nervous at trial. An overly nervous witness, however, may display body language indicative of evasion or untruthfulness, even though her oral testimony is completely forthcoming and honest. For that reason, if no other, it is vitally important that a plaintiff s attorney spend the time necessary to carefully prepare a the plaintiff and other witnesses for trial to help mitigate nerves as well as to help them understand exactly what to expect when they take the stand. If a witness is more focused and relaxed, a jury is more likely to credit the witness s testimony. If time permits, an attorney should personally meet with each witness more than once. Multiple meetings help to establish a rapport and comfort level between attorney and witness that will be important at trial to seamlessly and confidently present the evidence necessary to establish the facts and the theme of the case. During meetings with plaintiff as well as other witnesses in preparation for direct examination, the attorney should advise the client and witnesses generally how their testimonies fit into the overall story line of the case. Doing so will better focus each witness s attention on what she should try to accomplish at trial. At a minimum, an attorney should discuss with the witness the topics the direct examination will address, review any documents pertinent to the witness s testimony, and study any prior testimony that the witness may have provided, particularly addressing inconsistencies that may make a witness vulnerable at trial and how to reconcile those inconsistencies. By the day of trial, a witness should be familiar with all the questions that may be asked and all the exhibits that may be showed to her by the examining attorney, whether on direct or cross examination. Additionally, one of the more effective techniques during cross-examination is to portray the plaintiff as hyperbolic the type of person who says that something happened every single day or was the worse thing ever. Unless those statements are, indeed, factually true, a plaintiff s attorney should instruct her client to steer clear of exaggeration during direct examination. In our hypothetical illustration, for example, the attorney preparing Jane for direct and cross examination should strive to make Jane understand that she should not testify that her annual performance evaluations were excellent or even great when, in fact, they were just satisfactory. If a jury believes that Jane or any the witness is stretching the truth about certain topics during her testimony, the jury may question whether the witness is exaggerating about all her testimony. Finally, in addition to preparing the plaintiff or other witness on the substance of her testimony, it is extremely helpful for the attorney to prepare the plaintiff or witness (especially first time witnesses) for the experience of testifying in a courtroom. The attorney should explain things such as the lay out of the courtroom, what the witness is permitted to bring to the stand with her, where the attorney will stand during the examination, and where the witness should go after her testimony is complete, and what to do when opposing counsel objects to the question. The attorney should also advise the witness to focus her eye contact on the jurors during the examination. Developing the direct examination of a witness must be an interactive and collaborative process. To the greatest extent possible, an attorney should formulate the direct examination in a way that allows the witness to be comfortable before the jury so that she can testify confidently and persuasively. A careful plaintiff s attorney should not 4

5 only consider a witness s oral testimony, but also her demeanor and personality, and play to those strengths so that any weaknesses are diminished. Conducting the Examination There are no hard-and-fast techniques that make a direct examination successful. The most effective direct examinations are tailored to the specifics of the case being tried, to the individuality of the witnesses being called to the stand, and to the distinguishing characteristics of the attorney asking questions. At bottom, effective direct examinations are simply those that work and win the case. Nevertheless, there are a few pointers that generally apply across the board that may be useful for a plaintiff s attorney to consider when examining witnesses at trial. 1. Keep It Simple Of course, a direct examiner is not permitted to ask leading questions of her own witness, except to elicit preliminary background testimony. Even more importantly, however, an attorney s questions during direct examination should be clear, simple, straightforward and phrased in everyday language. One of the biggest mistakes that attorneys make before a jury during direct examination (or at any other time) is to talk like a lawyer. A jury must understand the question asked by the lawyer in order to understand the answer given by the witness. In our hypothetical, the plaintiff s attorney conducting the direct examination of Jane should not ask her what transpired subsequent to your arrival in Joe s office? when what happened after you walked into Joe s office? is less awkward and makes more sense. A direct examiner should be mindful of the words she uses before the jury. If jurors struggle to understand what the attorney is saying, the attorney may inadvertently create a barrier between the jurors and herself that may later come across in the jury deliberation room as arrogance. 2. Tell A Story An effective plaintiff s attorney presents the case in a manner that is organized and easy for the jury to follow. Direct examinations are usually most effective when they follow a story line. Most often, direct examination should present the case in chronological order, both within a particular witness s testimony and also in the sequence of witnesses called to the stand. Additionally, where possible, stories should be told in the present tense. Testimony given in the present tense more readily involves the jury in the story by putting jurors at the scene, making the witness s testimony more vivid and memorable. When appropriate, pointed transitional questions can be an effective method of guiding a plaintiff through her story. For example, again using our hypothetical as a backdrop, if Jane has just testified on direct examination my boss Joe said, if you don t like working here, you can quit, the direct examiner may want to ask a follow-up question such as did you say anything after Joe said if you don t like working here, you can quit? Framing the question that way instead of simply asking what happened next? reinforces the witness s testimony and keeps the jury in the moment, so long as it is done strategically and sparingly. Asking what happened next over and over again, on the other hand, runs the risk of minimizing or obscuring important testimony. 5

6 In an unusually complex case, one effective alternative to telling the story in chronological order may be to organize the direct examination by topics or subjects, rather than from beginning to end. Especially in cases involving more than one distinct legal claim, an attorney should consider formulating direct examination questions by grouping each claim or issue into separate topics, so that a witness presents her testimony in segments that may be better retained by the jurors. In that way, jurors can better comprehend and focus their attention as witnesses testify and present evidence in support of distinct topics instead of trying to sort out what part of what testimony relates to what legal claim. 3. Listen to the Witness Almost all attorneys will have an outline of questions to follow when examining witnesses. Without question, an outline is important to ensure that all legally significant topics and all important factual testimony are covered. Nevertheless, too many direct examiners make the mistake of being so focused on their outline that they become oblivious to what is happening in the courtroom. It should be axiomatic that a direct examiner should listen to the witness as she is testifying. Yet, so many attorneys have their eyes glued to their outlines that they risk losing track of what the witnesses are saying to the jurors. A plaintiff s attorney must pay close attention to the witness during direct examination, because, even with ample preparation, a witness at trial often strays from the testimony the attorney expected her to give, and, thus, may miss an opportunity to follow up on possibly important evidence or attempt to correct a misstatement made by the witness. In addition, attorneys should remember that juries pay close attention not only to the witnesses behavior at trial but also to the attorneys conduct. If it appears that the attorney is not paying attention to the witness s testimony, this can send a message to the jurors that the witness s testimony is not worth listening to and is unimportant. An effective direct examiner, therefore, needs to be a good listener and adapt to the witness s testimony as it is being given. 4. Anticipate Objections and Cross-Examination Conducting a successful direct examination necessarily includes preparing for and anticipating both (a) objections that may be raised by opposing counsel during the direct examination and (b) evidence that will be brought out by opposing counsel during crossexamination. Although many issues may be resolved through motions in limine, judges often reserve ruling on certain evidence to see how that evidence plays out at trial. For that reason, it is critical for attorneys to foresee potential objections that opposing counsel may make during direct examinations and be ready to respond. If, for example, opposing counsel objects to certain testimony as hearsay, the direct examiner must be prepared to explain in a concise and cogent manner why the testimony is not hearsay, why it falls within an exception to the hearsay rule, or why it is not being offered for the truth of the matter, and to provide citations to case law, if appropriate. 6

7 Furthermore, if a plaintiff s attorney knows that the plaintiff or any other witness is vulnerable to attack on particular topics, she should consider fronting those topics on direct examination to lessen their impact on cross-examination. Dealing with problematic issues on direct examination not only takes some of the wind out of the opponent s sails, but is also helpful in presenting the plaintiff and her witnesses as honest individuals with nothing to hide, thereby enhancing their credibility with the jury. For example, in our hypothetical, a jury should not hear for the first time on cross examination that Jane yelled at Joe. During direct examination, the plaintiff s attorney would be wise to elicit testimony about Jane s angry reaction from Jane herself so that she can put it in context, set the tone for the evidence, and improve her credibility. Conducting an effective direct examination of the plaintiff is always a combination of maximizing the plaintiff s credibility, keeping the rhythm of the testimony going by quickly defeating objections, and minimizing opportunities for attack on cross-examination. 5. Use of Visual Aids More and more often, attorneys rely upon and jurors expect the use of visual or other demonstrative exhibits during trial. Visual or other demonstrative aids are very useful tools in helping to reinforce a witness s testimony, enhance the theory or theme of the case, maintain jurors interest in the trial or summarize or explain evidence. How, when and what kinds of visual aids to use are subjects that could fill encyclopedic volumes. In general, however, an attorney should keep a few pointers in mind when using visual aids during direct examination. First, a plaintiff s attorney should never permit the visual aid to upstage the witness. Witness testimony is crucial to the flow, rhythm and impact of the story being told at trial. Visual aids and demonstrative exhibits should support, not supplant, testimony. Generally, visual aids should be introduced to the jury after a witness has completed her description of events as a means to reinforce or summarize what the witness has just said. Second, visual aids should be simple, organized and easy to understand upon a moment s glance. Overly complex visual aids will distract and confuse the jury. Importantly, a visual aid should not cause the jury to become so consumed with what the graphic is supposed to mean or what the visual is supposed to depict that the jurors attention is drawn away from witness testimony or other documentary evidence. Third, visual aids should be easily manageable at trial. An attorney must practice using the visual aid and courtroom technology enough times prior to trial to be completely comfortable and confident with their use. A plaintiff s attorney does herself no favors with the jury if she bungles the technology necessary to make the visual aid work at trial. Even with the most low-tech of graphics, an attorney who inadvertently knocks over an easel may draw a few laughs from the jury but then also risks appearing clumsy and unprofessional. 6. Redirect Examination Redirect examination is an opportunity for the plaintiff s attorney to rehabilitate a witness or rebut certain points raised during cross examination. It is not a second chance 7

8 at direct examination because it is limited to the scope of the cross examination, and, accordingly, should be used prudently. For that reason, the attorney should exercise restraint when conducting redirect examination because she may risk underscoring what went poorly during cross examination and cause further damage to a plaintiff s or other witness s credibility. In general, redirect examination should be limited to a few questions focused on one or two issues, and meant to explain points raised during cross examination or provide context for testimony elicited during cross examination. Most often, an effective plaintiff s attorney on redirect examination addresses, in a clear and succinct way, those points that opposing counsel purposefully omitted during cross examination, and then sits down. Conclusion A plaintiff s attorney must recognize the paramount importance of direct examination during trial. Cases will rise or fall on how well direct examinations are conducted and on how well testimony is presented. Plaintiff s attorneys must ensure that the jury is provided with the facts it needs to apply the law in favor of their clients, and doing so requires rigorous preparation. The attorney must (1) know the legal elements of the claim or claims being tried; (2) develop a theory or theme of the case; (3) establish goals to be accomplished by calling each witness; and (4) carefully prepare each witness for trial. Thorough preparation will pay off in presenting the plaintiff s or other witness testimony in simple, logical and memorable ways that will assist the jury to better understand the evidence and weigh it in the plaintiff s favor. 8