The direct exam of lay witnesses is probably the least discussed and arguably the most important part of trial. Here are a few important tips to consider when preparing for your next direct exam:
Prepare your case. It’s cliche but preparation is the key to success. You must review all of the witnesses in your case and decide what facts each witness will establish. Once you decide on that you must then decide if you can prove that fact with another piece of evidence. There is no need to use multiple witnesses to prove the same fact if it is not necessary.
Emotions are our milieu. As a trial lawyer we consistently deal with emotions and emotionally charged situations. Whether it is two business partners fighting over money or a catastrophic accident resulting in death, emotions are our milieu.
Convey your story with emotion. If you are not comfortable dealing with emotion then you should not be a trial lawyer. Period. During direct exam it is important to use questions to humanize the person giving testimony. Questions should not be robotic, but rather done in a matter that makes the testimony more of a comfortable conversation.
Go right at the bad information. If there are facts that are negative in the background of a witness then be upfront about it. Bring it out in the open and deal with the issue immediately as your opponent will, without a doubt, be ready to deal with it on cross exam.