10 Steps to Follow for an Awesome Mock Trial Direct Examination
After you complete your trial plan, direct examinations are a great next step in your trial preparation. You don’t have a case without your evidence, and direct examinations are how you’ll present your evidence. Here is a step-by-step approach for preparing a direct examination that will help you make the best case possible.
1. The First 15 Seconds Are the Most Important
As you’re preparing a direct examination, pay special attention to the first 15(ish) seconds. This is when your audience is paying the most attention. Whenever there is a pause or a change in the flow of the trial, your audience is on alert. So when a new witness takes the stand, your audience is on the edge of their seats, wondering who this witness is and what they have to add to the case.
A lot of times I see students waste this time going over background and laying foundation for questions that will be asked much later in the direct examination. This time – and your audience’s attention — can be used more strategically.
As much as you can, use the first 15 seconds to explain to the judge: (1) who is this witness; (2) what is his/her role in the case; and (3) what is/are the most helpful thing(s) they have to offer to your case.
The introduction really should just be a few sentences.
Here’s an example for the victim:
Q: Ms. Smith, please introduce yourself to the Court.
A: [name, occupation, perhaps a small personal detail] I’m Jo Smith, and I’m originally from Berkeley. I moved here to South Palm to start my own yoga studio called Jo-ga; it’s the best place to practice your downward dog.
Q: Do you know the defendant in this action?
A: [in one sentence, victim explains any history they had with the defendant and how he was victimized] Yes, she actually used to be an instructor at my studio. I had to let her go when I found out she had stolen from the studio.
Witnesses Shouldn’t Script Their Answers.
If someone were to ask you to introduce yourself, you’d be able to say your name, what school you go to, and maybe share a personal detail, like a hobby. You wouldn’t need a word-for-word script of what to say. Similarly, a witness should be able to explain to the court who they are without needing a script.
Tips for Witnesses
When it comes to introducing yourselves, witnesses shouldn’t just take the sentences in the case packet and say them on the stand. Instead, step into your role as the witness give the information in your own words. If you can, find a personal detail or characteristic you can include in your direct examination responses.
Maybe a witness uses certain vocabulary. Or speaks in a distinct manner. Or dresses or accessorizes in a unique way. Maybe there is a nonmaterial background fact that can include about the witness. In the example above, the witness added details, like saying her yoga studio was “the best place to practice your downward dog.”
2. Outline Your Direct Examination
After you have outlined the first 15 seconds of the examination, attorney-witness pairs should sit down together and outline what the witness needs to say to make the team’s case. Make a list of all the pieces of evidence this witness needs to provide. Also write down whether the witness needs to discuss any of the exhibits, and if so, which one(s)?
Next, the attorney-witness pairs should figure out the order they’ll present the testimony on the list they made.
Then, think about the questions that need to be asked to get the witness to say the things on your list. Attorneys should outline those questions quickly, taking no more than 20 minutes to do this. Set a timer if necessary. The outline won’t be perfect, and that’s OK. The idea is to get it done.
3. Do Your First Run-Through
Do your first run-through as soon as you can. Don’t bother trying to get the questions and answers perfect. Sitting and outlining for days and days doesn’t work. But practicing out loud, and evaluating your progress, does.
In your first run-through, the attorney asks the witness the questions on the outline. Have a third team member listen and take notes, or record the first run-through.
Attorneys, think through the questions you want to ask but don’t tell the witness how to respond to each question. Maybe they don’t answer it in the exact way you want. That’s fine. If there is something you need from your witness that they aren’t giving you, try asking another question.
Don’t script this. Just take it as naturally as possible.
This should be a low pressure thing for both the attorney and witness. If there are a lot of ums and uhs, or the attorney struggles to formulate a question, or the witness starts and restarts their answers, that’s totally fine.
4. Evaluate Your First Run-Through
Each attorney-witness pair should listen to the recording, or review the notes, from their first run-through. They should talk about what they think went well and what needs to be changed. Here are some potential issues to consider:
- Did the attorney have trouble formulating questions?
- Did the witness understand the attorney’s questions?
- Were there key points the witness did not testify about?
- Are there key points the witness has trouble articulating?
Just as importantly, attorney-witness pairs should note the good stuff. Maybe the witness articulated something particularly well, or added a bit of character in the testimony. Consider incorporating the good stuff in future run-throughs.
Finally, refer to the outline made in Step 2. Use it as a checklist to make sure the direct examination covered all of the evidence needed. If it doesn’t, do another run-through to try to address what was missed. Continue doing run-throughs until you do one that covers all of the evidence you need to. After each run-through, attorney-witness pairs should evaluate and discuss what went well and what didn’t.
This may take a few run-throughs and that’s fine! It’s critical that each direct examination presents the testimony your team needs. Don’t move on to Step 5 until you’ve accomplished this goal.
5. Objection-Proof Your Direct
After completing a run-through where the witness gives all the testimony needed, each attorney-witness pair should do more run-throughs to make their questions and answers as objection-proof as possible. Review your Rules of Evidence (and this post).
Then, they should go through their direct examination, preferably with a third person there to observe. Do a run-through, one question and one answer at a time. I suggest the following steps:
- The attorney asks one question. Is it vague, leading, compound, or irrelevant? Has the question been asked and answered? Did the attorney lay a foundation? If so, make note of it.
- Does the question ask the witness to speculate? Does it invite the witness to testify to hearsay or improper character evidence?
- The witness answers. Listen very carefully to the response. Does the witness launch into a narrative? Speculate? Testify to hearsay or improper character evidence?
- Repeat for each question and answer.
Of course, it’s not possible to predict every objection that may come your way. The goal here is to just make sure that there are no obvious objections to the testimony being offered. Once this goal has been reached, move on to Step 6.
6. Use Exhibits Properly and Effectively
If the witness is using any exhibits, make sure that they are properly introduced and that they are being used effectively. (Here’s a quick guide to introducing exhibits.) It may take several run-throughs before the attorney and witness are comfortable with this process. After they feel they’ve mastered it, they should move on to Step 7.
7. Make Sure You Are Using Your Time Efficiently
Next, attorney-witness pairs should work on using their time efficiently. Attorney’s shouldn’t ask too many questions, and witnesses shouldn’t give detailed testimony about subjects that aren’t that important. They should make sure there’s enough time to present and emphasize the details that are important. Once they are comfortable with their use of time, they can move on to Step 8.
8. Develop Your Witness’s Character
Add some character and personality into the witness’s performance and testimony. Consider including a backstory and personal details. For example, say your witness has been best friends with the defendant since kindergarten. Your witness might say, “We’ve been best friends since he let me borrow his red crayon the first day of kindergarten.” This gives your witnesses some personality beyond what’s in the case packet. Just be careful not to create any material facts. Read 11 Ways to Give Your Witness a Personality of Their Own for more ideas.
Consider adding some character in the first 15 seconds of the direct examination, so that your witness has a strong introduction to the audience. (See Step 1.)
When you’re satisfied with your witness’s personality and performance, move on to Step 9.
9. Fine-Tune Your Overall Presentation
Attorneys and witness should consider incorporating pauses to draw attention to key parts of the testimony. They should also consider their body language, as well as their physical movements, particularly if exhibits are being used.
10. Finished Product
At the end of this process, you’ll have a fun and engaging direct examination that allows your witness to provide the testimony you need. Because it’s not scripted, the direct examination will look a little differently each time it’s presented, and your witness will vary the way he or she answers questions.
Say you asked me to tell you the story of my first day at my first job. I’d tell you I worked at The Wherehouse, selling CDs. I’d explain that The Wherehouse was a chain of stores that no longer exists, and I’d explain that people used to listen to music on CDs. I’d then talk about my boss, nightmare customers, and how much I hated taking the security devices off the CDs.
Say that one week later, you asked me again to tell you the story of my first day at my first job. I’d tell the story again, and I’d still mention The Wherehouse, the nightmare customers, and the CD security devices. But it wouldn’t be a word-for-word repetition of the story I told you today.
A direct examination should be similar. It shouldn’t be a script that’s performed the exact same way for every scrimmage and competition.
Almost always, mock trial direct examinations are scripted word for word. And they feel scripted, which is kind of boring to watch (and this is coming from someone who LOVES mock trial!).
I know my approach is a bit different, and it may be a bit hard at first, but I do think it is the best way for attorney-witness pairs to build a rapport and give their best performances.
What parts of the direct examination are you struggling with? What could you use help with? Leave a comment below, and I will do my best to help!