10 Steps to Follow for an Awesome Mock Trial Direct Examination
After you complete your trial plan, direct examinations are a good place to really start preparing for trial. 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 your 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.
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 he had with the defendant and how he was victimized] Yes, she actually used to be an instructor at my studio. Little did I know that instead of searching for bliss, she was searching for things to steal 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, when you’re in your role, you should be able to explain to the court who the witness is without needing a script.
Tips for Witnesses
When it comes to introducing yourselves, don’t just take the sentences in the case packet and say them on the stand. Refer to your witness profile to find a personal detail or characteristic you can include in your direct examination responses.
Maybe you use certain vocabulary. Or speak in a distinct manner. Or dress or accessorize in a unique way. Maybe there is a nonmaterial background fact you can include about your character.
In the example above, the witness added details, like saying her yoga studio was “the best place to practice your downward dog.” She also included referenced “bliss” and dropped some yogi-like terms.
2. Outline Your Direct Examination
After you have outlined the first 15 seconds of the examination, you should sit down as attorney and witness pairs 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, figure out the order you’ll present the testimony on the list you made.
Then, think about the questions that need to be asked to get the witness to say the things on your list. Outline those questions really quickly. Your outline won’t be perfect. That’s OK.
Don’t spend more than 20 minutes doing this. Set a timer if you have to.
You won’t make your direct better by sitting and outlining. You’ll make it better by practicing your examinations.
3. Do Your First Run-Through
The attorney asks the witness the questions on your outline. Have a third team member listen and take notes for you, or use your cell phone to make a recording of your 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 you and your witness. If there are a lot of ums and uhs, or your witness is starting and restarting their answers, that’s totally fine. If you are struggling to formulate a question, that is also totally fine.
Do your first run-through as soon as you can. Don’t bother trying to get your questions perfect. Sitting and outlining for days and days doesn’t work. But practicing out loud, and evaluating your progress, does.
4. Evaluate Your First Run-Through
If you recorded your first run-through, listen to the recording. If you took notes, look at those notes.
Talk as attorney-witness pairs about what you think went well and what needs to be changed. Think of this process as a way of understanding each other and working together collaboratively.
Here are some potent 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?
Work together to figure out how to address your problem areas. Do this after every run-through.
And don’t forget to note the good stuff. Maybe your witness articulated something particularly well, or added a bit of character in the testimony. Write down the things that went well, so that you and your witness can think about repeating it in future run-throughs. Be sure to note the good stuff for each run-through too.
Finally, refer to the outline you made in Step 2. Use it as a checklist to make sure your direct examination covered all of the evidence you need to. If it doesn’t, do another run-through to try to address what you missed. Continue doing run-throughs until you do one that covers all of the evidence you need to.
This may take a few run-throughs and that’s ok! This is critical. Don’t try to work on other goals until you’ve accomplished this one.
Once you’ve accomplished this goal, move on to Step 5.
5. Objection-Proof Your Direct
After you complete a run-through where your witness gives all the testimony you need, do more run-throughs to make your questions and answers as objection-proof as possible. Review your Rules of Evidence (and this post).
Then, go through your direct examination, preferably with a third person there to observe. Do a run-through, one question and one answer at a time:
- Ask one question and consider whether it is vague, leading, compound, or irrelevant? Has the question been asked and answered? Did you forget to lay a foundation? If so, make note of it.
- Listen very carefully to your witness’s response to your question. Does the witness launch into a narrative? Speculate? Testify to hearsay?
- Repeat for each question.
Of course, you will not be able to predict every objection that may come your way. Your goal here is to just make sure that there are no obvious objections to the testimony you are offering. Once you’ve reached this goal, move on to Step 6.
6. Use Exhibits Properly and Effectively
If your witness is using any exhibits, make sure that they are properly introduced into evidence and that they are being used effectively. It may take several run-throughs before you are comfortable with this process. After you feel you’ve mastered it, move on to Step 7.
7. Make Sure You Are Using Your Time Efficiently
Next, work on using your time efficiently. Don’t ask too many questions or give detailed testimony about subjects that aren’t that important. And be sure to leave enough time to present the details that are important. Keep doing run-throughs until you meet these goals, and then 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.
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
Incorporate pauses to draw attention to key parts of the testimony. Think through your and your witness’s physical movements, particularly if exhibits are being used. Consider the body language the witness and attorney use.
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, your direct examination will look a little differently each time you present it, 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.
Your direct examination should be similar. You don’t want it to be a script that you perform the exact same way for every scrimmage and competition.
Almost always, mock trial direct examinations are scripted word for word. And they feelscripted, 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!