McElhaney on Litigation

Keep It Simple

Direct examination is no time for convoluted questions

Posted Jul 1, 2010 3:00 AM CDT
By Jim McElhaney

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Illustration by John Schmelzer

Ernie Romero, Mike Pirelli and Maria Archuleta started their own litigation firm a few years ago, and recently they’ve been getting some important cases.

The three of them came to see Angus Wednesday morning, armed with a big thermos of dark mountain roast coffee and a box of blueberry scones.

“We’ve got a big case coming to trial in the next three or four weeks that is just not going to settle,” said Maria. “So we thought maybe we could bribe you and Jim into helping us hone our direct and cross-examination skills.”

“You’re in luck,” said Angus. “I just got a call from Judge Standwell, and this morning’s pretrial conference has been moved to tomorrow afternoon. So Jimmy and I would be delighted to see if we can earn our morning coffee break. Let’s go into the library.

“Before we get into your case, let’s do a little trial exercise. I want each of you to ask me any question that you would ask a witness in a trial. If you ask a good question, I’ll answer it. If it isn’t a good question, I won’t. Mike, you start us out.”

“All right,” said Mike. “Would you state your full name, please, spelling your last name for the court reporter?”

“I won’t answer that,” said Angus.

“Why not?” Mike said. “That’s how lawyers start out direct examination all the time.”

“That doesn’t make it a good question,” said Angus. “It’s stiff and awkward. You weren’t remotely interested in the witness. You were concentrating on sounding like a lawyer, which is not how real people talk. Forget that you’re in court. Remember, you’re talking to a real person. Try it again.”

“Isn’t it true that your name is Angus and that you are in fact an attorney who is admitted to practice law?” said Mike.

“I won’t answer that question, either,” said Angus. “Sorry Mike—two strikes, you’re out. Who’s next?”

“Let me try,” said Ernie. “Relative to your occupation, how is it that you came to choose this particular profession?”

“No way will I answer that,” said Angus.

“But that’s actually what I want to know,” said Ernie.

“What you want to know is fine,” said Angus. “But the way you asked the question is not how real people talk. Try it some other way.”

“OK,” said Ernie. “As it relates to your choice of professions, what factors, if any, influenced you in deciding to pursue your particular calling?”

“You’re out, Ernie,” said Angus. “It sounded like you were trying to prove that you could talk like a lawyer rather than trying to find out anything about the witness. Maria, it’s your turn.”

SAY IT IN ENGLISH

“I’ll try putting Ernie’s question into English,” said Maria. “Why did you become a lawyer?”

“Good question,” said Angus. “I’ll answer that. To help other people deal with the legal tangles of life, which Maria just showed does not require talking in tongues.

“Mike and Ernie, don’t feel bad. I’ve heard a lot worse than your questions from some of the best lawyers in town. So let’s get out the coffee and scones and start talking about how to do a simple direct exam without sounding like a lawyer.”

• Rule 1: Use plain language.

“Legalese totally confuses an awful lot of people,” said Angus. “Trial lawyers are supposed to be professional communicators. That means everything we say and write should command instant comprehension. Everyone understands this, yet as soon as we walk into court, some strange force starts to tangle the way almost all of us talk.

“Steve Miller, the managing partner at Miller Goler Faeges in Cleveland, calls it ‘the formality trap.’ A court is a formal place where formal things are done. So as soon as we walk into any court, we tend to act and talk with added formality.

“Even so, that doesn’t mean we should become stiff, awkward and hard to understand. Effective communication—written and oral—is our most important work. It calls for clarity, simplicity and instant comprehension by ordinary people.

“Far too many lawyers miss the point that we are professional wordsmiths. It is our job to make sure we are understood by the judge and jury—not their job to struggle to understand us.”

• Rule 2: Ask short questions.

“Short questions put everyone’s attention on the witness, not the lawyer,” said Angus.

“Short questions are easy to understand. They focus the mind and are difficult to dodge. They demand responsive answers.

“This means that short questions are far more powerful than long questions.”

• Rule 3: Guide the witness.

“We start training our clients and key witnesses how to answer questions when their depositions are about to be taken by the lawyers on the other side of the case,” said Angus. “We want them to learn to give very short, easy-to-understand answers that do not volunteer any uncalled-for information.

“But unfortunately, when the case actually goes to trial, we typically don’t do enough to reprogram our witnesses for their new job—which is telling their side of the story more openly and responsively.

“So when the case is actually going to trial, conduct practice rounds with your client and witnesses. You do the direct examinations and have another lawyer do the cross-exams. You create too much confusion in your witnesses’ minds when you practice both the direct and cross-exams.

“When you get to trial, there’s a lot you can do to help your witnesses. First of all, lead on all the background information that’s not in dispute:

“ ‘Q: Your full name is Marcellus Adams—is that right?’

“ ‘A: That’s what it says on my birth certificate.’

“ ‘Q: But you go by Mark, right?’

“ ‘A: No one ever calls me anything but Mark.’

“ ‘Q: And, Mark, your connection with this case is that you are the chief software designer at RSL Computers?’

“ ‘A: That’s right.’

“ ‘Q: Mark, I’d like to start out by asking you to tell us about RSL’s new line of minicomputers. How many years did it take to develop the software for this new computer?’

“Notice,” said Angus, “that the first part of that last question was not a question at all, but a simple declarative statement designed to orient everyone—judge, jury and witness—and give meaning to the questions that followed. Anything wrong with that? Absolutely not.”

• Rule 4: Use the newspaper reporter’s basic words—who, where, what, when, how and why—in your questions.

“Who did you talk to?

“Where was Mrs. Abernathy then?

“What was she doing?

“When did Mr. Jackson tell you that?

“How were you able to stop the car?

“Why didn’t you call the police?”

• Rule 5: Ask follow-up questions.

“Paying close attention to how the witness answers your questions will help you develop a capacity that every good trial lawyer needs,” said Angus. “It’s the ability to hear the witness’s answers like the jury does—with fresh ears, as if for the first time. Fresh ears tell you when to fill in the blanks and when to let them pass, how far to go down an interesting side path or when to jump ahead. Most important, fresh ears tell you when to ask clarification questions to make sure everybody gets an essential point.”

• Rule 6: Make it come alive.

“Have the witness take the judge and jury to the scene with the answers to your questions:

“What’s the first thing you see when you walk into that waiting room? (Torn curtains and broken furniture.)

“Are there any handrails to keep people from falling? (No, you have to stay close to the wall as you walk up the stairs.)

“By the way, did you notice how the shift to the present tense in the last two questions made it all come more alive?”

• Rule 7: When things go wrong, take the blame.

“When the witness gets tangled and doesn’t know what you want, don’t say, ‘You didn’t understand my question.’ Instead say, ‘I’m sorry, Mrs. Jackson. I made a mess out of that last question. Let me put it another way.’ Then take your time and do it right.”

Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston.

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