By Dr. Ken Broda-Bahm:
When we think of the most exciting moments in Hollywood's version of a trial, direct examination isn't among them. The act of putting on your own witness in order to establish the elements of your case has none of the drama we associate with a courtroom battle. Instead of offering the conflict of one side against the other, as we see in cross-examination and in dueling opening statements, the direct examination is more predictable, calm...and boring. Instead of an exciting game, it's like one team's coach tossing softballs to one of his own players. Legally, however, the direct examination is critical. Proving up your case is about pulling together the facts, and the direct examination is where many to most of those facts are established. But that legal importance doesn't always translate into juror attention. I've seen jurors who had just been sitting at the edges of their seats to watch the end of a cross-examination visibly slump back and disengage when they see that the process is moving back to direct examination for the next witness.
I believe, however, that the dramatic failings of the direct examination aren't inherent in the process itself, but rather stem from the ways that attorneys approach direct examination. The direct outline is often seen by attorneys as something they prepare on their own, and treat as a simple matter of moving through the claim elements or the checklist of facts they need to establish. That approach may serve your case's legal needs, but won't fully engage the jury. To be persuasive, a great direct examination of either an expert or a fact witness requires as much planning and attention to strategy as a great cross-examination or opening statement. In this post, I'll share five rules for making that direct engaging and effective.