Examination-in-Chief or Direct Examination

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9 Examination-in-Chief or Direct Examination

Examination-in-chief, which for the purposes of convenience I call ‘direct examination’ from now on, is the process of asking questions of your own witness. The aim is to get the witness to give answers which help prove your case.

Direct examination is not used in quite a few countries; it has largely been dispensed with in civil cases in England and Wales and it is rarely if ever used in arbitration.

Why do you need to know about it then? Well, in those courts where it is used, such as criminal courts, the advocate must be familiar with the basic technique.

But in learning advocacy generally it is helpful for three main reasons:

1 It helps you to be a better interviewer if you are required to take a witness statement.

2 The same techniques are used in re-examination or re-direct examination.

3 It reinforces a recognition of the sort of questions you should not use in cross-examination.

The idea of advocacy as story telling still applies. In this case you are facilitating your witness to tell his story to the court. So, to be effective, the facts must be attractively arranged.

In civil cases in England and Wales some witnesses do not appear in court to give evidence until months, if not years, after the event that they speak of. Historically, direct examination was becoming a memory test and all sorts of rules cropped up to deal with situations where the memory of the witness was exhausted.

To avoid these problems and mainly to save time, in 1999 the Civil Procedure Rules brought in a change of approach. The witness was called; introduced; asked if his statement was true; given the opportunity to make any additions or corrections; and then the statement was tendered.

In effect, a witness in civil proceedings in England and Wales does not now have much to say at all before being subjected to cross-examination.

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This ‘reform’ caused some resentment, especially among witnesses who were parties to the case because they did not feel they were having their say.

It also means that the drafting of the statement has become much more important. The English rules demand that the statement be written in the witness’s own words, but not many witness statements escape the dead hand of the lawyer.

One of my students told me of a witness statement which had been delivered to her by her opponent in a matrimonial case. It read ‘My boyfriend took me to Paris where we shagged all weekend. Then I returned to London where I resumed normal marital cohabitation with my husband.’

You can learn a lot about direct examination from watching interviewers on television. The good ones put the spotlight on the guest and listen to the answers. The bad ones put the spotlight on themselves and ignore the answers.

The TV interviewer wants the guest to talk for reasons of entertainment. Direct examination is a more difficult skill because the advocate is not having a conversation with the witness. The advocate is asking questions designed to get the witness to give answers to the court. The advocate does not want the witness to talk too much or go off the point. The witness must be controlled to give relevant probative evidence.

Here are some simple rules which will enable you to carry out a successful direct examination.

1 No leading questions

A leading question puts words into the mouth of the witness. It contains the facts the witness should be saying. For example:

Advocate: ‘You are wearing a blue, woollen suit?’

Witness: ‘Yes.’

Leading questions are forbidden for a very good reason. The advocate is not a witness and she cannot be cross-examined. Anyway, she was not at the scene.

If the lawyer were to state all the facts, there would be no need for the witness to be there. But it would be highly unpersuasive.

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2 Start your questions with the words ‘what’, ‘when’, ‘where’, ‘why’, ‘how’, ‘who’, ‘please describe’, ‘tell the court’

So using the first example again, the question should be:

Advocate: ‘What are you wearing?’

Witness: ‘A suit.’

Advocate: ‘What colour is it?’

Witness: ‘Blue.’

Advocate: ‘What is it made of?’

Witness: ‘Wool.’

Be careful. Even if your question begins with one of these words, it may still be leading. For example:

Advocate: ‘Why do you always wear blue?’

This question is still leading because it proceeds on the assumption that the witness always wears blue.

However, generally these words are at the beginning of what we call ‘open’ questions. Good journalists use them. A well-written news item will normally have answered these questions. If a train crash has been reported we would be very frustrated if we were not told where it happened, when it happened, how it happened and so on.

The English poet, Rudyard Kipling, put it succinctly:

‘I keep six honest serving men,
(They taught me all I knew.)

Their names are What and Why and When And How and Where and Who.’¹

3 Simple words and short questions

Because they are nervous, a lot of advocates speak their thoughts out loud as they ask a question. The real point gets lost.

For instance, an advocate might say:

¹Rudyard Kipling, ‘I Keep Six Honest Serving Men’, http://www.kiplingsociety

.co.uk/poems_serving.htm.

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‘Now I am going to ask you a few questions, for the purposes of clarification, on the subject of the suit, in particular its colour ... what is it, and by that I mean what colour is it?’

Resist the temptation to speak before you ask your question. Think quietly and not aloud. Then say:

‘What colour is your suit?’

It is important to concentrate on one fact per question. The first question comprised 37 words, most of which were unnecessary to elicit the fact. The second question contained five words.

Despite this, some form of the first question is often seen in courts.

In my experience, the shorter the question, the more impact is contained in the answer.

4 Style

Speak clearly, in simple language and try to limit your questions to six words or fewer. Above all, make sure the spotlight is on the witness and not you.

Watch the witness carefully. Does he understand what you are saying? Did he hear you correctly? Is he talking too fast for the court to make a note?

Watch the judge, court, jury or arbitration panel like a hawk.

Are they going to sleep? Can they keep up? Are your best...