what does a plaintiff’s attorney do during direct examination of a witness?

by Yasmeen Zemlak 6 min read

The plaintiff's attorney does the initial questioning of the witness, which is called direct examination. The purpose of a direct examination is to get the witness to testify about facts that support the plaintiff's case.Nov 30, 2018

Full Answer

What happens after the plaintiff's attorney completes the direct examination?

After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-examine the witness. Cross-examination is a fundamental right in the American system of justice.

What is a direct examination of a witness?

A direct examination of a witness— expert or not—refers to the procedure during which they are questioned under oath by their party’s own attorney. In other words, these are the individuals, either plaintiff or defendant counsel, that retained the expert to testify.

When can the plaintiff's attorney ask questions of the plaintiff witness?

After the defendant's attorney completes his or her questions, the plaintiff's attorney can ask questions of the plaintiff's witness. What part of the trial process does the scenario describe?

What is the plaintiff's attorney's role in cross examination?

Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.

What happens with a direct examination?

During direct examination, the lawyer questions a witness to get information before the jury that the lawyer expects will persuade the jury that the facts related by the witness are true, and that the jury should accept and believe them.

How do you direct examine a witness?

Prepare. There is absolutely no substitute for hard work. ... Keep it Simple. “Learn to talk like a regular person wherever you are. ... Use Topic Sentences or Headers. ... Personalize the Witness. ... Direct the Focus to the Witness. ... Help the Witness Show, Not Tell, the Jury. ... Start Strong, End Strong, and Address Your Weaknesses.

What is a basic rule of direct examination?

Lawyers for the plaintiff or the government begin the presentation of evidence by calling witnesses . The questions they ask of the witnesses are direct examination. Direct examination may elicit both direct and circumstantial evidence. Witnesses may testify to matters of fact, and in some instances provide opinions.

Who goes first in direct examination?

the plaintiff's lawyerWhen examining a witness, the plaintiff's lawyer asks the questions first, and this is called DIRECT EXAMINATION. The defendant's lawyer then CROSS-EXAMINES the witness. Generally, cross-examination is limited to questions concerning matters brought up in direct examination.

What can you ask on direct examination?

Direct examination questions allow a personal injury attorney to ask key witnesses to explain what they saw, heard, or did in relation to an incident. For example, an attorney in a car accident personal injury lawsuit may call a bystander to testify about what they saw just before, during, or after the accident.

How do you practice direct examination?

Creating a work of art through direct examination requires careful thought and planning.Pick Your Storytellers Carefully and Decide What Part of the Story They Should Tell. ... Remember, Trial is Theater. ... Use Demonstrative Evidence. ... Use Open Ended Questions. ... Go Over Testimony with the Witness Before the Witness Takes the Stand.More items...

Is direct examination yes or no questions?

As a general rule, do not ask leading questions - questions which contain within them the answer, suggest the answer or call for a yes or no answer - or your direct will be interrupted with sustained objections.

Who is in charge of the direct examination?

The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.

Who are the liar type of witnesses?

Hostile & Untrustworthy – These types of witnesses purposely lie in an attempt to disrupt the investigation. If it has been determined that this person is lying, the next step should be to find out why.

What is the order of examination of witness in court?

The order of examination is laid down under section 138 which states that: Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, and finally (if the party calling him so desires) re-examined.

What is the wisdom of direct examination of the witness?

The direct examination of witnesses is the most important part of the trial. Cross-examination may be more exciting and closing argument more eloquent, but it is the direct examination of your own witnesses that will determine whether the jurors hear, understand, and remember the facts upon which your case is based.

What questions Cannot be asked in cross-examination?

Section 142 does not mention asking leading questions during cross-examination. But, Section 143 states that leading questions can be asked even in cross-examination. Leading questions cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected by the other party.

What does it mean to be an expert witness?

For the expert witness that means that if the jurors do not first comprehend his opinion, they will never reach the point of believing it; instead they will simply reject it. Thus, many of these Rules will deal with techniques that enhance juror comprehension. 1.

What is the focal point of an expert's testimony?

The focal point of any expert’s testimony is obviously the opinion that he/she is going to offer and the basis for that opinion. It is important, therefore, that the attorney conducting the direct examination provide the proper “set up” or prelude for the expert’s opinion. Generally, this means you should provide any necessary technical or factual background before you start to question the expert about his/her conclusions.

What is the danger of presenting expert testimony?

One of the real dangers in presenting expert testimony is that the lawyer or the expert will speak over the jurors’ heads. If you present expert testimony that the jury simply does not understand because of the language being employed, the expert’s opinion is not going to be accepted no matter how well-founded it may be.

What is the prohibition on leading questions?

On direct examination, however, the prohibition on leading questions puts the lawyer in the position where the success of the examination is much more dependent upon the ability of the individual witness to listen, understand and respond to questions. During closing argument, the lawyer is even less “shackled” than he is during cross-examination, ...

How is an experiment different from a re-enactment?

An experiment is slightly different from a re-enactment. As the word indicates, a re­enactment seeks to recreate what happened at the time of the accident. An experiment is slightly different in that it does not seek to duplicate the conduct of one of the parties, but seeks to prove a point by example.

What is the most difficult skill to master in trial advocacy?

It perhaps sounds surprising, but the most difficult skill to master in trial advocacy may be conducting good direct examination of a witness, particularly an expert witness. The conventional thinking, no doubt, is that a trial lawyer’s “real” skill is measured by his ability to conduct damaging cross-examination or persuasive closing argument.

Is excessive reliance on a script bad for the jury?

Finally, excessive reliance on a script creates a bad impression with the jury . It not only takes some of the “spark” out of the direct examination, but it suggests to the jury that you either lack confidence in your case or do not know it well enough to avoid using the script. One final point on the outline.

What happens when a plaintiff's attorney calls witnesses?

Once the plaintiff’s attorney has called all of the witnesses on behalf of the plaintiff, the defendant’s attorney begins calling his or her witnesses. The same procedure is followed as in the plaintiff’s presentation of witnesses. The defendant’s attorney conducts direct examination of the witnesses, and the plaintiff’s attorney cross-examines the witnesses.Although these back-and-forth rounds of questions can seem overwhelming, they’re an important part of our justice system, designed to elicit facts for the judge and jury in the most fair way possible. The next lesson in this series will discuss when a witness is allowed to express an opinion on the facts, in distinguishing lay testimony from expert testimony.

How does an attorney undermine a witness?

During cross-examination, the attorney tries to undermine or impeach the witness’s credibility and show that the witness is not reliable. The attorney might try to show that the witness is biased or prejudiced toward a party in the case. Another way to undermine the witness’s credibility is to show that the witness has a stake in the outcome of the case, which might influence his or her testimony. The attorney can also question the witness about any felony criminal convictions on the witness’s record, or about any crimes involving dishonesty. Just as on direct examination, the opposing party’s attorney can raise objections to the questions posed to the witness, and the judge then rules on the objection.

What does the judge do with a witness?

The judge has some control over an attorney’s examination of witnesses and can dictate the form of the questions presented to the witness . The judge has discretion to stop repetitive or annoying questioning. An attorney may not ask his or her own witness a leading question — that is, a question which implies, suggests, or prompts the witness to give a particular answer. A witness can be asked to identify demonstrative evidence such as documents and photographs. Generally, a witness cannot give an opinion or draw a conclusion from the evidence unless he/she has been qualified as an expert witness. The defendant’s attorney can make objections to the witness’s testimony, based on the rules of evidence. The judge either sustains (grants) the objection, or overrules (denies) it and allows the witness to answer the question.

What is the purpose of direct examination?

The purpose of direct examination is to get the witness to testify about facts that support the plaintiff’s case. There are rules of evidence, which govern the admissibility of testimony and what kinds of questions can and cannot be asked.

What is the first step in a trial?

During a trial, the presentation of evidence begins when the attorney for the plaintiff (the person suing) initiates his case and begins calling witnesses. The plaintiff’s attorney does the initial questioning of the witness, which is called direct examination, and then the attorney for the defendant (the person being sued) responds with his or her cross-examination questions.

What is the best approach to examining a witness?

Most direct examination start with getting to know the witness’s background. A chronological approach is good for a lay witness. An issue approach is another option for some witnesses. Expert witnesses typically follow a different structure (see below) Introduce the witness’s background.

What is direct examination?

A Direct Examination is where an attorney conducts an examination of their own witnesses to bring out the facts of the case. An effective direct examination should isolate exactly what information each witness can contribute to proving the case. It should be posed as a series of clear, simple questions designed to obtain that information.

What is a re-direct in a case?

A re-direct is when the direct attorney asks the witness a question about something dealt with during cross examination. A re-direct can help the witness have the last word and make a final impression on the jury.

Can a direct attorney ask a question on a re-direct?

The direct attorney cannot ask a question on re-direct that does not relate to questions asked by the cross attorney or an objection may be raised. The Mock Trial rules limit number of re-direct questions that can be asked. (typically 2 questions) The questions still have to be open ended.

How to ensure a smooth direct examination of an expert witness?

Plan, Plan, Plan. The most airtight method to ensure a smooth direct examination of any expert witness is through plentiful planning. Preparing for a direct examination happens well before any of the parties enter the courtroom—ideally at the time of retainment. When an attorney is first engaging with a potential expert witness, ...

What is an expert witness in a direct examination?

During a direct examination, the expert witness may also refer to certain exhibits that are entered into evidence.

Why is direct examination important?

Because the direct examination occurs first in the order of a trial, it also presents an opportunity to preemptively defend against any potential attacks an expert might experience during cross examination. Below are some tactics to employ to ensure that the direct examination of your expert witness is as beneficial as possible to your case.

What is the role of an expert witness?

This is, by definition, the function of an expert witness —a uniquely qualified professional able to aid the trier of fact in understanding the evidence or a fact at issue. In light of an expert’s particular knowledge and experience, as well as their understanding of critical case issues, their testimony can be exceptionally persuasive. This presents all the more reason why their examination should be meticulously conducted.

What is direct examination?

Direct Examination: The Basics. A direct examination of a witness— expert or not—refers to the procedure during which they are questioned under oath by their party’s own attorney. In other words, these are the individuals, either plaintiff or defendant counsel, that retained the expert to testify. During direct examination, an attorney questions ...

What is considered an expert testimony?

Any academic works, such as journal publications or studies, authored by the expert. Once all credentials are properly established, the judge will rule to admit their testimony as that of an expert and then the substantive testimony can begin.

What is a voir dire?

This process, referred to as a voir dire, is a line of questioning that focuses on the expert’s qualifications, such as their education, licenses, job experience, and training . The specific questions that are asked can vary widely depending upon the specific profession of an answer. Generally, an attorney should inquire into the following areas:

Which amendment protects the accused from being compelled to be a witness against himself?

The accused is protected by the Fifth Amendment from being compelled to be a witness against himself. In civil suits, either party may call any witness with relevant evidence, including the adverse party, and (if the adverse party is a corporation) its officers, directors, and managing agents.

Why is direct examination important?

Cross-examination may be more exciting and closing argument more eloquent, but it is the direct examination of your own witnesses that will determine whether the jurors hear, understand, and remember the facts upon which your case is based.

What is Rule of Professional Conduct 3.3?

Rule of Professional Conduct 3.3 (a)(4) states: “If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. ”. Rule 3.3 does not say what form that remedial action must take, and there is some debate about it.

Is it unethical to violate the rules of evidence?

It is unethical to deliberately violate the rules of evidence. Rule 3.4 (c) of the Model Rules of Professional Conduct states that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal” (including its evidence rules), nor allude to any matter that is probably inadmissible.4.

What is an appellate court?

a hearing before a trial in order to facilitate the settlement of a case. an appellate court reverses a lower court decision because it finds prejudicial evidence was admitted that was obtaining through an unconstitutional search and seizure...The scenario is an example of which of the follow? An error of the law.

Why does an appellate court reverse a lower court decision?

an appellate court reverses a lower court decision because it finds prejudicial evidence was admitted that was obtaining through an unconstitutional search and seizure...The scenario is an example of which of the follow?

Cross-Examination

  • After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-examine the witness. Cross-examination is a fundamental right in the American system of justice. Generally, cross-examination is limited to matters covered during the direct examination…
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Challenging Witness's Credibility on Cross-Examination

  • During cross-examination, the attorney tries to undermine or impeach the witness's credibility by showing that the witness is not reliable or that the witness may have misstated something or even lied during the direct examination. For example, if the witness said one thing in an accident report or during a depositionand then testified differently at trial, the defendant's attorney can refer to t…
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Redirect and Recross Examination

  • Following cross-examination of the witness, the plaintiff's attorney has an opportunity to ask the witness follow-up questions regarding topics discussed during the cross. After this, the opposing attorney can conduct a final recross examination of the witness, which is limited to the subjects brought up during the redirect.
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Defense's Case

  • Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.
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