Publications: Start At The Conclusion For A Direct Examination That Leaves A Lasting Impression

We have all heard that effective direct examinations use non-leading questions, ask the who, what, why, when, where and how questions; use headlines and looping as attention and memory techniques; and try to tell a persuasive story but in the context of the overall case presentation. “That’s great!” You may think. “But how do I put all of this together in one examination?” This article explores one way to do it—backwards.

Start at the conclusion. Every witness is on the stand for a reason. Have the witness explain why he or she is there at the beginning. The witnesses’ testimony, including background, observation and knowledge, will fall into place in the context of the reason the witnesses are there.

For example, take an expert witness. In a trial several years ago, I put on an expert witness at the end of a seven-week trial. The jury was tired, bored, and restless. Not a great time to be putting on an expert in a case in which the plaintiff sought $22 million dollars in damages.

Starting at the conclusion allows you to begin with a flourish. In my case, I asked the expert to introduce himself, brought out that he was the head of intraventional radiology at a major hospital in Chicago, that he had reviewed records in this case and came to conclusions, and then asked him to state his conclusions, all in the first two minutes of direct examination. The jury knew who he was and why he was testifying before we got into any of the substance of his testimony.¹

After the introduction and conclusion are obtained, the rest of the examination readily falls into place. By use of headlines and looping, the stage is set to go through an explanation of the expert’s testimony, using the who, what, why, where and how questions to establish the foundation of the expert’s opinion.

“I’m going to ask you some questions about your qualifications to render the opinion that Dr. A complied with the standard of care for a board certified intraventional radiologist in this case” (who are you and what are your qualifications as an expert). This headline notifies the jury that we are going to be talking about the expert’s qualifications and also loops in a repetition of his or her conclusion in the case. In my case, that doctor briefly discussed his education background and training, and explained to the jury that a number of times he had performed the technique at issue in the case, the number of times that he had the complication at issue in the case, and the number of times (zero) that it led to the injuries at issue in the case, both from his own experience and from his review of the medical literature (never).

“I’m going to ask you some questions now about how you reached your opinion in this case that Dr. A complied with the applicable standards of care for a board certified intraventional radiologist in this case.” (How did you reach your opinion, what did you review, and what are the bases underlying and supporting your opinion in this case?) Each of these underlying questions is used in a looping technique. What did you review in reaching your opinion that Dr. A complied with the standard of care . . . ? How did you analyze the facts in this case to reach your opinion that Dr. A complied with the standard of care . . . ? On what particular facts did you rely in concluding that Dr. A complied with the standard of care . . .? Each of these questions and the discussion of each of these topics reinforces the conclusion and provides support for the argument that the expert went about the analysis in a careful and prudent manner.

“I am going to ask you some questions now about how you dealt with some of the criticisms of Dr. A’s treatment of the plaintiff that you became aware of in your review of the records in this case and depositions in this case and how you address them in the context of reaching your conclusions that Dr. A complied with the standard of care in this case.” Within this framework, the expert is now free to discuss and refute plaintiff’s expert’s criticisms of Dr. A, all in the context of his or her review of the records, depositions and analysis of the medical issues in the case.

“I’m going to ask you some questions about why you came to the conclusion that Dr. A complied with the standard of care when the plaintiff’s expert testified the other way around.” In the context of his or her own conclusions, the expert is now allowed to directly refute plaintiff’s expert’s testimony and explain why his or her opinion should be accepted over that of plaintiff’s expert.

The when and where questions are interspersed among the larger topics. When did you review the materials? Where do you currently practice? And so on.

The examples given as to the questions asked are not exhaustive and, obviously, each topic the expert was taken through (qualifications, review of records and bases of opinion, an explanation and refutation of the plaintiff’s opinion) were all addressed using the what, why, and how technique.

The point of this example is that a crisp direct examination can be done, even with an expert in a complicated case, on a sophisticated subject matter, by using this technique. Have the expert state his or her conclusion up front. Set the framework for all of the other foundational material. The expert’s qualifications, record review, formulation of opinions, bases, and explanations, all came in the context of the opinions and conclusions stated in the beginning of the examination while the jury’s attention is the greatest. The use of looping reinforced the expert’s conclusions with the jury and the use of headlines allowed the jury to understand what was coming before they heard the testimony. This helped the jury make sense of the testimony in the context of the opinions given.

This method is very efficient because it streamlines the testimony in distinct categories and forces a crisp examination. You might think that an examination in a case like this, with a specialist like this covering the expert’s qualifications (education, training and experience), review of documents, bases for his or her opinions, opinions, and explanation of medical issues and response to plaintiff’s expert opinions might take a long time. Perhaps two hours? Try 30 minutes. The examination was done before the plaintiff’s attorney had begun to think about how to cross-examine the expert.

After the cross-examination was done, the jury got to hear and probably its most three favorite words in the whole trial—“the defendant rests.”

So, when the situation is right, try your direct-examination on backwards. It might just help the jury reach the conclusion you are looking for.

¹ The trial judge overruled plaintiff’s objection to the expert’s testifying as to his opinions on the grounds of lack of foundation based on my offer to proof up the foundation during the direct examination. Because this technique relies on the trial court’s discretion in allowing the conclusions to come out before the foundation is laid, you may wish to provide the judge with notice of this technique before the beginning of the examination.

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