"Direct Questions"
Steve Miller, of Goodman Weiss Miller LLP in Cleveland, was critiquing a new batch of Trial Tactics students on their very first day of class.
The assignment was direct examination. The students were taking turns at trying to ask questions without getting showered with objections, hopelessly tangled in their own words, or leaving the witness wondering what in the world was wanted.
After two or three earnest efforts by the students, Steve stood up and called a halt to the proceedings. “I’m going to break the rules,” he said. “Normally, we never interrupt the exercise, but that’s what I’m going to do.
“The problem is, none of you know how to ask good direct examination questions.
“Why should you? You’ve never done it before. So we’re going to practice asking good questions before we go back to your direct examinations. Forget about the cases for now. I just want you to concentrate on how to ask a good question.
“All of you come down here and line up. If you ask a good question, I’ll answer it. If you don’t ask a good question, I won’t answer it.
“Okay,” said Miller to the young woman who was on the left, “start us off.”
“Sure,” she said. “Would you state your full name, please, spelling your last name for the record?”
“Bad question,” said Steve. “I won’t answer it. Ask a better question.”
The student was surprised. “But that’s what lawyers always ask at the start of a direct examination,” she said.
“That doesn’t make it a good question,” said Steve. “You weren’t remotely interested in your witness. Forget you’re in court and try it again.”
“You’re Steve Miller?” she said.
“Yes, that’s right,: he said.
“Tell us what you do for a living, Mr. Miller,” she said.
“I’m a lawyer,” he said. “And I specialize in trying lawsuits. Okay. Next person’s turn.”
That was a young man who said, “Mr. Miller, relative to your occupation, how is it that you came to choose that particular profession?”
“I won’t answer that,” said Steve.
“But that’s what I want to know,” said the young man.
“What you want to know is fine,” said Steve, “but the way you asked the question is not how real people talk. Put it another way,”
“All right,” he said. “With respect to your choice of profession, Mr. Miller, what, if anything, influenced your decision to pursue your particular calling?”
“Even worse,” said Steve. “Try again.”
“Oh, come on,” said the student “I just want to know why you wanted to be a lawyer.”
“That’s it!” said Steve. :When you’re not trying to sound like an attorney, you know how to ask great questions.
“Your turn,” said Miller, pointing to the next in line. And on they went for another fifteen or twenty minutes until he had gone through the entire group several times. When they went back to the direct examination assignments, everyone was noticeably better.
When I talked to Angus about Miller’s exercise, he was impressed. :You always hear people talking about sophisticated techniques for direct examination. But the truth is, if you don’t ask good questions, you won’t get good answers. And if you don’t get good answers, you won’t conduct a good direct, no matter how many impact words you use, how carefully you organize your topics, or how much money you spend on demonstrative evidence and exhibits.
“Just like you have to practice asking short, leading questions to become a good cross-examiner, you have to develop a series of verbal habits to be a good direct examiner.
“It’s not enough to just understand the rules,” said Angus. “You can’t think about technique while you’re concentrating on content. Until you develop the right verbal habits, you will keep going back to your old patterns of speech as soon as you start thinking about what you’re trying to get out of the witness.”
“Sounds like you’ve been working on this,” I said.
“A little bit,” said Angus.
“Come on,” I said. “Let me see it,” and Angus got out a big three-ring notebook that said Angus on Advocacy on the cover, and turned to a chapter called “Direct Questions.”
“Here,” he said. “This is a list of some factors that help make good direct examination questions. The things you have to practice until they become second nature.”
“Thanks,” I said. “Can I borrow this?”
“Sure,” he said. “You’re welcome to use it.”
Here is Angus’s list, annotated with some of the ideas he talked about during the next half hour.
Guide the Witness
Witnesses worry about what they’re supposed to say and hw they’re supposed to say it. And it’s an unusual direct examination that doesn’t have a number of communication breakdowns between lawyer and witness. Most of them are unnecessary and they are almost always the lawyer’s fault.
One of the problems is that we work so hard telling witnesses how to behave in depositions and on cross-examination, that’s how they act on direct examination as well. They answer questions with as few facts as possible, they don’t volunteer information, and they are reluctant to explain anything.
So part of the problem is how we prepare witnesses for testimony in the first place. But it’s aggravated by the way we behave in trial. Once we start direct examination, our sudden stiffness and formality is taken as a sign by the witnesses that they should act that way, too.
Worst are the questions we ask. The most important job of any question is to be a guide. It’s supposed to orient the witness, point to the right topic, and show what is wanted without telling the witness what to say or how to say it.
But instead, our requests for information usually come in an incomprehensible code understood only by judges and other lawyers.
It doesn’t have to be that way. There are a number of things we can do to make things easier for the witness.
First, you can lead on preliminary matters – introductory information that is not in dispute.
Q; You are Emily Johnson?
A; Yes, that’s right.
Q: You are the administrative assistant to Ms. Beatrice Palmer, the president of Electro-Toys?
A; Yes, I am.
Second, you can sue verbal headlines – telling the witness (as well as the judge and the jury) what the topic is going to be.
Q: Ms. Johnson, before we get to what’s been happening at Electro-Toys, I’d like to talk abot your background in the toy industry – before you came to work for Beatrice Palmer. When did you start working in the toy business?
A: Twelve years ago, with a little company called Keokuk Toys.
Time out for a second. The topic sentence asked no question. It ust oriented everybody. Di that make it an improper comment by counsel?
Hardly. It became part of a series of questions that followed it. Then when you want to change othe
Q; Now, Ms. Johnson, I’d like to focus on your work wit Electro-Toys.
A final note about headlines. In addition to keeping the judge, jury, and witness on track, they send the message that you are well-organized, which helps the perception that you can be relied on as a credible source of information.
Use Plain Language
We all know we should use simple words. Just read one of your transcripts and you will promise to reform. You probably have done it any number of times already. But ike the “reformed” gambler who can’t pass an open casino door, once we get to court, our good intentions melt, and we start sounding like a parody of a stuffy lawyer in a TV sitcom.
We ask impenetrable questions such as, “What next, if anything, did you do with respect to the operation and control of the motor vehicle in question?”
Or, “Let me ask you this question, Mr. Reynolds. With reference to the cash flow position of Electro-Toys, what steps were considered to minimize the possible adverse impact that might be induced by a shift in market position of Electro-Toys’ competitor, Tech-Toy Products?”
Why do we talk that way?
One reason is law school, where the real message of the classroom is, if you want to be a lawyer, learn to talk like a law professor.
Another is the herd instinct that makes us want to blend in with all the other attorneys roaming through the judicial countryside.
Perhaps most insidious is what Steve Miller calls, “The Formality Trap.” A court is a formal place where formal things happen. When we get there we automatically talk in the expected way.
But you don’t have to. If you think about it you will realize that you are both a professional speaker and a professional writer. Effective communication is one of the things that is essential to what you do for a living.
As a professional wordsmith, it is your job to make sure that you are understood by the judge and jury – not their job to try to understand you. And that means virtually every question you ask should command instant understanding.
Assume responsibility for effective communication and you will begin using clear, simple language. You will begin to weed awkward legalisms from your vocabulary.
Strange things will start to happen. Your speaking invitations will multiply. Your opening statements and final arguments will start getting quoted and copied by other lawyers. Some will accuse you of being eloquent. Best of all, your questions will be easy to understand.
Ask Short Questions
Short questions have many virtues:
“Are you able to recall whether any other individuals were present on that occasion?” instead of
“Who else was there?”
There is one way to learn how to ask short questions.
Practice.
Start Your Questions with the Newspaper Reporters’ Basic Words
Who, Where, What, When, How, and Why.
When Things Go Wrong, Take the Blame
You’ve seen it happen any number of times. You’ve probably done it yourself. Most lawyers have.
When the witness doesn’t understand the question, instead of taking responsibility yourself, you blame the witness. “You didn’t understand my question, Mr. Bloom. What I asked you was to indicate the amount expended on this project during the initial five months – not the entire year.”
Embarrassed and self-conscious, the witness has been made to feel like a fool. His testimony gets worse, not better, and the jury likes you even less than before.
Yet lawyers find that ducking responsibility for a lapse of communication is the most natural thing in the world.
Why?
Because we’re professional blamers. It’s what we do for a living.
Develop another habit instead. Always take the blame when communication breaks down. After all, it’s your responsibility in the first place.
Ask Follow-Up Questions
Really paying attention to what the witness says will help you develop a capacity that every good trial lawyer needs – the quality to hear the answers like the jury does. With fresh ears, as if for the first time.
Fresh ears tell you what the jury understands and what it doesn’t. They will tell you when to fill in the blanks and when to let them go, how far to take on a path to one side or another when to jump ahead. Most important, fresh ears tell you when to ask a clarification question to make sure everybody gets an important point.
Don’t underestimate the power of good follow-ups. Besides making your case more coherent, it makes the jury grateful when you ask for things they want to know. They start to think of you as one of them – someone they can trust.
The assignment was direct examination. The students were taking turns at trying to ask questions without getting showered with objections, hopelessly tangled in their own words, or leaving the witness wondering what in the world was wanted.
After two or three earnest efforts by the students, Steve stood up and called a halt to the proceedings. “I’m going to break the rules,” he said. “Normally, we never interrupt the exercise, but that’s what I’m going to do.
“The problem is, none of you know how to ask good direct examination questions.
“Why should you? You’ve never done it before. So we’re going to practice asking good questions before we go back to your direct examinations. Forget about the cases for now. I just want you to concentrate on how to ask a good question.
“All of you come down here and line up. If you ask a good question, I’ll answer it. If you don’t ask a good question, I won’t answer it.
“Okay,” said Miller to the young woman who was on the left, “start us off.”
“Sure,” she said. “Would you state your full name, please, spelling your last name for the record?”
“Bad question,” said Steve. “I won’t answer it. Ask a better question.”
The student was surprised. “But that’s what lawyers always ask at the start of a direct examination,” she said.
“That doesn’t make it a good question,” said Steve. “You weren’t remotely interested in your witness. Forget you’re in court and try it again.”
“You’re Steve Miller?” she said.
“Yes, that’s right,: he said.
“Tell us what you do for a living, Mr. Miller,” she said.
“I’m a lawyer,” he said. “And I specialize in trying lawsuits. Okay. Next person’s turn.”
That was a young man who said, “Mr. Miller, relative to your occupation, how is it that you came to choose that particular profession?”
“I won’t answer that,” said Steve.
“But that’s what I want to know,” said the young man.
“What you want to know is fine,” said Steve, “but the way you asked the question is not how real people talk. Put it another way,”
“All right,” he said. “With respect to your choice of profession, Mr. Miller, what, if anything, influenced your decision to pursue your particular calling?”
“Even worse,” said Steve. “Try again.”
“Oh, come on,” said the student “I just want to know why you wanted to be a lawyer.”
“That’s it!” said Steve. :When you’re not trying to sound like an attorney, you know how to ask great questions.
“Your turn,” said Miller, pointing to the next in line. And on they went for another fifteen or twenty minutes until he had gone through the entire group several times. When they went back to the direct examination assignments, everyone was noticeably better.
When I talked to Angus about Miller’s exercise, he was impressed. :You always hear people talking about sophisticated techniques for direct examination. But the truth is, if you don’t ask good questions, you won’t get good answers. And if you don’t get good answers, you won’t conduct a good direct, no matter how many impact words you use, how carefully you organize your topics, or how much money you spend on demonstrative evidence and exhibits.
“Just like you have to practice asking short, leading questions to become a good cross-examiner, you have to develop a series of verbal habits to be a good direct examiner.
“It’s not enough to just understand the rules,” said Angus. “You can’t think about technique while you’re concentrating on content. Until you develop the right verbal habits, you will keep going back to your old patterns of speech as soon as you start thinking about what you’re trying to get out of the witness.”
“Sounds like you’ve been working on this,” I said.
“A little bit,” said Angus.
“Come on,” I said. “Let me see it,” and Angus got out a big three-ring notebook that said Angus on Advocacy on the cover, and turned to a chapter called “Direct Questions.”
“Here,” he said. “This is a list of some factors that help make good direct examination questions. The things you have to practice until they become second nature.”
“Thanks,” I said. “Can I borrow this?”
“Sure,” he said. “You’re welcome to use it.”
Here is Angus’s list, annotated with some of the ideas he talked about during the next half hour.
Guide the Witness
Witnesses worry about what they’re supposed to say and hw they’re supposed to say it. And it’s an unusual direct examination that doesn’t have a number of communication breakdowns between lawyer and witness. Most of them are unnecessary and they are almost always the lawyer’s fault.
One of the problems is that we work so hard telling witnesses how to behave in depositions and on cross-examination, that’s how they act on direct examination as well. They answer questions with as few facts as possible, they don’t volunteer information, and they are reluctant to explain anything.
So part of the problem is how we prepare witnesses for testimony in the first place. But it’s aggravated by the way we behave in trial. Once we start direct examination, our sudden stiffness and formality is taken as a sign by the witnesses that they should act that way, too.
Worst are the questions we ask. The most important job of any question is to be a guide. It’s supposed to orient the witness, point to the right topic, and show what is wanted without telling the witness what to say or how to say it.
But instead, our requests for information usually come in an incomprehensible code understood only by judges and other lawyers.
It doesn’t have to be that way. There are a number of things we can do to make things easier for the witness.
First, you can lead on preliminary matters – introductory information that is not in dispute.
Q; You are Emily Johnson?
A; Yes, that’s right.
Q: You are the administrative assistant to Ms. Beatrice Palmer, the president of Electro-Toys?
A; Yes, I am.
Second, you can sue verbal headlines – telling the witness (as well as the judge and the jury) what the topic is going to be.
Q: Ms. Johnson, before we get to what’s been happening at Electro-Toys, I’d like to talk abot your background in the toy industry – before you came to work for Beatrice Palmer. When did you start working in the toy business?
A: Twelve years ago, with a little company called Keokuk Toys.
Time out for a second. The topic sentence asked no question. It ust oriented everybody. Di that make it an improper comment by counsel?
Hardly. It became part of a series of questions that followed it. Then when you want to change othe
Q; Now, Ms. Johnson, I’d like to focus on your work wit Electro-Toys.
A final note about headlines. In addition to keeping the judge, jury, and witness on track, they send the message that you are well-organized, which helps the perception that you can be relied on as a credible source of information.
Use Plain Language
We all know we should use simple words. Just read one of your transcripts and you will promise to reform. You probably have done it any number of times already. But ike the “reformed” gambler who can’t pass an open casino door, once we get to court, our good intentions melt, and we start sounding like a parody of a stuffy lawyer in a TV sitcom.
We ask impenetrable questions such as, “What next, if anything, did you do with respect to the operation and control of the motor vehicle in question?”
Or, “Let me ask you this question, Mr. Reynolds. With reference to the cash flow position of Electro-Toys, what steps were considered to minimize the possible adverse impact that might be induced by a shift in market position of Electro-Toys’ competitor, Tech-Toy Products?”
Why do we talk that way?
One reason is law school, where the real message of the classroom is, if you want to be a lawyer, learn to talk like a law professor.
Another is the herd instinct that makes us want to blend in with all the other attorneys roaming through the judicial countryside.
Perhaps most insidious is what Steve Miller calls, “The Formality Trap.” A court is a formal place where formal things happen. When we get there we automatically talk in the expected way.
But you don’t have to. If you think about it you will realize that you are both a professional speaker and a professional writer. Effective communication is one of the things that is essential to what you do for a living.
As a professional wordsmith, it is your job to make sure that you are understood by the judge and jury – not their job to try to understand you. And that means virtually every question you ask should command instant understanding.
Assume responsibility for effective communication and you will begin using clear, simple language. You will begin to weed awkward legalisms from your vocabulary.
Strange things will start to happen. Your speaking invitations will multiply. Your opening statements and final arguments will start getting quoted and copied by other lawyers. Some will accuse you of being eloquent. Best of all, your questions will be easy to understand.
Ask Short Questions
Short questions have many virtues:
- Short questions are easy to understand.
- Short questions focus the mind. Focusing des more than just create understanding, It is one thing to understand a question, quite another to fel compelled to answer it,. Short questions demand responsive answers.
- Short questions are easy to organize.
- Short questions are easy to fix if they go wrong.
- Short questions help turn the spotlight on the witness instead of on the lawyer.
“Are you able to recall whether any other individuals were present on that occasion?” instead of
“Who else was there?”
There is one way to learn how to ask short questions.
Practice.
Start Your Questions with the Newspaper Reporters’ Basic Words
Who, Where, What, When, How, and Why.
- Who did you see?
- Where did you see her?
- What was she doing?
- How long were you there?
- Why did you leave?
When Things Go Wrong, Take the Blame
You’ve seen it happen any number of times. You’ve probably done it yourself. Most lawyers have.
When the witness doesn’t understand the question, instead of taking responsibility yourself, you blame the witness. “You didn’t understand my question, Mr. Bloom. What I asked you was to indicate the amount expended on this project during the initial five months – not the entire year.”
Embarrassed and self-conscious, the witness has been made to feel like a fool. His testimony gets worse, not better, and the jury likes you even less than before.
Yet lawyers find that ducking responsibility for a lapse of communication is the most natural thing in the world.
Why?
Because we’re professional blamers. It’s what we do for a living.
Develop another habit instead. Always take the blame when communication breaks down. After all, it’s your responsibility in the first place.
Ask Follow-Up Questions
Really paying attention to what the witness says will help you develop a capacity that every good trial lawyer needs – the quality to hear the answers like the jury does. With fresh ears, as if for the first time.
Fresh ears tell you what the jury understands and what it doesn’t. They will tell you when to fill in the blanks and when to let them go, how far to take on a path to one side or another when to jump ahead. Most important, fresh ears tell you when to ask a clarification question to make sure everybody gets an important point.
Don’t underestimate the power of good follow-ups. Besides making your case more coherent, it makes the jury grateful when you ask for things they want to know. They start to think of you as one of them – someone they can trust.