At my firm, I was trained to do a responsible direct examination: Questions should not be leading. Questions should not be compound. Questions should not call for narrative answers. For the most part, don’t do things that are objectionable.
Then you try a case.
The lawyer on the other side opens every direct examination of fact witnesses with this question: “Please tell us a little about yourself — where you were born, where you grew up, where you went to school.”
That question’s an outrage! It’s compound! It calls for a narrative answer! How dare he!
But you really shouldn’t object.
Objecting to this question would make you look like a jerk. Why wouldn’t you let the witness give a little basic background information? It’s true you could (if the judge were leaning your way) make the witness break down the information into parts: Where were you born? Where did you grow up? Where did you go to high school? Where did you go to college?
But why?
You’d look silly insisting on this. The background information is relevant. There’s unlikely to be a dispute about it. It takes less time to present this as a narrative than it does to do this in question-and-answer form. You might as well let the witness provide the information.
It’s also a great question from the perspective of the lawyer doing the direct examination.
The lawyer doing the direct wants the witness to become comfortable in the jury box. The lawyer wants the jury to get a sense of the witness as a person. Letting the witness speak about basic information for a minute or two at the beginning of the testimony serves those purposes.
To heck with what they taught you at school or in your law firm.
Open your direct examination of every fact witness with: “Please tell us a little about yourself — where you were born, where you grew up, where you went to school.”
(Note that the question asks the witness to “tell us,” rather than to “tell the jury.” That’s just basic psychology. You want to be on the jury’s side: We’re all in this together; we all have to get educated; please tell us what the answers are. You don’t want to build a wall between yourself and the jury: “I’m smart and already know the answers to all of these questions. But those foolish jurors don’t know anything. Why don’t you tell the jury the answers to these questions; I’ll just stand around waiting for you to finish.”)
Here’s another thing you learn from experience: At your firm, you’re told to be perfect in front of a jury. Never make a mistake. The performance before the jury must make you look like a skilled surgeon; everything is studied in advance and carried out to perfection. No errors.
Then you watch a good cross-examiner in action:
“Let’s see. You were paid $10 million under the first contract and $10 million under the second contract. I’m not so good at math. So what’s that? Ten million plus ten million equals $30 million in total?”
“Objection! The arithmetic is wrong!”
The jury, now awake and paying attention because there’s some action in the courtroom, looks up to see what’s causing the commotion.
“Oh, I’m sorry. You’re right. There were actually three contracts. I forgot about the third one. So it’s 10 plus 10 plus another 10, for a total of $30 million. The defendant cheated you out of $30 million. Is that right?”
I saw one clever counsel do this repeatedly throughout trial. The other side never caught on. The arithmetic was always wrong; the other side always objected to counsel’s arithmetic; the jury always looked up; and counsel always “corrected” himself in a way that improved his case.
Don’t fall for it. Some errors are intentional.
One last thought: Sneak in the objectionable, but interesting, stuff when no one is paying attention.
At a trial in the 1980s, I watched this:
“Where did you go to college?”
“Harvard.”
“When did you graduate?”
“1940.”
“Wasn’t that about the time President Kennedy was there?”
“Oh, yeah. Jack Kennedy and I were co-captains of the sailing team.”
“Objection! Irrelevant!”
“Sustained. The jury will disregard the answer to the last question.”
Jury: This witness was co-captain of the Harvard sailing team with JFK? That’s a little Preppie, but what a cool guy! I’ll listen very closely to, and tend to believe, what he has to say.
They don’t tell you that stuff in your trial practice classes.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.