Using Direct Examination and

Cross-Examination of Fact
Witnesses to Win Your Case
Kyle A. Lansberry
Lewis Wagner, LLP
501 Indiana Avenue, Suite 200
Indianapolis, IN 46202
(317) 237-0500
klansberry@lewiswagner.com

Kyle A. Lansberry is a litigation partner with Lewis Wagner, LLP in Indianapolis,

Indiana. He focuses his practice on insurance and self-insured defense litigation,
including product liability, premises liability, automobile and construction
claims. In addition, Kyle regularly practices in the areas of environmental law and
environmental insurance coverage, and represents agricultural operations and
farmers in the defense of lawsuits and administrative actions. He is a member of
the Federation of Defense and Corporate Counsel, and serves on the Executive
Committee for DRIs Trial Tactics Section.

Using Direct Examination and Cross-Examination

of Fact Witnesses to Win Your Case
Table of Contents

I. Effective Direct Examination.....................................................................................................................107

A. Preparing for Direct Examination......................................................................................................107
B. Taking Control and Keeping It...........................................................................................................107
C. Setting Up For Cross-Examination During Direct Examination.....................................................108
D. Handling and Introducing Exhibits...................................................................................................108
II. The Art of Cross-Examination...................................................................................................................109
A. Identifying the Trial Participants.......................................................................................................109
B. Developing Causes of Action and the Case Theme...........................................................................110
C. Know the Rules of Evidence...............................................................................................................110
D. Preparing For Cross-Examination: Plotting Your Strategy..............................................................110
E. Selecting an Effective Sequence for Cross-Examination..................................................................112
F. Taking Control of the Cross-Examination.........................................................................................112
1. Listen to the witness....................................................................................................................113
2. Insist on an answer......................................................................................................................113
3. Be careful with long questions....................................................................................................113
4. Be careful about gaps...................................................................................................................113
5. Be careful of you testified questions........................................................................................114
6. Use humor appropriately.............................................................................................................114

Using Direct Examination and Cross-Examination of Fact Witnesses to Win...Lansberry105

Using Direct Examination and Cross-Examination

of Fact Witnesses to Win Your Case

I. Effective Direct Examination

A. Preparing for Direct Examination

To prepare a witness direct examination, one popular method is to list the pieces of the story that
each witness will provide to the jury, and itemize those documents or other pieces of evidence that each witness will authenticate and describe. The examination is structured so that the witness is introduced to the
jury. Thereafter, begin to have the witness tell his or her piece of the story in a manner that will be easiest for
the jury to follow and understand. Remember that portions of a direct examination will lay a foundation for
other parts of the examination. For example, for a witness who will introduce photographs, first establish
that the witness is familiar with the area or thing depicted in the photograph, at the time the photograph was
taken, or at the relevant time. If a witness will testify about a document, first establish that the witness either
wrote or has some other familiarity with the document.
Most attorneys will start a witness testimony with an introduction as to who they are and how they
are relevant to the case. However, when the identity of the witness is readily apparent to the jury (e.g., the
plaintiff), his or her testimony can begin with something that is more powerful or interesting. Regardless of
how a witness testimony begins, conclude it on a powerful note. Structure questions so that the witness is telling the story, and not simply agreeing with a story being told. Doing so will avoid objections of leading the
witness. More importantly, it avoids having the jury conclude that the witness is simply mimicking words and
avoids a loss of drama, spontaneity and other characteristics that can catch and hold a jurys interest. Witnesses should look and talk to the jury if they can do so and still be effective. To the extent possible, position
yourself at the end of the jury box or behind it to encourage such eye contact.
Structure the direct examination so that the theme of the case is readily apparent. Each witness
should make a contribution to the overall theme of the case. Likewise each witness should be aware of the
cases theme and able to revert to it if the witness gets lost or confused in his or her testimony.
B. Taking Control and Keeping It
Some witnesses like to think they are smarter than the lawyer. While that may be true in some
instances, it is important to ensure that the witness, no matter how smart, is not in control of the testimony.
Sometimes the jurys perception of counsel weighs heavily in its impressions of the case. An out-of-control
attorney will not favorably affect the outcome of trial. Ones own witnesses are not necessarily as invested in
the case as the attorney or client. Fact witnesses may be neutral, or may even think your side should not prevail. The biases and perceptions of each witness must be anticipated and revealed.
Make sure direct examination is well designed to lead the witness down a path that leads to evidence
helpful to the jury. Be obvious about the path and the destination, instead of trying to be overly dramatic for
the sake of drama. Prepare witnesses so that they also understand the destination of their testimony and are
not surprised by any twists and turns along the way. Jurors will notice if a witness is surprised by a question.
This is not always negative, as it may demonstrate the testimony is not rehearsed to the point of regurgitating
canned testimony; however, it should not comprise the bulk of direct testimony.

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C. Setting Up For Cross-Examination During Direct Examination

Understand that the witness is more worried about the cross-examination he faces, than doing well
in his direct examination. If there has been a deposition, the witness may have prior experience with opposing
counsel. No doubt witnesses will have seen enough television shows to remember witnesses who are eviscerated on cross-examination and worry that might happen to them too. They need to know that you will assist
them in dealing with cross examination issues, and that a sound strategy to either preempt those issues or
address them head-on has been planned. As a part of preparation, review the witnesses depositions and identified concessions, admissions, or weak spots in their pretrial testimony. Plan to address any material concessions or other oops events. Anticipate the cross-examination, and try to defuse any bad facts. Decide where
in the direct examination to defuse the anticipated cross-examination by volunteering any weaknesses. Wait
until after creating and bolstering the witness credibility. That way the witness will already have legitimacy
in the jurors minds. In this setting, order is critical. Since most people form impressions quickly and then
resist changing them even when confronted with reasons to change, witness should always make an initial
good impression. Have the witness strong affirmative testimony come well before the acknowledgement of
any weaknesses. On the other hand, do not wait until the very end of the testimony, because the jurors will
remember it better if it comes late. Bring out the weaknesses in the middle of the testimony and make them
part of the story without emphasizing, apologizing for it, or drawing undue attention to it. In all likelihood,
the jury will make less of a bad fact if they already have an initial good impression of the witness and the testimony, and will appreciate candor in the whole story, rather than hiding some of it until it comes out on cross.
D. Handling and Introducing Exhibits
When getting ready for direct examination, preparation must always be made for getting exhibits
into evidence. However, just getting the exhibits into evidence is not enough. A considerable amount of time
should be spent deciding what exhibits will be used, how they will be used, which witnesses will introduce
them, and how best they can be displayed to the jury. The jury can become easily distracted from the testimony if time is spent fumbling with exhibits. The jury can also become quickly frustrated if exhibits are not
organized, or if they are not presented in a manner in which the jurors can easily examine the exhibits. Likewise, if the proper foundation is not smoothly laid, jurors may become frustrated at the numerous objections
and arguments of counsel. The following are some tips on getting exhibits into evidence during direct examination, and properly using them once they are introduced.
Remember, jurors to place great weight on the visual, and want to see what people are talking about,
not just hear about it. In the age of television, movies, videos, and computers, jurors expect more. Use your
imagination, and use exhibits and demonstrative evidence as much as possible. Exhibits can be used on direct
examination to help the jury visualize the witness testimony, support the witness testimony, or contradict
another witness testimony. Again, use exhibits whenever possible.
More than one witness may be competent to lay the foundation for introducing an exhibit. Select the
one with the most knowledge, as this generally makes a better impression on the jury. Normally, it is best to
get the exhibits in front of the jury as soon as possible, so line up witnesses accordingly. Reuse exhibits already
introduced with subsequent witnesses. This may help emphasize important points and reemphasize the
exhibit. However, be careful so that the witnesses testimony about the exhibit does not contradict each other,
or the exhibit may turn out to be useless, or at worse yet, damage to your case. In addition, it is important that
that jurors are not distracted by an exhibit from important testimony during direct examination. Exhibits
should complement and not compete with the testimony.

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Some exhibits may be introduced during the direct examination. For example, exhibits which help
the witness explain his or her testimony should be introduced during direct examination. However, in some
cases, especially if the exhibit contains a considerable amount of writing, get the testimony in first so that
the jurors are not reading the exhibit instead of listening to the testimony. Moreover, a tactical advantage can
be gained by waiting until the end of direct examination to introduce some exhibits. This may provide you a
chance to highlight and re-emphasize certain testimony.
Exhibits can be admitted by stipulation of the other side, or by laying a proper foundation. Know the
procedure and the logistics for both. Some courts are less formal than others, and some of the following can
be skipped on occasion. Here are the basic steps:
Have the exhibit marked. Many courts require that exhibits be pre-marked.
Show opposing counsel the exhibit.
Ask the courts permission to approach the witness.
Show the witness the exhibit.
Lay the proper foundation for the exhibit.
Offer the exhibit into evidence (if demonstrative, say so)
Once admitted, have the witness use/explain the exhibit.
Pass, show, or display the exhibit to the jury.
Increasingly, computers, digital evidence, and computer-generated exhibits are being used in the
courtroom. Sometimes the court provides access to such technology, but often the parties will need to bring
their own equipment to display data electronically to juries and judges.
Advances in technology present new evidentiary issues. Objections such as authentication and hearsay are certainly real, but they do not seem to have caused great difficulty in the courts. Often, most evidence
presented on paper existed at some time as computer-stored data, so there is a commonality of issues between
traditional and digital evidence.
One important distinction to make is whether the evidence in an electronic medium is introduced as
evidence, or is simply used as a method of displaying the underlying traditional evidence to the jury. This distinction regarding formal admission is important because it can determine whether the evidence can be easily
used during closing argument and whether it goes to the jury during its deliberations. Make sure all exhibits
get back to the court reporter, and keep a list of the exhibits at counsel table for easy reference.

II. The Art of Cross-Examination

A. Identifying the Trial Participants
Sometimes, even with witness and exhibit lists timely filed, anticipating who opposing counsel will
actually call in her case-in-chief is like looking into a crystal ball. Receiving a fifteen page witness list containing the names of every person who ever knew the opponent party, every investigating officer in an automobile
accident case, every physician, surgeon, physical therapist, or any other person involved in medical treatment, as well as half a dozen supposed experts on vocational, economic, accident reconstruction, and medical
issues, is frustrating.
Sorting through a lengthy list and getting opposing counsel to acknowledge just who will be called at
trial can be an art. If opposing counsel thinks playing games is an effective way to represent his client, it may
be difficult sifting through the list to be able to focus preparation. Many courts will assist by requiring counUsing Direct Examination and Cross-Examination of Fact Witnesses to Win...Lansberry109

sel, on both sides, to identify exactly who they intend to call at or before the final pretrial conference. In such
cases, a claim that counsel hasnt decided yet who he intends to call will be received negatively by the court.
Last minute preparations frequently lead to ambushes at trial that are similarly disfavored by the
courts. Waiting until the last minute to decide exactly who will testify is a disservice to your clients, because it
may result in the exclusion of vital evidence.
Discovery rules are designed to lead to the free and complete exchange of facts and theories of the
case, and to avoid trial by ambush. If opposing counsel is either playing games, or so disorganized that he
truly has not decided who he will call as witnesses late in the litigation process, counsel may just have to prepare for all logical choices for their opponents, and hope that nothing has been withheld from discovery that
would affect a determination if trying opposing counsels case. This is very time consuming and expensive;
however, is in the clients best interest if the court will not sanction an opponent by limiting evidence to properly-identified witnesses. Putting yourself in your opposing counsels shoes to plan his case is an excellent way
to be prepared for any possibility. There is no such thing as being over-prepared.
B. Developing Causes of Action and the Case Theme
A defense litigator should begin to think about on a case theme as soon as he or she becomes
involved in a case. As discovery progresses, the advocate will develop a more thorough understanding of the
case, and most cases will take on a life and personality of their own as they grow and mature. Cross-examination is one of the most effective tools to reinforce a theme, and any time a lawyer can use the opponents witness to make a point in his/her case, it is a bonus.
Try out case themes on non-lawyers. Remember that jurors will almost certainly be non-lawyers.
Attorneys, like most professions, tend to speak their own language, and a theme that would make sense to a
lawyer may not make any sense to non-lawyers. Make sure the cause of action and the case theme make logical sense, and that they are internally and externally consistent.
C. Know the Rules of Evidence
There is no substitute for a well-prepared lawyer, and to prepare for a deposition, trial, or other proceeding which follows the strict rules of evidence, evaluate the case in terms of the evidentiary problems.
Then, prepare for these problems with legal research and the preparation of a strategy to deal with them.
Problems maybe encountered that are unanticipated or problems that were anticipated, but developed in
other than the manner in which they were encountered. The best weapon is thorough preparation and having
a clear understanding of the rules of evidence. Study the rules, and keep a reliable practice aid at counsel table
at all times during trial.
D. Preparing For Cross-Examination: Plotting Your Strategy
To prepare for cross-examination of a witness, identify the following:
the specific theory of the case;
the theme or themes to develop during the case;
the portions of particular witness evidence that fit into the particular theory or theme of the case.
From that foundation, facts can be properly identified that can be developed on cross-examination to
advance the theory and theme. However, before implementing this final analysis, all of the information pertaining to a particular witness or subject must be assembled in a way in which it can be easily retrieved. There
are several different possible systems that are used in preparing for cross-examination.
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Many lawyers use a cross-examination preparation system that utilizes topic index cards. With this
method, a series of topic cards are created from which information is at the lawyers fingertips. Each topic card
contains basic information about a particular subject. Each card has the name of the witness whose testimony
is under scrutiny, the topic discussed on this card, each statement of the witness on that particular topic,
where the information was found, the date of the statement and the name of the person receiving the information.
The goal of this preparation technique, as in all preparation techniques, is to reduce thousands of
facts to a single, readily usable body of information. Within the compilation of topic cards, the lawyer has all
the information needed to prepare a tight accurate and penetrating cross-examination. In preparing the crossexamination the lawyer will refer exclusively to the cards rather than to the discovery from which they were
distilled. Even if cards reveal no inconsistencies they must be retained against the possibility that inconsistencies will develop in trial.
A second method of cross-examination preparation utilizes a chart detailing the sequence of events
pertaining to a particular case. The preparation of sequence of events charts as a method of cross-examination
brakes a case into events rather than finite topics.
Obviously, the lawyer must determine the sequence of events that he or she believes are germane.
This is best accomplished with a timeline. Each relevant event must be analyzed in detail. This analysis breaks
each relevant event into minute detail, day by day, minute by minute or even second by second time frames.
Generally topics such as the accident are simply too broad; they must be brought down to a much more precise level. Having identified, with precision, the important events and the particular reference points within
each event, each witness testimony regarding that particular section may be cataloged and utilized as a source
for cross-examination.
A third method of cross-examination is the witness statement charts system. In that situation, a witness statement or several statements are broken down into discreet events, and each individual event is cataloged as to each individual statement the witness made. For example, the witness has made three statements
concerning an event. The event is broken down into minute detail. A chart that indicates each time the witness discussed that particular detail provides the information that the lawyer needs to prepare the examination.
While these systems appear to be very time intensive, in reality they are not. With each method, the
lawyer must only read the discovery one time. From that critical and thorough reading counsel can cull out
the critical information. Then, the discovery can be put aside and the lawyer can work only from source material referring back to the discovery only as a means for presentation or to review information should the trial
situation change. From this reduced body of information the lawyer can more easily identify the information
that supports his theory and his theme.
As final preparations commence, counsel can either conduct cross-examination directly from the
source material, time lines, note cards, charts, or can use the source material to create the cross-examination.
From the organization of information, counsel must develop a system for presentation of crossexamination. The goal is to create blocks of cross-examination, organized in a specific, coherent manner. In
each chapter, page, or topic, the cross-examiner presents information that is relevant only to that block of
material. This information is built on the material that proceeded it. It advances the theme concisely and accurately, hopefully with a minimum of resistance by the witness, and it maintains control of the witness while
informing the jury and the witness that a new subject has been introduced. This is important because it is
often difficult for jurors to follow cross-examination that wanders aimlessly from subject to subject.
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Effective cross-examination also requires that effective sequencing. The sequences must be organized
to a purpose. The purpose of the organization may vary from witness to witness. However, there are some
principles that apply. Generally, the first sequence must be important or dramatic because of considerations of
primacy and recentcy. Easy, non-adversary topics are often inserted for the distinct purpose of controlling the
witness. Some pages might be inserted so that certain evidence might become admissible or for purposes of
impeachment. However, each topic within the cross-examination of a particular witness must have a specific
purpose. If that purpose cannot be specifically identified, counsel must consider dropping the topic from the
examination.
Cross-examination involves training the witness. Through the force of the examination, the witness learns that the only acceptable answer is yes. Risky areas of cross-examination should develop only after
establishing control of the witness. The lawyer is well advised not to try to tread onto emotional ground until
the witness is thoroughly trained. Thus counsel should rarely, indeed perhaps never open or conclude a crossexamination with a risky or emotionally laden topic. Beginning with an argument or ending with a crying
witness is often not preferable. Notions of primacy and recentcy demand that a cross-examination begin and
end with a bang, not a whimper.
When there are multiple areas of impeachment, counsel should begin with the cleanest, safest, easiest impeachment. Jurors often do not understand what is happening when a witness is being impeached. They
must know that "something big" is happening. The demands of primacy and recentcy in this context are critical. A cross-examination that bogs down because it is unclear, because there are multiple sustained objections,
or because the witness can fight the topic, is less effective. Thus, counsel should advance the most relevant
admissible and easily conducted impeachment first. If there are multiple impeachments they should be dispersed throughout the examination or they will lose their impact on the jury.
In summary, the presentation of cross-examination is a function of organization. Proper selection
of topics and creative sequencing of subjects creates a cross-examination that is powerful, easy to follow and
meets the goal that the lawyer has met.
E. Selecting an Effective Sequence for Cross-Examination
Cross-examination must advance by word and substance, the theory and theme of the case. Crossexamination is the opportunity to tell your clients story during the other sides case-in-chief. To do so, remain
in control and be organized. However, it is often more difficult to plan the order or sequencing of cross-examination as many things may change during direct. Therefore, flexibility on cross-examination is key. Have a
selected sequence for your cross-examination as you begin, but listen to and try to read the witness as you
progress to determine whether an audible should be called and the formation shifted as you progress.
Finding a point that is a guaranteed winner with which to end cross-examination is very important.
The point must be admissible. There is nothing worse than asking that final question and having the opponents objection sustained. The point should also be key to the theory of the case, if possible. Evoke the theme
if you can. Additionally, the point must be undeniable. Avoid having the witness quibble or be evasive on the
final point. Finally, state the question loudly, strongly, and with conviction.
F. Taking Control of the Cross-Examination
The goal of cross-examination technique is witness control. To control the witness, use leading questions. Every question on cross-examination, with very exceptions, should be leading. The answer should be
included in the question. The only time not to use leading questions is when the witness has no choice but

112Trial TacticsMarch 2014

to answer in a certain way (e.g., they previously testified in deposition or there is a document with which to
impeach them) or it simply does not matter how the witness answers (the trick or loaded question).
In preparing leading questions for cross-examination, it is best to try to use short incremental questions. The larger the scope of the question, the greater is the chance that the witness will disagree. Sequenced
questions are also good. Elicit two facts on cross-examination in close proximity to one another to show
inconsistencies, motives or the theme. For example, in an automobile accident case, ask about the important
appointment to which the plaintiff was going at the time of the accident, his earlier decision to skip lunch, and
his failure to have the brakes on his car checked when it was serviced. These questions in relative sequence
may emphasize a theme that the plaintiff was too busy to be safe.
One purpose of cross-examination is to box the witness in and maintain control. Build the sides
of the box and then shut the witness in with the last side, i.e., your final proposition. Each side of the box is
formed by a different question. The first side is the witnesses own previous admissions. This can be taken
from her deposition, documents or earlier testimony. The second side is formed by facts which cannot be
denied. These are facts which have already been established or which can be proven by other witnesses. The
third side is based upon plausibility or common sense. The fourth side is the final proposition. Sometimes,
no question is needed for the final proposition. Although it may be difficult to resist, remember that some
questions do not need to be asked and that the ultimate question and final proposition may want to be saved
for final argument. This diminishes the likelihood of having the final position refuted either by the witness,
another witness or opposing counsel.
There is always, however, an exception to every rule. If you believe that the ultimate question is inescapable, consider asking the witness the ultimate question. If it does not matter if the witness disagrees, the
witness will appear unbelievable and less credible.
A few additional tips for taking control of the cross-examination:
1. Listen to the witness
Not only must the right questions be asked, in the right way, make sure that you have gotten the right
answer. Listen to the witness. The witness answer is the evidence. Make sure it is what needed to be elicited.
2. Insist on an answer
Listen to the answer given. If it is non-responsive, insist on an answer. If necessary, request the courts
assistance.
3. Be careful with long questions
Long questions on cross are asking for loss of control. The more information put into the question,
the greater the chance that the witness will quibble with some aspect of the question. Long questions are also
easily misunderstood or confusing, if not to the witness, at least to the jury. If the question is greater than ten
words, it is probably too long.
4. Be careful about gaps
Many times on direct examination, witnesses fail to testify about a time frame, or a series of events.
Sometimes important evidence may be left out on damages or an element of plaintiff s case. Do not ask questions about gaps in the other sides case. Do cross on the absence of facts damaging to their case and helpful to
yours. However, resist the urge to fill in the other sides gaps. That is something you can comment on in final
argument.

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 5. Be careful of you testified questions

This invites the witness to clarify or change prior testimony. Cross examine on facts instead.
6. Use humor appropriately
If an error is made on cross-examination, laugh with the jury. They want to see that you are human.
When the witness says something absurd or funny, go with it. However, on serious matters and at certain
times, humor can be highly inappropriate. Be careful.

114Trial TacticsMarch 2014