CHAPTER 7: Emond Montgomery Publications 1 Direct Examination of Witnesses

Introduction Decision-makers must determine what happened in the case The two sides usually have slightly or vastly different versions of what happened You tell the decision-maker your version of what happened through direct examination of your witnesses Direct examination is also known as examination-in- chief Emond Montgomery Publications 2

Purpose of Direct Examination To get the witness to provide the evidence you need to satisfy all of the elements of your claim/defence Goal is to have your witness(es) present a more persuasive version of the facts Questions are designed to draw a logical, complete, believable, and understandable story from the the witnesses’ answers Direct examination is not the time to argue the law or draw conclusions from the evidence Emond Montgomery Publications 3

Preparing Yourself for Direct Examination What Facts Do You Need to Prove? Answered through development of your theory of the case How Will You Prove Each Fact? Ask what evidence is required to prove each fact and how it will be produced at trial Who Are Your Witnesses? List all potential witnesses and what they can testify on Emond Montgomery Publications 4

Preparing Yourself for Direct Examination (cont’d) In What Order Will You Call Your Witnesses? Tell the story so that it will be easily understood and remembered by someone not familiar with the facts What Do You Want the Witnesses to Say and in What Sequence? Take the facts the witness can testify to and put them in logical order Are There Any Documents to Be Introduced? Make note of any supporting documents that the witness can identify Emond Montgomery Publications 5

Preparing Yourself for Direct Examination (cont’d) Eliminate Any Unnecessary Repetition of Evidence If 2+ witnesses can give evidence on the same fact, you must consider whether you need the evidence repeated Corroborate: confirm or support with additional evidence You do not need to corroborate evidence when: It is not in dispute Proving an objective fact You should corroborate to prove a fact that is in dispute or a subjective fact Emond Montgomery Publications 6

Preparing Yourself for Direct Examination (cont’d) Develop the Witness’s Story Write out the facts as a narrative Note where your version of facts differs from the other side’s Do not omit unfavorable facts—include and try to explain them Anticipate the other side’s theory Avoid hearsay Prepare Your Questions Focus on the story you want told, not on the questions Start with questions about the witness’s background Emond Montgomery Publications 7

Preparing Your Witness for Direct Examination What the Witness Will Say? Explain to the witness how his or her evidence fits into the case Review your questions with the witness before the trial Explain some basic rules of evidence Remind witnesses to testify only about the facts of which they have direct knowledge How the Witness Will Say It? Tell him/her to be polite, speak clearly, and keep eye contact with you Where the Witness Will Say It? Go over the trial or hearing process with your witness Show your witness the courtroom before the trial Emond Montgomery Publications 8

Preparing Your Witness What the Other Side Will Ask the Witness? Conduct mock cross-examination of the witness Remind your witness to … only answer the question asked remain calm and polite and always tell the truth stop speaking if you make an objection Emond Montgomery Publications 9

Formulating Your Questions Ask One Question at a Time Use Simple Language The witness and decision-maker should understand your question Do Not Ask Leading Questions Leading question: question that suggests a desired answer or assumes a fact in dispute that has not been proven Generally, you should not ask leading questions during direct examination You can lead your witness when asking about a matter that is: Introductory Undisputed Directing the witness to a specific subject by way of introduction Emond Montgomery Publications 10

Leading Versus Non-Leading Questions Leading Questions You met with the landlord on March 1, didn’t you? Were you going to talk to the landlord about terminating your lease? Was the landlord angry when she heard the news? Did the landlord yell at you after you told her the news? Did the landlord demand that you leave? Emond Montgomery Publications 11 Non-Leading Questions Who did you meet with on March1? Why were you at the landlord’s office? How did the landlord react when she heard the news? What did the landlord do after you told her the news? What did the landlord do next?

Guidelines For Direct Examination Keep the Focus on the Witness Listen to What Your Witness Says Ensure questions are answered fully Direct Witness’s Testimony in a Clear, Logical Manner The judge/witness should know the purpose of your questions Admit Your Weak Facts The opposing party will reveal your weak facts if you don’t Emond Montgomery Publications 12

Guidelines For Direct Examination (cont’d) Facts Outweigh Opinion Witnesses should relate facts, not their opinions Control the Speed of the Testimony Ensure that the decision-maker has enough time to absorb what is being said and to write it down See p. 57 for an example of direct examination Emond Montgomery Publications 13

Expert Witnesses Expert witness: a witness who has more knowledge than the average person about a particular subject because of his or her education, skill, or experience Expert witnesses: May give their expert opinions on matters that involve their areas of expertise Do not have personal knowledge of the events of the case To call an expert witness, you must demonstrate that he or she has the necessary expertise to give an opinion Emond Montgomery Publications 14