Direct examination is when a party or attorney questions his own witness, either during a deposition or at trial. Direct examination is more open-ended than cross-examination, giving the witness more freedom to develop her answers while still giving the party or attorney the chance to highlight particular information for the judge or jury. Because witness testimony plays such a significant role in U.S. civil and criminal trials, direct examination occurs in nearly every trial.
Direct examination can be used to question either a lay witness, such as the injured plaintiff or defendant in a personal injury case, or to question an expert. In most personal injury cases, the injured plaintiff, the defendant, and any eyewitnesses can expect to be questioned both in a deposition and at trial.
The primary difference between direct examination and cross-examination is that, in most cases, direct examinations cannot use leading questions. A leading question is a question that contains its own answer and prompts the witness to agree with it. Often, these are questions that are actually statements, with a “that’s right?” or “isn’t it?” or similar question tagged onto the end. These are typically not used in direct examination, except when the party or attorney asking the questions wants to get through information that nobody disputes (like the witness’s name or address), or when the attorney or party has been given permission to treat the witness as “hostile.”
Direct examination starts the questioning of nearly every witness in a personal injury or similar torts trial. A typical exchange might look something like this one, between an injured plaintiff and her attorney:
Q. Will you tell us your name and spell it for the court, please?
A. My name is Jane, J-A-N-E, Smith, S-M-I-T-H.
Q. And where do you live, Jane?
A. 123 Willow Run Drive.
Q. Is that here in Detroit?
A. No, it’s in Southfield, just outside of Detroit.
Q. Okay. And does anyone else live there with you?
The questions in this example are all commonly-used questions to start direct examination. Once this background information is out of the way, the attorney will typically turn to questions about the injury and the accident that caused it:
Q. Where were you at approximately 1:00 p.m. on February 9, 2010?
A. I was driving home from a dentist appointment.
Q. What happened?
“What happened?” is a common question for direct examination, because it allows the witness a chance to tell her story without having to be walked through it one question at a time. If a plaintiff or defendant is representing herself, she may be allowed to simply testify by telling her story, instead of asking herself questions and then answering them. An attorney or party who asks questions of another person during direct examination, however, should beware of letting a witness run on too long, lest the opposing party object to the unfocused nature of the witness’s testimony. Letting a witness ramble risks losing the point of the witness’s testimony among a sea of meaningless details, which can confuse the jury.
For people who are called as witnesses, there are a few key points to keep in mind when answering questions during direct examination:
- Take your time answering the questions. It’s more important to give an honest, correct answer than it is to answer quickly. Think through your answer before giving it.
- Make sure you understand the question. If you answer it, the attorney, judge, and jury will assume you understood what you were being asked. If you’re not sure what the question is, say “I don’t understand the question” or “Could you rephrase that, please?”
- Use plain English. It’s especially easy for expert witnesses to get caught up in technical jargon, but even ordinary witnesses should take care to use ordinary, everyday words.
- Keep your answers short and to the point. Don’t volunteer information. If the attorney wants more information about a certain point, she will ask you about it.
- If you don’t know the answer to a question or don’t remember, say “I don’t know” or “I don’t remember.” Don’t guess unless the attorney specifically asks you to guess.
- Be polite and patient at all times. You may be interrupted frequently by the attorneys or the judge, and cross-examination in particular can feel like an attack. Stay calm and focus on telling your story to the jury.
- Always tell the whole truth.