Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time by Gerry Spence

Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time by Gerry Spence

Author:Gerry Spence [Spence, Gerry]
Language: eng
Format: mobi
Publisher: St. Martin's Press
Published: 2007-04-01T04:00:00+00:00


13. TELLING OUR STORY THROUGH WITNESSES—DIRECT EXAMINATION

IN OUR OPENING STATEMENT WE have told our story. The complete story. Now we’re here to prove it. But remember, the key to direct examination, as in every element of the trial, is we. It begins with us. Everything, everywhere, begins with us. We are it. If we haven’t dis-covered our story and its theme we can’t lead a successful direct examination. If we physically haven’t been to the scene we can’t do a direct examination. If we can’t live for the moment inside our client’s hide, we can’t do a successful direct examination. If we haven’t spent the necessary time preparing our direct examination will be of little value. And most assuredly, if we can’t tell the story effectively, our direct examination will be more confusing than enlightening.

The direct examination is also storytelling—telling the story through the lips of the witness. Our job is to help the witness tell the part of the story the witness knows.

Preparing, not coaching, the witness. Let’s first disabuse ourselves of a myth designed to sully this whole business of the preparation of direct examination. The preparation of a witness to testify is not the ignominious, illegal, immoral act often referred to as “woodshedding” the witness, or coaching him, as is often the attack by our opponent if he has nothing better to say on cross-examination. As we shall see in the chapter on cross-examination, this attack on the witness is virulent and, unless the witness is prepared, it can do him and our case great damage.

It is something approaching malpractice for a lawyer to fail to prepare his witness to take the stand. For the lay witness, his first experience on the witness stand can be daunting. The witness has likely never before tried to tell a story in a place as unfriendly as a courtroom. Slip inside the witness’s shoes for a moment. You are called to the witness stand. You look around you. The place looks more like the chapel in a funeral home than a place in which to tell your story, and you begin to feel like you may be mistaken for the body. The judge is not your friendly undertaker. He is not there to comfort. He is there to fulfill his own agenda, whatever it may be.

The judge, in black, looks down on you with an appalling dark countenance. Across from you sit the opposing counsel, crouched like tigers about to spring on you, the helpless prey caught in a dead-end crevice. Your own lawyer looks pale and nervous and begins asking you questions you had not anticipated, questions you have to think about. Sometimes he doesn’t even look at you when he asks them, his eyes glued to his notes like a choirboy. One thing is certain: Your lawyer isn’t listening to what you’re saying because he can’t listen to you and read his notes at the same time. “For God’s sake,” you say, “I wish somebody had prepared me for this nightmare, and if not me, that someone had at least prepared my lawyer.



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