Recently, I observed the direct examination of the plaintiff’s first fact witness when I was representing the defense. Within minutes, it became clear the fact witness’ direct had been highly scripted. You are probably wondering, “So what? Aren’t most direct examinations scripted to guide the witness through his/her testimony?” While that is true, this examination went beyond the regular direct examination. On this day, with this witness, it was a painfully slow script where the witness had “pat” answers. Several things gave this away.
• First, the witness referenced his future testimony by saying, “…as we will get to in a second,” indicating to the jury that he knew what was coming next as outlined in the attorney’s scripted questions and in his scripted answers.
• Second, at another point in his direct examination he lost track of his answer, much like when an actor forgets his line. Those few seconds felt like an eternity; he struggled to remember the answer he was supposed to give and ultimately retreated to the previous answer he’d given.
• The third, and most obvious among additional tell-tale signs, occurred during cross examination. Defense counsel also noticed the pat, scripted answers and decided to pick up the pace to demonstrate to the jurors how scripted the direct examination actually was. In this instance, the witness had difficulty keeping up and, as a result, resorted to “yes” or “no” answers. This was a very distinct departure from his long, slow responses on direct.
Now, why does this even matter? Sounding pat, canned and over-prepared adversely affects a witness’s credibility. Jurors have told us in post-trial interviews (and in our mock trials) that an over-prepared or scripted witness loses credibility because they are “saying what they have been told to say.”
To be clear, it is extremely important to run witnesses through their direct and anticipated cross to help refresh the witness regarding the facts and themes of his or her testimony. The trick is to work to preserve some semblance of extemporaneous delivery for the final performance – the one in the courtroom.
By: Merrie Jo Pitera, Ph.D. – CEO
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