The Importance of Listening During Direct Examination

It was a serious DUI accident, and the issue was whether or not the jury would be allowed to hear the results of the defendant’s blood alcohol level test.  If the blood test results were deemed inadmissible, the plaintiff’s case would be significantly weakened, so both sides were extremely well prepared for the hearing.

The defense was the moving party, so they bore the initial burden of persuasion.  For their first witness, they called a toxicologist, and started with the routine questions about his background.  If you’ve ever called a witness to the stand, you’ve gone through a similar process.  You’ve asked witnesses where they went to school, what they majored in, when they graduated, etc.  In fact, if you’ve tried cases for any significant period of time, you’ve probably posed those types of questions to dozens, maybe even hundreds of different witnesses.

But let me ask you an important question: Do you listen to the answers?

Surprisingly, many lawyers don’t.  During direct examination, many lawyers are so busy thinking about their next question that they don’t bother listening to the witness.  After all, you already know what the answer is supposed to be, don’t you?

The problem with not listening to the witness is that you can ask stupid questions and appear foolish.  In this motion hearing, it was obvious that the attorney was prepared.  It was obvious that he’d spent a significant amount of time rehearsing with the expert witness.  It was obvious that he knew what the witness was expected to say.  But it was also obvious that he wasn’t listening to the witness.  And that’s what prompted this exchange:  

Q: Mr. Expert, what degree did you receive from the University of California – San Francisco?

Judge: He received a Master’s degree in Chemical Engineering from UC-SF in 1972, just as he said earlier.  Don’t waste our time by re-asking questions that the witness has already answered, counselor.  You have a limited amount of time to present your evidence and your arguments.  How you choose to use it is up to you, but in three hours, this hearing will be concluded, and you won’t get any additional time.

Ouch!  It stings to get called on the carpet like that, doesn’t it?  The worst thing about hearing those type of comments is knowing that the comments are true.  The only good thing about this exchange was that it didn’t happen while a jury was watching.  Luckily, these situations are easily avoidable.  Here are the two most common reasons why attorneys ask questions that have already been answered:

1. Relying too much on your notes.  When you write out every question word-for-word, it becomes difficult to escape from your “script.”  Here’s an example of what happens when you’re tied to your notes:

Q: Detective Steele, please introduce yourself to the jury by telling them your name and where you work.

A: Sure.  Hello, my name is Jack Steele, and I’ve worked as a Detective with the Capitol City Police Department for the past 16 years.  I’m currently assigned to the Celebrity Crimes division, which handles all of the cases that end up on TV or in the newspaper.  Whenever a celebrity is involved with a crime, it’s my job to conduct the investigation, get “doubles” of all the paparazzi photos, and handle all of the press conferences. 

Q: Could you please tell the jury what you do for a living?

A: Again?!?

Don’t get so attached to your notes that you can’t escape.  Rather than writing out questions word-for-word, use bullet points or an outline.  Yes, it requires thinking on your feet to formulate your questions, but it also forces you to listen to the witness, so you’ll ask better questions.

2. Not caring what the witness has to say.  When you work on a case for months or years, you’ll hear witnesses’ stories over and over and over again.  After a while, the novelty of their stories begins to wear off.  The problem with that arises when you get to court.  Since you knowexactly what your witnesses are going to say, you aren’t as fascinated by their stories as you were the first time you heard them.  As a result, you “hear” what the witnesses say, but you aren’t “listening” to what they say.

Here’s a clue: If you aren’t interested in what the witness has to say, what are the chances that your jury will care about what the witness has to say?

To avoid that problem, pretend that you’re hearing the witness testify for the very first time.  Demonstrate a genuine interest in what they’re saying.  Lean forward, make eye contact, and actively listen to what they say.  Don’t look at your notes or think about what question you’ll ask next.  Just focus on the witness, treating them as if they’re the most important person in the entire world. 

Why?  Because for that brief span of time while they’re on the witness stand, they are the most important person in your world.  Treat them like that, and you’ll never again get caught asking questions that have already been answered.

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2 thoughts on “The Importance of Listening During Direct Examination

  1. I saw a video of F. Lee Bailey on Youtube. It was a cross-examination in the O.J. Simpson trial. The person who posted the video had pointed out that F. Lee Bailey was not using any notes at all in contrast to the prosecuting attorney. My opinion is that you are surely spot on. Great post! Thanks!

  2. As for your first example, you do make a certain point. On the other hand the Judge that made these remarks (if that Judge actually exists I’ll preface this with a “respectfully submitted”) is just plain rude and would run the risk of appearing biased in front of the jury on appeal. I also never understood trial to be a race. If it takes more time we’ll get another date as my client has the right to run a full and complete defence or case.