The Oprah Method
What is the lawyer’s role on direct examination? Some lawyers try to do all the testifying themselves and simply ask the witness to agree with them. This is less persuasive and really only a legitimate option if the witness is melting down, can’t be trusted to remember or correctly state anything, and there is no other option.
In reality, the direct examiner’s task is to help the witness tell her story. To keep the witness on track when she is getting too far in the weeds or straying into unnecessary terrain. And to make sure the witness supports any and all important conclusions. Witnesses are full of conclusions: my boss was cruel, that other driver was reckless, etc. The witness’s conclusions are not valuable. The witness’s factual support for her conclusions is valuable—indeed, it’s the most important thing in a direct.
So treat your witness like Oprah treats a guest on her show. The guest is the star, and it’s the guest’s story that matters. Oprah’s role is to help the guest stay focused, to answer the questions that the audience has as the guest goes through the story, and to give direction and encouragement where needed so the guest can be the most compelling and interesting storyteller she is capable of being. That is also the direct examiner’s job at trial.
