The Worst Question for Direct Examination at Trial

In law school, you’re told over and over again in trial advocacy class — “Don’t lead the witness. Let him/her tell the story. The lawyer isn’t supposed to be the one testifying.”

Sounds easy enough, right?  Well, it’s actually harder than it sounds to guide a witness through a story and get a coherent point across, and so most lawyers rely on a old crutch: when all else fails, simply ask your witness “So what happened next?”

The problem is that our crutch may not really be all that “tried and true” according to Elliot Wilcox at the Winning Trial Advocacy Tips Blog. In fact, Mr. Wilcox contends that “What happened next?” might actually be the worst question you can ask.  Specifically, he writes:

It doesn’t give the witness any guidance at all. When you ask the witness to tell you what happened next, you’re not doing anything to narrow his range of responses. Technically, there may have been a million different things that happened “next.” Which one do you want the witness to talk about?

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“What happened next?” is simply too broad a question. It allows for a whole world of possible responses. If you want to help your witness tell his story more effectively, give him some idea of what he’s supposed to say by focusing his attention toward a narrower range of responses. Instead of asking, “What happened next,” ask something like this:

• “Where did you drive to next?”
• “Who did you speak to after that?”
• “What was the next test you performed on the substance?”
• “How does the man in the white jacket react?”
• “Let’s focus your attention on the operating nurse. What does she do next?”

See how the questions direct the witness towards a limited area?