Expert Witness Direct ExaminationWhat does it say about our profession that we find it easier to cross-examine than to present direct examination of our own witnesses – even expert witnesses?

This question, which could be its own blog series, would be a sidetrack from the headline “Presenting Your Expert Witness on Direct Examination.” But what it does immediately highlight is that advance preparation is required for the presentation of the direct examination of the expert witness.


One approach to preparation of the direct examination is to sit down with a yellow pad and a pencil with fresh eraser and ask yourself this: What are the three most important sentences that my expert witness needs to say in order to win this case? Put the three sentences on the same sheet of paper. Then copy each sentence onto its own sheet of paper.

Look at the sheet with all three sentences and think about what is in common among the three points. Use one-word answers. Think of as many common elements as possible.

Then, on each sheet with a separate sentence, think about what you would have to hear in order to believe this statement if someone walked up to you and said it. List everything from licensing to education to work experience to details of how a person looks and sounds. Take the time to make it detailed; instead of “doctor,” list “neurosurgeon.” Instead of “electrical expert” list “registered professional engineer – electrical with M.S.E.E.”

This simple, written exercise is one that could be used in a playwriting workshop. Doing it for the trial setting, you are fighting to get to the core elements of foundation testimony (what is in common) and witness credibility (what is your internal reality). If your lists from this exercise give you an uncomfortable feeling when you think about the presentation of your own expert witness, you need to grab a fresh sheet of paper and make the list of what is uncomfortable to you about the expert witness and/or the expert witness testimony you intend to present. And then you need to evaluate what can be done to remediate any deficiencies. It may be that you cannot reconcile your vision with your current reality, and, in that instance, you might have to reconsider your use of a particular expert witness.

The results of this exercise will also help you craft your direct examination of your expert witness. For example, if your common elements include “location – exterior wall – scaffolding,” you can draft a series of direct questions to paint a verbal picture of the scene of the construction accident. It also reminds you to review any visual exhibits to make sure both the direct testimony of your construction safety expert witness and the photographs accurately depict the accident site.

Once we are downstream towards trial, we should know our case. Our challenge then becomes to unlearn our files into the core elements to rebuild them into the form of the trial narrative. Thoughtful preparation of the direct examination of the expert witness is a best first step to jump-start preparation of your entire direct case.

By: Paloma A. Capanna, J.D.