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Direct Examination of Lay Witnesses in Brain Injury Cases


Thinking back to the last case you tried, how much time did you spend preparing to put on your client? Expert witnesses? What about preparation for voir dire? Opening and closing arguments?

More often than not, lawyers spend the vast majority of their time on these aspects of the trial. Much of the content of the seminars we attend is devoted to these areas because the speakers energize us with their passion and thrill us with war stories from these exciting parts of the trial. We tend to focus our time and resources on them from the time the client first calls the office until the trial.

Too often, and for too many lawyers, the presentation of lay witnesses is little more than an afterthought. As a result, we risk doing a poor job putting on the witnesses that jurors may find most persuasive. Think about it- your client has a direct financial interest in the outcome of the case; experts for both sides may be perceived as hired guns; and the judge will probably instruct the jury at least three times that what the lawyers say, i.e., voir dire, opening and closing, is not evidence upon which they may base their verdict. Pretty much all that’s left are your documents and lay witnesses.

Through the effective use of advocacy techniques during the direct examination of lay witnesses, in addition to the other components of your trial, you can maximize the potential to persuade the jury to return the right verdict.

How do you make the most out of your lay witnesses in a brain injury or any other type of case?

Prepare! Prepare! Prepare!

Make the witness part of your client’s story.

Start strong. Finish Strong.



Preparation for any lay witness begins long before trial. Potential witnesses are identified in your initial investigation of the case. Witnesses with knowledge that relates to liability issues should be interviewed and have their statements taken as early as possible. Do not rely on accident reports alone. Explore the bounds of their knowledge, as well as any biases the witness may have. Once the witness is on the stand it’s too late to learn that the witness thinks that the collision was just another ‘unavoidable accident” or that people shouldn’t file lawsuits.

Lay witnesses whose knowledge relates primarily to damages may be friends, family, co-workers or certain healthcare providers like physical therapists or home healthcare providers. Identify these potential witnesses early, including what part of your client’s story they will tell, and keep the list current throughout your preparation of the case.

To depose or not to depose? Several considerations come into play here. Is the witness subject to trial subpoena? Is there a chance the witness will be otherwise unavailable at trial? Is the witness’ testimony critical to prove one of the elements of your liability case? Do you have good access to the witness outside of formal discovery?

The order and timing of lay testimony is extremely important. In deciding the order of witnesses, exhibits or other evidence one must always keep in mind the principles of primacy and recency. Jurors tend to remember most clearly and to believe most strongly those things that they hear and learn first (primacy). Jurors also tend to remember the information they received last more clearly (recency). It is important to start the Plaintiff’s case with a strong witness and end with a strong witness so that the case will have maximal impact on the jury. Often that will mean that you must either start or end with the Plaintiff.

The order of your witnesses may also depend on the nature of the case. For example, if liability is complicated or difficult (some may prefer the term “thin”), consider staying away from damages witnesses until you have convinced the jury that your client deserves to win. The importance of this concept is directly proportional to the severity of your client’s damages. In severe injury cases there is a risk that the jury will perceive the defendant as the victim if they hear about damages before liability.

There is, however, another school of thought on whether to put up damages or liability proof first. Some of the best lawyers in this organization have successfully buried defendants so deep in evidence of damages at the beginning of trial that the defendants could never recover. This approach should probably be used with caution in today’s environment, and only by the most experienced and skilled lawyers. Depending on the unique circumstances of your case, pick one of these two approaches and stick with it.

Timing of lay testimony may require a combination of long range planning and seat-of-your-pants decision making. I find that happy witnesses make better witnesses. Remember that being called to court disrupts the lives of your lay witnesses. With good planning, you can avoid having a key fact witness stand in the hall of the courthouse all day long and then calling her to the stand when her mind is on who is meeting her child at the bus rather than telling her part of your client’s story.

Another element of timing your lay witnesses has to do with managing your daily trial schedule. Again, start strong and finish strong. Never send the jury home for the night thinking about the last witness who had no impact.

The next consideration involves choosing the exhibits and other demonstrative evidence that will be used during the examination of your lay witnesses. Numerous studies have shown that we learn much more effectively when we hear and see information simultaneously as opposed to simply hearing it. You can only do this with proper planning.


Few of us can maximize the impact of a witness’ testimony by simply making up questions as we go along. You must prepare yourself for each witness as if they were as critical as any other part of the trial.

Decide which facts you intend to prove through the testimony of your lay witnesses. Prioritize those facts in terms of emotional impact and importance to the outcome of the case. Determine the order of proof that will maximize the emotional impact of the testimony while presenting it in a clear, concise fashion.

I rely very heavily on the use of computers when I try a case. In almost all cases, I type out each question that I plan on asking every witness. I then read the questions from my laptop computer as I examine the witness. This method offers several advantages. First, I now have many different types of witness exams in my database. When I begin to prepare the direct exam of a witness I usually begin with an examination from a previous case and tailor it to the circumstances of the case at hand. I do not have to start from scratch each time, and this enables me to fine tune the questions based on my previous experiences.

Second, I can make sure that each fact that I must prove by a particular witness is elicited with a proper question. There is less worry that a critical fact may have been omitted or forgotten. I can also make sure that I have laid a proper foundation for any exhibits I intend to introduce during the examination.

Third, with the questions on a computer, I can rearrange the order, and add or delete questions to gain maximum emotional impact from the testimony. As with the order of witnesses in the case, the examination of each witness must begin and end on a strong point to be effective.

Fourth, I can prepare the witness with the types of questions that they will be asked so that they will not be surprised by any of the questions. Many times, I have discovered after hearing the witness answer a question during preparation, that I really didn’t want to ask a question the way I had originally phrased it.


You should not call any witness during trial without having adequately prepared him or her before they enter the courtroom. However, always remember that there is no privilege that applies to the discussions you have with lay witnesses when preparing them for their testimony.

Give them an overview of the process, including who will be present and what to expect from the lawyers and judge. Reassure them that you will be there to help them get through the process. The reasons most lay witnesses fear being on the stand is because the setting is unfamiliar, and they may feel like they do not have control. These can work together to create high levels of anxiety in a witness and disrupt the flow of her testimony. The more comfortable the witness is on the stand, the better she will do telling her part of your client’s story, and the jury will be more receptive to what she has to say.

Let them know the subject matter you wish to cover, but do not go through a verbatim rehearsal of their testimony. There are at least two reasons for this. First, jurors are likely to detect, and then reject, rehearsed testimony. Second, a lay witness may tend to use scripted testimony as a crutch. In the dynamic setting of trial things can change quickly and unexpectedly, and you may not be able to follow a script as planned. If you or the witness goes off script (for any number of reasons), the witness gets lost, anxiety sets in, and little good usually follows.

Having said that, as part of their preparation you should ask them to tell you what their answer would be if you asked them certain questions. Do this with a combination of the key points you must establish with the witness, and a couple of questions that will help develop your trial story or theme. When the witness takes the stand make sure you ask those questions using the same keywords. On one level or another your witness will identify these questions as landmarks you put there to guide her through her testimony.

The same thoughts apply to the use of exhibits with a lay witness, and particular care must be used with diagrams to be made by the witness on the stand. If you show the witness a diagram in preparation for testimony, be sure to use the same diagram of the same size and orientation during the trial testimony.

Feel free to share with the witness the general rules to follow while on the stand. First and foremost they should tell the truth. Listen to the question and answer the question that is asked. Explain how objections should be handled. If they don’t know the answer to a question, you do not want them to guess. Remind them to speak clearly and to keep their voice up so the jury can hear them, and to look toward you for the question, but to look directly at the jury when answering.

Finish with reminding the witness to try to relax, keep the testimony conversational, and, again, just tell the truth.


By the time you get to the actual examination of the witnesses, the hard part, i.e., the preparation, should be over. After all, the purpose of all your preparation is to have the trial testimony go as smoothly as possible. Much of what follows then is review and implementation of what you have already done. Once in the courtroom, the goal is to seamlessly incorporate the various techniques of persuasion you have learned over the years into the presentation of a witness telling your client’s story.

Remember, begin your examination with one of your strongest points and end with a strong point. Those areas that must be covered during the examination but which have little dramatic or emotional impact should be sandwiched in between strong opening and closing points.

Try to establish a conversational tone during the examination. Use simple language. Repeat important themes. Repetition of important facts and concepts will help the jury understand and remember them.

Reveal damaging testimony in the middle of the examination when juror attention may have strayed. You may have already alluded to these potential problems in voir dire. The impact will be lessened if the jury hears it from you and not defense counsel. Never ignore harmful evidence during your direct examination. If the evidence is bad for your case, you can be assured that opposing counsel will not forget to ask about it during cross-examination.

Use “headlining” when changing from one topic to another during the examination. The use of headlining allows the witness and jury to know what general area you are about to cover. The use of headlining will assist the jury in following along with the testimony. It may also help to recapture a juror’s attention.

Draw the jury into the examination by making it as interactive as possible. Get the witness off the witness stand and down in front of the jury with charts, graphs, photos, etc…. If you have a client who requires home health care, for example, a CNA or physical therapist can provide you with an excellent opportunity to show some day-in-the-life video. Their testimony will have much more impact when the jury can see them changing a feeding tube, giving medications or doing range of motion exercises with your injured client.

Use, repeat and reinforce your liability themes and anchors appropriately when examining witnesses whose testimony relates to liability, and of course do the same with damages themes and anchors when presenting damages witnesses.

Do not leave “gaps” while moving through the part of the story being told by any witness. If you do, there is a tendency for the jury to fill in those gaps with facts that will be bad for your case. Once a juror has filled in such a gap with his or her own conclusion about the missing information, you will be hard-pressed to convince the juror otherwise.

Story-telling can be an effective tool for persuasion. Lay witnesses are important members of the cast, and the presentation of their testimony deserves equal time, effort and skill with which you put on any other part of the case.


With proper preparation by both the witness and the attorney, the direct examination of your lay witnesses can provide the catalyst that leads to an adequate jury verdict. Do not forget that a trial is like the theater in many respects. You must tell a good story. The story must be presented so that it captures the audience’s attention in the beginning, holds it through the middle, and moves the audience to action in the end. The direct examination of your lay witnesses must carry your trial theme forward in a manner that tells a compelling and complete story. Only then will the jury be motivated to write the ending your client needs.


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