The design of the direct examination is the choice of the sponsoring attorney, subject to the limits of the Federal Rules of Evidence.
Direct examination requires that the attorney ask non-leading questions; that is, questions that do not suggest the answer. Prototypical non-leading questions are ones that begin with "who," "what," "when," "where," "why" and "how."
Another way of conducting direct examination of the expert is to present five basic questions that introduce a range of opportunities for the expert to testify in defense of the expert's stated opinions:
- Who are you?
- What did you do?
- Why did you do that?
- What did you find?
- What does that mean?
Psychologists state that several doctrines are at work in the dispute resolution process, some of which can foretell the outcome of an otherwise close case. Among them are primacy, recency, repetition, and the probability of human conduct:
- Primacy: The tendency that a person believes most and longest what is heard first.
- Recency: The tendency to believe what a person hears last.
- Repetition: The tendency for a person to believe that which is often repeated.
- The probability of human conduct: The expectation that people act in certain typical ways in given circumstances. When they do, they are believable; when they do not, they are not believable.
An exemplary direct examination is built on the principles of primacy and recency, principles that address how audiences retain information that is presented orally. Because listeners remember best what they hear first (primacy) and last (recency), lawyers will frequently organize their questions to begin and end with high points.
For example, in a DNA case, the primacy point may be that the analyst was able to obtain a DNA profile from the crime scene evidence. The recency "finale" would be to ask the expert whether the profile is consistent with that of the accused.
Once the primary point has been elicited, the questioner will usually circle back and walk the expert through his testimony. Topics to cover may include:
- The science (e.g., "Please explain to the jury what DNA is, and how it can be used to uniquely identify people").
- A listing of the evidence obtained and examined in this case.
- A description of the testing performed.
- A conclusion with the findings from those tests.
If there are any weaknesses in the case, either in the substance of the expert's findings or a problem in his background, they are best brought out on direct examination but somewhere in the middle. This strategy:
- Takes the "sting" out of such information.
- Establishes the objectivity of the side presenting the expert.
- Allows the deficit to be put in the best possible light.