Taking my first direct without any partner guidance, and I’ve never even been to a trial before (even for observation). Any advice on drafting outlines? Taking testimony generally? Thanks!

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Write out the narrative you want told, then think of the questions that would elicit it. You’re job is to guide the witness through the narrative. It’s not a script. They may put part of the narrative you expected later way upfront. That’s fine. Be flexible and either way “we are going to come back to that” or move to that part of your outline.

Ideally you can practice with your witness but don’t make them feel like it’s a script. Remind them that you are there to get the information out so if they forget something, you’ll ask a follow up questions.

Make notes of what may be objectionable and have your response. (If it’s hearsay, know exactly what exception you’re using, if it’s character evidence know why it’s admissible, etc)

Also, don’t forget to do a mock cross of your witness before. The most beautiful direct can be destroyed by a good cross.

Good luck! You’ll be great.

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Thank you!

Limit your questions to who, what, where, when, why, explain. But make sure you're asking them in a way that your witness will be able to get where you're trying to go, so they don't waste time and cause confusion by answering a question you didn't really intend to ask. And if they do that, don't worry but just think about how you'll get the witness back on track without being too leading. Don't be too wedded to a script. Anticipate any objections opposing counsel will make and have your responsive argument/authority ready (e.g., why the testimony you're eliciting is not hearsay, why the business records exception applies, etc.). Look at the jury after you ask your questions and while the witness is testifying to see how they react, and use that to make adjustments on the fly, clarify things, etc.

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Good luck! You will do great. And awesome that you're getting this experience. There are plenty of biglaw attorneys even at the partner level who don't have real trial experience.

If no jury, then (assuming it's some sort of bench trial) look at the judge for the same reasons. Good for your witness to be talking to/looking at the fact finder as well. The judge could also insert their own line of questions in the middle of yours, which is fine. And also at the very least walk your witness through the mechanics of it all ahead of time if this is their first time on the stand. Lots of times we take that kinda stuff for granted since we deal with it for a living, but it's all very foreign to the witnesses and all they have to go off of is movies/TV.

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If you work at a firm check your system for outlines. It can be an enormous source of guidance

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A few tips: (1) If you have the capability, look up sample transcripts or outlines in your firm's system. (2) Highly recommend using some sort of color coding in your outline (for example, I will use red to make notes about certain objections I anticipate and how to respond to them). (3) Try your best to remember to slow down. If you're nervous, chances are you're going to talk wayyy too fast. Throw in some extra line indents in your outline to remind you to pause and/or slow down. If you get lost, just take a breath, "beg the court's indulgence," find your bearings, and then continue on. (4) Most importantly (and it probably goes without saying) don't ask any questions that you don't already know the answer to. Good luck!

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