Most plaintiff’s trial lawyers will tell you that your client’s cross-examination is the most dangerous moment at trial. Even if you’ve done a good job on direct examination there are undoubtedly weak spots in your client’s case. Cross-examination is one of your opponent’s best shots at unraveling your case. Recognize that if your case was devoid of problems it would have already settled.
Re-direct examination is your best opportunity to undo the damage. Indeed, it may be the moment when you save your client’s case. Amazingly, many otherwise competent trial attorneys neglect re-direct. In my book that’s a big mistake. Consider taking the following steps to master re-direct examination:
Step 1. Familiarize yourself with the mechanics of re-direct examination.
Go back to the basics and re-read the Federal Rules of Evidence (or your applicable state evidence code). Remember that your opponent can ask leading questions on cross-examination delving into the subject matter addressed on direct examination. His or her goal is to discredit your client’s case. Your opponent will try to impeach your client’s credibility through one or more recognized methods of impeachment e.g. a prior inconsistent statement, bias or character. On re-direct examination the form of your questions must be non-leading. The scope of these questions must be limited to the scope of cross-examination plus rehabilitating credibility e.g. through a prior consistent statement. Getting this right requires planning and familiarity with the rules.
Step 2. Simulate cross-examination to plan re-direct examination.
If you’ve adequately prepared for trial you should have an inkling of what your opponent will ask on cross-examination. Unfortunately, that’s only half the battle. You and your client are living inside a “case bubble” and there are blind spots that are obscuring possible lines of attack that could sink the case. Remember that half of the equation is your client’s performance on cross-examination. Can he or she handle it or will there be a meltdown on the stand? If you want to get to the bottom of how to do re-direct examination in your client’s case then conduct a focus group or mock trial. In my trial consulting practice I routinely have my client’s principal subjected to a video testimony session where my client conducts direct-examination followed by my own cross. I try to make the cross-examination as realistic and harsh as possible. The ugly beauty of doing this is that you will have a better idea of the work that needs to be done on re-direct examination. You’ll have a better grasp on the weak points of your client’s testimony so that you can begin thinking about how to undo the damage.
Step 3. Take better trial notes.
Your own note taking must be geared to maximize your effectiveness on re-direct examination. I suggest delegating detailed note taking to an associate or a paralegal. Your notes should zero in on the points your opponent is scoring on cross-examination which must be addressed on your re-direct. Consider a two-column note pad with the opponent’s cross-exam points written in the left column and the right column reserved for the points you are going to make on re-direct. If you’ve done your homework you’ll have identified the majority of potential cross-examination questions and should be already equipped with some of your re-direct material. Your notes should document turns of a phrase or other words actually used on cross-examination which will key your opponent and the judge to realize that you really are addressing a subject within the scope of cross. It will also flow better if you tie the form of your questions to the language of the testimony.
Don’t neglect preparing for this vital part of trial. It’s the moment you could lose or better yet save your client’s case.