Podcast - Basic Points to Consider in Redirect Examination
The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the nuanced art of redirect examination, emphasizing its strategic use to mitigate damage and refocus the jury's attention. He points out common pitfalls, including unrealistic expectations by lawyers, that can lead to squandering the opportunity for a limited but effective redirect. Mr. Small advises careful planning and strategy over emotion-driven responses, given that the process will vary widely from witness to witness. Additionally, he highlights the need for discipline and focus, advising against attempting to cover every point raised during cross-examination to ensure key arguments stand out.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Narrator: You are listening to The Trial Lawyers Handbook, a Courtroom Preparation Podcast series brought to you by Holland & Knight. This series is hosted by litigation attorney Dan Small and is based on a longstanding article series he co-authored with United States District Court Judge Dennis Saylor from Massachusetts Lawyers Weekly. Listeners of this series will gain a fresh perspective on how attorneys can address various trial preparation issues and set themselves up for success in and out of the courtroom
Dan Small: Done right, redirect examination can help repair or limit some of the damage done on cross-examination, explain new issues raised and refocus the jury on what you believe is important. However, it has significant limitations. Redirect will not bring a destroyed witness back from the dead, nor will it make the other side's points disappear. Lawyers often expect too much from redirect and try to do too much, only to lose what could have been a limited but more positive effect. Worse, their redirect may be driven more by anger or frustration than by any actual strategy. So, tread carefully. Obviously, the nature and focus of redirect will vary widely from witness to witness. However, there are some basic points worth considering first.
Plan ahead. That may be a surprising thing to say about something that's supposed to be a mere rebuttal. You may not know everything your opponent will do with your witness on cross, but come on. Chances are you have a good idea. Don't just hope that an effective redirect will rise magically from the yellow pad on which you took notes. Like any good combatant, plan ahead. If your opponent does X, how will you respond? If he or she does Y, how are you going to handle that? Think through several likely approaches in advance. Then adapt them to what actually happens.
By the way, plan ahead applies to both sides. Be aware on cross-examination that your opponent will have redirect, and don't help him make it effective. The American Bar Association just published my book, On Trial: Stories and Lessons Learned from a Life on Trial. And in one of the stories, I talk about a case that I prosecuted where a relatively minor witness had a very brief direct examination, and then defense counsel decided to try to put their whole case on him through this witness. He was the wrong witness. It was the wrong time. It was the wrong place. But by the time they got through, the court was so bored and so frustrated that the court allowed me to go basically nuts. On redirect examination, I was leading. I was doing all kinds of stuff, and the other side, the defense, objected, and the court basically said, "You opened the door, you have to eat whatever crawls out of it." And I ended up with a redirect that was longer and far more effective than my direct examination had been.
Number two: Don't lead on redirect. Mysteriously, almost all lawyers lead, almost all witnesses, almost all the time, on redirect. This has become so pervasive that someone out there must be teaching that it's OK. It's not. Some leading is necessary to direct the witness to particular issues raised on cross-examination. Otherwise, it's improper. Don't do it.
Number three: Don't lose your momentum on redirect. If there's an objection sustained to leading, don't let your opponent lead on redirect. Just as mysteriously, almost no one ever objects to leading on redirect. Maybe lawyers are exhausted from the cross, or they aren't listening closely enough. If your opponent leads improperly, object.
Number four: Keep redirect within the scope of cross. Most judges limit redirect to matters that were raised in cross-examination. Judges have wide discretion on this. So know your judge, know your case and limit your redirect accordingly. If your opponent's question is outside the scope of cross, object.
Number five: Don't try to hit everything. It's usually impossible to do an effective redirect that addresses every single point raised in cross-examination. Falling over trying to hit everything will dilute the effect of your important points. After all, if everything is important, nothing is important. Anticipate the cross-examination and raise matters on direct where feasible, and then save redirect for things that are important.
Number six: If you need to rehabilitate, do it properly. Sometimes your witness says something unhelpful or confusing on cross that can be explained or otherwise repaired on redirect. If you need to rehabilitate your witness, take the time to do it properly. Don't rush through it. Don't make it look like you can't wait to get the witness off the stand. Take your time.
Number seven: Don't be afraid to make it short or even to take a pass. Pause. Take a deep breath. Much of redirect examination is repetitive, disorganized and, worse, unnecessary. Juror patience is low. Before you stand up, stop and think. Did my opponent really accomplish anything? What did he accomplish, and what can I do about it effectively? Keep it short and consider not doing it at all. Sometimes the most effective redirect is a low-key shrug of the shoulders and "no questions, your honor."
An effective redirect can make a difference, but it's important to lower your expectations. Plan ahead. Do it right, and don't try to do too much.
Narrator: Thank you for listening to The Trial Lawyers Handbook, a Courtroom Preparation Podcast series brought to you by Holland & Knight. For more information on courtroom preparation, please email Dan.Small@hklaw.com or visit hklaw.com/Daniel-Small.