In trial, many things are planned in advance, but some things are reactive during the moment. When you can control it, you’ll meticulously plan it before trial and then execute your plan during trial. However, when you don’t have that luxury, you need to react on a moment-to-moment basis. It is the mix of the two — the planned and the reactive — that makes a trial exciting. Most of your openings, closings, direct examination, and much of cross all generally fall within the “planned” category. Redirect examination of your witness, however, is usually going to be composed on-the-fly in reaction to what opposing counsel has accomplished in their cross.

For the planned parts of trial, the typical lawyer’s attitude is that the only limit on preparation is the limit on the number of hours in a day and the number of days until trial. But for the reactive parts of trial, there is a tendency for experienced trial lawyers to say, “I will know what to do when the time comes.” And that is usually true. At the end of the day, the best redirect examination is going to be formed while listening carefully and sensitively to cross-examination. Still, it helps to think about some of the principles that go into a good redirect. In this post, I’ll share three rules.

One, Be Selective

In practical terms, redirect cannot be a comprehensive review and rebuttal of everything covered in cross-examination. Even if you wanted to spend the time to do that, the effect would most likely come across as defensive. Instead of chasing every rabbit, I recommend that attorneys apply some strict “rules of engagement” and only go after a topic in redirect if it meets all three of the following criteria:

It Goes to the Heart of the Witness’ Testimony

Don’t mess with issues that are likely to be important only to the lawyers. Target an issue if, and only if, it clearly bears on the witness’ credibility or main message.

It Is Likely to Be Understood and Remembered

Jurors and judges do not process and retain everything that is covered in cross-examination. In order to merit attention in redirect, the issue ought to be one that made a clear impression at the time and is likely to stick with the decision makers until they reach a decision.

You Have a Good Response

Bringing up an issue where the other side scored a point is like returning to the scene of the crime: Don’t do it unless you can undo the damage. When you have a good, clear response, hammer it on redirect. But if the response is weak, complex or unclear, then you may be better off leaving it alone.

Two, Be Structured

What many lawyers do during the other side’s cross is just keep a running checklist of topics that ought to be addressed in redirect. But following that list order when conducting your redirect can sound like you’re just running through your shopping list, and also ends up replicating your adversary’s structure. Better to return to your own direct outline and work the redirect issues into that overall sequence.

Three, Be Positive

In a way, what you are doing in redirect is putting out the fires that the other side started in cross. Despite that reality, it is important to keep your focus on offense. If your focus is on defense only, even if each defense is successful, you could end up reinforcing the other side’s message that there are a lot of problems with this witness. Remembering why you called the person in the first place, you need to get back to the main message the witness brings to your side of the case. Knowing that you cannot gratuitously repeat testimony from direct examination, it is still important to get back to a positive message whenever you reasonably can.

____________________

Image credit: 123rf.com, used under license