Solid cross-exams have a tendency to leave the opponent unwilling to attempt the redirect exam for fear the damage will only be compounded.
Redirect can usually only develop testimony that touches on the same subjects covered in the cross-exam
The state and federal districts follow two general rules as to the scope of recross exam.
1. More limited rule – recross exam limited to new matter brought out on redirect exam
2. Broader rule – recross exam may embrace all matters testifies to on redirect cross
Using the established techniques of cross-exam will result in a series of goal-directed chapters designed to futher the theory of the case.
Good cross-exam will restrict the opponent’s ability to conduct a meaningful redirect exam.
Proper sequencing of original cross-exam limits redirect exam because if cross-examiner ends with a strong chapter the opponent will be discouraged form keeping that witness on the stand.
Depending on the outcome of cross-exam it can be accurately predicted when opposing counsel will want to engage in redirect exam.
If the cross exam has gone extremely well or extremely badly it is unlikely there will be a redirect examination. When the cross exam goes somewhere in the middle a more realistic effort will be made to rehabilitate the witness on redirect examination.
A lack of preparation of both the attorney and the witness produces four types of opportunities for the cross-examiner.
1. redirecting attorney must again use open-ended questions, often on areas not thoroughly rehearsed with the witness
2. redirecting attorney may attempt to steer the witness to essential conclusion or general answers
3. witness doesn’t confine answers to areas that were clear-cut wins on the cross-exam
4. overly broad answers may open up to entirely new areas for recross exam
The cross-examiner must be prepared to object immediately to the use of leading questions occurring in the redirect examination. The ruling on the objection is discretionary with the court, but should still be sought by the lawyer at the very first substantive instance of leading on redirect examination.
Leading questions can quickly insert bad answers into the case and it allows opposing counsel to testify rather than the witness.
The second objection the cross-examining lawyer must be prepared to make s that the redirect is beyond the scope of cross-exam. Generally the law requires that redirect examination does not go beyond the new material raised in the cross-exam. This objection is fact specific so must be made repeatedly.
The words of the objection must be selected carefully to best convince the judge that further redirect in the area the opposing lawyer wants to develop will greatly lengthen the trial.
One likely reason for a successful redirect examination stems from the cross-examiner taking a cheap shot at the witness. Using the science of cross-exam carried out by the specific and defines techniques, the cross-examiner never needs to take cheap shots at the witness.
The jury appreciates questions that create reasonable disputes to the facts and can recognize a cheap shot and are swift to combat the cheap shot.
A cheap shot on cross-exam may also be rules as “opening the door” to redirect examination materials that were previously inadmissible.
A redirect examination should not be feared as an admission that the cross-examiner has scored important points. Though, ordinarily, no recross exam is required or suggested. Ask yourself if the recross is necessary, what is the goal, and can that goal be accomplished.
Recross examination Guidelines
1. Limit recross exam to prepared chapters
2. Refer specifically to the original cross=exam chapter
3. Use transcripts if available, or have court reporter type a page or two of cross-exam in preparation for a limited recross examination
4. Use the second chair lawyer
5. Theme lines – return immediately to theme lines that we developed and presented to the jury during the original cross-exam
Use a double loop chapter to exploit the opportunity created by a redirect examination by showing that certain facts the witness testified to should not and could not simultaneously exist. Most effective double loop chapters compare a detailed fact with a general pronouncement or conclusion.
Sometimes a witness, on redirect will recall important facts absent from any of his other previous testimony. If handled properly on recross the can further impeach the witness.
The cross-examiner might perform several very short chapters detailing the number of times the witness had an opportunity before and during the trial to mention the newly recalled facts, and a complete failure of the witness to have disclosed them before.
A witness who has undergone attempted impeachment with inconsistencies seems to be a good candidate for redirect examination. This is deceptive since the problem of inconsistencies is never easily cured. In all likelihood the witness will offer some excuse that will assist the recross examining lawyer with additional information to use.
If the cross examiner has not previously developed a chapter of cross-exam she should not enter into re-cross on those areas.
Clarity of thought and consciousness of questioning are essential at this stage.
Recross can be an early opportunity to give a mini losing argument.