Chapter 11

• Jurisdiction: New York

CHAPTER ELEVEN

EXAMINATION OF WITNESSES:

DIRECT AND RE-DIRECT

EXAMINATION OF WITNESSES: DIRECT AND RE-DIRECT§ 11.0

197

This chapter begins with an overview of witness examination and then

focuses on direct and re-direct examination. The next chapter addresses

cross-examination.

[11.0] I. WITNESS EXAMINATION

[11.1] A. Overview

The direct and cross-examination of witnesses are, of course, the core

of every trial and the principles of each must be mastered by all litigators.

Law professors, veteran trial attorneys, and judges have written exten-

sively about these matters. The literature is voluminous.1 Some of these

articles and books relate attorneys’ experiences in court and include por-

tions of transcripts. Others discuss principles of law—such as the hearsay

rule—and their application to witness examination. Still others offer sug-

gestions, techniques and strategies for the conduct of the trial itself. All of

this literature is useful and, if time permits, should be read.

Effective and sound direct and cross-examination skills take effort and,

most importantly, experience. The best advice for inexperienced trial

attorneys is to attend other trials, watch experienced and respected litiga-

tors practice their craft, read some of their transcripts, study some of the

great cross-examinations of the past, attend trial advocacy programs,

experiment with techniques that appear to work, and make mistakes and

learn from them. Do not attempt to imitate the techniques and styles of

more experienced attorneys. Instead, adapt them to your personality and

use only those manners and techniques with which you feel comfortable

and can master.

It is impossible for one person to teach another to be a good trial law-

yer. Inexperienced attorneys can, however, become competent, if not

excellent, litigators by following the suggestions in the previous para-

graph, and by the development of their skills and motivation—that is, a

real desire to try cases properly. Some say that advocacy is an art, which is

perfected largely through the careful development of one’s skills—that is

1 See, for instance, Thomas Manuet, Trial Techniques (Wolters Kluwer 7th ed. 2007); Edward J.

Imwinkelried et al., Courtroom Criminal Evidence (Lexis 4th ed. 2005); Mortimer Hays, Tactics

in Direct Examination (Practicing Law Inst. 1966); Harry S. Bodin et al., Principles of C ross-

Examination (Practicing Law Inst. 1962); Cross & Tapper on Evidence (Butterworths 8th ed.

1995); Andrew L.T. Choo, Evidence: Text and Materials (Longman Series 1998); Francis X.

Busch, Direct and Cross-Examination of Witnesses, 6 U. Fla. L. Rev. 519 (1953); Edward A.

McGrath, The Art of Cross-Examination, 2 Rutgers U. L. Rev. 189 (1948); Charles T. McCor-

mick, The Scope and Art of Cross-Examination, 47 Nw. U. L. Rev. 177 (1952–1953); M.J. Wal-

ter, Controlling the Witness on Cross-Examination, 7 Litig. 36 (1980–1981).

§ 11.1FOUNDATION EVIDENCE, 5TH ED.

198

by doing and observing, and by studying the law. The following chapters

are meant to help develop those skills for young attorneys and to remind

older, more experienced attorneys of some fundamental rules of evidence

and procedure.

The following principles apply to almost every trial. The ability to

examine witnesses in an adversarial setting is the most basic skill for all

trial lawyers. Nevertheless, a common criticism of many trial lawyers is

that they are unable to conduct intelligent, purposeful, and well-organized

examinations and to oppose examinations of others ethically and profes-

sionally. Accordingly, the materials in this and the next chapter should be

read with the following guidelines in mind:

1.The purpose of every witness examination is to obtain information

favorable to the case.

2.Questions on direct and cross-examination should be short, simple

and understandable.

3.Organize your points and make them.

4.If there is nothing to be gained by cross-examination, waive it.

5.Listen to the witness’s answers and insist upon responsive answers.

6.Know the difference between proper and improper leading questions

and when to use them.

7.Do not conduct a cross-examination that does nothing but afford the

witness the opportunity to repeat his or her direct testimony.

8.All questions on cross-examination should contain and allege only

one fact.

9.Leading questions are, for the most part, improper on direct examina-

tion but completely proper and should always be used on cross-exam-

ination.

These two chapters are intended to provide materials and information

that fulfill the goals described above when preparing and conducting wit-

ness examinations. It is intended to answer questions that often arise in

trials about the foregoing issues and can be used as reference material by

all attorneys during the trial itself.