Cross Examination is Easy, Direct is Difficult

Cross-examination is easy because it is a conflict between the lawyer and the witness. It is easy to hold the factfinder’s interest. It is easy to force the witness to concede some points. If the cross-examiner is skilled, the testimony will result in memorable answers that help the case.

Direct examination often results in lost ground because of wasted opportunities.

A United States District Court Judge was recently complaining about the lack of trial experience among attorneys. He had been surprised to observe a specific illustration of the problem, more than once, during trials before him in his Court. The Judge had sustained an objection of “leading”. The hapless attorney trying to carry out direct examination did not know what to do next. That is, the attorney did not know how to ask a non-leading question.

Why such a fundamental lack of ability? The Judge’s theory was that lots of depositions are taken. Depositions are almost all cross-examination. Objections are not much of an issue, since there is no Judge to sustain an objection. So an attorney can practice for a long time, but have witness examination experience mostly in depositions. Then, in trial, the attorney does not know how to examine a witness on direct without leading questions.

The Judge’s comments were about fundamental competence. It seems to me that a more difficult problem is boredom. Can there be a more boring experience than hearing “What happened next?” and the witness drones on.

In a business trial, the boredom problem is worse than in a personal injury trial. This is why I try to use as much visual stimulation as possible. This leads to my First Rule of Direct Examination: The only purpose of a witness on direct examination is for foundation of and comments about an exhibit.

In another post I will comment on the best practice to prepare for direct examination. This witness preparation should follow use of the best method I know to validate the themes of the presentation. Neither method is used as much as should be.