New York Medical Malpractice Trial
Redirect Examination
New York Law Journal, Thursday, November 29, 2007
Ben B. Rubinowitz and Evan Torgan
Redirect is the examination of your own
witness after he has been cross-examined by your adversary.
While trial lawyers often painstakingly prepare for direct and
cross-examination, far too little attention has been given to
this crucial phase of trial. Rarely will lawyers prepare for or
even think about preparing for redirect prior to trial. This is
a mistake.
The dynamic of the psychological concept of
'primacy and recency' is readily demonstrated by an effective
redirect examination. After all, if there is any validity to the
idea that that which the jurors hear first and last is that
which they remember the most, then a properly conducted redirect
examination could prove to be one of the most potent weapons
available to the direct examiner. A strong, and ofttimes
dramatic, redirect examination could be the last time the jurors
hear from a particular witness and therefore, the testimony that
the jurors will most likely retain in their memory.
The general purpose of redirect is to
rehabilitate the witness and to explain or rebut any adverse
proof, whether direct, circumstantial or inferential that arose
during cross-examination. On redirect it is appropriate to
examine a witness on any matter which tends to refute,
challenge, weaken or remove the unfavorable inferences brought
out on cross. For example, the cross-examination may have
elicited damaging testimony that has discredited a witness
through contradictions and inconsistencies. Cross may have also
brought out the witness' interest, bias or motive to testify in
a certain manner. Additionally, a witness' credibility may have
been hurt through innuendo and insinuation. Redirect examination
is not the time to merely repeat that which was brought out
during direct, although it can be an opportunity to emphasize
testimony that was unintentionally or mistakenly elicited on
cross that is damaging to the cross examiner's own cause.
Scope of Redirect
Generally, the scope of redirect examination
is limited to the scope of cross-examination. Courts
consistently exclude testimony on redirect that goes beyond that
which was brought out on cross. Given the possibility of
exclusion, it is a risky strategy to withhold an important piece
of testimony from direct because you might prefer, for dramatic
effect, to bring it out on redirect. Although courts do have the
discretion to allow new matters to be brought out on redirect
even if these matters were not touched upon during cross and
should have been brought out on direct, [FN1] courts generally
frown on such 'trial by ambush.'
While many lawyers think of redirect as one
broad category of witness examination, in reality there are two
types of redirect; 'anticipatory' and 'spontaneous' redirect.
There is a temporal difference between the two. Anticipatory
redirect allows the trial lawyer to prepare for and solve
potential problems well in advance of trial. In this area,
counsel must try to anticipate the areas in which the witness is
vulnerable and prepare the witness in advance with positive
spins and explanations in the event the anticipated issues are
brought out during cross. Spontaneous redirect, on the other
hand, is a consequence of surprise cross-examination testimony.
To be ready to meet this challenge, counsel must listen very
carefully to the cross-examination because she certainly would
not want to miss the opportunity to rehabilitate negative
testimony that was spontaneously or unexpectedly elicited during
the cross-examination.
Anticipatory Redirect
The strategy underlying anticipatory redirect
examination starts with a firm understanding of direct
examination. By anticipating certain issues in advance of trial
and assuming it is something of which your adversary will be
aware and will want to use against your witness, the direct
examiner is generally better served by being the first attorney
to bring the witness' weakness to the attention of the jurors.
This tactical maneuver serves essentially
three purposes. First, it allows you to paint the weakness in
the most favorable brush stroke possible. Second, it allows you
to maintain your credibility by showing the jury that you are
not hiding anything and that you are a lawyer who can be
trusted. Third, by dealing with the issue on direct, the
consequential predictable cross-examination testimony provides
you with the chance on redirect to make sure you leave the jury
with a favorable lasting impression.
There are times, however, when this tactic
might not work to your advantage. Consider the situation in
which your adversary might not know about the potential
weakness. A prior vicious, criminal or immoral act by your
client or witness, for instance, or any other such negative
fact, might have never been known by your adversary unless you
let the proverbial cat out of the bag by eliciting the
information on your direct examination. In this instance you
have just handed your adversary a gift, a gift that has the
potential to destroy your case. This is the one situation where
reserving evidence until redirect might be advantageous. By
reserving, you can wait and see whether your adversary knows of
the problem area. If she does not know, obviously, there is
nothing to respond to on redirect. Your strategy worked. It was
clearly a prudent decision to withhold the explanation rather
than inserting it, on direct, in a defensive manner. Without a
crystal ball, however, it is a decision to be made after careful
analysis on a case-by-case basis.
Consider the following example that does not
deal with a crime committed by your client but deals with
something far more subtle: A hospital, anesthesiologist and
pediatric surgeon are being sued for malpractice in connection
with surgery performed on a three-month-old infant who, the
plaintiff claims, suffered brain damage during surgery. The
night before surgery, however, the surgeon's son was arrested
for driving while intoxicated. The surgeon spent the entire
night comforting his wife while trying to get his son out of
jail. Not one allegation was made in plaintiff's bill of
particulars about this event other than one generic allegation,
among many, stating: 'The surgeon was not fit to perform the
operation on the day of the surgery.' During discovery, not one
question was asked at the surgeon's deposition about the events
of the night before surgery. At trial, the plaintiff's lawyer
chose not to conduct an adverse direct of the surgeon electing
instead to put in a bare-bones prima facie case essentially
compelling the surgeon's attorney to call this defendant to the
stand during his case, and allowing for cross-examination.
Absent clairvoyant abilities, the surgeon's
lawyer must make an educated guess. If he brings this
undoubtedly harmful information out on direct, he has
unquestionably 'opened the door' to a potentially devastating
cross by plaintiff's counsel which may or may not be effectively
rehabilitated. If he does not bring it out during his direct,
there is a possibility he may escape this line of attack
altogether. Either way, it is a risk. However, defense counsel
has the opportunity to minimize the effects of the risk. Here is
where anticipatory redirect becomes helpful. In advance of the
trial and in anticipation of a cross-examination bringing out
the events that occurred the evening before the surgery, the
sharp defense lawyer can prepare his client, the surgeon, for a
redirect examination that would have the consequence of
alleviating, if not eliminating, a negative impact.
Imagine plaintiff's cross-examination:
Q: Doctor your most important concern is the
health and well being of your patient, true?
Q: You would never do anything to put a
baby's life at risk would you?
Q: You recognize the importance of being
fully alert during a surgery like this, correct?
Q: You understand the need to be able to
concentrate during this type of surgery?
Q: You would never perform surgery if you
were too tired, true?
Q: Or too distracted, correct?
Needless to say, these questions have
provided the appropriate clues to the surgeon to prevent
surprise. Undoubtedly, the plaintiff's cross will continue
exploring the facts surrounding the night before surgery:
Q: Doctor you did not get a good night sleep
before this surgery, did you?
Q: Indeed, you were up all night?
Q: And, you were upset by the events that
unfolded that night, weren't you?
By preparing the doctor for this cross, the
defense lawyer has also anticipated the redirect. Thus, the
questions that would eventually be asked on redirect, as well as
the doctor's explanations, were known and carefully considered
by the doctor and his attorney way before the doors to the
courtroom ever opened.
Consider the redirect:
Q: Doctor much has been made about your
inability to concentrate and your being too tired to perform
surgery. Were you too tired to concentrate during this surgery?
A: Absolutely not.
Q: Explain that doctor.
A: I would never perform surgery if I was too
tired. This was a delicate operation and it needed my expertise.
Indeed, the surgery was a success and the injury that occurred
to this child had nothing to do with my surgery. The events of
the night before surgery were unfortunate but I would never
jeopardize the health of a patient if I felt I was not up to the
task. I did not hide the facts of the night before from anyone
and I told everyone at the hospital what had taken place.
Here, anticipatory redirect has allowed for a
carefully considered response to a potentially harmful line of
cross-examination.
Spontaneous Redirect
The two purposes of spontaneous redirect are
to minimize or undo the damage that was unexpectedly elicited
during your adversary's cross, that hurt your case, or to hammer
home areas that your adversary inadvertently stumbled upon
during his cross of the witness, that hurt her case. There is
little time to prepare the spontaneous redirect. Listening to
the questions posed to the witness and the answers given by him
on cross are crucial to a successful spontaneous redirect. One
of the easiest ways to create an effective examination is to
consider the offensive and defensive uses of spontaneous
redirect.
Offensive Use
Often a cross-examiner will unintentionally
bring out information on cross that hurts his own case. Many
times the cross-examiner 'opens the door' to an area that would
otherwise be off-limits to the direct examiner due to a pretrial
ruling precluding testimony on that particular subject. When
this occurs, the cross-examiner will attempt to run from that
area by moving to a subject in which he can elicit helpful
testimony. The problem for the cross-examiner is that he can not
unring the bell; the damage has been done. No matter how fast he
turns away from that subject, the direct examiner, if he had
been listening, has been given a chance to exploit this
unexpected gift and an opportunity to capitalize on this
information, offensively, in redirect. Specifically, the trial
lawyer can revisit this particular subject during redirect by
exploring it in greater detail and setting up an argument for
summation that would never have materialized but for the
cross-examiner's unintentional blunder.
Defensive Use
Redirect allows an attorney to explain and
clarify perceived contradictions, inconsistencies and
improbabilities. Unquestionably, one of the most frustrating
things that can happen to a witness is when he is prevented from
explaining or giving a complete answer on cross-examination. The
instruction by a cross-examiner -- 'My question simply calls for
a 'yes' or 'no' -- is one that is widely used by the skilled
trial lawyer. Indeed, the court, during cross-examination,
should force the witness to answer 'yes' or 'no' if such an
answer is responsive to the question. But the direct examiner
should be listening for cues or signals that can be used as a
basis to provide further explanation during redirect. Consider
the following answers. Each provides for a fertile line of
inquiry on redirect:
A: That's not completely true.
A: That's not exactly correct.
A: Yes, but...
A: Yes, I said that however...
A: May I explain?
A: That was not the only thing that happened.
A: Under certain conditions I agree.
Each of these answers cries out for
explanation. The trial technique used for rehabilitation is
similar to that used on direct examination; however, counsel is
generally permitted more latitude to lead on redirect to move
the testimony along. Despite the ability to lead, the redirect
examiner is better served by calling for explanation than
seeking one-word answers. Direct the witness' attention to the
area in need of repair and ask, point blank, for explanation:
Q: Let me direct your attention to the point
where you stated it was not completely true. Explain what you
mean by that.
Q: You told us on cross that was not the only
thing that happened. What else happened?
Q: You indicated that under certain
conditions you agree. What are the conditions?
Q: When do you disagree?
Needless to say, appropriate follow-up on
redirect can turn the tables in your favor.
Conclusion
Whether the issues are anticipated and prepared for, or an
unexpected surprise, a properly conducted redirect examination
can right any wrongs and turn negatives into positives. A word
to the wise: never underestimate the power of redirect
examination.
FN1. Gleason v. Metropolitan St. Railway Co., 99 A.D. 209, 90 N.Y.S. 1025 (1st Dept. 1904); People v. Bailey, 159 A.D.2d 862, 553 N.Y.S.2d 512 (3d Dept. 1990).
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Rhonda E. Kay, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
11/29/2007 NYLJ 3, (col. 1)
