How To: Conduct Examinations in Trial - The Micklin Law Group, LLCWhat Are Examinations?

Examinations in trials are just questions. What are the different types of questions? Essentially, there are two types of examinations in trial. The first is a direct examination and the second is cross examination. They generally will go in that order. Each witness will first have direct examination, then the other party gets to cross examine that same witness. If there’s a need, the original party can go one more time with a second direct examination, or what would be called redirect. And sometimes there’s a second cross examination. The examinations don’t always go that long, but generally there’s going to be at least one direct and one cross examination.

Direct Examination

The direct examination is the person’s opportunity to tell their story. It’s either going to be conducted by the person, him or herself. If there’s no attorney, the examination will be conducted by that person’s attorney. The direct examination is going to be all open-ended questions: who, what, why, when, and how. It’s very important that you stay limited to this because you cannot ask any other type of question that may lead or suggest an answer in a direct examination.

The direct examination is your chance to tell your story. I generally advise people to try to avoid rambling. You don’t want to go too far off of a topic. As a guide, I suggest you keep your answers to five words or less. This is not a rigid rule – people don’t need to be up there on the stand actually counting how many words they’re saying. As a guide, though, if you go past five or 10 words, you probably are rambling.

If you have an attorney who’s questioning you, it’s the attorney’s job to direct you, which is why it’s called direct examination. It’s the attorney’s job to pull the answers out of you. You don’t need to be concerned with giving all the answers and just spewing everything out because you really want to keep it as concise as you possibly can.

Cross Examination

The second examination is cross examination, which is the other party or the other party’s attorney asking the questions. These questions are going to be all yes or no questions. They’re not going to be open-ended. Your answers are supposed to be limited to just yes or no, which can be very challenging for most people. I tell everybody to try not to get in your head. Don’t worry about what you think saying yes or not may suggest. Don’t worry what it sounds like to the judge. You can do no harm by answering the question yes or no. You can only do harm by adding something more like, “Yes, but,” because it’s what’s following that’s going to really be the problematic testimony.

There’s usually a second redirect, meaning you have a chance or your attorney will have a chance to clean up whatever you may have suggested that didn’t sound good on cross examination in the redirect. Don’t try to prove your points during cross examination. As challenging as it is, and I’ve been telling people this for 20 years, limit it to yes or no. Remember, though, that once you get up there, it’s very challenging to do so.

Now, I’ve share with you a very simple dialogue about questions and answers in trial. There are also a lot of rules of evidence that I can’t go into in this limited forum. Please explore our website, where you can get more information.

You can always call us at 973-562-0100 if you’d like to schedule a consultation. Feel free to subscribe to my YouTube channel for these How-To updates.

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