Direct on re-direct

 Posted By: je froilan m. clerigo
17-Dec-2007

The other lawyer's just finished his cross exam of your witness. You don't think there's any need for re-direct questions. Going over your notes, however, you realize that there are questions you forgot to ask in your direct examination earlier.

Or, you're already mid-way in your re-direct examination when you realize these "forgotten" areas of the direct exam. If you ask them, you can be reasonably sure that the opposing counsel will object that that the re-direct examination questions were improper because they're beyond what's asked during the cross exam. And, you feel he'll be sustained because the rules say that on re-direct, you're not allowed to ask questions on subjects that were not touched during the cross.

What do you do? Your questions are really important and this witness is the only one who can answer them because it's only she who personally knows the facts you'll be asking for in your questions. Recalling her to the stand to answer your additional questions will be too cumbersome because then, you'd need the court's permission to do so. Also, telling the court that your ground to recall the witness was because you forgot to ask questions the first time around just doesn't make you feel comfortable.

So what to do?

You ask the court for permission to ask questions not touched during the cross. These are called additional direct examination questions. The court usually allows them because the other party's still allowed to conduct cross-examination on these additional questions.

As part of their power to control the conduct of trial, judges have much leeway in allowing or disallowing questions by counsels. Obviously, the rule-makers can't provide for every eventuality during trials, and the higher courts will generally not reverse the judge except for grave abuse of discretion.

As long as you don't make a big fuss out of it, most requests of this nature will be granted by judges, especially if you admit your mistake and you apologize to the court and the other lawyer. So, don't worry: you may stumble at first but the courtroom is much friendlier in this part of the world than you would actually think.