Practice Tip: Prepare for Cross and Direct Early and Often

One simple way to make the process of drafting cross or direct examination less stressful during the days before trial is to begin it as soon as you begin working with ' or against ' a particular witness. Create a word processing file for that witness as soon as you know he or she exists. Whenever you are doing something in the months to come during discovery and thereafter that gives rise to a thought about cross or direct, open the file and add the relevant questions, or at least a note about the issue. This would be especially prudent right after a deposition and whenever an interaction with opposing counsel or a motion filed in the case reveals to you a new issue or angle in the case that you want to address with that witness. Likewise, as you are engaged in research regarding the medical or scientific issues that are at play in your case, you can simply add relevant facts or questions to your “file” as you go.

When the time comes to actually prepare drafts of the cross or direct examination you intend to use at trial, you will find that the job is made much easier by being able simply to access your file and incorporate into your outline the various issues you have flagged during the preceding months or years.

The few months before trial of a complex products liability case is without a doubt the busiest time in the life cycle of the case. Typically this time is spent working with witnesses, drafting trial briefs and trial motions, preparing opening statements, jury questions, and demonstrative exhibits, and drafting direct and cross examinations of the witnesses you anticipate will testify. The latter of these critical pretrial preparations can take a substantial amount of time, especially when preparing cross or direct examination for expert witnesses where the science in support of ' or in contravention of ' the opinions expressed is complex. Although it's not wise to begin to prepare cross or direct in the frenzied days or weeks before trial, it is often difficult to focus on trial examination of a specific witness earlier in the litigation.