Cal. Litig. 2016, VOLUME 29, NUMBER 3

Direct and Cross-Examination

By e. robert (bob) wallach and Brian J. McCormack


Cross-examination gets all the glory. Watching Perry Mason and L.A. Law, viewers see the hero annihilate a witness on cross. And lawyers love to share war stories about how they destroyed a witness on cross. But cases are usually won by presenting the evidence in your case in chief, i.e., cases are won as a result of direct examination. It’s on direct examination that you present the substance of your case: your client’s version of disputed facts and your key evidence (your documents, writings, and demonstrative exhibits).

But there is an important corollary: Jurors evaluate a witness’s credibility on direct exam based on their composite view of the witness’s performance under cross-examination. Judgment is suspended until the witness goes through the crucible. Jurors expect a witness to do well on direct. Direct examination is pivotal to credibility. The likelihood of being believed on cross-examination begins with the belief in the witness on direct exam. The circle is closed when the jurors — now satisfied that the witness has withstood the rigors of cross-examination — conclude the witness is credible, with the groundwork having been laid on direct exam. The witness favored is the witness the jurors want to succeed.

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