Why Is The Junior Lawyer Saddled With Direct Exams?
How should courtroom duties be divvied up at trial? Here's what in-house columnist Mark Herrmann thinks.
When you second-chair a trial, you’ll sit down with the senior partner to divide trial responsibilities.
The senior partner will announce: “I’ll open and close, and I’ll do the cross-examinations. You handle the directs.”
Or, if she’s slightly more sophisticated, the senior partner will announce: “I’ll open and close, and I’ll do the cross-examinations. You handle the directs. But this is a long trial, and I can’t just sit there silently through the entire last week of trial while you do directs and the other side cross-examines our witnesses. So we’ll pick one direct examination for me to do, and we’ll have you handle one cross. That way, I’ll play a small role in presenting our case, and you’ll speak a few words during theirs. Which is the easiest direct exam? I’ll take that one.”
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Why does the senior partner graciously choose to divide the work this way?
Because she’s smart.
Although opening statements and closing arguments are (correctly) perceived to be critical parts of a trial, those presentations can essentially be scripted, with the words and exhibits plotted out in advance. (By “scripted,” I of course don’t literally mean “scripted.” Only a fool reads (or memorizes) an opening or closing. I just mean that, before counsel stands in the well, he knows generally what he’s going to say, and the foreseeable kinks have been worked out in advance.) That makes opening statements and closing arguments – as opposed to, say, voir dire — relatively easy sledding. (Again, the fact that they’re relatively easy to do doesn’t mean that any clown can do them well. It just means that any clown can relatively easily stand up and give a clownish performance.)
In a sense, an opening or closing would be the best part of trial to assign to the junior lawyer: The performance is largely a set piece, so it’s harder to screw up. (A client might object to having the junior lawyer open or close, but the trial lawyers should see the logic of what I’m saying.) Despite the logic, senior lawyers rarely give away openings or closings; they’re too easy, and too much fun!
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(Legal practice is often odd that way. What’s the easiest argument for a lawyer to present right out of school? A motion to dismiss or an appeal that presents only a legal issue. Law school is pretty good at teaching law, so an able student might do a perfectly nice job arguing legal issues. What arguments do law firms in fact typically ask their junior lawyers to handle? Discovery disputes. That’s weird: Discovery spats are often factbound and may require a real sense of touch. You’d think that was where experience mattered. I suppose the stakes are often lower in discovery disputes, but, as a matter of theory, they’re not really the best training arguments.)
Anyway, the senior guy takes the opening and closing. And then he takes the cross-examinations. Why? Because they’re fun! You can score real points on cross, reducing the opposing expert to tears and thus demonstrating your brilliance!
Better still, cross-examinations are, in a sense, easy! To prepare, you sit alone in a room, thinking through the points you want to make, the best way to make them, and the best material to use for impeachment when the witness tries to wiggle. You prepare at your own pace and to your own satisfaction.
In contrast, direct examinations are a pain to prepare. You must sit with another human being — the witness — and figure out what the person knows. You must script the testimony to your mutual satisfaction. You must prepare the exhibits and demonstratives. And then, at the trial site, instead of sitting alone in a room preparing for the next day of trial, you’re converted into a babysitter: You must rehearse with the witness, calm the witness’s nerves, and tend to the witness’s concerns.
That’s a pain in the neck. It’s much easier to assign responsibility for direct exams to your junior colleague.
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It’s not only that. There’s also very little chance to look like a hero on direct. The witness is, after all, yours. The testimony should support your case, and the witness should be credible. That’s expected. If the witness performs brilliantly (and is untouched on cross), then you’ve done no more than what everyone expected: The highest possible grade for your performance is a “C.”
On the other hand, if the witness forgets something, or shows his nerves, or cracks on cross, then you’re a failure. It’s “F” city.
Who needs to play a game where you can draw or you can lose, but you can’t possibly win?
Assign the direct exams to the kid!
I recently had the good fortune to sit through a few weeks of trial in an English courtroom. And I realized this: When I grow up, I want to be a barrister!
In England, the barrister is the guy who speaks in court. He does essentially none of the pretrial tedium, and he gets all of the stand-up glory. That’s a pretty good gig: The barrister naturally gets to open and close in every trial.
But it’s better than that! There are no juries in typical English civil cases, so the parties submit all direct testimony in writing before trial. The tedium of drafting the witness statement thus falls to the solicitor, who’s conveniently available to blame for any errors in it. And, because the direct testimony is in writing, there are no direct exams. There are thus no games for the barrister to draw or lose, without an accompanying chance to win.
But it’s better than that! English rules of ethics forbid lawyers from preparing witnesses to testify. You can explain the trial process to the witness, but it’s improper to discuss with the witness the questions he should anticipate or to conduct a mock cross-examination. That’s great! When the witness flames out at trial, it’s not the barrister’s fault! “You know how it is with witnesses. We’re not allowed to prepare them, so you just tee ’em up and see how it goes. Maybe tomorrow’s witness will do better.” (Actually, in England, the barrister would sound more like this: “I do say, what a terrible shame. The witness was a fair bit from brilliant.”)
The English system thus eliminates the hard and dangerous parts of the direct examination process. But it still gives you all the glory of cross! The other side puts a witness on the stand, has the witness adopt the written statement as true, and then offers the witness for evisceration. What fun!
So I’ve now answered for you two burning questions:
Why were you assigned all the direct examinations at your first trial?
And:
What do you want to be when you grow up?
Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.
