Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don’t overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage “Never ask a question at trial you don’t know the answer to” is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don’t need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn’t it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I’m sorry you broke your arm from the impact of this collision; I’m assuming a good young man like you would never have made a claim against your own mother, you didn’t did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client’s back injuries. In fact, the pictures of the damage to my client’s vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client’s claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother’s insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn’t it true that… is an easy way to ask just about anything. Then don’t forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You’re cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors’ minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don’t paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client’s version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don’t forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client’s position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren’t helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don’t cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don’t overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client’s version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.
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