London barrister Peter Brown wrote a book some years ago entitled “The Art of Questioning.” In one chapter he wrote: Last summer, a motorcyclist was arrested in Oxford, England, for speeding. The lady prosecutor bore in on the defendant with a curved question: “Mr. Setright, your motorcycle is capable, is it not, of exceeding the 70 mph speed limit? He answered: Certainly it can exceed that limit. But, the possibilities implicit in that physical ability are it relevant to these proceedings. We are not here to consider what I might have been doing, but for the prosecution to prove, if it can, that I was doing what they allege I was doing. Were it otherwise you might just as well be here accused of rape, simply on the grounds that I have the necessary apparatus.”
As to one’s mental attitude about cross-examination here are some thoughts to consider :
- the late trial lawyer John Appleman once pointed out that :” the advocate’s quest is for victory. The plaintiff receives no reward for putting up a brilliant battle but coming in 2nd. The defendant may be applauded even if the plaintiff manages some victory, but never true for the plaintiff. Cross-examination plays a major role in determining the outcome.”
- I think the lyrics from Jimmy Buffett’s great song Cowboy in the Jungle have meaning when dealing with cross-examination. The lyrics read: “roll with the punches and plow straight ahead come what may.” Maintaining a calm exterior when the answers aren’t what you hope for is part of the ability to cross examine correctly.
- The previous thought is consistent with baseball pitcher Steve Carlton who said that he always had been able to put a home run immediately out of his mind. He said: “that’s a vital trait for a successful pitcher”
- On the other hand, discretion is also advisable. There was a sign at the entrance to a mine shaft, where dynamite was being used, that read: “sometimes it’s better to curse the darkness and light a candle.”
- I think cross-examination does involve what has been called “the 6 P’s.” That refers to the thought that: “previous preparation prevents piss poor performance.””
I think most of us have at one time or another read Irving Youngers 10 Commandments of cross examination. His commandments were:
- Be brief
- Never more than 3 points. Two is better than 3. One best of all.
- Short questions, plain words.
- Leading questions only.
- Ask no question to which you do not already know the answer.
- Do not argue with the witness.
- Do not permit the witness to repeat his direct testimony.
- Reveal the significance of cross-examination in summation.
- Do not permit the witness to explain.
- Avoid one question too many
My own view is that these generalities are good advice. However, there are frequent exceptions to several of them. For example, regarding rule 5, in my experience there are multiple times when it is necessary or advisable to ask a question to which you do not know the answer. There are occasions where what ever answer the witness gives it will be helpful . There are occasions when the witness has created a frame where to not ask a “why” question would hurt the credibility of the cross examiner and make it appear he or she is afraid to ask the obvious “why” question. There are other exceptions as well .
As to rule 8, I Think it rare when it would be wise to conceal the significance of the cross examination and wait until summation. The rare exception might be where there is something significant in the exhibits that will be dramatic if brought out in summation. In the great majority of cases, the lawyer cross-examining the witness should spell out the significance of the questions and answers during cross-examination. Cross-examination is after all a story – your client’s story. Furthermore, the best time to argue your case is through your questions during cross-examination. Often hypothetical questions can serve as effective summation. making sure the jury gets the point during the cross-examination. Drawing attention to the significance of answers during cross examination makes far more sense to me than hoping the jury will remember cross-examination days later during summation . The drama of the moment will be lost than anyway in most cases.
As to rule 9, one should maintain appropriate control over the witness , but it is unlikely, in today’s trials that the judge will not permit the witness to explain. Even if the judge doesn’t let the witness explain lawyer often looks like he or she is trying to conceal or is afraid of the answers. It is more commonly true that the lawyer should be prepared to deal with the explanation at the time. After all, it is called cross-examination for a good reason .
William L. Dwyer was a great trial and and outstanding federal judge in Seattle . He was of the old school who accepted a variety of cases to be try, but he was particularly gifted in the area of anti- trust litigation. Bill was also my friend . One year, we conducted a several day legal seminar for trial lawyers at the University of Washington and he offered some rules for cross examination . They included:
- don’t cross-examine at all unless you gain something by .
- be brief
- be fair
- don’t argue with the witness
- keep deposition impeachment to a bare minimum
- don’t asked the judge for help
- use plain English – short words are best.
- Use leading questions
- Don’t gild the lily
- listen carefully to the answers
I think Bill’s last rule is the most important rule of all. In all aspects of trial, especially during jury selection, lawyers commonly make the mistake of really not listening to the answers. To make real contact with a juror you need to totally concentrate on what they are saying while they are saying it. In cross examination we too often are focused on an outline of questions we want to ask and miss significant statements witnesses make. We quickly move on with our planned cross examination and a golden opportunity is missed. Let’s all resolve to become great listeners as part of being great trial lawyers.