Category Archives: Cross Examination


I have been reading a book written by Martin Meredith Nelsen Mandela. One of the chapters deals with the arrest of dozens of South Africans who were resisting apartheid. Charges of conspiracy against the government had been filed against 156 defendants. Vernon Berrange was one of the defense lawyers. His opening address is a good illustration of the need for us to elevate our case above just the interests of our client and demonstrate how it impacts a far more important principle or the community. He started off by saying:

“What is on trial is not just the individuals but the ideas they openly espouse. Not only will the accused defend these ideas; they will show that they were the victims of political kite flying by the government to see how far it could go in stifling free speech. This trial has been instituted in an attempt to silence and outlaw the ideas held by the accused and the thousands whom they represent. This is no ordinary trial but is rather a battle of ideas between those who want equal opportunities and freedom of thought and expression for all races and those who sought to confine the riches of life to a minority.”

A couple of examples of cross examination  were entertaining. Berrange on cross examination demonstrated that an expert witness produced by the government had lied about being a university graduate and a lawyer by forging his certificate and practicing fraudulently. He said to the witness:

Q.  When did you last do an honest days work?
A.  Ican’t remember.
Q.  You have lived a life of lies and deception.
A.  I cannot be able to check that.

Another expert witness was called. A professor of Philosophy at the University of Cape Town. He testified as an expert on communistic writings and speeches. He examined speeches made by the defendants and described them as being communistic. On cross examination Berrrage read  a series of  extracts of statements and asked the witness to tell him whether they bore evidence of communist tendencies. The first concerned the need for worker cooperation. Communistic said the witness without hesitation. The lawyer disclosed that the author was a former Prime Minister of South Africa. Then he read  two more extracts. Again, the witness declared them to be clear evidence of communistic speeches. The lawyer disclosed that one was Woodrow  Wilson and the other Franklin D Roosevelt, both former U.S. presidents. The climax came when he read a passage which the witness described absolutely as being communist “straight from the shoulder.” With some glee Berrage pointed out the person who wrote it was the witness himself!


Often we find ourselves most apprehensive about one kind of cross examination – that of experts. Usually it’s because we have learned from experience that this class of witness rarely is there as an objective scientist or qualified expert. Rather, they see their role as co-counsel to the lawyer who hired them. An advocate for the side that paid paid them to become an expert. When you combine that attitude with experience in being cross examined, certain tactics are often developed by the expert to evade being totally candid or  even responsive to the question. For this kind of  expert witness it is rather  like a contest or  game. If you add to that a  witness who has an ax to grind, for example a doctor who believes all medical malpractice lawsuits should be eliminated as an attack on the profession, you can also have a witness  who believes the ends justify the means. Honesty and objectivity are not ethical standards  they adhere to  when testifying. Certainly there is no formula or secret code book that will tell you how to cross examine every expert. There are, however, some general principles worth considering. Here are a few.

1. Do your homework  If there is one kind of witness you must prepare cross  examination for it is the expert witness. You usually have their deposition in your case. It must be studied and outlined for helpful testimony. That means being prepared with the statement, the page and  the line number. It also means a video clip of  the statement, if  the deposition was video taped, saved  in a way that allows it  to be played immediately, without fumbling  or delay. It means having  your copy of the deposition and being  able to provide the witness with a copy,  without having to take the original away from the judge so he or  she can follow along. It also means  collecting any other depositions the witness has given and studying those in the same way. Looking for articles, seminar talks, web material or social media material as well as advertising involving  the witness. It also involves an outline which you follow. One that deals  only with major points and not knit picking.

2.  Cross examination is a battle of  impression & not logic  Whether  you “win” or “lose” the cross examination struggle depends upon the impression you and the witness create. We know that people decide on the basis of  how others look, how the sound, how they are dressed and on their passion as well as their credibility. It’s not about substance. it’s about style. Keep in mind the majority of communication is made non verbally.

3. Be clear, be brief and then stop.  The classic mistake most lawyers make is that the talk to much and too long. That’s particularly true in cross examination. Think in terms of television programs about law and trials. The jurors bore easily. They are particularly paying attention with certainty only two times  during cross examination. When you start and when you finish. Have a good start and a powerful finish. Do not assume the jurors  will understand the point you make unless you say it for them. “So, what you are saying is….” or “that means….doesn’t it?”  Do not save points for explanation during final argument. As appealing as the idea that you can make some dramatic point in final argument, the fact  is that in a long trial it is too late. Make your points clear to the jury

3.  The general goals of cross examination  In my view the single most important goal is to undermine the credibility of  the witness. If you do that, it makes no difference what opinions they  express. Goals include (a) bias (b)  self interest (c) inconsistent testimony with evidence (d) with previous testimony (e) with common sense and (f) failure to be fully informed  about the facts.

4.  Stay focused  Nothing is worse than the lawyer being distracted and diverted  from the theme or issues  in the case. Keep a big picture view of the case at all times and avoid chasing after minor distractions or issues. Concentrate on a few big points. Think of using a rifle and not a shot gun. Have a consistent theme you stick with. Use leading questions. Keep a calm demeanor and never show panic or fear. Remember, there are times when the witness  says something that you must follow up on even if  it requires a “why” question or leads to  areas you are uncertain about. If  you know your case and you are prepared you should be able to do this without fear of serious damage to your case. The failure to follow up on something the witness says can be seen by the jury as the witness was  right and the lawyer was afraid to go into it. This only applies  to major points  however.

5.  The five steps in preparing your cross examination Here is a five step plan  for  preparing cross examination of the expert:

(1)  Determine your objectives & make them major ones. Know exactly what you want to establish and why before you start

(2) Organize back up for each objective. Have your document or  impeachment ready and immediately available. Be sure you are prepared for a denial or attempt to evade with back up that isn’t just arguing

(3) Divide your objectives into separate sections. Have each section a complete package with your approach and your documentation

(4)  Organize your objectives by priority. Have a strong start and strong finish. Determine which points are more important than other  ones. Be prepared to discard sections if needed.

(5) Organize your total cross examination as it were dividers in a notebook. If stored in an I-Pad or computer or notebook, have it arranged so you can see an outline of the entire cross examination and have the ability to skip to another section at will. Have your backup documentation immediately available in an organized manner.

Whole textbooks and many of them have been written about this subject so this is only a brief outline of ideas. Good luck.


I’m still in Scottsdale undergoing therapy following a failed knee revision surgery so I’ve not kept this current as  I usually do. However,  here are some thoughts about deposition and cross examination for you to consider

T. Evan Schaeffer has written a very good outline of deposition practice tips for taking a deposition. “Forgetful witnesses, spotting liars, difficult opposing counsel and more” Written for the less experienced lawyer, it is nevertheless worth reading. See:

I think  lawyers have problems with cross examination because they don’t approach it with the right mental attitude. Too often they assume it is a conversation where you can expect a good faith effort to communicate. Instead, the witness, especially the expert witness, sees it as a contest. There are many good rules that apply to good cross examination, but one of the most fundamental deals with the length of the question. By limiting the question to one subject at a time one can march a witness through a story.  Witness attempts to evade become obvious.

Lets take the nursery rhyme “Jack and Jill” Here is the story and  let’s suppose it is the story we want to tell on cross examination:

Jack and Jill went up the hill

To fetch a pail of water.

Jack fell down and broke his crown,

And Jill came tumbling after.

Up Jack got, and home did trot,

As fast as he could caper,

To old Dame Dob, who patched his nob

With vinegar and brown paper.

So, how do you tell this story on cross? It’s so simple the temptation is to put it in a couple of questions. But you run the risk of the witness not cooperating. More important the impact of the story is greater when told in short points.

Q. Jack and Jill did go up a hill, didn’t they?

Q. They went there to get a pail of water true?

Q.  Jack fell down didn’t he?

Q. He broke his crown, isn’t that so?

Q. Jill came tumbling after Jack didn’t she?

Q. Jack then got up didn’t he?

Q. Jack trotted home true?

Q. Jack trotted as fast as he could didn’t he?

Q. It’s true that old Dame Dog patched his nob isn’t it?

Q. she used vinegar and brown paper didn’t she?

If you divide your cross examination into subjects or specific point you want to make you  are able to organize these in order of importance. Then, taking each chapter of your cross examination break the sub points into short simple leading questions. If you combine more then one subject you offer the witness a chance to argue or evade. Arranging your sub points as a story then puts you in control as the  story teller.

Be sure you have at your finger tips any documentation to use to impeach the witness.  Even where the witness denies the question if you move forward with your short questions you are telling your story.