BASIC CROSS EXAMINATION PRINCIPLES
There are some fundamental principles of cross examination that should be observed in most situations. These include the following:
Make big points and ignore the details There is nothing more boring that a detailed, technical minute point by technical point in cross examination. Make your point a broad one without a lot of irrelevant details. Stick with big obvious points that the jury will see and understand without having to follow a lot of detailed information.
Tell the jury what you just did Don’t make the mistake of waiting until argument to explain to the jury the significance of your cross examination. Tell them then and there. Do it through the questioning of the witness by drawing the conclusion for the jury and asking the witness about it. The idea that one should save these often obscure points for later comes from a fear the witness will see it and change their mind, but it is a rare case where you count of the jury remembering obscure testimony or believing you when you cite it days later to explain why it was important. Don’t expect the jury to draw the conclusion even if you think it’s obvious.
Approach cross examination from a big picture view Don’t plan your cross examination looking through a microscope. No one cares and few will understand your detailed, intellectual and complicated points on cross examination. Nor do they care about a lot of insignificant issues that are unimportant to them. Not only that, the jury will assume you are hyper technical and not being fair to the witness. Make your points big ones and important ones as well. Use a rifle and not a shot gun.
Don’t answer every defense issue The defense will often create an issue out of the most insignificant matters. Confusion works to the benefit of the defense. If you try to respond to every point the defense throws out, you will not be focusing upon your case story. What you spend time talking about is what the case is about in the minds of he jury. Ignore the insignificant and concentrate on the important facts. Control what the issue should be in the case by talking about that and not a lot of other side issues.
Be consistent and stick to the main story You have a story to tell. You tell it starting in jury selection and continue it through opening statement, direct examination, cross examination and argument. You are telling one story over and over in different interesting ways. Cross examination is a continuation of your case story. Don’t be distracted from that story. Stick to the main theme and issue you have selected during cross examination.
Meet major defenses head on The defense will often throw out defenses which can hurt your case, but do so indirectly by implication or suggestion without making an out and out claim. Where there are important defense issues meet them head on. If there is an underlying issue that the plaintiff is exaggerating the injury without directly making the claim, point that out to the jury. Cross examine directly on the understated claim that prejudices your case. You must identify the claim out loud and meet it head on. Cross examine on the important issues that are relevant to the jury whether clearly raised by the defendant or simply implied or suggested.
The right to ask leading questions is a gift. Use it In most situations you will want to always cross examination from leading questions because of the ability to tell a story through that kind of questioning. It is best to use leading questions and tag or add answers when asking the next question. For example, following the admission the light was red, one might ask next "Now, when you saw the red light, you were driving over the speed limit, weren’t you? The use of leading questions and using the previous answer in the next question is a helpful technique on cross examination.
Listen, listen, listen When we are nervous and have a prepared outline we tend not to listen carefully and instead be focusing upon the next thing on our outline. We often think we received an answer to our question when the answer was evasive We often miss something significant the witness has said in the answer which we should follow up on. Concentrate on what the witness is saying. Go slow. Think while you work.
When impeaching, make sure you lay a foundation first Suppose you plan to impeach using an inconsistent statement from deposition. Before using it, first get the witness clearly committed so there is no question as to the inconsistency before trying to impeach. Otherwise the significance is lost. You also must be sure to lay a legal foundation so you don’t attempt an impeachment only to have the judge sustain an objection to proceeding. Do it right or don’t do it at all.
Be Brief Make your point and move on. Talk is not cheap when it comes to the jury having to listen.. They get bored. Make it interesting and brief. Hold they attention. Cross examination should mean "never a dull moment."
Make your point and quit Too many lawyers are unwilling to accept the gift of a concession or point made on cross and instead keep asking about the matter. This leads to the drama of the moment being lot and the witness backing off from a previous position taken. Don’t gild the Lilly. Accept your gift and move on. But don’t forget to pause long enough for the importance of what was said to sink in.
Be firm but fair Your credibility depends upon your demeanor and way you conduct the cross examination. You need to be firm, but you also need to be professional and fair with the witness. Make sure you get an answer, but don’t brow beat the witness to get it