SOME THOUGHTS ABOUT CROSS EXAMINATION

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:

  1.  Be brief
  2. Never more than 3 points. Two is better than 3. One best of all.
  3. Short questions, plain words.
  4.  Leading questions only.
  5. Ask no question to which you do not already know the answer.
  6. Do not argue with the witness.
  7. Do not permit the witness to repeat his direct testimony.
  8. Reveal the significance of cross-examination in summation.
  9. Do not permit the witness to explain.
  10. 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:

  1.  don’t cross-examine at all  unless you gain something by .
  2. be brief
  3.  be fair
  4.  don’t argue with the witness
  5.  keep deposition impeachment to a bare minimum
  6. don’t asked the judge for help
  7. use plain English – short words are best.
  8. Use leading questions
  9. Don’t gild the lily
  10.  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.

 

 

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