Young lawyers tell me the two most difficult areas for them in trial are jury selection and cross examination. It’s really a matter of experience, however. As for me, those are the two most enjoyable and rewarding things I do during a trial. There is a huge amount written and taught about cross examination. Here a couple of subjects about cross examination for you to consider written with basic fundamentals in mind.
THE FIVE STEPS OF PREPARATION FOR CROSS EXAMINATION
Great cross examination requires hard work in preparation. It should not be done “off the cuff.” So, what are the steps of preparation? I suggest that your preparation for cross examination should involve these five fundamental steps:
- Determine the goals. What is you want to accomplish with this specific witness? What testimony the witness will offer can be used to achieve a specific goal that supports your case or undermines the credibility of the witness? These goals should be focused and involve significant points or issues. Don’t waste your time and the jury’s time on minor matters or issues the jury will think you are being too technical or unfair in raising. Remember, your credibility is also being evaluated by the jury as they watch you work. Pick the big points and ones that are important. Focus on your case story and the case themes in making the selection. Decide what it is you want to show for each issue you are going to cross examine about. What is the goal for that topic? Be specific. Also, examine whether the issue advances your case. Does it make the witness sound like he or she is unfair, biased or just plain wrong?
- Divide goals into individual topics. Now reduce each point to a separate and individual topic. Arrange it so that, like a chapter of a book, it has a beginning, middle and end. Each of these individual chapters must be complete in itself and not dependent on another topic so that you can arrange each one in order and switch they as you choose or even omitted them at trial. Each of these topics should have a single goal like the title of a chapter of a book. They should be a complete unit that stands alone and is not dependent on any other cross examination issue you intend to ask about.
- Document the cross examination the next step is to examine the evidence and the previous testimony in the case. Locate anything that supports or documents what you will challenge the witness about. Try to have proof for each fact you are attacking or asking the witness about. Organize the material. Have the documentation organized so that you can find it and use it without any delay. If the documentation is a deposition the witness gave, you should have that portion noted with the chapter and with page and line number so you are prepared to immediately cite the source and impeach the witness without any fumbling. My cases involve depositions that are all videotaped. This preparation involves a video clip that can be immediately located on a bar code and played along with the hard copy documentation of the deposition. The key here is to be able to back up what you claim to be true and to be able to do it immediately so the jury realizes you are prepared and you know what you are talking about.
- Use Role Reversal Use role reversal to explore the witness’s thinking and attitude. What is the witness afraid about? What’s the witness’s motive? Is this a truthful witness or just a paid expert who is willing to say anything? Put yourself in the shoes of the witness. Step back from the case and move away from simplistic thinking. Really make an effort to see the case through the eyes of this particular witness. Now, do the same with the judge. What is the judge afraid of? Is the judge worried about losing control of the court room or a need to show “who is the boss here.”? Is the judge hyper technical about cross examination or thinks it is improper to directly challenge a witness in cross examination?
What about the jury who will watch and listen? How will they react to this particular witness and your planned cross examination? Not only should you gear your cross examination to the jury you must also decide what your demeanor should be during the cross examination. While you should have a consistent demeanor that reflects the authentic you, it is necessary to conduct portions or all of a cross examination which has in mind the correct demeanor to achieve your goals. For example, obviously, you don’t handle the poor defenseless widow the same way you treat the CEO of a major corporation. Your demeanor is important. There is an old proverb: “Don’t insult mother alligator until you cross the stream.” If you decide to attack the witness on any personal level you run the risk of any witness, but especially an intelligent expert witness, inflicting severe punishment by their testimony. Decide what demeanor is appropriate. Role reversal is a very important step in trial preparation. Psycho drama is a technique that involves this part of your preparation and should be studied.
- Divide the cross examination into chapters the last step is to organize each of the topics. Each topic and goal of your corporation should be created in such a way that it has only one major goal and is complete in itself with a beginning, middle and end like a good story is organized. After deciding on each topic you need to now organize them like you would organize chapters in a book. Select as the opening topic a strong point, usually one that deals with credibility. Select as the closing topic an equally strong point. Make sure both are fool proof and backed with documentation. Make sure they are also major and very relevant points. Organize the other topics as the chapters of the story in the middle. The organization should be such that you can re arrange them or even omit a topic if you decide to shorten the cross examination.
In addition to this preparation, you need to be prepared to deal with issues that come up during direct examination you are not prepared for. Those should be inserted into your outline at the appropriate place. The advantage of organizing your cross into individual chapters instead of an ongoing long narrative is that you can inject these topics in the best place within your prepared cross examination. Keep in mind that a very important part of cross examination is listening. Don’t be a note taker. Be a careful listener during both direct examination and cross examination. The Key to great cross examination is hard work in the preparation.
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 issuethe 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 the 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 them 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.