Good cross examination usually begins, not at trial, but with discovery. This is particularly true in connection with depositions. Much of our cross examination resource involves our depositions. The mistake most lawyers make is that they are not thinking about the jury when they are deposing a witness, they are thinking about motions and the witness. Lawyers tend to think that the witness is the audience but in fact the real audience is a jury which has not yet been selected and that’s where the focus should be.
Some good ideas came out of a 1984 Gerry Spence participation at an ABA meeting about questioning an adverse witness. It involved a mock trial involving defamation. Unlike most lawyers who focus upon specific questions regarding individual issues, Gerry’s approach was to encourage the idea of freedom of press having a corresponding obligation of fair reporting. His approach involved a big picture story rather than a series of individual points. For example:
Q. You agree that no rights can exist without a corresponding duty? We have a right, to drive down the street but we have a duty not to drive carelessly?
Q. While we have a right to drive we also have a duty not to do so recklessly and injure someone? You would agree with that?
Q. You would agree, that you have a duty to be fair about you write?
If you think about cross examination you probably would agree with these general points:
- Develop a theme and stick to it.
- Keep it simple
- listen to the witness
- keep an eye on the jury, the judge in your opponent
- Remember the rule: “don’t strike a cane unless you slay him” don’t attempt to “crush” a witness unless you can do it.
- Keep a poker face even when you shoot yourself in the foot. However don’t be afraid to laugh at yourself in front of the jury.
- Do not ask the judge for help
- he who angers you has conquered you.
- Have the courage to ask hard questions and be prepared to deal with answers.
As to anger, in October 1985 a newspaper reported that during a trial for armed robbery in Oklahoma City the defendant was acting as his own attorney. Apparently the defendant, Dennis Newton, age 47, did a fair job up to the time the manager of the store testified and identified him as the robber. In cross-examination Newton became so angry and upset that he suddenly blurted out: “I should have blown your (expletive) head off.” Suddenly realizing what he had done he quickly added “if I had been the one who was there.” The paper reported that it took the jury only 20 minutes to convict him of armed robbery.
Then there is the actual example about the importance of simplicity from a transcript of a trial in Tallahassee Florida where a defendant was charged shooting another man in the groin. The direct exam by the prosecutor went like this:
Q. Ms. Brown you were in the bar having a drink with James?
Q. Tommy Lee entered the bar and came over to where you and James were sitting?
A yes sir, he did
Q he yelled something at James and hit James in the mouth?
A yes sir, that’s what happened.
Q James stood back up and hit Tommy Lee?
Q and then Tommy Lee pulled out his gun and shot James in the fracas?
The witness hesitated. She glanced up at the judge, look back at the district attorney and then said: “no sir. Just above it.”