CROSS EXAMINATION THOUGHTS WORTH CONSIDERING

While a lot has been written about the subject of cross-examination, it is a difficult subject that deserves our attention. Here are some observations that are not particularly original nor profound, but perhaps worth considering when preparing for cross examination.

In April 1988 the United press published an article about a skydiver in Lewisburg, North Carolina who died while parachuting. The article said:

“A veteran sky diver, who fell 10,500 feet to his death, apparently forgot to wear a parachute in his excitement to film other skydivers, police said after seeing footage taken by the man during his final free fall. Ivan Lester Maguire, 35, of Durhm, died in the bizarre accident Saturday. Capt. Ralph Brown said, after reviewing the tape yesterday, “it sounded like he may have said, ‘Oh no’, right after his left hand came into view. Maguire was a veteran of more than 800 jumps.”

This tragedy illustrates the importance of preparation no matter how experienced you are or your confidence about your skills. The Boy Scout motto “be prepared” is a good one for all trial lawyers to remember when preparing for cross examination..

With that in mind,here are ten fundamental rules for cross examination:

1. Talk is not cheap in cross-examination. While cross-examination should mean “never a dull moment” keep in mind the late Bishop Sheen’s advice about giving a sermon: “A sermon is like drilling for oil. After the 1st 10 minutes, if you haven’t struck oil, don’t bore any longer.” Cross-examination is a retelling of your story but simply and briefly.

2. Choose your words carefully and keep the question short and simple.  This rule is illustrated with a true story reported in a Tallahassee, Florida. newspaper article. It reports that the prosecuting witness was testifying and the district attorney was questioning her. He said: “Ms. Brown, you were in the bar having a drink with James?” “Yes,” she said. “Then Tommy Lee entered the bar and came over to where you and James were sitting?” “Yes, sir, he did.” “Then James stood up and hit Tommy Lee?” “Yes.” “And then Tommy Lee pulled out of his gun and shot James in the fracas?” The witness hesitated. She glanced at the judge. She looked at the district attorney. And then lowered her eyes and quietly said  “no sir, just above it.” Too many lawyers want to show how intelligent they are by using technical terms and abbreviations. Their role is to have the jury understand what you mean and not to impress them with your knowledge or intelligence. Use simple words.

3. Follow the yellow brick road. In the Wizard of Oz everyone had a specific goal. Dorothy wanted to get back to Kansas. The scarecrow wanted brains. The lion wanted courage. The tin man wanted the heart. We too must know what our objective is before we ask a question in cross-examination. Then we should concentrate on a few major points only and sit down.

4. Be fair but firm. The great Mohamed Ali was fond of saying “float like a butterfly, but sting like a bee.” Calmness and professional firmness are what is expected by jurors who are identifying with the witness not the lawyer. Be firm but not mean.

5. Do not strike the king unless you slay him. This proverb is important in cross-examination. Jurors will not tolerate a lawyer attacking a witness unless the witness deserves it and the jury approves of it. Another way of saying this is to remember the proverb “do not insult mother alligator until you have already crossed the river.” The witness can cause major damage to the cross examiner if the attempt to discredit is done ineptly.

6. You may not slay the witness until the jury approves it first. When Roman gladiators fought and one was defeated but survived, the victor was not allowed to kill his opponent until the Emperor gave approval. The Emperor in your case is the jury. An unapproved attempt to attack the witness personally will motivate the jury to punish you.

7. Never ask the judge for help in controlling a witness on cross examination. If you violate this rule you signal the jury that you are not in control and the witness is stronger than you are. The jury’s perception you are weaker than the witness undermines cross-examination credibility.

8. Keep a poker face even if you shoot yourself in the foot. This rule is illustrated by a true story.In 1985 Dennis Newton was on trial for armed robbery in Oklahoma City. During trial he decided to fire his lawyer and act as his own attorney. After the verdict the district attorney was quoted as saying Newton was doing a fair job until the manager of the store testified and identified him as the robber. At that point Newton jumped up, and shouted at the woman that she was lying and then said “I should’ve blown your (expletive) head off.” He stopped for a moment and then quickly added “if I had been the one who was actually there.” It took the jury only 20 minutes to convict him. This illustrates the need for professional calmness and control throughout cross-examination irrespective of the testimony.

9. Have courage based on preparation. The often quoted rule about cross-examination which we are told must never be violated is: “Never ask a question you don’t know the answer to.” If you follow that rule you will never be a great cross examiner. Too often a witness unexpectedly raises an issue which opens up a subject  the jury wants to hear about. The expert witness may inject an unresponsive questions like: “Would you like to know why? If it is likely something jury does want to hear about it should not be ignored. While it doesn’t have to be immediately dealt with in all cases, if ignored the jury will assume the worst for having done so. Great preparation means that you should be prepared for virtually anything that’s thrown at you and if you believe in your case you should be prepared to deal with it. You have to maintain control and you can’t if you’re afraid to deal with the “elephant in the room.” Political advisor to Nixon Charles Colson, used to have a sign on his wall that said “once you have them by the balls, their hearts and minds will follow.”

10. Three of the most important rules of cross-examination are: listen, listen and listen. The biggest mistake lawyers make is being focused on the questions they have prepared to ask and not the answers the witness is giving. Wonderful opportunities and  testimony are often missed because the lawyer is focusing on the next question and not listening to the testimony. Answers that don’t make sense need to be explored and to hear them you have to listen. In the book Catch-22 Milo Mindbinder explains his money making scheme which he claims will make a fortune by buying eggs at $03 each and selling them and $02 each. When he’s questioned on how he could possibly make money doing that he answers “volume. Volume!” Listening and pursuing are important parts of cross-examination.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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