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:

1. 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?

2. 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 them 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.

3. 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 video taped. 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.

4. Use Role Reversal Use role reversal to explore the witness’s thinking and attitude. What is the witness afraid about? What’s the witnesses 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.

5. 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.