OBSERVATIONS ABOUT CROSS EXAMINATION

OBSERVATIONS ABOUT CROSS EXAMINATION

GOALS OF CROSS EXAMINATION

Lawyers sometimes fail to prepare for cross examination in the same way they do other parts of the trial. They just launch off without any particular objective other than an impeachment they have available. They just have a general sense they want to prove the witness is wrong or a liar. That’s why cross examination is often not only unsuccessful but, boring. Great trial lawyers plan their cross examination and have specific goals in mind. We all know the general goals of cross examination which include these:

   1. Demonstrating the bias of the witness to undermine the testimony offered
   2. Demonstrating the inaccuracy of the testimony offered
   3. Demonstrating the testimony or evidence that supports the cross examiner’s case

Obviously there are many sub categories under each of these topics plus other general goals depending upon the issues in the case, but these are the overall goals of cross examination. We need specific focused objectives thought out and planned in advance. These specific goals need to be further refined into individual topics or subjects. Just as a book has chapters the cross examination needs to be divided into separate topics each with a specific goal.

The major over all goal is always credibility. In addition, the primary overall goal is also to control the impression the witness makes on the judge and jury. Since the testimony of a witness is evaluated by the jury on the basis of impression more than anything else, cross examination which impacts the impression the witness makes is the most significant part of the examination. If the witness is not believable, it matters little what is said by way of testimony. Areas of bias, self interest, prejudice, omission of facts, inconsistences and relying upon wrong facts are all very important areas for cross examination because they impact both credibility as well as impression.

However, the essential thing is to have very focused goals for cross examination. This is not a time to “wing it.” Nor should you assume that because you have an inconsistent statement, that’s all you need to show. You have to have significant points that are relevant to the case and which impact the credibility of the witness and the impression the witness makes. You are also advancing your case story and supporting your case in the process.

ONE METHOD OF CROSS EXAMINATION

So, what is the right method for cross examination? Here is one approach:

Role Reversal

(1) Become the witness
(2) Identify what the witness is afraid of/devoted to/motivated by
(3) Why is the witness afraid, devoted or motivated by?

What is the story

The cross must advance your case (1) Determine the story you want to tell (a) The witness’s story (b) The Client’s story (c) The Juror’s story (d) The Plaintiff’s expert’s story (e) The Universal story

Applying this approach to cross examination will result in improved and more successful cross examinations whether of lay witnesses or expert witnesses.

THE FIVE STEPS OF PREPARATION FOR CROSS EXAMINATION

In addition to following the general method of cross examination cross examination requires a specific preparation. It’s my recommendation these fundamental steps to prepare for cross examination.

  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 an 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. Apply Psycho Drama. 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. Spend quality time on this important part of the preparation.
  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 past 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:

  1. 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.
  2. 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.
  3. Don’t answer every defense issue The 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 he 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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 they 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.
  10. Test your cross examination If the witness and case is important enough consider a focus group. You can show excerpts from the expert deposition video if available. If not, you explain the things you think should be brought out on cross to test how important people think they are. If it doesn’t justify a focus study, try them out on non lawyers. See what their reaction is to the points you think are important. Don’t waste your time doing this with lawyers as they don’t think like normal people. However, you can get helpful advice on things like framing the question. A medical expert who offers opinions in conflict with the treating doctor has the problem that they are not the “hands on” physician who provided the care. The highway engineer whose opinions are in conflict with the highway patrolman has the same problem. The problem of the expert who wasn’t at the surgery or didn’t provide the medical care and the engineer whose opinions are in conflict with the engineers who designed the product are the same. Unless the treating doctor or engineer who designed the product can be shown to have failed to do what should have been done, there is a problem with the expert who comes after the event to offer an opinion.

CONCLUDING THOUGHTS ABOUT CROSS EXAMINATION OF EXPERTS

Most of the same principles that apply to cross examination of non experts apply to experts. For example, whether an expert or not, it is generally a very bad idea to ask for help from the judge during cross examination. Even if the judge grants your motion to require the evasive witness to answer the question, the jurors perceive the lawyer as being “weak” and in need of assistance. An even worse impression of the lawyer is created where the judge refuses to assist the lawyer during cross examination. In general don’t be a cry baby. Fight your own battles with the witness in a firm and professional manner. The old proverb “don’t strike a king unless you slay him” applies to cross examination. Don’t try to crush the witness unless you are certain you can do it. You also must have permission of the jury before you make a frontal attack on basic overall credibility of any witness but especially an expert witness. Look for commonly accepted principles that are relevant to your case that most jurors already believe and accept. Use them in cross examination if they fit your case. For example: (1) A chain is only as strong as it weakest link (2) Appearances are often deceiving. (3) It’s better to be safe then sorryor (4) Actions speak louder then words

With expert witnesses it is usually a good idea to limit the scope of the examination. You don’t have to ask about everything that was testified to and the more you talk about, the more you offer an opportunity for the expert to add to the damage already done. Find the key points and concentrate on them. Always focus on credibility primarily and make sure you can back up what you are claiming in cross examination.

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