Jim McElhaney has been writing about trial practice for as long as I remember and I’ve been reading what writes every since I discovered him. One of the only reasons I continue to belong to the American Bar Association is to get their journal and read his writing McElhaney on Litigation. I’ve always had Melvin Belli’s bias about the ABA. When they terminated his membership for some perceived infraction he said it was like being kicked out the Reader’s Digest Association. I’ve see the ABA as a big law firm, establishment organization, so I’ve never understood how McElhaney publishes in the journal since he always make total common sense about real trial lawyer practices and doesn’t write for "litigators." . In the last issue he wrote an excellent piece on cross examination that all trial lawyers should read. It’s entitled It’s All About You. Here are some of his excellent observations.
Cross examination is your opportunity to tell the rest of your client’ story.There are three basic ways to do this: First, there is what McElhaney calls "constructive cross." You use the witness as your own to prove issues in your case. Second, there is "destructive cross." You expose holes either in what the witness has said or other parts of the defendant’s case. The third is to attack the credibility of the witness.
McElhaney says the most important thing to remember is that on cross examination you are the real witness. To do this, he says you should only ask leading questions to maintain control. Next, ask short questions to limit the ability of the witness to be evasive .Always use simple language so that everyone on the jury can easily understand. Some of the words he suggest avoiding are: prior, subsequent, relative to, occur, did a time come that.. and state whether or not."
McElhaney maintains you should avoid what he calls "useless" introductions. He identifies these as:
- "it’s true, is it not…"
- "Isn’t it a fact…"
- "Are we correct in assuming…"
- "Tell the ladies and gentlemen on the jury…."
He also characterizes as "needless tag endings" things like: "isn’t that true; Isn’t that correct? right? that’s correct, is it not and isn’t that so." As a personal observation I would agree that to use these reptitiously would be a bad idea, but there are times when for emphasis they should be used.
I also thought his observation about mistakes many lawyers are very true. He points out that it is not the purpose of cross to clarify the testimony on direct or clarify confusion. You also need to make sure your questions and demeanor do not communicate to the jury that they can trust the witness, because you obviously think the witness is trustworthy.
This wasn’t a lengthy article, but it was filled with common sense ideas. I’ve saved it for the lawyers in my office.