By Gerald A. Klein
While direct examination may be the hardest - and most important - part of any trial, cross-examination is usually the most fun. Unfortunately, most lawyers do not cross-examine witnesses well and forget that the purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. The following eight steps will help you create effective cross-examination that will advance your case.
Step 1. Do I Need to Cross-Examine the Witness?
Many lawyers launch forth like lemmings jumping off a cliff and cross-examine witnesses without asking the question: do I need to cross-examine this witness? Some lawyers believe they are not doing their job if they do not ask at least some questions of a witness. But, often, cross-examination will add nothing to your case. If cross-examination of a witness does not help your case, then let the witness go without asking a question. Asking a few harmless questions of a witness only suggests to the jury you believe the witness is worth questioning. Asking no questions of a witness can minimize the importance of that witness in the juror's eyes, as you obviously did not feel the testimony was significant enough to challenge.
Witnesses who present only foundational facts should not be cross-examined. Likewise, even important witnesses, who are not likely to be shaken from their direct testimony, should not be cross-examined as you will only reinforce the testimony through your questions. Accordingly, before you open your mouth, evaluate whether a particular witness should be cross-examined at all or whether it makes more sense to move on.
Step 2. Determine Your Goals for the Witness.
In developing your cross-examination plan, determine what your goal is. Is the primary purpose of cross-examination to attack the witness's credibility? Is it your plan to have the witness concede key facts you will not be able to obtain from other witnesses? Is it your plan to have a particular witness confirm key elements of your own case? As Yogi Berra once said, "if you don't know where you are going, you will wind up somewhere else." Make sure you know where you are going.
If your goal is both to elicit important testimony from an adverse witness as well as destroy her credibility on other points, then elicit the helpful testimony before you have destroyed her credibility. Otherwise, you may undermine the helpful information you want from the witness.
Step 3. Make Sure You Have a Cross-Examination Plan.
Every cross-examination should be planned. There are a handful of lawyers who are so gifted, they can make up cross-examination as they go. More likely than not, you are not one of these lawyers. Usually, attorneys who "wing it" on cross-examination are ineffective - or worse - become victims of their own questions.
For the overwhelming majority of us, preparing cross-examination in writing is essential. At a minimum, you will need to prepare a written outline of the points you want to make and have ready citation to exhibits or transcripts for impeachment if you catch the witness in a lie. Jurors get impatient seeing lawyers fumbling through a transcript desperately trying to find a point of impeachment. Moreover, by the time the fumbling lawyer finds the impeaching point, jurors have often forgotten the purpose of the impeachment. Worse yet, if the attorney cannot find the point of impeachment while the jury is waiting, the attorney looks silly and the witness looks even more credible. Effective cross-examination requires the cross-examining attorney to be able to challenge an incorrect answer in a moment's notice.
In addition, effective cross-examination does not move from one point, to another point, and then back to a first point. Disjointed cross-examination comes off as scattered and confusing. The more you can tie cross-examination to particular subject matters in an organized fashion, the easier it will be for jurors to understand exactly where you are going and the easier it will be for you to make your point.
Step 4. Keep it Short.
In direct examination, we lay out a detailed story to present our case. Effective direct examination can last all day as the witness paints a detailed picture of the case through your questioning. In cross-examination, our goal is simply to undermine the other side's story or to confirm points in our story. Virtually every question you ask in cross-examination either makes a point or sets up the next question that will make a point. Meandering cross-examination that goes nowhere bores jurors and accomplishes nothing. The overwhelming majority of witnesses can be cross-examined in 30 minutes or less even in very complicated cases. Effective cross-examination makes a point quickly and keeps the jury engaged from the moment you ask your first question until you pass the witness for re-direct. Generally, the longer cross-examination goes on, the less effective it is.
Step 5. Know When to Stop.
Sometimes a witness is so bad, it is tempting to keep asking question after question to bury the witness deeper and deeper into a hole. Many inexperienced lawyers believe there can never be too much cross-examination so long as the witness is being torn apart for all to see. Unfortunately, the cross-examining attorney can cross the line from effective advocate on top of the case to a brutal bully who does not know when to quit. Once you know an adverse witness has been destroyed, end the cross-examination. Continuing to jump on the witness's lifeless body will only make you look like a thug.
Step 6. Use Only Leading Questions.
The overwhelming majority of effective lawyers hold one principle of cross-examination dear to their hearts: never ask a question if you do not know what the answer will be, unless you can impeach any unhelpful answer. The concept of cross-examination is that the lawyer is supposed to control the witness and force the witness to answer questions harmful to an adversary's case. When you ask an open-ended question, or a question where you do not know what the answer will be, the witness may hit that question out of the ballpark.
The only exception to asking a question where you do not know what the answer will be is where no answer could possibly help the witness. For example, if you asked a doctor whether he knew he left the sponges in the plaintiff before closing the plaintiff up, the doctor has two choices: (1) I knew the sponges were there but I decided to close anyway; or (2) I forgot to remove the sponges. Either answer helps your case. There is no "defense friendly" answer to that type of question.
When asking leading questions, avoid double negatives. For example, it is sufficient to ask the witness whether he signed the contract to get the answer of "no." Asking a question like, "You didn't sign the contract" is confusing, especially when the witness says "no" in response to the question. The cleaner the question, the easier the answers are to understand.
Step 7. Destroying the Witness's Credibility Through Cross-Examination.
There are numerous ways to destroy a witness's credibility. Each approach depends upon the witness and what you hope to accomplish.
- Attack the Witness's Ability to Perceive.
A witness's testimony is only as strong as his ability to perceive the events relevant to the testimony. Where a witness "has no dog in the fight," it is often impossible to make the witness sound like he is untruthful. Where you are confronted with a seemingly honest witness with no ax to grind who has damaging evidence to present, attack the witness's ability to perceive the events at issue. There are numerous ways to attack a witness's ability to perceive. For example, it is possible to show the witness's eyesight is poor or line of vision was obstructed. It is possible to show the witness was not present when certain events occurred. To see a classic demonstration of this type of cross-examination, rent My Cousin, Vinny (1992).
- Attack Reliability.
Sometimes, a third-party witness may be truthful but her testimony is not reliable. For example, a witness who previously made mistakes regarding dates, times, and places may be attempting to tell the truth, but there is a question as to whether the witness can accurately testify to events. In this type of approach, the intent is not to show the witness is lying but that the witness cannot be counted upon to testify accurately to what occurred. This is one of the rare cases where the cross-examining lawyer may want to pile on a number of seemingly innocuous mistakes, which, by themselves are meaningless. For example, you can show the witness got the following facts wrong. She mis-identified the model of the car. She was wrong about the date of the accident. She identified the plaintiff as being over six feet tall when he is only five feet, six inches. She testifies there were three people in plaintiff's car when there were only two people in it. None of these mistakes has anything to do with whether plaintiff ran a red light. However, the repeated mistakes in such a short period of time should cause a jury to question whether this witness can present reliable testimony.
This type of attack is especially effective with expert witnesses who make mathematical errors or get other key facts wrong. In fact, attacking expert witnesses requires a separate article, as there are so many ways to attack them.
- Attack Truthfulness.
Often, the most effective attack on a witness is an attack on the witness's truthfulness. Where a witness is a proven liar, even the jury instructions state the entire testimony of the witness may be disregarded. Jurors are very unforgiving of witnesses they find not to be truthful - especially in the case of party witnesses. Where you can show a party is lying, you may prevail on the case even if other elements of the case are weak.
The most effective attacks on truthfulness come from showing a witness has testified inconsistently under oath. Thus, where testimony at trial is contradictory to testimony at deposition, such impeachment can be devastating to a jury's willingness to believe that witness. Unfortunately, lawyers often obsess over minor - even inconsequential - points of impeachment. For example, showing the witness testified a meeting happened on Tuesday, instead of Wednesday, is a silly point of impeachment if the actual day of the week is not an issue in the case. Pointing out these types of inconsistencies only make your cross-examination look weak. If your purpose in impeaching a witness is to attack truthfulness (as opposed to reliability of the witness to recount facts), make sure each point of impeachment is strong and directly related to the key issues in the case. Impeaching on minor points to prove the witness is not truthful is ineffective and counter-productive.
Step 8. Remember the Courtroom is Theater.
Virtually every one of your jurors has seen a courtroom drama. Jurors have come to expect that one of the fun parts of watching a trial is watching effective cross-examination from a skilled attorney. Do not disappoint your jury. Arrange your cross-examination to make sure it has maximum dramatic effect - without being overly dramatic. For example, when a witness under cross-examination admits she previously provided false testimony, let the answer quietly hang in the air before moving to your next question. Let your jurors absorb what they just heard. The silence can often create more impact than the answer itself. Keep track of your voice tone. Make sure the jury knows you do not believe the witness, without being condescending or snippy.
As with every component of the case, consider using technology to help jurors understand what the testimony is. While you and the witness might easily understand what paragraph seven of the contract says and how it contradicts the witness's testimony, jurors may start daydreaming if they cannot see the actual language of paragraph seven. Make sure jurors can see important demonstrative evidence or key documents, so they understand where you are going with cross-examination.
Assuming you already incorporate technology into your trial presentation, play inconsistent videotape deposition excerpts, rather than just reading the testimony from a cold transcript. It is much more interesting for jurors to hear a witness testify inconsistently with testimony they heard just a moment before than to listen to a dry reading of what was said.
Effective cross-examination can make the difference between winning and losing a trial. Although cross-examination can be the part of trial that is the most fun for experienced trial lawyers, preparing good cross-examination takes a lot of thought and hard work.
This article first appeared in The OCTLA Gavel, Fall 2010.