This article is motivated by my discussions with a displeased client. My client is unhappy because he did not feel that I cross-examined his spouse aggressively enough. I had sound reasons for my approach and I would do it the same way again. It did, however, get to me thinking about how, in the instance of the cross of a spouse’s life-partner, my goal and purpose is sometimes awfully different from the goal and purpose of my client.
For example, my client wanted to transfer his anger about events of the past to me so I would bludgeon his former wife with words – regardless of whether that would have advanced his legal position in a positive way. See how that puts me and my client at odds?
These are my guidelines for an effective cross-examination:
1. Never repeat Direct Examination. I inwardly groan (and smile) when I see opposing counsel flip their notes back to page 1 of the direct examination and plow through testimony already offered. This gives the witness an opportunity to tell the story twice and to improve the detail of their first telling and build credibility during cross.
2. Question with purpose. Plan cross examination questions in advance (maybe not literally write down the exact questions but have an outline and a road map). Each question should intentionally advance the trial plan and theme of your case.
3. Edit! Not every fact or issue is relevant to the trial plan or case theme. An irrelevant “gotcha” is just that – irrelevant. No cross-examination is better than a pointless cross.
4. Tailor each examination to the specific witness. There simply is no form or universal checklist. Each witness brings something different – elicit the facts that advance your case.
5. Listen to the answer. Listen carefully. Make eye-contact. Nod, if appropriate. Follow-up on the answer. String portions of an answer into another series of questions. Just the other day, I watched as opposing counsel flipped through pages without listening to a word of the testimony. My client made eye-contact with me and I shrugged. She stopped in mid-sentence. Opposing counsel asked the next question on his list without realizing that the answer was incomplete.
6. Read body language. Reading body language is as important as listening to the words. Witnesses have a “tell.” Correctly interpreting discomfort, for instance, may warrant more intense questions. Watching (and listening) allows for adapting questions to witness behavior. It can also help determine when to move on or get out altogether.
7. Get favorable facts. Cross isn’t always about impeachment. Adversarial witnesses also possess facts that may advance the client’s trial strategy or litigation plan. Get those favorable facts out even if they come reluctantly and disagreeably.
8. Be prepared with exhibits. Have exhibits to refresh recollection if the witness is prone to amnesia (the constant “I don’t remember…”). Impeach with words. Get the witness to authenticate documents to use later on. Get the witness to validate or corroborate a favorable fact. Build an illustrative exhibit for use in closing argument.
9. Exercise self-control. Don’t let the witness take control of your emotions. If you lose your composure and go down the rabbit hole with the witness, you’ve lost the Judge as well as your point. This happens to the best-of-the-best of us. If you’ve taken a paralegal or associate or second-chair partner with you to trial, as I usually do, have that person reel you in as unobtrusively as possible. My assistant tactfully slides a post-it note that says in big red bold all-caps: STOP.
10. Determine your tone. Since you’ve custom-tailored your purposeful questions, you may have an intuition about which personality to use when questioning the witness. The “friendly” approach? Gruff? The dumb blonde? The “I’m just a country lawyer?” An effective cross usually deploys several approaches. I’ve been known to utilize the hair-twirling confused blonde to extract useful facts then turn into a snarling pit bull with the information just handed to me.
11. Order the presentation with intention. What facts or issues to begin with may be a game time decision. For instance, if you’ve been watching your Judge during prior testimony, you should be aware of things that attracted your Judge’s attention. Thus, you may begin in the middle of where you thought you would. Where ever you begin, start with purpose. Build momentum from the beginning. Starting off with “So, Mr. Jones, let’s start with your education…” and everyone in the room clicks off. By the time the crescendo is reached, everyone in the place is asleep or reading BuzzFeed.
For example, my client wanted to transfer his anger about events of the past to me so I would bludgeon his former wife with words – regardless of whether that would have advanced his legal position in a positive way. See how that puts me and my client at odds?
These are my guidelines for an effective cross-examination:
1. Never repeat Direct Examination. I inwardly groan (and smile) when I see opposing counsel flip their notes back to page 1 of the direct examination and plow through testimony already offered. This gives the witness an opportunity to tell the story twice and to improve the detail of their first telling and build credibility during cross.
2. Question with purpose. Plan cross examination questions in advance (maybe not literally write down the exact questions but have an outline and a road map). Each question should intentionally advance the trial plan and theme of your case.
3. Edit! Not every fact or issue is relevant to the trial plan or case theme. An irrelevant “gotcha” is just that – irrelevant. No cross-examination is better than a pointless cross.
4. Tailor each examination to the specific witness. There simply is no form or universal checklist. Each witness brings something different – elicit the facts that advance your case.
5. Listen to the answer. Listen carefully. Make eye-contact. Nod, if appropriate. Follow-up on the answer. String portions of an answer into another series of questions. Just the other day, I watched as opposing counsel flipped through pages without listening to a word of the testimony. My client made eye-contact with me and I shrugged. She stopped in mid-sentence. Opposing counsel asked the next question on his list without realizing that the answer was incomplete.
6. Read body language. Reading body language is as important as listening to the words. Witnesses have a “tell.” Correctly interpreting discomfort, for instance, may warrant more intense questions. Watching (and listening) allows for adapting questions to witness behavior. It can also help determine when to move on or get out altogether.
7. Get favorable facts. Cross isn’t always about impeachment. Adversarial witnesses also possess facts that may advance the client’s trial strategy or litigation plan. Get those favorable facts out even if they come reluctantly and disagreeably.
8. Be prepared with exhibits. Have exhibits to refresh recollection if the witness is prone to amnesia (the constant “I don’t remember…”). Impeach with words. Get the witness to authenticate documents to use later on. Get the witness to validate or corroborate a favorable fact. Build an illustrative exhibit for use in closing argument.
9. Exercise self-control. Don’t let the witness take control of your emotions. If you lose your composure and go down the rabbit hole with the witness, you’ve lost the Judge as well as your point. This happens to the best-of-the-best of us. If you’ve taken a paralegal or associate or second-chair partner with you to trial, as I usually do, have that person reel you in as unobtrusively as possible. My assistant tactfully slides a post-it note that says in big red bold all-caps: STOP.
10. Determine your tone. Since you’ve custom-tailored your purposeful questions, you may have an intuition about which personality to use when questioning the witness. The “friendly” approach? Gruff? The dumb blonde? The “I’m just a country lawyer?” An effective cross usually deploys several approaches. I’ve been known to utilize the hair-twirling confused blonde to extract useful facts then turn into a snarling pit bull with the information just handed to me.
11. Order the presentation with intention. What facts or issues to begin with may be a game time decision. For instance, if you’ve been watching your Judge during prior testimony, you should be aware of things that attracted your Judge’s attention. Thus, you may begin in the middle of where you thought you would. Where ever you begin, start with purpose. Build momentum from the beginning. Starting off with “So, Mr. Jones, let’s start with your education…” and everyone in the room clicks off. By the time the crescendo is reached, everyone in the place is asleep or reading BuzzFeed.