Cross-Examination – Effectively Preparing for Cross Through Discovery and Investigation – Josh Hayes

by: Prince, Glover & Hayes Tuesday, December 15th, 2009

The late Louis Nizer – a noted lawyer, artist, philosopher and lecturer – once said “[i]n cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.” So true. In order to prevent this axiom from claiming additional hapless victims, practicing trial lawyers must be uber-vigilant in their preparation and dedication to a successful cross-examination. This paper and its accompanying presentation are meant as guides and refreshers for this dying art of effective cross-examination.

Let’s face it. The TV culture has totally invaded our courtrooms. Perhaps there is not a single juror who hasn’t been “wowed” by the eloquence and sharp wit of the likes of Jack McCoy (Law & Order) or LT Daniel Kaffee, portrayed by Tom Cruise in A Few Good Men. As such, it becomes unimportant as to whether those portrayals are accurate or not – jurors have seen them on TV, so they must be true. Furthermore, some jurors actually expect the “gotcha” moments perhaps first made famous by Perry Mason and will discount an otherwise effective cross-examination if not presented with such a moment. Of course, I am not suggesting that every effective cross will have such an occasion; however, a trial lawyer who is properly prepared and primed for action will maximize his chances of being ready if/when the opportunity arises.

Before rising to begin any cross, the lawyer must know what he or she wants to have accomplished by the end. As discussed more fully below, sometimes an adverse witness can testify about matters to help your case (constructive cross). If so, such constructive information should be covered before you attempt to discredit or impeach the witness (destructive cross). Here are a few considerations:
(1) Use the witness to help your case (constructive)
(2) Continue with the theory/theme of your case through cross (constructive)
(3) Use the witness to bolster the positions of your client or the qualifications of your expert (constructive)
(4) Use the witness to illustrate that the other party was incorrect or dishonest (constructive)
(5) Impeach the witness’ credibility (destructive)
(6) Discredit the qualifications of the witness (destructive)
(7) Show the witness’ bias (destructive)
(8) Illustrate that the basis for the witness’ opinions is faulty (destructive)
(9) Show that the witness does not have a proper understanding of the facts of the case (destructive).

The number one rule of effective cross-examination is to control the witness. How is this done? Through the use of short, declarative, succinct “questions” with little room for the witness to waffle. The quotation marks in the forgoing sentence are there because the best questions in a cross are not really questions at all; rather, they are persuasive statements made by the lawyer, giving the witness opportunities only to either agree (thereby making the lawyer’s point), or disagree (and if the question is correctly phrased, the disagreeable witness will appear obstinate or untrustworthy in front of the jury).

My senior partner Bob Prince likes to employ a metaphor in describing the method of control over an adverse witness: the lawyer as an adjustable fan with ten numbers in its setting. The lawyer should stay one notch above where the witness is, using the least amount of pressure possible to control the witness. If the witness is meek, quiet and mild, the cross-examiner should be at a “2” or “3” setting. If the witness is belligerent, sarcastic or argumentative, then the lawyer should be at a higher setting, maybe a “7” or an “8.” Imagine how the practitioner would look to the jury if she comes out of the gates with guns a-blazin’, only to find that the witness is quietly answering the questions with little resistance. Since careful attention must be paid to how the witness’ demeanor will be at trial, the lawyer should memo the file after each deposition as to the specific traits of the witness and how the witness will likely hold up in front of a jury .

Of course, only leading questions should be employed on cross – remember, controlling the witness is key – with the trial attorney in effect doing the testifying and the witness either confirming or denying the lawyer’s “questions.” In addition to the use of leading questions, the practitioner should be mindful of his or her voice, inflection, tone, body position, proximity to the witness and body language as each can suggest the level of the fan at which you are set. Non-leading, wide-open questions are rarely, if ever, appropriate for cross-examination. You know the answer you are looking for, so you should be the one giving it.

We should all avoid the urge to try to win on every question in a cross-examination. Remember, the main expectation should be to try to damage the witness and you only need to score on one or two “cross points” in order to damage his or her credibility in front of the jury. As such, if you know the witness is fudging the truth in a preliminary or unimportant matter, sometimes it is advisable to let him or her away with it, choosing instead to capitalize on a more salient matter. Likewise, some of the more effective crosses are not ones that last for hours on end. Rather, if you score an effective knock-out punch early, why not sit down on that one instead of giving the witness a chance to rehabilitate himself later in your questioning? We always advocate that crosses should be kept short (three “cross points” are plenty). Bottom line, this is a “gut feel” part of our business and lawyers must rely on their instincts and good judgment.

Another way to control the witness is by taking baby steps in leading them through the process. Rather than asking something like: “Mr. Jones, isn’t it true that on the morning of the wreck after you had coffee with your boss, you got into your log truck without doing the required pre-trip inspection?” I suggest a slower, more deliberate approach:

Q: Mr. Jones, on the morning of the wreck that killed my client’s wife, you were working for the log company, right?

A: Yes

Q: And you were there at the yard that morning with your boss?

A: Yes

Q: The regs require you to do pre-trip inspections each day, correct?

A: That’s right

Q: But on that morning, you did not do them?

A: That’s right

Q: You did find time that morning to drink coffee with your boss though?

A: Well, yes.

The idea is to close any doors, windows or hatches which might be used for the witness to escape, leaving him or her no place to go but directly down the path of your choosing. Each leading question should contain exactly one fact, no more. This makes it more difficult for the witness to quibble with your question. Additionally, it is critical for the practitioner to carefully watch the witness for any signs of hesitation in answering your questions (this holds true for depositions too) as pointed follow-up questions can uncover the whole story.

Another idea to keep in mind on cross is that sometimes adverse witnesses have information to help your case about which they will agree. We call this the “constructive” cross and it should be done before any “destructive” (impeaching) cross is done. After all, if you’re asking the jury to believe the witness on a few issues, you should do so before you impeach his or her credibility, not after.

Perhaps the initial question that needs to be asked is: “Do I need to cross?” If he didn’t hurt you and you don’t have any destructive points to make on cross, then I would say the answer is “no.” Or, perhaps he hurt you a little, but didn’t hurt you as bad as he could have given prior deposition testimony. This also removes the chance of the re-direct to add some things that were forgotten in the direct. Of course, we typically call adverse witnesses in our case-in-chief, so the question of whether to cross applies only to the witnesses called in our opponent’s case-in-chief.

A lawyer’s body language and positioning in the courtroom are sometimes just as important as the words spoken in his questioning. We advocate the use of a triangle among the lawyer, the witness and the jury. Open body language (open palms, not crossed arms) should be used or else you run the risk of the jury believing you are hiding something. While keeping the triangle positioning, on important points the lawyer’s eyes should be directed to the jury, not the witness. This places proper emphasis on certain points throughout the cross. An example might be (keeping your eyes trained on the jury): “Mr. Smith, are you telling this jury that you didn’t see the light turn red before you barreled through the intersection?”

Perhaps the quintessential cross moment comes when the witness strays from his prior deposition testimony on an important point and the lawyer has the opportunity to impeach the witness through use of a prior inconsistent statement. Proper preparation will allow the lawyer to impeach effectively. This begins by asking the correct question at trial, using the exact words used at deposition. After the witness gives an inconsistent answer at trial, the proper predicate must be met before using the prior inconsistent statement against him. Here’s how this should play out:
Q: Mr. Jones, isn’t it true that you had been fired from your previous job as a trucker for having too many moving violations?

A: I’ve never been fired from a job

Q: Mr. Jones, do you remember giving a deposition in this case?

A: Yes

Q: And just so we are all on the same page, this deposition was held at your lawyer’s office on January 15, 2007?

A: If you say so

Q: And you swore to tell the truth that day, just like you did in front of this jury here today?

A: That’s right

Q: And I was there asking you questions, and a court reporter was there taking down your answers?

A: Yes

Q: Your Honor, may I approach the witness?

THE COURT: Go ahead

Q: I want you to follow along while I read from your deposition. Now, Mr. Jones, on page 45, line 3, I asked you, ‘You were fired from XYZ log company in December of 2005’, and your answer was what, sir?

A: Well, I told you I had been fired but the reasons they gave for firing me weren’t the reasons they put in my file.

The damage is done, there is no reason to belabor the point. Resist the urge to continue “beating the dead horse”, instead waiting until closing argument to argue credibility.

Perhaps the late Irving Younger prepared the best-known version of the Ten Commandments of cross-examination . Younger’s Ten Commandments are:
(1) be brief;
(2) short questions, plain words;
(3) use only leading questions;
(4) be prepared;
(5) listen to the witness’ answers;
(6) do not quarrel with the witness;
(7) do not allow the witness to repeat his direct testimony;
(8) do not permit the witness to explain his answers;
(9) do not ask the “one question too many”; and
(10) save the ultimate point of your cross for summation.

Below are some additional references on effective cross-examination:
• The Art of Cross-Examination, Francis L. Wellman (1932)
• Excellence in Advocacy, Trial Expertise and Wisdom from the National College of Advocacy, ATLA Press (1990)
• The Trial Masters Handbook of Strategies and Tactics That Win Cases, Bertram Warshaw, Editor, Chicago Practice Journal, Inc. (1984)
• McElhaney’s Trial Notebook, 4th Edition, American Bar Association, Section of Litigation, James W. McElhaney (2005)
• Essays on Advocacy, Theodore Koskoff, Association of Trial Lawyers of America (1988)
• Trial Practice, Lawrence A. Dubin and Thomas F. Guernsey, Anderson Publishing Co. (1991)
• Best of Trial, ATLA Press (1990)
• Best of Trial Products Liability, ATLA Press (1991)
• On Trial (Lessons From a Lifetime in the Courtroom), Henry G. Miller, NLP IP Company (2001).

In closing, a lawyer should remember something that’s often forgotten during the course of the long hours preparing for an effective cross: this is fun. If you do not enjoy this part of a trial and the laboring that makes it possible, then perhaps this line of work is not for you. Remember the old Spanish proverb: “it is better to be a mouse in a cat’s mouth than a man in a lawyer’s hands.” While I can’t be certain of the context in which this adage was written, I’d like to think it was authored by a witness who had just been thoroughly discredited on cross.

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