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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.
Many lawyers launch forth like lemmings jumping off a cliff and cross-examine witnesses without
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.
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.
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.
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.
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.
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.
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.
There are numerous ways to destroy a witness's credibility. Each approach depends upon the
witness and what you hope to accomplish.
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
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.
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.
CONCLUSION
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.
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