Cross examination is one of the toughest skills for a trial lawyer to become good at. While becoming great at cross examination is a life long journey, becoming a competent cross examiner is not very hard to do. If you follow these basic tips of cross examination you will be well on your way.
Every Question Is A Leading Question
A leading question is a question that suggests its answer. For example: It was Tuesday? The light was green? You’re serious? The leading question is the foundation of a good cross examination because it helps direct the witness down the path that you want to take him or her through. The leading question also let’s you do most of the storytelling. The witness’ role is limited to affirming your declaratory statement.
Note: In the old books on cross examination you may have seen the author pose questions with a tagline. For example-“It was Tuesday, correct?” “Isn’t it true that the light was green?” The idea is to avoid objections to counsel testifying or that there is no pending question. While that may have seemed like a good idea at the time the taglines start to get repetitive and distracting after a while. I would recommend dropping the taglines altogether and if for whatever reason the judge sustains those objections just add a tagline to the first question or two after the objection and then drop them again. Most of the time people will stop objecting and forget about it.
One Fact Per Question
Your job on cross examination is to tell a clear story through what is usually a hostile witness. The best way to do that is to make sure that your questions are clear and short. A question with multiple facts in it is neither. A one fact question also leaves little room for the witness to successfully evade. A witness can only try to dodge “The light was red?” so many times before the jury begins to be annoyed at the witness. A one fact question eliminates any possibility in the minds of the jury that the witness simply did not understand the question or has some legitimate basis for not answering it directly.
Note: While there is some wiggle room as to our first principle (every question is a leading question), there really is no good reason for asking questions on cross examination that have multiple facts built in them.
Cross Examine On Facts, Not Opinions
Opinions are malleable and personal to people, facts are not. People can easily disagree as to opinions, but hardly as to facts. Because of this it is important that you cross examine as to facts, not opinions. For example, let’s assume that your case takes place at 10 P.M. after a party. At that time everyone has already left the party, the home owners are cleaning up, and the majority of the neighborhood homes have turned off their lights. You want to convey to the jury that it was late. This cross examination sequence achieves that goal:
Q: This happened after the party.
Q: It was 10 P.M.
Q: The hosts were cleaning up.
Q: Everyone had left.
Q: The homes in the neighborhood had turned off their lights.
The witness will have to admit all of these and these questions convey the feeling that it was late. However, if you instead tried to cross examine on an opinion the witness could fairly disagree. If you were to ask the witness:
Q: It was late.
The witness could fairly say:
A: I would not say it was late. It was only 10 P.M., that’s usually the time that I leave my house on the weekends to go out.
The witness could fairly answer this way because you asked about an opinion, and reasonable minds can differ about opinions on the topic.
No Throw-Away Questions On Cross Examination, Draw Blood Right From The Start
Some lawyers believe in starting cross examination with questions that do not add anything to the case. For example, you may start cross examining a witness by asking him about background information not critical to the determination of the lawsuit like date of incident, employment credentials, etc. The idea behind this is unclear to me. An effective cross examination must not waste primacy. An effective cross examination must draw blood from the start. Find the most powerful point that the witness will advance for your case and start there, right from the first question.
Start Strong, End Strong
An effective cross examination will start strong and end strong. This makes the most use of the primacy and recency principles. Find a powerful point to advance with the first head point of your cross examination and a strong point to end on, put everything else in the middle.
Have A Powerful Dismount
There is nothing more frustrating than seeing a lawyer deliver a strong cross examination and end with a wimpy “no further questions.” Your performance during cross examination is not over with your last cross question. Your performance is over with the last thing you say during cross examination, and that includes “no further question.” On cross, like in gymnastics, the dismount is important. Make sure that when you say “no further questions” you say it in a strong, powerful way. You want to convey confidence to the jury during every step of the way, regardless of whether you think your cross was any good.
I hope this helps get started on your journey to becoming an effective cross examiner. For further reading on the topic consider these books: