Cross examination is one of the most daunting tasks a trial lawyer faces. Every witness presents unique challenges and how a witness will conduct himself on cross is often unpredictable. Nevertheless, there are certain techniques that a lawyer should adhere to with all witnesses being cross examined.
What follows are my three best tips for cross examining witnesses.
Tip #1: Be Brief.
In his highly entertaining lecture The Ten Commandment of Cross Examination, Professor Irving Younger makes this his first commandment: Be Brief. In his words, cross examination is “a commando raid, not the invasion of Normandy. Get in. Get out. That’s the whole idea.” Also, according to Younger, when you’re brief, the jury and anyone else listening will remember what you said. The opposite is true when your cross examination drones on excessively.
I would also add that, in most cases, the longer a cross examination goes on, the more combative it gets. Witnesses who are in the hot seat for an excessive amount of time tend to get irritated. They begin to quarrel with the lawyer and, at a certain point, both the witness and the lawyer look bad.
So heed Professor Irving’s First Commandment and always keep your cross examination brief.
Tip #2: Don’t Ask for Conclusions
Every question that you ask should have a purpose. You are asking questions because you want to make a point that’s favorable to your case. You should ask all the questions necessary to lead up to your conclusion but you should never—never—ask the witness to make the conclusion for you. Instead, you should make that conclusion yourself, in your own words, during your closing argument.
Here’s an example from a recent case that I handled. My client was accused of violating his probation by testing positive for a certain drug four times in one month. The tests were given just days apart and each time he was tested the amount of the drug in his system diminished significantly. I wanted to make the point that my client had not used drugs four separate times. Instead, he likely used the substance once and all four tests recorded that single use. That was why the readings declined as the days went by. So I asked the probation officer about the dates of the tests and the readings of each test. I then waited to my closing argument to make my point. Had I asked the probation officer if the repeated tests and the diminishing drug readings could be due to a single instance of drug use he almost certainly would have send something like “Not necessarily.” It had far more impact when I made the point using my own terms during the closing.
Tip #3: If the Witness Is Hurting His Case, Don’t Interrupt
The court system—both civil and criminal—is designed to avoid trial. Parties are given every incentive to settle their cases through a negotiated compromise. In civil cases such a compromise would be an out-of-court settlement. In criminal proceedings, the prosecutor and the defendant typically work out a plea deal.
Generally speaking, only the most stubborn and contentious people push their cases all the way to trial.
Consequently, it’s not uncommon for litigants and their witnesses to be abrasive or obnoxious when they are called to testify at trial. It’s just their nature.
A witness with a big mouth and a bad attitude will almost always dig his own grave at trial, if he’s simply allowed to talk. However, the instinct of most lawyers is to interrupt or silence an obstreperous witness. The lawyer, I suppose, wants to show command of the situation. This is the wrong approach, in my opinion.
Whenever a witness presents himself as an unreasonable bully, I do little to stop him. Instead, I let the judge—whom jurors usually view favorably—intervene and lecture the witness. If an opposing witness’s behavior angers and annoys both the judge and the jury, my job on cross examination is to get out of the way and let it happen.