Getting Cross-Examination Right
Cross-examination can determine whether you win or lose your case. It’s a crucial opportunity to reinforce advantageous points and undermine problematic ones. Maintaining control of the process is key. Here are some ways to do so.
- Know where you are going.
Organize your strategy and questions, prepare rigorously, and know what you want to accomplish with each witness. Pay close attention to the order of your questions, because jurors tend to remember the first and last things they hear the most. Always ask yourself: Is it even necessary to cross-examine this witness?
Never ask open-ended questions. Ask only questions you already know the answer to, because you have deposed the witness. Never ask that “one questions too many.”
- Know which form of cross-examination to use — constructive or destructive — and when.
Use the constructive approach to elicit helpful testimony to corroborate testimony of one of your witnesses or to impeach an opposition witness. Either or both may be helpful.
The format “Mr. Jones, can we agree that …?” is often an advantageous question in such situations. Frequently, constructive cross-examination is initially used with the other party’s expert witness. For example, it can be valuable in getting the witness to agree that your expert’s methodology is reliable and accepted in the field.
The goal of destructive cross-examination is to destroy, or at least seriously damage, the witness’s credibility or limit the testimony’s effect. It has the reputation of being a “gotcha” tactic.
And as with everything else, timing is key. If you need constructive testimony from a witness, it is better to get it before moving into destructive cross-examination. Once his credibility is challenged, the witness will be more likely to fight about points on which you are seeking agreement.
- Make the most of destructive cross-examination when questioning a critical adverse witness.
When dealing with a critical adverse witness, your goal is to start strong by establishing control over the witness in his mind and in the minds of the jurors. If you pull punches, jurors might assume you are unable to impeach the witness. Finish strong by holding certain zingers until the end of the cross. And keep in mind, again, that jurors remember what they hear first and last.
- Rely on cross-examination rules to set/retain control over the witness.
Maintain control by adhering to traditional rules of cross-examination: Ask only leading questions, ask only questions that can be answered with a “yes” or “no,” and never ask a question unless it’s absolutely necessary and you know the answer.
Ask questions that dare the witness to disagree with you. Assuming you’ve deposed the witness, put the deposition on counsel table or lectern where the witness can see it. This technique reinforces your challenge to the witness to disagree with you, and it shows you expect certain answers and the witness will pay for varying from them.
- Ask airtight questions.
Each question should be tight and limited to one fact. A witness may easily quibble with or deny a complicated and fact-intensive question, especially if a sub-part or minor fact is technically incorrect. Don’t open that door.
Avoid the “Isn’t-it-true-that … ?” format — such as, “Isn’t it true that the light was red?” or “Isn’t it true that you were going 95 miles per hour?” Instead, speak as though you are testifying: “The light was red” or “You were going 95 miles per hour.”
Opposing counsel might object on the grounds that you are not asking a question, but your tone will imply that it is indeed a question. If the objection is sustained, you can revert to the “isn’t-it-true-that” format to cure the objection. You can win points even then because you’ve made opposing counsel look foolish for objecting to a question so easily corrected, and the jury has now heard the same question twice.
Expert fees can be a fertile topic in your questioning. For example, consider this cross after the expert’s presumably lengthy and technical testimony, where opposing counsel didn’t ask the expert about their fees.
Q: Dr. Jones, you’re getting paid $450 per hour to testify here today?
Q: I won’t take another minute of your time.
A colleague claims to have done this and, while the story is perhaps apocryphal, it does illustrate the value of brevity. Sometimes the best cross-examination, even of a critical witness who just completed a lengthy direct examination, consists of only a question or two.
In summary, make your “statement,” get your “yes” or “no” answer, and move on.
- Remain firm, but not hostile, with an evasive witness.
It’s a common situation: The witness is evasive, won’t answer directly with a “yes” or a “no,” or claims not to know what the meaning of “is” is. Never interrupt the witness; just repeat your question verbatim. Never rephrase it. If the evasiveness persists, continue to repeat the question, slowing down and pausing between words if necessary. The goal is to make the witness look obstructionist or ridiculous to the jury. In that way, you have already succeeded in your cross even if the witness still hasn’t answered your question.
Demand a “yes” or “no” answer if that’s what you’re seeking, but don’t invoke the judge unless all else fails. You will look like a tattletale running to the teacher. Establish and maintain control, but don’t be rude, ugly or hostile to the witness. For example, if the witness dodges or gives a rambling answer to a simple, direct question, let her finish and then start over by saying, “I’m sorry, I must not have been clear. My question actually was …” Hostility is not necessary, and jurors are likely to resent it.
- Keep the reason for cross-examination in mind.
Cross-examination can be a turning point in a trial, but is not a time for drama. It is a time to exhibit your best traits — topnotch preparation; hard work; and a solid grasp of the facts, the law and the witness’s previous testimony — so the jury will see the case your way. Remember that, and you’ll have conducted a successful cross-examination.