HOW TO CROSS EXAMINE?

In law, cross-examination is the interrogation of a witness called by one's opponent. It is

preceded by direct examination and may be followed by a redirect

How to cross examine?

1. Be brief. Short questions with simple words

Why? Because it will be retained by the listeners
2. Plain words
3. Leading questions are allowed, so maximize it.
4. Cross examination is not a deposition, it is not a discovery. If you do not
know the answer, do not ask it. If the witness answers no, you must be ready
to have a follow up question.
Xpn: if you do not care of the answer
5. Listen to the witnesses’ answers. In order to determine when there is an
unexpectedly favorably answer, and in order to prepare a responsive
question.
6. Don’t quarrel with the witness.
If the answer is contrary to the law, sit up and that is the time to
stop. Save it for summation. Because if you are going to quarrel with
the witness, he will realize that he did something wrong and explain the
same.

7. “There are couples of things about your direct that are unclear, let us clear
them up” “What are ___?” “are you sure?” - DON’T LET THE WITNESS
REPEAT.
8. Don’t permit the witness to explain anything. The questions are entirely
leading questions. Don’t let the witness qualify.
9. You ask question only to get to support your summation
10. Summation (goal is to satisfy the judge’s curiosity)

The Art Of Cross-

Examination
By Gerald A. Klein

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.
Step 1. Do I Need to Cross-Examine the Witness?

Many lawyers launch forth like lemmings jumping off a cliff and cross-
examine witnesses without asking the question: do I need to cross-
examine this witness? Some lawyers believe they are not doing their
job if they do not ask at least some questions of a witness. But, often,
cross-examination will add nothing to your case. If cross-examination
of a witness does not help your case, then let the witness go without
asking a question. Asking a few harmless questions of a witness only
suggests to the jury you believe the witness is worth questioning.
Asking no questions of a witness can minimize the importance of that
witness in the juror’s eyes, as you obviously did not feel the
testimony was significant enough to challenge.

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.

Step 2. Determine Your Goals for the Witness.

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.

Step 3. Make Sure You Have a Cross-Examination Plan.

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.

For the overwhelming majority of us, preparing cross-examination in

writing is essential. At a minimum, you will need to prepare a written
outline of the points you want to make and have ready citation to
exhibits or transcripts for impeachment if you catch the witness in a
lie. Jurors get impatient seeing lawyers fumbling through a transcript
desperately trying to find a point of impeachment. Moreover, by the
time the fumbling lawyer finds the impeaching point, jurors have often
forgotten the purpose of the impeachment. Worse yet, if the attorney
cannot find the point of impeachment while the jury is waiting, the
attorney looks silly and the witness looks even more credible.
Effective cross-examination requires the cross-examining attorney to
be able to challenge an incorrect answer in a moment’s notice.

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.

Step 4. Keep it Short.

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.
Step 5. Know When to Stop.

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.

Step 6. Use Only Leading Questions.

The overwhelming majority of effective lawyers hold one principle of

cross-examination dear to their hearts: never ask a question if you do
not know what the answer will be, unless you can impeach any
unhelpful answer. The concept of cross-examination is that the
lawyer is supposed to control the witness and force the witness to
answer questions harmful to an adversary’s case. When you ask an
open-ended question, or a question where you do not know what the
answer will be, the witness may hit that question out of the ballpark.

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.

Step 7. Destroying the Witness’s Credibility Through Cross-

Examination.
 There are numerous ways to destroy a witness’s credibility. Each
approach depends upon the witness and what you hope to
accomplish.

 Attack the Witness’s Ability to Perceive.

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 witness who previously made mistakes
regarding dates, times, and places may be attempting to tell the truth,
but there is a question as to whether the witness can accurately
testify to events. In this type of approach, the intent is not to show the
witness is lying but that the witness cannot be counted upon to testify
accurately to what occurred. This is one of the rare cases where the
cross-examining lawyer may want to pile on a number of seemingly
innocuous mistakes, which, by themselves are meaningless. For
example, you can show the witness got the following facts wrong.
She mis-identified the model of the car. She was wrong about the
date of the accident. She identified the plaintiff as being over six feet
tall when he is only five feet, six inches. She testifies there were three
people in plaintiff’s car when there were only two people in it. None of
these mistakes has anything to do with whether plaintiff ran a red
light. However, the repeated mistakes in such a short period of time
should cause a jury to question whether this witness can present
reliable testimony.

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.

Step 8. Remember the Courtroom is Theater.

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.

This article first appeared in the OCTLA Gavel, Fall 2010.