Cross-examinations

• Author: John Hollander
• Pages: 131-192

cross-examinations

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cross-examinations

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chapter five

Cross-examinations

-   the most dramatic part of

the trial. It can also get the examiner into a great deal of

trouble, and this is true regardless of how experienced

the lawyer is. e fact is that the witness and the cross-

examiner are usually adversaries, and the opposition

witness has been prepared by competent counsel. Every

question can result in a disastrous answer. Risks and re-

wards — that is what cross-examination is all about.

at said, there are eective techniques for cross-

examinations. e rst and foremost of these is that the

cross-examiner has got to have a point. If the cross cov-

ers only the same ground as the direct, then the cross-

examiner will have reinforced whatever message was

communicated in the direct examination, and worse, the

court will get the impression that the cross-examiner has

nothing better to put forward. e formula for a success-

ful cross-examination is for the lawyer to have a point,

make the point, and get on to the next point. e ef-

fective cross will consist of a series of these points. Very

few cross-examinations will have success followed by suc-

cess followed by success. If it were that easy, everybody

   

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could do it. Junior litigators should spend a few days in

trial courts just to watch how other lawyers struggle with

cross-examination.

is section communicates several distinct ideas that

will assist the junior litigator to get the job done. But

all of the ideas are simply that, ideas. A litigator has to

adapt any technique to the specic characteristics of the

litigator. ere should be a maxim taught to all trial law-

yers: “Lawyer, know thyself.” What works for one may

not work for another, and what works in one circum-

stance may not work in another. Lawyers have to develop

techniques that work for them; after all, it is the lawyer

who is responsible to the client both for advice and for

performance. is chapter of the handbook arms junior

lawyers with some of the techniques necessary for suc-

cessful cross-examinations.

Good Practices in Cross-examination

   ways to skin a cat, and so, too, there

are several ways to cross-examine a witness. is section will

discuss a few of the good practices that cross-examiners

should consider. As with other suggestions in this hand-

book, these are dependent upon circumstances and the

lawyer conducting the cross-examination.

e rst good practice is to use headlines. e law-

yer should introduce each subject with a neutral intro-

duction. is practice helps the judge to understand the

testimony. It also allows the witness to follow where the

cross-examiner leads and avoids interruptions to reorient

the witness. In general, it avoids confusion.

cross-examinations

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erefore, good practice is to make a list of the points

that are appropriate for the witness and then gure out

how to make these points, each point with up to ve

questions. Introduce each of the points with a headline.

When the point is made, do not ask the question too

many, which would allow the witness to give some ex-

planation that would defeat the point. is requires case

analysis, outlines, and discipline. Cross-examiners always

have the option not to ask any questions at all. Once they

start the process, however, they should make discrete

point after discrete point.

Other good practices include these:

• Keep your questions short. is avoids confusion.

• Keep your language simple. is avoids misunder-

standing and ambiguity.

• Stick to leading questions, not closed questions. A

closed question can be answered in one of a nite

number of ways (“left” or “right,” “yes” or “no,”

“up” or “down”) while a leading question should

be answered in only one way. Here is an example:

“Did you turn left or right at the T intersection?”

is is closed. “You turned left, didn’t you?” is is

leading, as it compels a “yes” answer.

• Use pauses to maintain the desired momentum,

and not speed of speech. is permits counsel to

moderate the pace to accommodate the judge’s

pen. It also permits counsel to turn up the heat

on the witness with little time between answer

and next short question. Rapid speech risks losing