AuthorJohn Hollander
chapter five
-   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
   
could do it. Junior litigators should spend a few days in
trial courts just to watch how other lawyers struggle with
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.
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

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