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Leading Your Way Through Cross-Examination

By Kelley Barnett

 

Cross-examination can be the most thrilling and anxiety-provoking phase of trial. The cross-examining lawyer stands up. The witness’s chest tightens. The jury leans forward, waiting for the hammer to come down.


Is this an exaggeration of what really happens? Perhaps. But there’s no dispute that a successful cross-examination can deflate your opponent’s case. Aspiring trial lawyers must master this skill before that dramatic moment arrives.


As trial looms near, you’ve been assigned the job of cross-examining a witness. You did your homework, and you know everything about the witness and the witness’s relationship to the case. Now what?


Prepare a list of the major points you want to make with the witness. For example, if you’re cross-examining a witness to a car accident who testified that your client ran a red light, maybe you want to show that the witness isn’t sure what he saw because it was dark and he wasn’t wearing his glasses.


With your punch list ready, remember the most fundamental tip: Lead, lead, lead. Leading questions are designed to elicit a yes or no answer, essentially allowing you to testify while helping you control the witness. Control is crucial to an effective cross.


How do you ask a leading question? For starters, as a general rule, don’t ask a question if you don’t know the answer. And don’t use such words as “describe,” “explain,” “why,” or other words that invite a narrative response, because you risk losing control and eliciting damaging testimony.


Ask short questions. A good rule of thumb: Elicit just one fact per question. Let’s stick with the car accident example. You want to show that the witness isn’t sure what he saw, and you might think of asking, “You’re not sure what you saw that night because it was dark and you weren’t wearing your glasses, right?” Instead, try this:


    You usually wear glasses when you drive?
    Your glasses help you see?
    You were driving that night?
    It was dark?
    You were driving without wearing your glasses?


Asking one fact per question gives the witness little wiggle room. Also, getting several “yes” answers puts the witness in the habit of agreeing with you and establishes a smooth, confidence-inspiring rhythm. But resist the temptation to finish your point with one question too many, such as, “So, you aren’t sure what you saw?” Chances are the witness won’t agree with you. And you don’t need to ask that question because you can argue that conclusion in closing argument based on the points you already established.


How should you start your cross-examination? Avoid spending the first minute introducing yourself, asking the witness to speak up if a question is unclear, or exchanging pleasantries. This is wasted time.


Instead, politely launch right into your cross. Start on a high note with a positive point the witness can’t refute. If you’re cross-examining a defense expert, maybe your first point is that the expert is a hired gun. Of course, you won’t ask, “So, you’re a hired gun?” If you do, you’ll get a “no” answer and an objection. You’re better off asking the following questions:


    The defendant retained you?
    To give an opinion in this case?
    The defendant is paying you $450 per hour?
    That includes your testimony today?


Point made. Move on to the next point. And remember to end on a high note, too. That way, the last thing the jury remembers about your cross-examination is that the witness agreed with you.


What about the evasive witness who won’t answer your specific question? You could ask the judge to instruct the witness to answer your question, but the jury might think you’re a tattletale. Consider this approach: If the witness goes off on a narrative tailspin about his cruel supervisor when you ask “You were asked to resign?,” repeat your question, verbatim. If that doesn’t work, politely say, “I’m sorry, sir, maybe my question wasn’t clear,” and ask the question again, verbatim. If that doesn’t work, ask: “Is that a ‘yes’?” Or: “I’m sorry, sir. I’m confused. Were you asked to resign or not?” No matter what, don’t give up, and always be polite because juries don’t like disrespectful lawyers. Even if the witness doesn’t answer your question, you’ve won because the jury will see that he is being evasive.


Finally, remember the old saying: Quit while you’re ahead. Although it’s tempting to press ahead when things are going well, once you’ve made your major points, sit down. Don’t risk eliciting damaging testimony and weakening the strong points you made.


With these tips, and a little luck, you’ll lead the way to a winning cross.


Keywords: cross-examination, lead questions, trial preparation


Kelley Barnett is a litigation partner at Frantz Ward, LLP in Cleveland, Ohio.


This article was adapted from a longer one that was published in the Fall 2013 issue of Litigation.


 

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