May 2005
Volume 1, Number 3
Table of Contents

Direct And Cross-Examination: A Different Perspective?
By Joe C. Savage and Cory M. Erdmann

Much has been written and spoken about direct and cross-examination. We know you have conducted several, if not many, of both and know the case law, the rules of procedure and the “feeling” of the court room. This look at direct and cross-examination, however, may put both in a different perspective and give you some ideas you may use in future trials.

DIRECT EXAMINATION IS PARALLEL TO THE OPENING STATEMENT. CROSS-EXAMINATION IS PARALLEL TO THE CLOSING ARGUMENT

1. Direct Examination and Opening Statement

Except for a hint of things to come in jury selection, the opening statement is the first occasion for the jury to learn the essence of the case. A good opening statement introduces the theme of the case, gives a chronology of the facts, and tells the jury what they will ultimately decide.

A good opening is not argumentative because it doesn’t state inferences to be drawn from the facts, but it is persuasive because it does carefully organize the presentation of the facts. It is an opportunity for the witnesses, through one attorney, to “tell the story.” The focus is the story, not the attorney. The story is not just told, it is shown through actual and demonstrative evidence.

A good direct examination is similar. The witness fits into the theme of the case. The witness gives a chronology of the facts. The direct examination is persuasive, not because it is argumentative, but because of its manner of presentation. It is the opportunity of the witness to tell his or her story. The witness, not the attorney, is the star. Use of actual and demonstrative evidence enhances the story and makes it more memorable.

Thus, the good direct examiner asks short, direct, open questions. The witness answers by narrative, story-telling answers. The attorney stands out of the way of the witness and the jury, perhaps even behind the jury, so that the witness must look at or over the jury to see the attorney. The attorney is subservient, almost unnecessary. The witness is paramount, the star. The attorney says little. The witness says a lot.

Through short questions, the witness unfolds the story in a chronological way. For example, in a personal injury case, the plaintiff gives a personal history, an educational history, a marital and family history, a medical history, a work history, events prior to injury, the injury, events post injury, the medical treatment, the current condition, the medical expenses, the lost time from work, the medical future, the impairment, the effect on family, and the effect on plans for the future. The plaintiff’s doctor gives his or her qualifications, the first time seeing the plaintiff, the history obtained, the physical examination, all special tests and studies, the differential diagnosis, treatment options, treatment selected, the actual diagnosis, causation, the progress of treatment, the current condition, the inability to work, the prognosis, future medical needs and expenses, impairment, and future pain and suffering.

Witnesses are ordered so that their effect on the total story is maximized. Often the plaintiff or the plaintiff’s doctor should go last, not first. The opening statement, of course, allows the attorney to weave the stories of the various witnesses into the whole cloth of the open, which can’t be done with each witness. But the order of witnesses should be chosen with the organization of the opening statement in mind.

2. Cross-examination and the Closing Argument

The closing argument is the last occasion for the jury to learn why they should find liability and award substantial damages. A good closing argument reiterates the theme of the case, gives a summary of the facts, and tells the jury what it should decide. It is argumentative in that it states inferences which should be drawn from the facts and therefore why certain facts should be believed over others. It is an opportunity for the attorney to tell the jury the story they should believe. Because the story is in conflict, the story is not really important. It is the credibility of the attorney trying to convince the jury what to believe that’s important. Credibility of the attorney is enhanced by use of actual and demonstrative evidence, which are essential to the art of persuasion.

A good cross-examination is similar. It makes the witness admit or focus on the plaintiff’s theme of the case. It tells the jury what it should decide. It is argumentative. It states inferences which should be drawn from the facts and therefore helps to persuade the jury which facts it should believe. The attorney, not the witness, is the star. Use of actual or demonstrative evidence may be vital.

Thus, the good cross-examiner asks long, narrative, leading questions. The witness answers yes or no. The attorney stands in the center of the court room, often directly in front of the jury, so that the argument/question of the attorney is the focus. The witness is subservient, almost unnecessary. The attorney is paramount, the star. The attorney says a lot, the witness says little.

To be sure, the attorney must argue in a question and answer format. But that is simple. The attorney makes the argument directly to the jury, just as will be done later in the closing argument, and then the attorney turns to the witness and asks “isn’t that true?” or “you agree with that, don’t you?” or “that’s a fair statement, isn’t it?”

The very heart and soul of an effective cross-examination is in selecting those arguments where it doesn’t matter whether the witness agrees or not. If the witness agrees, great. If the witness doesn’t agree, the jury will still believe the argument for other reasons.

What are these other reasons? They may be numerous. For example, the witness may have previously agreed with your argument in a prior deposition or statement, and you can impeach. The witness may have previously agreed in some article or book, and you can read it. The witness may have previously acknowledged an article or book as authoritative, and that literature agrees with your argument, and you can read it. The witness may have never agreed with your argument and never will, but your argument is based upon physical facts, such as the marks on the pavement or the damage to the vehicles, or based on physics, such as the mathematical relationship of time, speed and distance. The witness may have never agreed with your argument and never will, but good old common sense is on your side.

If you can’t win your argument in front of the witness, don’t cross-examine on that point. Save your argument for the closing when no witness is present to argue with you. Do not just rehash what this witness has already said on direct. The witness has hurt you once. Shame on you if you let the witness hurt you twice.

Joe C. Savage and Cory M. Erdmann are partners in the firm of Savage, Elliot, Houlihan, Moore, Mullins & Erdmann in Lexington, Kentucky.

This article was originally published in the September/October 2004 issue of The Advocate, a publication of the Kentucky Academy of Trial Attorneys.

 

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