Mastering the Blind Cross-Examination

By Mark A. Neubauer

Blind cross means bravely taking on the adverse witness with no prior testimony or discovery. No dress rehearsal at deposition. No lengthy witness statement or interrogatory response from which to quote. Common sense and careful preparation can allow any skilled trial lawyer to effectively practice the art of blind cross-examination.

First, focus on the goal. Blind cross-examination should be a surgical strike. It is not an exploration of every as-pect of potential testimony. You need not explore every nook and cranny of the witness’s mind and history. It is almost always immaterial where the witness went to school or where she worked for the past 30 years. Leave that frolic and detour for a deposition.

To be effective, blind cross must have a specific goal. Trials are a massive puzzle of facts, witnesses, and docu-ments. So you must ask yourself: Where in that maze does this witness fit?

As you prepare for blind cross-examination of a witness, consider what the other side’s objective must be in call-ing that witness. What does your opponent want that witness to achieve? What do you believe the witness will say on direct? Conversely, think about your own goal in cross-examining the witness. Is there a key fact you wish to establish or doubt to create? Or is your goal to call into question the witness’s overall credibility? More often than not, each witness is intended to lay out a specific fact or a set of key facts that help provide the premise for the other side’s case. Cross-examination should be a laser beam designed to attack the other side’s contention of that fact or set of facts.

As in any cross-examination, the key to blind cross-examination is leading the witness, rather than giving the witness free rein to lead you. As a result, blind cross-examination should consist of a series of short questions, each calling for yes or no answers. Isn’t it true? Wouldn’t you agree? Isn’t it a fact? All are common devices used to keep the witness’s answers within a short, tight frame, preferably with yes or no responses. Generally, you do not want to give the witness a chance to give a narrative response. Ask a wide-open question on blind cross, and you lose con-trol.

Another common device that allows you to try to exercise control on blind cross-examination is to ask a series of facts leading to the penultimate punch line. The goal is to keep the witness from roaming out of the box of that yes or no response until the witness stumbles into the fact you want to establish. Another device used to control the wit-ness who tries to go beyond the yes or no answer with a self-serving response is to continue to repeat the question until you get that yes or no. The more the witness evades, or refuses to respond directly to the question, the more the witness loses credibility with the judge and jury. Also, try anticipating as much as you can. Think of every possible answer to each of your questions. Then for each permutation of a response, think of a follow-up question. This helps you to control the witness and steer her back to your goal, not hers.

The easiest way to control a witness on blind cross-examination is through the use of exhibits. Documents tell the story at any trial. Unlike witnesses, documents do not have memories that dim, and, unlike witnesses, documents do not lie. Triers of fact—be they judge or jury—rely heavily on documents, especially contemporaneous ones. They are created before a party has an agenda and, therefore, are the best indicators of truth. Accordingly, use your docu-ments to weave your testimony on blind cross-examination. What is the witness to do? Deny that he wrote the document? Deny that the document she wrote is a true statement? It almost doesn’t matter what the witness’s re-sponse is. What does matter is getting the witness’s own words in writing into evidence.

The advent and indeed overuse of e-mails has made blind cross- examination through the use of documents even simpler and the use of depositions almost superfluous. We are drowning in a flood of e-mails, and they are all part of e-discovery. The overuse of e-mails has made blind cross a much less risky task. Each witness’s testimony is set forth in his or her own words through a series of “instant messages” and endless e-mail exchanges. People are dis-armingly candid in e-mails. Admissions that would never appear in a letter or a formal memorandum permeate the e-mail universe. People spontaneously write e-mails without hesitation and, more importantly, without reflection or thinking. All you have to do for effective blind cross is have the witness repeat what he or she wrote and then merely ask if the witness believes it to be a true statement at the time he or she wrote it. Either the witness has to confess being a liar in writing an intentionally false e-mail or the witness has to acknowledge that he believed the e-mail to be true at the time written, regardless of the fact that a different truth dawned on the e-mail author later in the litiga-tion or in the life of the dispute.

No matter how much you prepare, no matter how much you review the documents and the e-mails, and regardless of how many possible answers you plot out to your questions, you will still be open to surprise in any number of forms during cross-examination. The same is true in blind cross. Inevitably, surprises will happen. Sometimes terri-ble surprises. The key in blind cross is not to panic. You need to move on quickly to another question, another area of examination. Ask anything, no matter how trivial or tangential, but move quickly off the point. When that sur-prise hits you, you cannot pause. Resist the temptation to fumble your notes or look up to the ceiling, praying for divine guidance. You only drive home that the witness has just stabbed a dagger into the heart of your case. By mov-ing quickly, you distract the trier of fact as best as you can into some other area. Ask another question—quickly. Don’t worry about whether the question flows. By moving quickly, you can avoid the impact of the surprise answer sinking in. Indeed, by remaining in control, you can sometimes give the impression that the surprise answer was something you expected or even wanted.

Trials are theater. Each side wants to have their last, distinctive impression linger in the judge or jury’s mind over the evening or weekend hiatus. Blind cross-examination is no different. Pull a series of key questions out of their “logical” order and save them for the end. Have a zinger that lets you go out on a high regardless of whether you got tagged by the unexpected adverse answer. The purpose of these closing questions is to drive home your objective or goal. They should show the theme of why you examined this witness and why her testimony is favorable to your case and not to your opponent’s. They should be a series of questions asking the obvious. It does not matter what the witness answers. Your point is being made by the questions. Your questions set forth your goal in examining the witness. The theme and the objective of the blind cross have been achieved.

- This article is an abridged and edited version of one that originally appeared on page 23 of Litigation, Winter 2009 (35:2).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
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- Periodicals: Litigation, quarterly journal; Litigation News, online magazine and print quarterly; committee newsletters (all Section members may join three committees at no additional cost).
- Books and Other Recent Publications: The Litigation Manual: Jury Trials; Model Jury Instructions: Copyright, Trademark and Trade Dress Litigation; The Attorney-Client Privilege and the Work-Product Doctrine, 5th ed.; Internal Corporate Investigations, 3d ed.; Law Makers, Law Breakers and Uncommon Trials; Raise the Bar: Real World Solutions for a Troubled Profession; The Curmudgeon’s Guide to Practicing Law; The Litigation Manual: First Supplement; The Litigation Manual: Depositions; Model Jury Instructions: Employment Litigation, 2d ed.; The Trial Lawyer: What It Takes to Win, DVD/book package; Motion Practice and Persuasion; McElhaney’s Trial Notebook, 4th ed.

Mark A. Neubauer is a partner in the Century City, California, office of Steptoe & Johnson LLP, where he is a civil trial law-yer. He may be reached at

Copyright 2009

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