Cross Examination Techniques for Young Family Lawyers

1. Know Before You Go: During cross examination,  avoid asking questions you don’t already know the answers to. You really need to know the opposing party’s position through and through in order to be thoroughly prepared. Don’t forget to review all of the pleadings from the opposing party as well; these are still statements under oath that you can tie them to. A deposition is the best time to ask questions you don't know the answer to. Unfortunately, the process is expensive and many custody litigants can’t afford it. Use other discovery tools to your advantage. Answers to interrogatories are where I always start when preparing the points I want to bring up on cross. Requests for Admissions of Fact are also a great tool for locking down how the opposing party’s position corroborates points you want to make.
2. Map it Out: Prepare for an ideal cross-examination by establishing the basic points through your questioning. Build an outline detailing the plan of action for the cross-examination of each witness, creating bullet point lists of topics to be discussed and 2-3 word summaries for each question to be asked. Identify the potential areas for impeachment, and make a reference list for each witness of exhibits and deposition testimony that may be used for impeachment. Essentially, you want a road map where it is easy for you to make detours or add stops. Without one you risk letting the witness take the wheel.
3. Look Before You Leap: Having to think on your feet is inevitable on cross, but you can't go in empty handed. Yes, you can prepare every single question like a script. However, to a degree, doing so puts you at a disadvantage to a degree when you do that. You run the risk of going beyond the scope of direct and having opposing counsel successfully object. Cross examination is mainly about poking holes in the opposing party’s story, and why would you want to interrupt a good story? Begin picking up where the opposing party left off and then go backwards through your notes incorporating the points you have prepared along with their testimony.
4. Stick to Your Guns When Shooting Holes in their Case:  Cross examination comes down to a few foundational facets to meet your objectives and bolster your case:
   1. Point out when a Witness’ Testimony Contradicts the Testimony of Other Witnesses. Make sure you preliminarily request witnessed be sequestered. More likely than not, there will be differences in two people telling the same story. Pointing out those discrepancies will make them look untruthful at best, or at least, unsure of what they recalled. 
   2. Highlight the Witnesses’ Bias. An obvious example: family members and close friends of the opposing party cared enough about them to take off work and subject themselves to cross examination. If you ask them if they would do anything for their loved one, they are more often going to say yes. It's simple, but I’ve seen it used many times by opposing counsel when one of my witnesses has put forth powerful testimony. Whether they hesitate to answer yes or answer immediately yes, both call into question the influence of the opposing party.
   3. Attack the witness’ credibility by impeachment. Make sure to first lock them down in their testimony on the stand to the extent that there is no room to waiver. Then present them with the contradictory evidence. This is especially helpful in bringing in evidence the opposing party did not know you had for impeachment purposes. I frequently do this with texts, Indeed resumes, Facebook posts, or anything I can find when googling the witness. For instance, in one of my divorce cases, my client’s husband had a collection of three classic cars which he swore up and down on the stand that he sold for parts for a few hundred dollars. I did a trial subpoena for his driving records and vehicle registrations. I googled the cars’ VIN numbers the day before trial and found the public auction notices showing him selling the vehicles to a business in his name for thousands. I laid the foundation to tie him and only him to the business name then presented him with the public auction records. Needless to say, he paid for that lie.
5. Sometimes Silence is Golden: In a typical custody case, both parties will be testifying. But most likely you will also have a random relative or friend, who testifies to the opposing party just being a good parent. These witnesses are more or less the fluff. If you don’t know much about what they are going to say, just pass on cross examining them. You are not only showing the judge that this witness is useless, but it also gives your case more credibility for not wasting the court’s time on evidence.
6. What they Don’t Know CAN Hurt Them: Impeachment is not the only mechanism for attacking a witness’ credibility. Some witnesses destroy their own credibility through evasive and unresponsive answers. You can also use questions to emphasize what they did not know. “Would you be surprised to learn that Jack has gone through ten months of anger management? Were you aware he has not had a drop of alcohol since that incident?”
7. Take the Lead(ing): Use your leading questions to make your narrative through the witness’ testimony. Attorneys cannot testify, but when it comes to cross examination this is your best way to tell your client’s side of the story.
8. You are in the Driver’s Seat Despite your Client Being a Backseat Driver: I don’t think this can be emphasized enough with my fellow young lawyers, but never forget that it is your case. Yes, you are passionately advocating for your client, but they don’t know what you know. That’s why they need your services. I was told by an older attorney when I first started practicing, “never be afraid to look stupid on behalf of your client.” While that partially rings true to me, I will say, keep in mind who your trier of fact is. They are who makes the ultimate decision and you may face the consequences for prolonging the trial or bringing up irrelevant (and oftentimes offensive) points about the opposing party. Refrain from mudslinging, because at the end of the day it is about the children, not their parents’ petty disputes.
9. Don’t Beat a Dead Horse...but Make Sure it’s Dead First:  Anything that you get out of a case that doesn’t make your case stronger and their case weaker is unnecessary evidence. You should have a theme for your case. Any point that highlights your theme should be repeated throughout. These points of emphasis sound much better coming from witnesses that the opposing party wants you to hear. It is important that you keep your eyes on the Judge to maintain the delicate balance that ensures the Judge hears you, but hasn’t heard enough at that point.
10. Don’t Underestimate the Power of Your Words: When you are cross examining the opposing party about your client as a parent, he or she is no longer “Jack” or “Diane”. Your client is now your children’s Father, your children’s Mother. Use those words as much as possible.
11. You Kill More Flies with Honey than Vinegar: You don’t have to be cruel or condescending to get the information you need. Your client may expect theatrix and you to “wipe the floor” with their spouse. However, that particular bulldog boomer approach doesn’t necessarily work. The opposing party is far more likely to be combative with statements directly attacking them. Nothing displays a lack of control like emotional outbursts or lack of courtroom decorum.         

The closing point to take away in all of this is please just have fun with it. I say this with complete and total empathy to our clients that being engaged in a custody battle with the threat of your children being taken away from you is quite possibly the worst thing in life next to death. But it’s our job to support our clients, to be their light in their time of darkness, and to fight for their family like it’s your own family. At the end of the day there is nothing, but love and compassion in our crazy profession. Embrace what we know to be most important in our cases: the best interests of the children involved.                                            

Resources                                                                                                         

1. Hearing, Gregory A.; Ussery Thompson, Brian C. Guidelines for an Effective Cross-Examination: The Science Behind the Art, http://apps.americanbar.org/labor/lel-aba-annual/papers/2005/025.pdf

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