July 25, 2016 Articles

Cross-Examination: Kicking over the Other Guy’s Sand Castle

With careful planning, preparation, and confidence, cross-examination can rivet the jury on the themes and points you are trying to get across to them

by Michael R. Gordon and Ira M. Schulma

The primary difference between cross-examination and direct examination is the role of the star. On direct, the witness is the star; on cross, the lawyer is the star. With careful planning, preparation, and confidence, cross-examination can rivet the jury on the themes and points you are trying to get across to them. Oftentimes you will be surprised at how little you need to do on cross. But never underestimate for a moment the importance of effective cross-examination. As Professor John H. Wigmore once famously said, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law § 1367 (cited in California v. Green, 399 U.S. 149, 158 n.11 (1970)).

Remember: Cross-examination is a trial device and not a deposition. With very, very few exceptions, and almost no exceptions in the construction litigation space, there are no points for sailing around aimlessly in the hopes that a line of questioning will yield some interesting information. When it comes to cross-examination, you are the surgeon working with precision or the heavyweight boxer pounding on someone’s side because you know it is weak. Cross is not an opportunity for you to show off to your client, your mom, your kids, or whoever else is watching you do your thing. It is an opportunity for you to have a witness verify a fact you want the jury to know because that fact is important to your case. Wigmore followed up the sentence quoted above with this: “You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” (Note: This part was not quoted in California v. Green.) Cross-examination is your chance to use a witness to continue to tell a story, to persuade the jury, or the judge, that your case is what you told them in your opening it would be (or at least to show them that the other side’s case is not what they told the jury it would be). Cross-examination is a tool among many in the trial lawyer’s toolbox. Sometimes you will need to use it; sometimes you will not. But when you do use it, make sure you know how to use that tool.

Here are some guidelines to help you:

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