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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Take the Time to Develop a Solid Cross-Examination Plan

Open any book on trial advocacy and you will undoubtedly see that the first piece of advice is to prepare. What does that mean for purposes of cross-examination, especially in a construction case? It means knowing what you need to prove to win your case. So:

  • What are the claims and defenses at issue?
  • What are the elements of those claims and defenses?
  • What are the collateral issues that matter?
  • How can this witness help you prove your claims and defenses?

The only way you are going to be able to answer these questions is to spend the time necessary to understand the legal elements and issues of and in your case, both primary and non-primary, and how this particular witness advances the ball for you with respect to those elements and issues. In that regard, there are a few fundamental goals that you should have in mind when you cross-examine a witness.

First, think hard about how this witness can disprove your points and how can you neutralize the threat of such potentially damaging testimony. Of course, if you haven’t considered the damage that can be done to your case—if you think your case is invincible—start over, because you are not invincible and no case is perfect. So begin by thinking as if you were on the other side and look hard at what this witness can do to your case. Once you have done that, consider developing the lines of attack set forth below.

Second, make sure you think, ahead of time, about what you need to prevent the other side, or sides, from proving. Again, this requires that you put on the other side’s hat and think about what it needs to prove to win its case. As Sun Tzu said, “To know your Enemy, you must become your Enemy.” Sun Tzu , The Art of War. (S.B. Griffith, trans., Clarendon Press 18th ed. 1964). What will your adversary likely be seeking to prove? How can you effectively block that proof? How does this witness allow you to block that proof? How can this witness prove the other side’s case and what can you do neutralize that threat? Can the witness help you prove or block proof offered by others? If so, what do you need the witness to say and what do you want the witness to say? (In answering this question, consider whether the reward of achieving a “want” is worth the risk that the cross will backfire and the witness will hurt your case.)

Third, understand that trials never go off precisely as planned and special circumstances always arise. Your job as cross-examining attorney is to be prepared, before trial, for testimony that is not consistent with prior testimony, that conflicts with what you expect the witness to say, and that is more definitive than what was offered at the witness’s deposition. Specifically, for every witness who you know will be testifying, map out every possible line of testimony the witness might take and be prepared to confront that testimony. If you are thorough, you will not be surprised at trial, no matter what the testimony.

Fourth, think ahead about re-cross. To do that, imagine what the other side will likely do with your cross-examination. How are they likely to try to rehabilitate their witness? You cannot know for certain what they will do, but if you understand your adversary’s case and if you put yourself in their shoes, you will probably be able to get a fairly accurate picture of what their re-direct will be. And in response to that re-direct, be prepared for a re-cross by running through the same steps you followed to develop your basic cross-examination.

Fifth, be prepared for objections to your cross-examination. You will need to have a good understanding of the rules of evidence and how they work in the courtroom. If you don’t, you are probably not ready to try a case. But you must do more than know the rules of evidence and how to apply them while on your feet. You must also anticipate problems with your cross-examination, and the documents and other materials you will be using to impeach the witness, by taking a hard look at what you are planning to do on cross. With that background, you can marshal the law and facts to your advantage to demonstrate why the anticipated objection must be overruled. If the issue is substantial enough, consider an in limine motion. You might also consider a short evidentiary memorandum, 2–3 pages, that addresses the issue. But in no event should you find yourself surprised and scrambling to respond to an objection to a point you are making on cross-examination.

Sixth, develop strong lines of attack. Here are some examples:

The witness lacks knowledge. This line of attack focuses on the intersection between surrounding circumstances and the testimony itself. If the general contractor’s site superintendent, for example, testified on direct that he witnessed a concrete pour by your client, the concrete trade contractor, and the superintendent testified as to problems with that pour, one line of attack might be to show the superintendent was not in a position to see the pour and has no firsthand knowledge of the pour. Presumably, you will already know this is the case from deposition testimony or daily logs or other evidence, and so your task is to use that information to ask questions that show the witness does not really know what he said or suggested on direct he knew. The questioning might go like this:

  • You had an office in the trailer, right?
  • The trailer was located on the north side of the building site, right?
  • The concrete pour began at 7:30 in the morning, right?
  • That pour that day took place on the south side of the building site, right?
  • And that was April 10, 2015, right?
  • The same day you were meeting with the representative from ABC Bank.
  • And that meeting began at 7:30 in the morning, right?
  • In the trailer, right?
  • The trailer where your office is located, right?
  • Mr. Jones and Mr. Smith from the bank were present at this meeting in your trailer, right?
  • And the owner’s rep and the architect’s rep were also present, right?
  • Your meeting with the bank lasted two hours, right?
  • Did you walk out of that meeting while it was going on?
  • In fact, after the meeting ended, you stayed behind with the owner’s rep and the architect’s rep, right?
  • And you chatted with those guys for another 30 minutes or so, right?
  • So you were in the trailer from 7:30 in the morning until about 10 a.m.
  • The trailer on the north side of the building?
  • And where did the pour take place? (south side only)
  • When did that pour finish? (9:30 a.m.)
  • So at the time you say you saw the pour being done, you were in a meeting with four other people on the other side of the building.

The witness is not sure of his or her testimony. This line of attack requires that you pay close attention not only to the witness’s testimony but also to his or her demeanor. If you are wedded to your outline (heaven help you if you have a script), you won’t be able to pick this up. If you pay attention to what the witness is saying and the strength or weakness of the testimony, you can seize on areas of weakness and attack. Listen for buzz words on direct such as “I’m pretty sure” or “to the best of my recollection” or “I kind of remember.” These are hints that the witness is not so sure about his or her testimony. If it was obvious at the time the testimony was given that everyone in the courtroom heard and reacted to such equivocal testimony, you might decide to do nothing about it and recite the direct back to the jury on closing argument, to make your point. Or, if it was not so apparent, you might want to highlight it on cross. And if you do, then be prepared, ahead of time, with material you can show the witness to solidify his or her lack of knowledge. Don’t expect to miraculously reach into some box or scour your iPad for the material you need to attack the witness. Have it ready before trial. 

The witness is not credible. There are many ways to attack the credibility of a witness: bias, financial or other gain, friendship or other affinity with the subject matter of the testimony (e.g., the witness is testifying about her brother-in-law’s contracting business), or prejudice against your client (e.g., the witness is a business rival or former employee). The list of potential bases for credibility attacks is limitless, and it is up to you as the trial lawyer to do your homework ahead of time to uncover what that list includes. Every case turns on its own facts, and each case will have witnesses who are, for one reason or another, subject to some sort of credibility attack. Very rarely do we have the opportunity to cross-examine the purely altruistic, uninvolved, pure-as-the-driven-snow witness, but when we do, you will be hard pressed to come up with a reason to attack that saint’s credibility.

The witness is lying or just plain wrong. There will be times when a witness will lie. When that happens, and you can prove it, go out and play the lottery, because that’s your lucky day. It rarely happens that we get those moments. When we do, we savor them. More often, though, the witness will just be wrong. By pointing out the errors, you demonstrate to the jury not only that the witness did establish a fact that presumably your adversary needs but also, and especially if there is more than one error, that the witness is not reliable. That, of course, means that, even if you cannot prove that the witness is wrong on Fact A, if you can get the witness to admit—through a prior inconsistent statement or other evidence you put to the witness—that she is wrong on Facts B through G, the jury will question whether to accept the witness’s testimony as to Fact A. It is the gift that keeps on giving.

The witness can be impeached with prior inconsistent statements. There is not much in the realm of cross-examination that is more powerful and satisfying than confronting a witness with a prior inconsistent statement and, as usually happens, watching the witness squirm. Effective impeachment with prior inconsistent statements requires (a) a good understanding of the law in your jurisdiction on the subject and (b) precise preparation. It is not enough to have a copy of the witness’s deposition transcript handy. You need to have page and line cites ready to go, embedded in your outline or readily available, so that you do not lose pace in your questioning. You can impeach with prior oral statements, prior written statements, and even a pleading. The key is to make clear to the jury that what the witness is saying at trial is not consistent with what the witness said or wrote at some prior occasion. The questioning might go like this:

  • Ms. Jones, let’s talk about the budget for equipment start-up testing.
  • Remember you testified on direct that you met with the project manager and the owner’s rep and the equipment manufacturer and you came up with a budget of $250,000 for start-up testing.
  • Do you also remember answering some questions I had for you last year when I took your deposition at my office?
  • Do you remember that I asked you—page 250, lines 15–16—what the budget was for start-up testing?
  • And do you remember that before I asked you that question, at the very start of the deposition, I told you that your testimony would be recorded?
  • And that you were under oath?
  • And that if you did not hear or understand any of my questions you should let me know?
  • And do you remember that I said that if you did not tell me that you did not hear or understand a question, I would assume you heard and understood it?
  • And you did testify at that deposition truthfully, right?
  • You didn’t lie, did you?
  • You testified that the budget—page 250, lines 17–22—was only $100,000.
  • And you also testified at that deposition that you wrote a letter to Mr. Jones at the start of the project, on January 1, 2010, that the budget for equipment start-up testing was only $100,000.
  • I showed you a copy of the letter you wrote, right?
  • This is that letter. Plaintiffs’ Exhibit 12.
  • You wrote this letter, didn’t you?
  • You wrote on January 1, 2010 that the budget for equipment start-up testing was $100,000.
  • And you confirmed that number during your deposition, didn’t you?

Know Your Plan

There is no substitute for knowing firsthand everything in the case that relates to the witness you are assigned to cross-examine. This means understanding the trial plan and what your team is trying to accomplish—not just a slice of the case—reading and digesting all of the documents that conceivably might come up (by you, your adversary, or the witness), understanding how this witness fits into the overall case, and practicing your cross. It simply is not the case that cross-examination cannot be practiced or rehearsed. It can. Assuming you are not the only lawyer on the case, have your colleague play the role of the witness and run through multiple scenarios, each time with different direct testimony lines and different responses to your cross-examination.

Execute Your Plan

Once you are on your feet, it is time to execute. At this point, you no doubt have prepared, you know your case, and you are ready to cross-examine.

First, decide whether you need to cross-examine. As noted above, there are times where it is not necessary or desirable to cross-examine, and the reason for that could be any one or combination of the following: (a) the witness has done nothing on direct that hurts your case, (b) you do not need to co-opt the witness and make additional points through your cross, or (c) your cross would only underscore the witness’s testimony. This is not always an easy decision; there will be times when there are reasons to cross but more compelling reasons to keep your powder dry. You are being paid the big bucks to make that call. Just don’t assume that you are required to stand up and cross.

Second, if you are going to cross, and most often you will want to cross, focus on being in control. On direct, the witness is the star and the lawyer is the supporting actor, gently steering the witness to areas where he or she can enlighten the jury. But on cross-examination, the lawyer is the star, the sun, the moon, and everything in between. You are the center of attention, and the witness is just a prop to help you make your point. To make that happen, you must lead the witness not only with questions but also with body language and a sense of confidence. The jury must look to you as a trustworthy guide on the path to the truth. In that regard:

Be yourself. Develop a style that works for you. You might model yourself after someone, but if you don’t have a sense of humor, don’t try to be funny; if you used to be a linebacker on your college football team, don’t try to play the meek, unassuming type who sneaks up on the witness; if you have been trying cases for 2 years and not 20 years, don’t pretend that you have seen it all and done it all. Find a style that works for you.

Listen carefully to the witness. This is a must. You can’t be effective if you don’t listen carefully to the witness. Be especially tuned in to magic words, such as words that indicate hedging, evasive answers, or non sequiturs, and words that obviously were put in the witness’s mouth (legalisms). And while you are listening, watch. Look at the witness during the testimony and pay attention to body language; your eyes cannot be glued to a script because you will miss the flop sweat when you have the witness cornered. 

Know where you are in the courtroom, and know how to use the courtroom to demonstrate control and create pace. Many judges, especially federal judges, will not allow you to wander the courtroom during your examination. If you are glued to the podium by court rule, so be it. But if you are not, if you are a free-range questioner, then don’t be afraid to use the courtroom to your advantage. You can move slowly closer to the witness as you bring your point to a close, or you can move closer to the jury as you hammer a point you think is important. Or you might punctuate a line of cross-examination by moving during your wind-up and then stopping cold when you get to the crucial questions. In all events, if you can use the courtroom, then use it.

Don’t be afraid to call an audible if it is consistent with the plan. Nothing ever goes precisely to plan, and so be prepared to adapt if required. Just be sure that your adaptation is consistent with your overall plan.

Never let them see you sweat. There is an art to projecting confidence. Work on that. When you are in the courtroom and you have lost a sidebar objection, don’t look down at your shoes as you walk back to counsel table. Keep your head up and maintain a positive attitude. Juries will pick up on any indication of weakness or loss, so don’t give them anything to pick up.

Know your audience. Juries are not judges are not arbitrators are not arbitration panels. If you are trying a case to a jury, be prepared to have a panel of laypeople decide your case. If you are trying a case to a judge, an arbitrator, or an arbitration panel, make sure your presentation is appropriate to that judge or arbitrator or panel. Each presentation will be different, because each fact finder is different. And what might be effective in front of eight ordinary folks might be overkill for a seasoned judge on the bench for 30 years.

Make your own points—don’t cement direct. It is tempting to remind the witness of what he or she said on direct, as in “Mr. Witness, you said on direct that my client, the welding inspector, was sentenced to 10 years in federal prison for forging inspection reports. Let me ask you a few questions about that.” You might not want to remind the jury about that testimony. Instead, focus on why your client’s credibility is irrelevant because your case rests on the testimony of nonparty witnesses.

Know when to stop. Just as it is important to know when not to cross, it is important to know when to sit down. This comes from knowing your plan and sticking to it. When you have accomplished your goal, shut up and sit down. It’s just that simple. . . . Or is it? Remember that when you finish with the witness, you are not finished addressing the jury on the points you made through this witness. Far from it. When you have finished with the witness, you have actually laid the foundation for a closing argument that will incorporate what you extracted from the witness and that you will be able to deliver pushback to the witness or immediate rebuttal via re-direct. From this principle comes the rule that you should never ask that one question too many. The classic example: Q: “How could you possibly know my client bit off the victim’s nose if you were not looking at my client when he supposedly had his snack?” A: “I saw him spit it out.” It is time to stop when . . .

  • You have obtained the testimony you were after. 
  • You got a particularly great answer, so great that (a) stopping right then and there will leave the jury with a powerful feeling in your favor and (b) any further examination might scratch some obsessive-compulsive itch to complete your outline but will dilute the force of the great answer you so brilliantly extracted.

  • You can sense that the cross is just not working because the witness sees where you are going and is getting there first, the jury is getting angry at you (situational awareness helps here), the judge is not helping you control an unruly witness, or you are actually eliciting evidence hurtful to your case. In other words, know when to fold ’em.

  • All you have left are rhetorical questions—save those for your closing. 

Special Guidelines for Second Chairs

Being a second chair at trial is not as easy as it might seem. While the first chair is in the spotlight, much depends on the second chair doing a great job supporting the first chair. This means that the second chair must know the case as well as the first chair. What does this mean?

  • The second chair must know the case as well as or better than the first chair. The second chair must know every nook and cranny of every issue and every witness and every document.

  • The second chair must have the confidence to tell the first chair that he or she has missed a point when he or she has missed a point. There are no medals for politeness in trial work. If the first chair has neglected to move a document into evidence or is about to sit down before making the points that you agreed, before trial, had to be made, it is up to the second chair to push the first chair back onto the floor to finish the job.

  • The second chair must know where the first chair is going with his or her questions and be ready with the documents that might be needed for impeachment. This means following along with the outline and watching how the testimony is developing.

  •  The second chair must keep an eye on the jury or the judge and watch for reactions to questions, answers, and issues. The first chair cannot do that because he or she is focused on the witness. It is up to the second chair to be the first chair’s eyes and ears.

Keywords: litigation, construction, cross-examination

Michael R. Gordon is a partner with Manatt, Phelps & Phillips, LLP, in New York City. Ira M. Schulman is a partner with Pepper Hamilton LLP in New York City.

This article is adapted from a panel discussion—Cross-Examination; Kicking over the Other Guy’s Sand Castle—at the Section of Litigation Construction Litigation Committee’s March 4, 2016, Regional CLE Event: Yes, You Can Try a Construction Case: Planning and Handling a Construction Trial From Voir Dire to Closing Argument (New York City).

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).