The core principles of a "textbook" cross-examination are to (1) never ask a question to which you do not know the answer (stick to those you have asked in depositions), and (2) ask only leading questions in order to (3) always maintain control of the witness. This "textbook" method—while safe, effective, and efficient—often makes for routine and occasionally mundane courtroom theatrics.
Limitations of the "Textbook" Cross-Examination
Despite the method being tried and true, it is difficult for the cross-examiner to infuse the courtroom with a sense of drama because the cross-examiner already knows the answers to the questions asked. Indeed, a cross-examination that elicits damning admissions through "yes/no" answers is only effective if the fact finder pays attention and recognizes the importance of the admissions. If the judge or jury is not paying attention, they could fail to recognize the importance of the testimony elicited—or worse, lose interest in your cross-examination or case-in-chief entirely.
This article makes a radical suggestion—that in specific situations, conducting a "radical" cross-examination without previously deposing the witness will result in the same admissions but with greater emphasis and greater weight attributed by the fact finder. To illustrate the effectiveness of this "radical" cross-examination technique, I will use an example from a recent civil rights bench trial in which the judge interrupted the witness to ask his own questions and ultimately concluded that the witness was "not credible."