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September 18, 2013 Articles

Preparing and Conducting Effective Cross-Examinations

The success of your cross-examinations at trial depends on the work that you do beforehand.

By Matthew A. Passen

The success of your cross-examinations at trial depends on the work that you do beforehand. As with all stages of trial advocacy, there is no substitute for preparation. The most prepared lawyer in the courtroom—the one who has analyzed his or her case inside and out—is able to craft and execute a cross-examination that methodically exposes the witness’s true colors and tells the cross-examiner’s story in a compelling way.

Before I cross-examine a witness at trial, I want to know as much information about that witness and his or her anticipated testimony as possible. This is particularly important with expert witnesses whose proficiency in specialized fields makes them more difficult to fluster or impugn. I investigate relevant databases (such as TrialSmith or LexisNexis) and search the Internet, including professional websites, social-networking sites, and news stories, for anything mentioning the witness. I review their prior testimony and written publications. I talk to other lawyers who have deposed or examined the witnesses. While this takes time, I have found that a thorough background investigation often returns at least one “gold nugget” that can be used during cross-examination to elicit a critical admission or expose an expert witness’s lack of expertise or bias.

In addition to research, pretrial discovery also provides valuable information to use during cross-examination at trial, particularly for impeachment. In the case of deposition testimony, I prefer to use videotaped depositions for impeachment at trial because a video tends to be more effective for a jury than an attorney re-reading contradictory portions of a deposition transcript.

While a well-prepared cross-examination can be effective, ill preparation will have the opposite effect. As opposed to “scoring points” for your side, the jury may perceive an attorney who does not adequately prepare for cross-examination as incompetent or a bully. To avoid such a devastating outcome, I suggest the following guidelines.

Consider a Dynamic Cross-Examination

All trial lawyers at one time or another have been told of certain “rules” of cross-examination, such as “only ask leading questions” or “never ask a question to which you do not know the answer.” I believe a more dynamic and flexible approach can be extremely effective.

An important goal of cross-examination is to tell your story through the witness and have the jury look to you for information rather than the witness. This can be accomplished by using short, leading questions—statements, really—that elicit a “yes” or “no” response. You are not seeking information from the witness; instead, you are giving information to the witness (and jury).

A cross-examination comprising only leading questions may not be advisable, though. Using leading questions exclusively can be repetitive, lends itself to “bullying” or appearing unfair with the witness to the jury, and also reveals the cross-examiner’s beliefs, allowing the witness to readily devise an unhelpful response.

Consider whether to incorporate non-leading questions into your cross-examinations. Sometimes the witness’s own answer to an open-ended question—rather than simply an affirmation of the cross-examiner’s statement—makes your point more powerfully than any statement you could have crafted. Do not confine your cross-examination to admissions that you elicited at the witness’s deposition. Consider asking a question to which you do not know the answer but for which the answer cannot hurt you. This dynamic approach to cross-examination must be done strategically, with extreme care, and only after thorough case evaluation and preparation.

Organize with Primacy and Recency 
Organization of cross-examination is important, especially the concepts of primacy and recency. Jurors are more likely to remember the first and last part of your cross-examination, so it is important to start strong and end strong.

I like to begin most cross-examinations by eliciting important admissions from the witness (those that I want the jury to believe) before calling the witness’s credibility into question. If I believe the witness has seriously damaged my case on direct examination, I try to start with something stronger.

The harder question to consider is how and when to end a cross-examination. As my legal-writing professor told my class in law school, a good strategy is to “hit it and quit it.” That is, make your points, elicit what you need for closing argument, and then sit down.

Always Keep the Jury in Mind 
You are the thirteenth juror. Everything you do at trial, including cross-examination, must be seen through the eyes of the jury. Do not assume the jurors know your case. Consider conducting focus groups before trial to learn how a jury might perceive certain facts or themes, even if that means informally “testing” your case with your significant other, friends, colleagues, or office-building employees. Remember that the goal is not to win the cross-examination; it is to win the trial. If you are conducting a cross-examination and start feeling that “this is fun, I am on a roll,” alarm bells should start sounding in your head. Slow down and consider your audience. Does the jury understand the points you are making? Could the jury think you are being unfair with the witness? Overly sarcastic or aggressive?

Stay one step behind the jury. Do not attack the witness you are cross-examining unless you are absolutely sure that the jury has given you permission to attack the witness; even then, use extreme caution.

Be Yourself
Everyone has his or her own personality and own style as a trial attorney. While you should take calculated risks at trial based on what you have learned, do not try and be anyone but yourself. The jury will see right through you if you are trying to imitate someone else, and your credibility will be jeopardized.

The best way to find your own style is to try cases. Try big cases, small cases, and difficult cases. Talk to jurors after the trial has ended. The more trials under your belt, the more confident you will become in your own style and approach and the more you will learn about areas for improvement.

Matthew A. Passen is a partner with Passen Law Group in Chicago, Illinois.