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August 27, 2019 Articles

How to Prepare Your Cross-Examination Like a Boss

Sage advice in the form of easy-to-apply tips and fundamentals.

By Ben Barnes

I was about halfway through a two-week trial when I got my first opportunity to cross-examine a witness. Our lead lawyer was overwhelmed, having taken witness after witness, and we were hit unexpectedly with some midtrial motions. At about 7:00 p.m., he offered me the examination, which was set for the following morning. Great! No problem, I thought. I had deposed this witness, and I knew the facts inside and out. Piece of cake.

Then I sat down to write my outline, and I could not get it started. 

I harkened back to law school trial advocacy class, where we learned the conventional “rules” of cross-examination:

  • Be brief.
  • Ask only leading questions.
  • Don’t ask if you don’t know the answer.
  • Don’t allow the witness to explain.
  • Don’t ask one question too many—save the ultimate point for closing.

This did not help. The rules tell you how to ask your questions—or, more accurately, how not to ask them—but how do you figure out what to ask?

After the trial, I started thinking more broadly about cross-examination and how to prepare more effectively for the next one. I looked at article after article on cross-examination and found that most of the available literature focuses on the same generic concepts that I learned in law school. I was dissatisfied, not because I disagree with this advice—I will not presume to argue with the lions of the trial bar on cross-examination techniques—but because I could not find guidelines to help me answer two basic questions: “What am I supposed to ask this witness?” and “How do I prepare myself to get what I need from the witness?”

Pinpointing the Purpose

I eventually learned that purpose is paramount. I now think more broadly about what I need to accomplish with my witness, which in turn drives my preparation. After I understand my purpose, my outline virtually writes itself.

A cross-examination can have many purposes, but the two I focus on most are impeachment and proof. Impeachment, of course, is a tool for challenging the credibility of an adverse witness; effective impeachment can help you prove your case or disprove your opponent’s case. Proof as a purpose relates to the details of establishing the elements of your cause of action, or limiting your opponent’s ability to establish its elements. In my experience, attorneys often overlook proof as a consideration for cross-examination and instead focus exclusively on impeachment. But both purposes can drive a successful examination, and thinking about these purposes in the right way makes it easy to develop a strong substantive foundation for your cross.

Preparing Your Impeachment

Impeachment is always on the table because the credibility of each witness is always relevant. Before indiscriminately pulling every potential impeachment clip, though, I find it helpful to answer two questions.

First, what purpose will the witness serve on direct? Is she a party witness supplying important but contested evidence? Is she a third party testifying to a germane but relatively uncontroversial set of facts? Does her testimony advance my opponent’s trial themes? Or is her testimony irrelevant in light of the contested issues, my theme, and my theory of the case?

Second, what prior testimony aligns with the witness’s purpose on direct? The witness’s trial testimony will inevitably deviate in some respect from her deposition testimony. But are those deviations significant? If the prior testimony does not impact the purpose of the witness’s testimony, I do not focus on that testimony for generating impeachment material. Examples of extraneous deviations include details about the witness’s background (unless she is an expert), insignificant contextual facts, and obvious errors in testimony that do not affect the case. All of these determinations are subjective, but what is important to me is that I engage in the process of thinking them through.

Once I have answered these questions, I can begin to prepare for my impeachment by indexing and digesting the witness’s prior testimony—based on the method that Judge Herbert Stern describes in his excellent book Trying Cases to Win. Indexing involves rereading the witness’s prior testimony, noting the page and line numbers of significant colloquies, and labeling or “tagging” those excerpts, based on the impeachment objectives that I have identified for that witness. My index will look something like this:





Light was red

Color of light


No pedestrians in intersection at time of accident

Contributing factors


Plaintiff looked drunk and was swerving before he hit defendant

Contributing factors

Contributory negligence

After compiling the index, I can then sort the testimony by category and copy/paste, verbatim, the colloquies that I will most likely use for impeachment directly into my outline. The rest is organized and at my fingertips when the witness unexpectedly changes her testimony on direct.

Get Your Evidence

Proof is the other purpose for cross that drives my preparation. An adverse witness can help prove your case in at least two ways. First, she can limit your opponent’s ability to prove an essential element of its claim or defense. Second, she can supply proof of a necessary element of your claim or defense. I rely heavily on the jury instructions to determine whether my witness can supply any of this proof.

This is best illustrated through an example. This example derives from a fair debt collection practices case, in which a mortgage servicer failed to credit the borrower for payments she made and improperly listed her home for foreclosure. While foreclosure proceedings were pending, the servicer drove by her home and photographed it, intending to protect the value of its collateral. After stopping the foreclosure, the plaintiff brought a claim under the Fair Debt Collection Practices Act for the servicer’s alleged misrepresentations. She also claimed invasion of privacy arising from the servicer’s inspection of her home.

The relevant instruction on invasion of privacy read as follows:


[Plaintiff’s] first claim is that [Defendant] invaded her privacy. Your verdict for Invasion of Privacy must be for [Plaintiff] if [Plaintiff] established:

1.                  that [Defendant] intentionally intruded, physically or otherwise, on [Plaintiff’s] solitude or seclusion, or her private affairs; and

2.                  that such intrusion would be highly offensive to a reasonable person; and

3.                  that [Defendant’s] intrusion directly caused or directly contributed to cause damage to [Plaintiff]

During the plaintiff’s cross-examination, the defendant’s attorney questioned her concerning the invasion of privacy claim:

[Defense attorney]: Okay. So I’m going to approach you and show you [the photographs of your home], and so that we don’t—you had talked earlier today that you found this to be inappropriate and improper, and you talked perhaps what if they took an inappropriate or improper photo involving you. I’m going to ask you to tell us—if you’ll just review it, is there anything in there in any photo that shows either you or any family member that you can identify?

[Plaintiff]: What was your question again?

Q: Is there any photo in there that you’ve seen that shows either you or a member of your family in any of those?

A: No. But there’s a closeup of my living room window. Had the curtains been open, you might have gotten one.

Q: Okay. But just from the evidence we have here in trial in front of this Jury, there’s no photo that depicts you or a family member or really any person from what I can see in any of those photos; is that fair?

THE COURT: Can’t counsel for Plaintiff stipulate? You guys have seen these pictures. Can’t you stipulate to that?

Saved by the bell! This colloquy is an excellent example of how you can use an adverse witness to limit your opponent’s ability to prove its claim—and it comes straight from the jury instruction. This attorney had to have consulted the instruction on invasion of privacy and noted that invasion of privacy must be “highly offensive to a reasonable person” to be actionable. The photograph here, taken from the street, did not depict the plaintiff or any of her family members. Until he was interrupted by the court, the attorney effectively used the witness’s own testimony to foreclose her from proving invasion of privacy. By simply consulting the jury instruction, the attorney developed a highly effective line of cross for this witness.

This preparation method also applies when using an adverse witness to affirmatively prove a contested fact. In the same case, the plaintiff’s attorney used the defendant’s corporate representative to prove each of the misrepresentations that the defendant made to the plaintiff concerning the amount of her mortgage debt—an essential element of her fair debt collection claim. Surely, the information was available in the documentary evidence, but it was far more effective for the plaintiff’s attorney to elicit the facts supporting this essential element from an adverse witness. And, again,k the jury instructions drove the substance of this highly effective line of questioning.

After Satisfying Your Purpose You Are Free to Shine

I recognize that to have a successful cross-examination, it is not enough to just know your purpose. There are so many other considerations, like how to comport yourself in front of the jury, when to press a witness, or how to order your specific questions to elicit favorable testimony. However, I will leave these nuances of cross-examination technique to the masters. After all, none of those considerations even matter until you know what to ask your witnesses and how to prepare yourself to get the information you need from them. Only then can you focus on truly mastering the craft.

Ben Barnes is a senior associate at Reid Collins & Tsai LLP.

Copyright © 2019, 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).