May 26, 2017

Burying the Ten Commandments of Cross-Examination

Patrick Malone

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The famed ten commandments of cross-examination were handed down on tablets from Mount Justice by renowned law lecturer Irving Younger. He in turn had received them from other trial-lawyering scribes down through the ages. Here they are:

  1. Be brief.
  2. Use short questions, plain words.
  3. Ask only leading questions.
  4. Don’t ask if you don’t know the answer.
  5. Listen to the witness’s answers.
  6. Don’t quarrel with the witness.
  7. Don’t allow the witness to repeat.
  8. Don’t allow the witness to explain.
  9. Don’t ask one question too many.
  10. Save the ultimate point for closing.

Whatever religion promulgated these commandments is a joyless, repressive, down-at-the-mouth faith. To the budding cross-examiner, the message is clear: Kid, shut up and sit down, before you make a fool of yourself.

And because they are written not as advice but as commandments, they have hobbled whole generations of trial lawyers with the fearful message they impart. It’s time to bury these commandments in favor of ideas that lean toward a more freewheeling, analytical, and effective way of cross-examination.

First, let’s look at what is not just wrong but actually dangerous about these commandments. Then I will rewrite them in a way that I think will be more helpful.

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