“Your Honor, I have no further questions for this witness,” your opponent says, moving back across the courtroom to his post. The judge swivels in your direction. “Cross-examination?” he asks. As you rise, the jury leans forward in anticipation. You grab the notes that you hastily scribbled on a legal pad throughout the direct exam, head to the podium, and…
Hopefully, whatever you do next in this scenario is backstopped by methodical preparation invested throughout discovery and over the lifetime of the case. Hopefully, you have an actual plan for this cross-examination that’s more than just a series of “hot takes” on the direct testimony that you just heard. All too often, however, while preparing every other aspect of a trial from opening to closing, and every direct examination in between, lawyers treat cross-examination as an improvisational art.
That’s a mistake, often resulting in a confused, overly long, and unfocused inquiry into tertiary minutiae. As Louis Nizer, one of the 20th century’s leading trial lawyers famously observed, “[p]reparation is the be-all of good trial work. Everything else—felicity of expression, improvisational brilliance—is a satellite around the sun. Thorough preparation is that sun.” That’s as true for cross-examination as it is for every other aspect of the work.
As with every other part of a trial, the first question to ask yourself when preparing a cross-examination is “how does this testimony affect the handful of central issues or themes in the case?” If it doesn’t, your job is to briefly establish that fact and then sit back down. By maintaining discipline and focus on those central issues, you reinforce to the jury that those are the central issues on which they too should deliberate.
Conversely, a lawyer risks diluting his or her central facts or themes by chasing down every tangential inconsistency revealed on direct as if they are all somehow equally important. If the inconsistencies are immaterial to the central questions, and don’t strike at the heart of any of the other objectives described below, they might not be worth the challenge.
The most effective cross-examination I have seen in my time on the bench was barely a minute long and consisted of three specific, pointed questions. The witness had testified on direct examination for more than an hour, and there were several apparent inconsistencies that counsel could have underscored on cross-examination. Instead, by sticking to her own themes, and establishing that the witness had no personal familiarity with the central facts associated with those themes, counsel neutralized the witness entirely. Abruptly. And then sat down. It was a gutsy choice, but it likely informed the jury’s subsequent embrace of those same themes when deliberating. As Rufus Choate, an esteemed trial lawyer of the early 19th century cautioned, “Never cross-examine more than is absolutely necessary. If you don’t break your witness, he breaks you.”
The next question to ask yourself when preparing cross-examination is whether you can use the adverse witness to validate other facts or themes important to your case. This is obviously easier in those states that permit wide-open cross. But even in jurisdictions where questioning is limited to matters raised on direct examination, there may be opportunities to extract useful testimony instead of rushing headlong into impeachment.
You might, for example, get an opposing expert to concede your expert’s reputation, credentials, or the recognized acceptability of an alternative methodology your expert employed. Of course, you should try this sort of validation during cross-examination at trial only where you have previously locked the witness into precisely that same testimony during discovery. But if you planned that far ahead, those concessions extracted on the stand from opposing witnesses inevitably resonate more fully with the jury.
Where, however, the direct examination squarely damages the central issues or themes in your case, you typically will need to take the matter head on by presenting good-faith, admissible grounds for the jury to question the adverse witness’s perception, memory, or credibility. While these attacks necessarily vary by the facts of the case and the witness on the stand, successful examples share structural commonalities that can be planned and built into your cross-examination.
For example, position your strongest attacks to “bookend” the balance of your impeachment. It is a well-established tenet of psychology that, when presented with a diverse data set of information to remember, people are more likely to fully and viscerally recall the first and last bits of information than whatever material lay in between. Lawyers can harness these primacy and recency effects in cross-examination to preternaturally embed their most compelling impeachment in the jurors’ collective memory. Or to put it more colloquially, consider “starting with a bang and ending with a zinger.”
Equally, when possible, avoid organizing your impeachment topics in mere chronological order. That approach makes it substantially easier for the adverse witness to anticipate what might be coming next, and thus makes them forewarned and forearmed when responding to the preliminary foundational buildup.
If you have riskier topics, where the witness is less likely to be hemmed in by your questioning, structure your cross-examination to broach those subjects only after you’ve exerted control in other areas first. And be willing to jettison those riskier topics entirely if the witness (or judge) is making it difficult for you to maintain that control. It is often better to have a shorter, less comprehensive cross, than to have your otherwise focused exam devolve into a muddled mess of combative or evasive speeches; distracting the jury from your otherwise more effective points planned for first and last.
Finally, once you’ve planned what you are going to ask and the order in which you’re going to ask it, spare a moment to also consider the way in which you’ll ask it. Even newly admitted lawyers are generally well-trained in the “mechanics” of cross-examination. They know to ask leading questions. They know to build proper foundations. They know the rules governing collateral sources, learned treatises, and prior convicted bad acts.
But those same lawyers may not have given any thought at all to the corresponding “staging” decisions that will ultimately make their cross-examination more or less effective. Where, for example, should they be standing during impeachment? How quickly should they be speaking, and with what inflection? What body language and posture? What vocal tone? These choices tell the jury whether you’re asking them to see the witness as merely mistaken or lying. Maybe well-meaning but confused. Or perhaps as a villain.
If your tone doesn’t match the jury’s own perception of that same witness, they will see you as unbelievable. Or bombastic. Or cruel. And they might punish you, even if your cross-examination was otherwise well planned, well executed, and mechanically precise. As another lauded practitioner, Francis L. Wellman, observed in his classic 1903 treatise, The Art of Cross-Examination, “[be] mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail or the fearful; rough to the ruffian; and a thunderbolt to the liar.” That’s good advice.
