Summary
The key to an effective cross-examination is preparation. The evidence of good preparation is an organized trial cross-examination outline. By the time the trial lawyer gets on their feet to cross-examine the witness, the outline should be finely honed. Though an experienced trial lawyer will not use the outline as a script, it will be the tool they use to advance the client’s narrative and impeach the witness’s credibility. A well-organized outline is even more important when the witness is a seasoned expert. The following tips are focused on preparing an organized trial cross-examination outline for experts, but these tips can be applied to any outline. Before following these tips, be sure to communicate with the trial lawyer on any personal preferences.
This sounds simple but if not done at the outset, your outline will become unwieldy and get messy during the revision process. Use the styling pane in Word to assign styles for “normal” text, headings, and subheadings. If you style the headings, you can use the navigation pane to easily move sections around as you and the trial lawyer collaborate to find the right flow. Using headings and subheadings will also help the trial lawyer stay organized during the examination, allowing them to move through the outline flexibly depending on what was emphasized on direct examination and how the witness answers the questions on cross-examination.
Use bold fonts for all questions and create a custom bullet-point with a “Q.” This will distinguish between the trial lawyer’s questions for the trial cross-examination and other materials they need to consider as part of the cross-examination, such as impeachment testimony from prior trial and deposition transcripts. Finally, create a table of contents using the automatic table feature in Word. If you have styled your headings and subheadings, this is an easy way to see what topics the outline covers and assess whether the outline is organized in the best way for the jury to follow.
Prior sworn testimony is the backbone of an organized cross-examination outline. Especially for seasoned experts, it is imperative to mine prior trial and deposition transcripts for impeachment material. It can be inefficient (and impractical) to read and re-read every transcript, especially when that testimony was given on other matters, but you never know when you will find a nugget to use on cross-examination. Consider a database like TextMap where you can upload trial and deposition transcripts and use key word searches across them. TextMap also allows you to copy and paste the impeachment testimony from the database directly into your outline with built-in pinpoint citations.
It is the trial lawyer’s job to deliver the cross-examination with flexibility, tailoring the examination to the witness’s testimony on direct examination and to how the witness is behaving on cross-examination. It is your job as the lawyer preparing the outline to ensure they have the materials and substantive knowledge they need to pivot at any moment leading up to and during the cross-examination. Here is where you can benefit using a gray box, which is just shading and borders to distinguish certain material in the outline. The gray box is for material that may or may not be important, depending on how the witness testifies. The gray box is a signal to the trial lawyer that they can skip over that material during the examination, depending on how it plays out. This simple stylistic technique will help the trial lawyer stay focused while arming them with additional information to help them think more clearly on their feet.
Ideally, you will have started preparing the cross-examination outline with time built-in to revise and reduce (whittle, whittle, whittle). This process is imperative to delivering an organized cross-examination that is not too cumbersome and benefits the jury. There may be points that are not worth scoring. There may be atmospherics to consider. There may be issues without clean impeachment testimony that are not worth the fight. There may be complicated studies and difficult scientific concepts that can be more effectively covered through direct examination of your own expert. Identify the most important points you want the jury to take away from the cross-examination and prioritize those in your outline. You should create a “graveyard” section at the end of your outline and move sections that you have “whittled” there. That way the trial lawyer can go to those sections if something unexpected happens on direct examination, or you can pull those sections back into the outline depending on how the evidence comes in at trial.
A cross-examination outline will change and evolve throughout the process and, sometimes (but hopefully not), up until the trial lawyer gets on their feet. Ideally, you will be able to finalize the outline the night before the cross-examination, making tweaks to account for opening statements, other witness’s testimony, and issues the jury might be thinking about. But no matter how prepared you are or how far in advance you started the outline, you will be making changes during trial. For example, you likely started your outline before the exhibits were even stamped for trial, and any exhibits you cite in your outline need to reflect the trial exhibit number. Even if you cite-checked your outline as you prepared it, the contents have been deleted, revised, and rearranged. When the trial lawyer gets on their feet, you should be confident that every citation in the outline is accurate, whether to impeachment testimony, exhibits, or pin-cites to scientific literature. Get a second pair of eyes to verify the accuracy of all citations.
Checking and re-checking will ensure the trial lawyer and the trial technician, if you have one, can maneuver smoothly through the examination. You do not want the trial lawyer fumbling an impeachment opportunity because citations to impeachment testimony are incorrect or the trial exhibit was misnumbered. You cannot control what the expert does but you can control the accuracy of your own work, which will have a major impact on the jury’s perception of the examination.
