CHAPTER SIX "CROSS EXAMINATION"
THE PURPOSE OF CROSS EXAMINATION
Cross examination is the ultimate challenge for a trial lawyer. It is frequently dramatic, often exciting, and in many ways it defines our adversarial system of justice. Although a poor direct examination can be aimless and boring, the worst thing you can do is leave something out and at least you know that the witness will try to be helpful. A poor cross examination, on the other hand, can be truly disastrous; the witnesses can range from uncooperative to hostile, and you constantly run the risk of adding weight or sympathy to the other side’s case. Moreover, most cross examinations will inevitably be perceived as a contest between the lawyer and witness. You can seldom afford to appear to lose.
In other words, cross examination Is inherently risky. The witness may argue with you. The witness may fill in gaps that were left in the direct testimony. The witness may make you look bad. You may make yourself look bad. And whatever good you accomplish may be subject to immediate cure on redirect examination. None of these problems can be avoided entirely, but they can be minimized by conducting careful cross examinations and setting realistic goals.
To begin, cross examination should be undertaken only to serve some greater purpose within your theory of the case. Thus, it must tell your client’s story even though it is being elicited from opposing witnesses. A useful cross examination should fulfill at least one of the following objectives:
A. Repair or Minimize Damage Done on Direct
If a witness’s direct examination hurts your case, look to cross examination as your opportunity to rectify or minimize that damage whenever possible. Ask yourself whether the witness can be made to retract or back away from her testimony or whether additional facts can be elicited that will minimize its impact. If so, demonstrate the witness’s lack of certainty, confidence, or opportunity to observe, or highlight the internal inconsistencies or inherent implausibility of her testimony, or show that her testimony conflicts with the testimony of other, more credible witnesses.
B. Enhance Your Case
Opposing witnesses may also be able to provide positive facts that support or contribute to your version of the events. This helpful information can and should be brought out during your cross examination.
C. Detract from Your Opponent’s Case
There are also times when an opposing witness can establish facts that are detrimental to your opponent’s case. This information, which is likely to be left out of the direct examination, should be elicited during cross examination to create inconsistency among the other side’s witnesses.
D. Lay Foundation for the Introduction of Exhibits
This objective is particularly important in mock trials, which prohibit recalling adverse witnesses and, as a result allow exhibits to be offered during cross-examination. (Real trials often prohibit this practice since each side may call or recall any witnesses.) Only use cross examination for the introduction of exhibits, however, when an opposing witness is the only one able to lay the proper foundation for an exhibit. Admitting exhibits during cross examination is difficult and should be avoided if possible.
E. Discredit the Witness or Another Witness
You can also use cross examination to discredit the witness testifying by revealing his bias or interest in the outcome of the case, the reasons he has to stretch, misrepresent, or fabricate his testimony, and his past instances of untruthfulness. You might also be able to use the witness to elicit discrediting information about the other witnesses in the case.
F. Stay in Control
The essential technique of cross examination is witness control. Since the object of cross examination is to tell your client’s story, it is imperative that you set the agenda for the examination, that you determine the flow of information, and that you require the witness to answer your questions. In short, you must always be in control of the witness and the testimony. This does not mean, by the way, that you must be domineering, rude, or overbearing toward the witness. In this context, control means only that the examination follow the course that you have selected and that the information produced be only that which you have determined helpful.
With a cooperative witness, this may mean nothing more than asking the right questions and getting the right answers. A hostile, evasive, or argumentative witness may require you to employ more assertive means, however. Following the basic rules of cross examination is a good start toward achieving witness control.
II. THE RULES OF CROSS EXAMINATION
As with direct examinations, the rules of evidence used in your mock trial govern the content of your cross examination; in order to elicit testimony from an opposing witness, you must have a reasonable theory of admissibility for that evidence. Beyond admissibility, you should adhere to the rules below to stay in control during you cross examination.
There is one rule that applies to cross examinations in actual trials that is not discussed here. That rules states that every cross examination must stay “within the scope” of the direct examination preceding it. Within the scope means that the subject matter of the questions asked on cross must be the same as the topics covered during the direct examination. There is an exception to this rule: questions that address the witness’s bias or character are always allowed.
This rule applies in actual trials if one side wants to question a witness on a subject not covered in the witness’s direct examination, that side is free to recall the witness during their case in chief or rebuttal case to conduct their own direct examination.
Understandably, this rule is abandoned in mock trials since there are strict time limits and sice opposing witnesses are usually members of the opposing team. If you do face a “beyond the scope” objection in a mock trial, it is usually adequate to respond by saying, “Your Honor, due to the format of today’s trial, I will not have the opportunity to recall this witness to question him on this subject. Therefore I respectfully request the court’s permission to question him about it now.”
Remember to stand in the center of the courtroom while cross examining so that you can command the attention of everyone in the courtroom and better control the opposing witnesses. Also, remember that reliance on notes will harm your ability to make eye contact and to use movement for emphasis.
A. Ask Only Leading Questions
The cardinal rule of cross examination is to ask only leading questions, As discussed in Chapter 4 (“Direct Examination”), leading questions are those that contain or suggest their own answers. Although generally prohibited during direct examination, leading questions are allowed during cross examination since it is assumed that your adversary’s witnesses will not cooperate with you. The right to ask leading questions is also usually understood to include the right to insist on receiving a responsive answer from the witness.
Cross examination is no time to seek the witness’s interpretation of the facts; rather, it is the time for you to tell a story by obtaining the witness’s assent. Anon-leading question invites the witness to wander away from your story, taking you control away as well. For example, you can control a witness this way:
QUESTION: You were thirty feet away from plaintiff’s car when you applied
your brakes, correct?
But you lose control when you ask:
QUESTION: How far from the plantiff’s car were you when you applied
your brakes?
How can you be sure to ask only leading questions? The answer is preparation. Read through your case file thoroughly until you are confident of what testimony the witness must provide. If you are unsure of where the witness applied his brakes, of course you will not tell him that it was thirty feet. So be sure: Read his affidavit, scour the police report, and read the other witness’s affidavits. Then, once you are certain that there is no plausible denial, tell the witness exactly what he did. Because your leading question is based on a verifiable fact, the witness will have no choice but to agree with you.
B. Get In and Get Out
Brevity is an excellent discipline. Many trial lawyers suggest that cross examinations be limited to a maximum of three points. While there may often be reasons to depart from such a hard and fast rule, there is no doubt that short cross examinations have much to commend themselves. In terms of your own preparation, setting a mental limit for the length of the cross will help you concentrate and to organize your thinking. Conducting a short examination will minimize risk, add panache, and usually make the result more memorable.
The length of your cross examination will generally depend on how many of the above goals you expect to be able to fulfill. It is not necessary, and it may not be possible, to achieve them all. You will often stand to lose more than you can gain by overreaching. Therefore, be selective.
C. Ask Only Questions to Which You Already Know the Answers
This rule seems simple enough. If you do not know how a witness will answer a question, do not ask it. Do not go on a “fishing expedition” during cross examination. Resist every temptation to ask a witness any variation of a “how” or “why” question. If you already know the explanation, you should use leading questions to tell it to the witness. If you do not already know the explanation, then cross examination surely is not the time to learn it. No matter gow assiduously you have prepared, no matter how well you think you know the limits of the witness’s testimony, a witness can always surprise you by explaining the seemingly unexplainable. The following scenario is not unrealistic:
QUESTION: Your parking garage was located three blocks from your office,
correct?
ANSWER: Yes.
QUESTION: And the sidewalks are always very crowded between 8:00 and 8:30
in the morning?
ANSWER: That’s right.
QUESTION: You usually have to wait for one or more traffic lights between the
garage and your office, don’t you?
ANSWER: I do.
QUESTION: So you have to plan on at least ten minutes to get from your garage
to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
QUESTION: Please explain how you can travel that distance, under those
circumstances, in only three to five minutes.
ANSWER: It’s simple. There is an express bus that travels that route in a bus
lane. I get on in front of the garage and its next stop is right in
front of the office. Even in heavy traffic, it never takes more than
five minutes since the bus lane is always clear and the traffic
lights are coordinated.
Can you see now why it would have been better not to ask the witness to explain? Even if the testimony about the express bus was not included in the witness’s affidavit or anywhere else in the case file, the witness is allowed to draw reasonable inferences from the case file. (Of course, whether or not the creation of an express bus is a reasonable inference is a matter of opinion; if given, all you can do now is combat the testimony by impeaching by omission, which we will discuss in the next chapter.)
The bottom line is that you should never give a witness the opportunity to explain during cross examination. Suppose you do refrain from asking the witness to explain and instead he asks you if he may explain. Again you must resist the temptation; if a witness is volunteering an explanation, there is no chance the answer will help your case. The best way to handle this awkward situation is to politely decline to respond to the witness’s question. For example:
QUESTION: So you have to plan on at least ten minutes to get from your
garage to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
Would you like me to explain how?
QUESTION: Your lawyer can ask you to explain that. I have other questions I’d
like to ask you instead.
In sum, asking or allowing a witness to explain is the equivalent of saying, “I’ve grown tired of controlling this cross examination. Why don’t you take over for a while?”
D. Do Not Invite Objections or Argument with Witnesses
Objections can be distracting and unsettling. Young attorneys often lose their stride when interrupted by an objection during cross examination. And objections are more common during cross examination than any other phase of the trial. This is a logical phenomenon; of course the other side will want to prevent you from making strides at the expense of their witnesses. While they may not always be successful in stopping the attack, they are bound to try. Thus, although you cannot prevent opposing counsel from objecting during your cross, you can make doing so more challenging.
The easiest objections to raise during cross are to the form of the questions asked. For instance, assume that if you represent the defendant in the fire truck case and the plaintiff’s attorney asks him on cross examination, “You had an important meeting that morning that you didn’t want to be late for, didn’t you?” The easiest way for you to prevent this question from being answered is to object that it is compound. The question is compound and counsel should be forced to rephrase it. Now, put yourself in the plaintiff’s attorney’s shoes. If the question can be rephrased (by breaking it into two separate questions) what was gained by asking it the wrong way to begin with? Nothing.
By asking questions in proper form, you force opposing counsel to object to the substance of your questions, which is a much more challenging task.
1. Ask short questions
Cross examination questions must be short in both execution and concept. If a question is more that fifteen words long, it is not short in execution. Make it shorter. If a question contains more than a single fact or implication, it is not short in concept. Divide it.
Short, single-fact, propositional questions enable attorneys to keep control of witnesses during cross examination. Long questions have an almost limitless capacity to deprive a cross examiner of witness control and to be easily forgotten or misunderstood. The more words you use, the more chance there is that a witness will become confused by them or refuse to adopt them all.
It is therefore preferable to divide areas of questioning into their smallest component parts. For example, assume that you are cross examining the defendant in the fire truck case. You want to establish the distance from his parking garage to his office in order to show that he was in a hurry to get to his meeting that morning. You could ask one question, “Your parking garage is located three blocks from your office, isn’t it?” If the witness says “yes” you will have achieved your purpose, but what will you do if the witness says “no”? You see, the defendant may decide that the distance is somewhere between two and three blocks, since his office building is not exactly on the corner, or he may quibble with you over whether you can call the parking lot “his” garage. You can head off such potential problems by asking incremental questions, such as these:
QUESTION: You have a monthly parking contract at the Garrick garage?
QUESTION: The Garrick garage is located at the northwest corner of Randolph
and Dearborn?
QUESTION: Your office is located at 48 South Dearborn?
QUESTION: The shortest distance from the Garrick to your office is to go south
on Dearborn, right?
QUESTION: First you must cross Randolph?
QUESTION: Then you must cross Washington?
QUESTION: Then you must cross Madison?
QUESTION: And your office is further south on that block, isn’t it?
This technique allows you to do two things. First, it cuts off the escape route for a witness who is inclined to argue or prevaricate. The incremental questions provide small targets for a witness’s inventiveness. More importantly, it lets you know early in the sequence whether the witness is likely to disagree with you.
2. Ask fair questions
Your right to lead the witness during cross examination does not include a right to mislead the witness. It is objectionable to mischaracterize a witness’s testimony. If a witness has testified that it was dark outside, it would mischaracterize the testimony to begin a question, “So you admit that it was too dark to see anything?”
Furthermore, you don’t have to mischaracterize a witness’s testimony in order to lose control during cross examination; adding any sort of characterization in the witness’s prior testimony will achieve the same dismal result. Assume that you are cross examining the complaining witness in a robbery case. The witness testified on direct that the crime occurred at night on a seldom-traveled country road. Your defense is misidentification. Wishing to take advantage of the time and place of the events, you ask, “It was to dark to see very well, wasn’t it?” You have just asked the witness to agree with your characterization of the lighting conditions. The witness, being nobody’s fool, answers, “I could see just fine.”
Instead, you should have asked the witness about the facts that led you to the characterization: the sun had gone down, the moon was not out, there were no street lamps, there were no house lights, and there were no illuminated signs. The characterization that it was too dark to see everything well should be saved for final argument – when the witness may no longer refute it.
In addition to avoiding questions that mischaracterize answers, you will also risk objections if you ask cumulative, vague, and argumentative questions during your cross examination. Cumulative or “asked and answered” questions are objectionable because they cover the same ground twice (or more). Vague questions are objectionable because answers to them are also vague. Questions are argumentative when they insist that the witness agree with a conclusion or characterization, rather than a statement of fact.
E. Do Not Ask That Ultimate Question
It will often be tempting to confront an adverse witness with one last conclusory question: “So you just ignored the fire truck, didn’t you?” Resist this temptation. If you have already established all of the incremental facts that lead to your conclusion, then you will have little to gain by making the question explicit. At best you will repeat what has become obvious, and at worst you will give the witness an opportunity to recant or amend the foundational testimony.
Even worse, you may not have established the incremental facts as fully as you thought. Under these circumstances you can expect the witness not only to disagree with your ultimate proposition but to be prepared to explain exactly why you are wrong.
The classic approach to cross examination calls for the lawyer to elicit all of the facts that lead to the ultimate conclusion and to then stop. The final proposition is saved for final argument. By saving the ultimate point for final argument, you ensure that the witness will not be able to change or add to the testimony. To a certain extent you also avoid informing opposing counsel of your argument, and you diminish the likelihood of having your position refuted either on redirect or through another witness.
F. Insist on a Responsive Answer
There is more to controlling a witness on cross examination than asking the right questions. You must also make sure that you have gotten the correct answers. This requires that you listen to the witness. Even the most painstakingly prepared question can elicit the wrong answer. The witness may not have understood you, she may have detected an ambiguity in your inquiry, or she may simply argue with you for the sake of argument. In any event, you must always listen carefully to ensure that the testimony is what you expected.
Below are some methods you can use to insist on a responsive answer:
1. Correct the problem yourself
You can often correct an unresponsive answer by simply re-asking your question. Consider the following scenario from the fire truck case:
QUESTION: Isn’t it true that all of the other traffic stopped for the fire truck?
ANSWER: How would they know to stop? There was no horn or bell.
QUESTION: You didn’t answer my question. All of the other cars did stop?
ANSWER: Yes.
In the above example, the defendant decided that he did not want to respond to the cross examiner’s question so he deflected it by answering a different question. An inattentive lawyer might have interpreted that answer as a denial or otherwise let it go by. The advocate above listened more carefully, however, and was able to obtain the precise information sought,
There are other ways of accomplishing the same outcome. You can repeat your question but this time ask it slower or use simpler language to make sure you are being clear. You can stop, look at the jury and say, “I don’t think you gave the jury an answer to that question,” which is a bit more bold and direct. You can be polite and say, “I’m sorry, perhaps my question wasn’t clear… “ and then restate the question. The possibilities are endless. Whatever you do, pick a method with which you are comfortable and be consistent so that you can effectively train the witness to answer your questions. Using the second example, each time the witness sees you turn and face the jury, she’ll know you are about to accuse her of not giving the jury an answer to your question. If done effectively, eventually the witness will give you her answer as soon as she sees you turn toward the jury box and you may not even have to speak.
Your effectiveness in reining the witness back in will depend in large part upon the level of control that you established at the outset of your examination of the witness. A witness who has become accustomed to answering short, leading, propositional questions will be more likely to stop explaining. In contrast, a witness who repeatedly has been given latitude to explain wil be inclined to keep it up. Additionally, your own level of confidence, not to mention the witness’s natural degree of argumentativeness, will play a large part in your ability to reassert control through these and other means.
Notwithstanding your best efforts and preparation, every once in a while you will encounter an impermissibly uncooperative witness who, for whatever reason, cannot be trained. If you have followed all of the rules above and tried to rein the witness back in, this situation is not your fault – it is the witness’s and you should seek help from the judge to reassert control.
2. Enlist the judge’s help, if necessary
Not all witnesses are inclined to play fairly. Some witnesses are overtly partisan, some are subtly uncooperative, and some are just plain ornery. While there is no requirement that a witness facilitate or enhance the goals of your cross examination, there is a requirement that the witness, within her ability, provide fair answers to fair questions. When it is clear that a witness is utterly incapable of fulfilling this responsibility, you have earned the right to bring in the big gun: the judge.
It is the judge’s obligation to ensure not only that the witness responds to your questions, but also to “strike” any answers that are unresponsive. Thus, the ultimate solution to the problem of the impermissibly uncooperative witness is to seek the judge’s intervention:
QUESTION: Your Honor, could you please instruct the witness to answer my
question?
Or,
QUESTION: Your Honor, could you please direct the witness to answer my
question yes or no?
Or,
QUESTION: I move to strike that answer as non-responsive to my question
and I request that the court instruct the jury to disregard it.
III. PLANNING CROSS EXAMINATION
Like direct examinations, the two fundamental aspects to planning your cross examination are content and organization.
A. Content
The work you did outlining the case according to the method we suggested in Chapter 2 (”Case Preparation”) will come in very handy in considering what to include in your cross examinations. Looking over your final summary of the facts for the witnesses you will cross examine, focus your attention on those facts that are helpful to your case or that diminish opposing witnesses’ credibility. This, along with any information that may be conspicuously missing from each witness’s affidavit, is the entire universe of information you can use to construct your cross examination.
1. Determining the usable universe
The entire universe of facts that may be used in each cross examination must now be boiled down to what we like to call the “usable universe.” Consider the following factors as you decide which facts to include in your cross examination:
First, consider whether one of your own witnesses can testify to the same fact. There may be no point in attempting to extract answers from an unwilling source if a friendly witness can provide you with the same information. On cross examination you always run the risk that the witness will argue or hedge or that the information will not be developed as clearly as you would like. Unless you stand to benefit specifically from repetition of the testimony, you may prefer to bypass cross examination questions that merely repeat evidence.
Of course, you have no choice but to cross examine on important facts that are solely within the knowledge or control of the adverse witness. Such information will range from the foundation for the admission of a document to evidence of the witness’s own prior actions.
Some information, though available from a variety of sources, will be particularly valuable when elicited on cross examination. In the fire truck case, for example, the defendant’s own testimony that he loved driving fast cars would be preferable to accusations about his driving from other witnesses. It is generally desirable to obtain negative or contested evidence from the mouths of the opposition witnesses, when possible.
Next, ask yourself how likely it is that the witness will agree with your assertion of each fact, The best cross examination questions are those that are taken directly from a witness’s prior statement because the witness must concede those answers. There will be times, however, when you cross a witness about facts documented in exhibits or other witness’s testimony. In some instances you will want to confront a witness (especially the defendant) with information he is likely to deny.
For instance, in criminal cases many trial attorneys make it a point to accuse the defendant of committing the crime with which he has been charged. The defendant will of course deny these accusations, but experienced lawyers know that the value of the exchange is in having the fact-finder hear the accusations, not in listening to the defendant’s denials. While this is a fine tactic to use, it cannot be overused. If the trier of fact hears a witness deny every question you ask (or even the slight majority), they may believe that none of your factual assertions are true. This, most of the questions you ask on cross should be ones with which the witness is likely to agree.
The construction of your usable universe depends almost entirely on your mastery of the case as a whole. To prepare for cross examination you must know everything that the particular witness is liable to say as well as every other fact that might be obtained from any other witness, document, or exhibit. Your effective choice of cross examination topics will be determined by your ability to choose those areas that will do you the most good, while risking the least harm.
…
2. Preparing your questions
Once you have selected the topics for each cross examination, write out short, single-thought, strictly factual sentences that develop each topic. For example, assume that the defendant’s affidavit in the fire truck case includes the following statements:
I awoke on the morning of the accident at 7:00 AM (page 3, line 5)
I had to be downtown later that morning to meet an important new client
(page 3, lines 5-6)
Yes, I wanted to get that client’s business (page 3, line 7)
And yes, I stood to make a lot of money (page 3, lines 7-8)
The meeting was scheduled for 8:30 AM (page 3, line 12)
I live about 16 miles from my office (page 2, line 15)
I also rent a monthly parking spot in a garage two blocks form my office
(page 2, line 17)
I left my home at 7:55 AM that morning (page 1, line 20)
There was a lot of traffic that morning (page 2, line 2)
The accident occurred at an intersection seven miles from downtown (page 2,
line 11)
The accident happened at 8:20 AM (page 2, lines 11-12)
Here, the cross examiner has laid out the facts in the defendant’s affidavit that underlie her theory that he was rushed that morning. It should now be a simple matter for counsel to convert this list into cross examination questions. To do this, all counsel needs to do is take each first-person sentence and rephrase it into a second-person question. In fact, it is often best to leave the sentence in the form of a declaration, technically making it a question through voice inflection or by adding an interrogative phrase at the end. The above list then becomes the following cross examination of the defendant:
QUESTION: You awoke at 7:00 AM on the morning of the accident, isn’t that
right? (page 3, line 5)
QUESTION: You had to be downtown later that morning, correct? (page 3,
lines 5-6)
QUESTION: You were meeting an important new client? (page 3, lines 5-6)
QUESTION: You wanted to get that client’s business? (page 3, line 7)
QUESTION: You stood to make a lot of money? (page 3, lines 7-8)
QUESTION: The meeting was scheduled for 8:30 AM, correct? (page 3, line 12)
QUESTION: You lived about 16 miles from your office? (page 2, line 15)
QUESTION: You rented a monthly parking spot? (page 2, line 17)
QUESTION: That spot was in a garage located two blocks from your office?
(page 2, line 17)
QUESTION: You left my home at 7:55 AM, right? (page 1, line 20)
QUESTION: There was a lot of traffic that morning? (page 2, line 2)
QUESTION: The accident occurred at an intersection 7 miles from downtown?
(page 2, line 11)
QUESTION: It happened at 8:20 AM, isn’t that right? (page 2, lines 11-12)
Note that the above questions also fit neatly into the usable universe. Many of the facts are not likely to be available from friendly witnesses. Most others are of the sort that will be most valuable if conceded by the defendant himself. Finally, and best of all, each of the facts are documented in the witness’s own prior sworn testimony.
This technique is useful for developing the content of your cross examination. The organization of the examination and the structure of your individual questions will depend upon additional analysis.
B. Organization
As with direct examinations, the organization of a cross examination can be based on the four principles of primacy and recency, apposition, repetition, and duration. Unlike direct examination, however, on cross examination you will often have to deal with a witness who is reluctant to help your case. You may therefore have to temper your plan in recognition of this reality, occasionally sacrificing maximum clarity and persuasion in order to avoid “telegraphing” your strategy to the uncooperative witness. Thus, we must include the additional organizing principles of indirection and misdirection when planning cross examinations.
1. General tips for organizing cross examinations
Recall that cross examination is your opportunity to tell part of your client’s story in the middle of the other side’s caser. Your object is to focus attention away from the witness’s direct testimony and onto matters that are helpful to your case. On cross examination, you want to tell the story. To do so, you must always be in control of the testimony and the witness.
Remember too that an effective cross examination often succeeds through the use of implication and innuendo. It is not necessary, and it is often harmful, to ask a witness that ultimate question. Final argument is your opportunity to point out the relationship between facts, make characterizations, and draw conclusions based upon the accumulation of details. Do not expect an opposing witness to do this for you.
a. Do not worry about starting strong
It would be desirable to be able to begin every cross examination with a strong, memorable point that absolutely drives home your theory and theme. Unfortunately, this will not always be possible. Many cross examinations will have to begin with a shake down period during which you acclimate yourself to the tenor of the witness’s responses and attempt to put the witness in a cooperative frame of mind. Unless you are able to start off with a true bombshell, it will usually be preferable to take the time necessary to establish predicate facts through indirection.
b. Use topical organization
Topical organization is essential in cross examination. Your goal on cross examination is not to retell the witness’s story, but rather to establish a small number of additional or discrediting points. A topical format will be the most effective in allowing you to move from area to area. You can use it to cluster facts in the same manner that you would on direct examination or to separate facts in order to keep your strategy hidden from the witness.
Assume that you want to use the cross examination of the defendant in the fire truck case to show how busy he was on the day of the collision. You know that he had an important meeting to attend that morning, but he will be unlikely to admit that he risked losing the client (and a lot of money) if he arrived late. You can solve this problem by using topical organization to separate your cross examination into two distinct segments: one dealing with the nature of the defendant’s business and the other covering his appointment on the fateful morning.
In the first topical segment you will show that the defendant is an independent management consultant employed in a very competitive business in which client relations are extremely important. Part of his work involves seeking out potential new clients, whom he is always anxious to please. Since he is a sole proprietor, every client means more money. As a consultant, he must pride himself on professionalism, timeliness, and efficiency. He bills his clients by the hour. Time is money. In short, examine the witness on his business background without ever bringing up the subject of the accident.
Later in the examination, after covering several other areas, you will shift topics to the defendant’s agenda on the day of the accident. Now it is time to establish the details of his planned meeting and the fact that he was still miles from downtown shortly before it was scheduled to begin.
You do not need to obtain an admission that he was running late or that he was preoccupied. Topical organization has allowed you to develop the predicate facts for that argument before the witness was aware of their implications.
There is another advantage to topical organization on cross examination. Assume, in the example above, that the witness was well prepared and that he immediately recognized your reasons for inquiring into his business practices. Because your examination was segmented, however, he could scarcely deny the facts that you suggested. In a portion of the examination limited to the operation of his business it would be implausible for him to deny that his clients value “professionalism, efficiency, and timeliness.” Denying your perfectly reasonable propositions would make him look either untrustworthy or defensive.
Note that you would not obtain the same result without topical organization. IN the middle of the discussion of the morning of the accident it would be quite plausible for the defendant to testify that this particular new client was not dominating his thoughts.
Be sure that as you organize the questions that you plan t ask on cross examination you continue to reference them by listing the page and line number where that fact appears in the witness’s affidavit or deposition transcript. Referencing allows you to impeach or contradict witnesses who give you evasive, unexpected, or false answers.
If you followed the steps in Chapter 2 (“Case Preparation”), you will have already referenced every fact in each witness’s affidavit. Remember that in addition to affidavits and deposition transcripts, reference sources can come from letters, reports, memoranda, notes, and even photographs. The best sources, of course, are the witness’s own prior words. Adequate secondary sources may include documents that the witness reviewed, acted upon, or affirmed by silence. In most circumstances, the testimony of a different person, though perhaps useful, will not be a reliable source for referencing a cross examination.
c. Give the details first
Details are, if anything, more important on cross examination than they are on direct. On direct examination a witness will always be able to tell the gist of the story; details are used in a secondary manner to add strength and veracity to the basic testimony. On cross examination, however, the witness will frequently disagree with the gist of the story you want to tell, and use of details therefore becomes the primary method of making your points. You may elicit details to lay the groundwork for future argument, to draw out internal inconsistencies in the witness’s testimony, to point out inconsistencies between witnesses, to lead the witness into implausible assertions, or to create implications that the witness will be unable to deny later.
Within each segment of your cross examination it will usually be preferable to give the details first. No matter what your goal, the witness will be far more likely to agree with a series of small, incremental facts before the thrust of the examination has been made apparent. Once you have challenged, confronted, or closely questioned a witness it will be extremely difficult to go back and fill in the details necessary to make the challenge stick. Case in point: the example given earlier about the details of the fire truck defendant’s business practices.
d. Scatter the circumstantial evidence
Inferential or circumstantial evidence is most persuasive when a series of facts or events can be combined in such a way as to create a logical path to the desired conclusion. Unfortunately, facts arranged in this manner on cross-examination will also be highly transparent to the witness. As you stack inference upon inference your direction will become increasingly clear. A hostile or unfriendly witness will then become increasingly uncooperative, perhaps to the point of thwarting your examination. A far safer approach is to scatter the circumstantial evidence throughout the examination, drawing it together only during final argument.
e. Save a zinger for the end
The final moment of cross examination may well be the most important. No matter how low key or friendly your style, almost every cross examination will in some sense be viewed as a contest between you and the witness. Were you able to shake the adverse testimony? Did you do what you set out to do? In this regard the final impression that you leave is likely to be the most lasting. Were you able to finish on a high note, or did you simply give up?
It is therefore imperative that you plan carefully the very last point that you intend to make on cross examination. It must be a guaranteed winner. Then, if your entire examination seems to fail, if the witness denies every proposition and the judge sustains every objection, you can always skip to your last question and finish with a flourish. Satisfied that you have made this single, telling, case-sealing point, you may proudly announce, “No further questions,” and sit down.
How do you identify your fail-safe zinger? The following guidelines should help:
i. It must be absolutely admissible
There can be no doubt about the admissibility of your intended final point. Nothing smacks more of defeat than ending a cross examination on a sustained objection. If you suspect even for a moment that your zinger might not be allowed, abandon it and choose another. In fact, you should make an entry in the margin of your notes that reminds you of your theory of admissibility Why is the point relevant? Why isn’t it hearsay? How has the foundation been established? Why isn’t it speculation?
ii. It must be undeniable
It should be obvious by now that your final question must be undeniable. The end of your cross is not the time to argue or quibble with the witness. There are two good ways to ensure undeniability. First, choose a documented fact – the best “gift” given to you in the witness’s statement. Second, phrase your question using the exact language the witness used, making it impossible for the witness to deny you the simple answer you seek.
iii. It must be stated with conviction
No matter what your closing question, you must be able to deliver it with an attitude of satisfied completion. If the subject makes you nervous, worried, or embarrassed, then you must choose another. It is neither necessary nor desirable to smirk, but you must exhibit confidence that your parting inquiry has done its work.
2. A classic format for cross examination
Because almost all cross examinations will be topical, there can be no standard or prescribed form of organization. The following “classic format” is designed to maximize witness cooperation. Of course, you may have a goal in mind for your cross examination other than witness cooperation in that case, feel free to ignore or alter this approach. As a rule of thumb, however, you can best control witnesses on cross examination by following this questioning order.
a. Friendly information
Be friendly first. Begin by asking all questions that the witness will regard as nonthreatening. These will often be background questions. For example, medical malpractice cases are often based upon errors of omission, and you may intend to argue in closing that the defendant physician, by virtue of her extraordinary training should have known about certain available tests. You can start your cross examination, then, by asking friendly questions about the defendant’s medical education, residency, fellowships, and awards. Most people, even defendants on trial, like to talk about their achievements. There is little doubt that a witness will be the most forthcoming when asked about flattering information at the very outset of the cross examination.
b. Affirmative information
After exhausting the friendly information, ask questions that build up the value of your case rather than tear down the opposition’s. Much of this information will fill in gaps in the direct testimony. In fact, a good way to plan this portion of the cross is to list the information that you reasonably hope will be included in the direct. Whatever is omitted from the witness’s actual testimony will form the core of your affirmative information section. Although adverse witnesses may not be enthusiastic about supplying you with helpful information, they will be unlikely to fight you over answers that might logically have been included in their own direct. Be careful, though, not to simply repeat the testimony given during direct in your cross examination as doing so will only reinforce it and bore everyone in the room; instead, skip the information already covered and fill in the gaps with the information that was skipped.
c. Uncontrovertible information
You can now proceed to inquire about facts that damage the opposition’s case or detract fro the witness’s testimony, so long as they are documented in the case file. With these questions, the witness may be inclined to hedge or quibble, but you can minimize this possibility by sticking to the information that ultimately must be conceded.
d. Challenging information
It is unlikely that a witness will cooperate with you once you begin challenging her memory, perception, accuracy, conduct, or other aspects of her testimony. Therefore, it is usually desirable to proceed through friendly, affirmative, and uncontroverted information before you begin to take sharper issue with the witness. As some point, of course, you will have to ask most witnesses questions that they will recognize as challenges: “Mr. Defendant, the fact is that the first thing you did after the collision was to telephone your office?” Such questions are necessary and, when used in their proper place, they will not prevent you from first exploiting the other, more cooperative testimony from the witness.
e. Hostile information
Hostile information involves confronting the witness directly. You may be able to extract the necessary answers to hostile questions, but certainly you can eliminate all hope of cooperation both then and thereafter. Hostile questions involve assaults on the witness’s honesty, probity, peacefulness, character, or background. “Didn’t you spend time in prison?” “You never intended to live up to the contract?” “That was a lie, wasn’t it?”
f. Zinger
Always end with a zinger. You know why.
IV. THE ETHICS OF CROSS EXAMINATION
While lawyers generally consider cross examination to be an “engine” of truth-seeking, we are often criticized for using cross as a device for distortion and confusion. And in truth, as with all powerful rhetorical tools, cross examination can be used to mislead and deceive. Accordingly, certain ethical principles have developed that circumscribe a lawyer’s use of cross examination.
Many cross examinations contain inherent assertions of fact. Indeed, many of the best cross examination questions are strictly “proportional.” Consider this example from the fire engine case:
QUESTION: You were on your way to an important business meeting, right?
This question contains a single fact that counsel is urging to be true. The danger arises that counsel might also propose baseless or knowingly false points. The witness, of course, can deny any untrue assertions, but the denials are likely to ring hollow in the face of an attorney’s presumably superior persuasive skills. Enormous damage can be done by false or groundless accusations. Imagine the impact of this examination in our fire truck case:
QUESTION: Isn’t it true that you had been drinking on the morning of the accident?
ANSWER: No, not at all.
QUESTION: Didn’t you arrive at Meizlish’s Bar at 7:00 AM?
ANSWER: Certainly not.
QUESTION: Well, the truth is that you ran up a $12,00 tab that morning, didn’t you?
ANSWER: No.
QUESTION: $12.00 would cover at least four drinks, right?
ANSWER: I’m telling you that I wasn’t drinking.
The precision of the details in the questions appears to add weight to the cross examination, while the denials can be made to appear superficial. The cross examiner’s ability to control the interchange puts the witness at an extreme disadvantage. This cross examination raises no problems if you have a good faith basis to believe that the witness was indeed drinking at Meizlish’s Bar, but it is intolerable if the charge is baseless.
To protect against the unscrupulous use of cross examination, it is required that every question have a good faith basis in fact. You are not free to make up assertions; as a predicate to any propositional question, you must be aware of specific facts that support the allegation.
In addition, the good faith basis for a cross examination question cannot be composed solely of inadmissible evidence. Counsel cannot allude to any matter that will not be supported by admissible evidence. This, a good faith basis cannot be provided by rumors, uncorroborated hearsay, or pure speculation.
Allegations lacking a basis in admissible evidence may lead to a sustained objection and even a strong admonition by the court.
Cross examination is the ultimate challenge for a trial lawyer. It is frequently dramatic, often exciting, and in many ways it defines our adversarial system of justice. Although a poor direct examination can be aimless and boring, the worst thing you can do is leave something out and at least you know that the witness will try to be helpful. A poor cross examination, on the other hand, can be truly disastrous; the witnesses can range from uncooperative to hostile, and you constantly run the risk of adding weight or sympathy to the other side’s case. Moreover, most cross examinations will inevitably be perceived as a contest between the lawyer and witness. You can seldom afford to appear to lose.
In other words, cross examination Is inherently risky. The witness may argue with you. The witness may fill in gaps that were left in the direct testimony. The witness may make you look bad. You may make yourself look bad. And whatever good you accomplish may be subject to immediate cure on redirect examination. None of these problems can be avoided entirely, but they can be minimized by conducting careful cross examinations and setting realistic goals.
To begin, cross examination should be undertaken only to serve some greater purpose within your theory of the case. Thus, it must tell your client’s story even though it is being elicited from opposing witnesses. A useful cross examination should fulfill at least one of the following objectives:
A. Repair or Minimize Damage Done on Direct
If a witness’s direct examination hurts your case, look to cross examination as your opportunity to rectify or minimize that damage whenever possible. Ask yourself whether the witness can be made to retract or back away from her testimony or whether additional facts can be elicited that will minimize its impact. If so, demonstrate the witness’s lack of certainty, confidence, or opportunity to observe, or highlight the internal inconsistencies or inherent implausibility of her testimony, or show that her testimony conflicts with the testimony of other, more credible witnesses.
B. Enhance Your Case
Opposing witnesses may also be able to provide positive facts that support or contribute to your version of the events. This helpful information can and should be brought out during your cross examination.
C. Detract from Your Opponent’s Case
There are also times when an opposing witness can establish facts that are detrimental to your opponent’s case. This information, which is likely to be left out of the direct examination, should be elicited during cross examination to create inconsistency among the other side’s witnesses.
D. Lay Foundation for the Introduction of Exhibits
This objective is particularly important in mock trials, which prohibit recalling adverse witnesses and, as a result allow exhibits to be offered during cross-examination. (Real trials often prohibit this practice since each side may call or recall any witnesses.) Only use cross examination for the introduction of exhibits, however, when an opposing witness is the only one able to lay the proper foundation for an exhibit. Admitting exhibits during cross examination is difficult and should be avoided if possible.
E. Discredit the Witness or Another Witness
You can also use cross examination to discredit the witness testifying by revealing his bias or interest in the outcome of the case, the reasons he has to stretch, misrepresent, or fabricate his testimony, and his past instances of untruthfulness. You might also be able to use the witness to elicit discrediting information about the other witnesses in the case.
F. Stay in Control
The essential technique of cross examination is witness control. Since the object of cross examination is to tell your client’s story, it is imperative that you set the agenda for the examination, that you determine the flow of information, and that you require the witness to answer your questions. In short, you must always be in control of the witness and the testimony. This does not mean, by the way, that you must be domineering, rude, or overbearing toward the witness. In this context, control means only that the examination follow the course that you have selected and that the information produced be only that which you have determined helpful.
With a cooperative witness, this may mean nothing more than asking the right questions and getting the right answers. A hostile, evasive, or argumentative witness may require you to employ more assertive means, however. Following the basic rules of cross examination is a good start toward achieving witness control.
II. THE RULES OF CROSS EXAMINATION
As with direct examinations, the rules of evidence used in your mock trial govern the content of your cross examination; in order to elicit testimony from an opposing witness, you must have a reasonable theory of admissibility for that evidence. Beyond admissibility, you should adhere to the rules below to stay in control during you cross examination.
There is one rule that applies to cross examinations in actual trials that is not discussed here. That rules states that every cross examination must stay “within the scope” of the direct examination preceding it. Within the scope means that the subject matter of the questions asked on cross must be the same as the topics covered during the direct examination. There is an exception to this rule: questions that address the witness’s bias or character are always allowed.
This rule applies in actual trials if one side wants to question a witness on a subject not covered in the witness’s direct examination, that side is free to recall the witness during their case in chief or rebuttal case to conduct their own direct examination.
Understandably, this rule is abandoned in mock trials since there are strict time limits and sice opposing witnesses are usually members of the opposing team. If you do face a “beyond the scope” objection in a mock trial, it is usually adequate to respond by saying, “Your Honor, due to the format of today’s trial, I will not have the opportunity to recall this witness to question him on this subject. Therefore I respectfully request the court’s permission to question him about it now.”
Remember to stand in the center of the courtroom while cross examining so that you can command the attention of everyone in the courtroom and better control the opposing witnesses. Also, remember that reliance on notes will harm your ability to make eye contact and to use movement for emphasis.
A. Ask Only Leading Questions
The cardinal rule of cross examination is to ask only leading questions, As discussed in Chapter 4 (“Direct Examination”), leading questions are those that contain or suggest their own answers. Although generally prohibited during direct examination, leading questions are allowed during cross examination since it is assumed that your adversary’s witnesses will not cooperate with you. The right to ask leading questions is also usually understood to include the right to insist on receiving a responsive answer from the witness.
Cross examination is no time to seek the witness’s interpretation of the facts; rather, it is the time for you to tell a story by obtaining the witness’s assent. Anon-leading question invites the witness to wander away from your story, taking you control away as well. For example, you can control a witness this way:
QUESTION: You were thirty feet away from plaintiff’s car when you applied
your brakes, correct?
But you lose control when you ask:
QUESTION: How far from the plantiff’s car were you when you applied
your brakes?
How can you be sure to ask only leading questions? The answer is preparation. Read through your case file thoroughly until you are confident of what testimony the witness must provide. If you are unsure of where the witness applied his brakes, of course you will not tell him that it was thirty feet. So be sure: Read his affidavit, scour the police report, and read the other witness’s affidavits. Then, once you are certain that there is no plausible denial, tell the witness exactly what he did. Because your leading question is based on a verifiable fact, the witness will have no choice but to agree with you.
B. Get In and Get Out
Brevity is an excellent discipline. Many trial lawyers suggest that cross examinations be limited to a maximum of three points. While there may often be reasons to depart from such a hard and fast rule, there is no doubt that short cross examinations have much to commend themselves. In terms of your own preparation, setting a mental limit for the length of the cross will help you concentrate and to organize your thinking. Conducting a short examination will minimize risk, add panache, and usually make the result more memorable.
The length of your cross examination will generally depend on how many of the above goals you expect to be able to fulfill. It is not necessary, and it may not be possible, to achieve them all. You will often stand to lose more than you can gain by overreaching. Therefore, be selective.
C. Ask Only Questions to Which You Already Know the Answers
This rule seems simple enough. If you do not know how a witness will answer a question, do not ask it. Do not go on a “fishing expedition” during cross examination. Resist every temptation to ask a witness any variation of a “how” or “why” question. If you already know the explanation, you should use leading questions to tell it to the witness. If you do not already know the explanation, then cross examination surely is not the time to learn it. No matter gow assiduously you have prepared, no matter how well you think you know the limits of the witness’s testimony, a witness can always surprise you by explaining the seemingly unexplainable. The following scenario is not unrealistic:
QUESTION: Your parking garage was located three blocks from your office,
correct?
ANSWER: Yes.
QUESTION: And the sidewalks are always very crowded between 8:00 and 8:30
in the morning?
ANSWER: That’s right.
QUESTION: You usually have to wait for one or more traffic lights between the
garage and your office, don’t you?
ANSWER: I do.
QUESTION: So you have to plan on at least ten minutes to get from your garage
to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
QUESTION: Please explain how you can travel that distance, under those
circumstances, in only three to five minutes.
ANSWER: It’s simple. There is an express bus that travels that route in a bus
lane. I get on in front of the garage and its next stop is right in
front of the office. Even in heavy traffic, it never takes more than
five minutes since the bus lane is always clear and the traffic
lights are coordinated.
Can you see now why it would have been better not to ask the witness to explain? Even if the testimony about the express bus was not included in the witness’s affidavit or anywhere else in the case file, the witness is allowed to draw reasonable inferences from the case file. (Of course, whether or not the creation of an express bus is a reasonable inference is a matter of opinion; if given, all you can do now is combat the testimony by impeaching by omission, which we will discuss in the next chapter.)
The bottom line is that you should never give a witness the opportunity to explain during cross examination. Suppose you do refrain from asking the witness to explain and instead he asks you if he may explain. Again you must resist the temptation; if a witness is volunteering an explanation, there is no chance the answer will help your case. The best way to handle this awkward situation is to politely decline to respond to the witness’s question. For example:
QUESTION: So you have to plan on at least ten minutes to get from your
garage to your office, right?
ANSWER: No, that is not right. I usually make it in three to five minutes.
Would you like me to explain how?
QUESTION: Your lawyer can ask you to explain that. I have other questions I’d
like to ask you instead.
In sum, asking or allowing a witness to explain is the equivalent of saying, “I’ve grown tired of controlling this cross examination. Why don’t you take over for a while?”
D. Do Not Invite Objections or Argument with Witnesses
Objections can be distracting and unsettling. Young attorneys often lose their stride when interrupted by an objection during cross examination. And objections are more common during cross examination than any other phase of the trial. This is a logical phenomenon; of course the other side will want to prevent you from making strides at the expense of their witnesses. While they may not always be successful in stopping the attack, they are bound to try. Thus, although you cannot prevent opposing counsel from objecting during your cross, you can make doing so more challenging.
The easiest objections to raise during cross are to the form of the questions asked. For instance, assume that if you represent the defendant in the fire truck case and the plaintiff’s attorney asks him on cross examination, “You had an important meeting that morning that you didn’t want to be late for, didn’t you?” The easiest way for you to prevent this question from being answered is to object that it is compound. The question is compound and counsel should be forced to rephrase it. Now, put yourself in the plaintiff’s attorney’s shoes. If the question can be rephrased (by breaking it into two separate questions) what was gained by asking it the wrong way to begin with? Nothing.
By asking questions in proper form, you force opposing counsel to object to the substance of your questions, which is a much more challenging task.
1. Ask short questions
Cross examination questions must be short in both execution and concept. If a question is more that fifteen words long, it is not short in execution. Make it shorter. If a question contains more than a single fact or implication, it is not short in concept. Divide it.
Short, single-fact, propositional questions enable attorneys to keep control of witnesses during cross examination. Long questions have an almost limitless capacity to deprive a cross examiner of witness control and to be easily forgotten or misunderstood. The more words you use, the more chance there is that a witness will become confused by them or refuse to adopt them all.
It is therefore preferable to divide areas of questioning into their smallest component parts. For example, assume that you are cross examining the defendant in the fire truck case. You want to establish the distance from his parking garage to his office in order to show that he was in a hurry to get to his meeting that morning. You could ask one question, “Your parking garage is located three blocks from your office, isn’t it?” If the witness says “yes” you will have achieved your purpose, but what will you do if the witness says “no”? You see, the defendant may decide that the distance is somewhere between two and three blocks, since his office building is not exactly on the corner, or he may quibble with you over whether you can call the parking lot “his” garage. You can head off such potential problems by asking incremental questions, such as these:
QUESTION: You have a monthly parking contract at the Garrick garage?
QUESTION: The Garrick garage is located at the northwest corner of Randolph
and Dearborn?
QUESTION: Your office is located at 48 South Dearborn?
QUESTION: The shortest distance from the Garrick to your office is to go south
on Dearborn, right?
QUESTION: First you must cross Randolph?
QUESTION: Then you must cross Washington?
QUESTION: Then you must cross Madison?
QUESTION: And your office is further south on that block, isn’t it?
This technique allows you to do two things. First, it cuts off the escape route for a witness who is inclined to argue or prevaricate. The incremental questions provide small targets for a witness’s inventiveness. More importantly, it lets you know early in the sequence whether the witness is likely to disagree with you.
2. Ask fair questions
Your right to lead the witness during cross examination does not include a right to mislead the witness. It is objectionable to mischaracterize a witness’s testimony. If a witness has testified that it was dark outside, it would mischaracterize the testimony to begin a question, “So you admit that it was too dark to see anything?”
Furthermore, you don’t have to mischaracterize a witness’s testimony in order to lose control during cross examination; adding any sort of characterization in the witness’s prior testimony will achieve the same dismal result. Assume that you are cross examining the complaining witness in a robbery case. The witness testified on direct that the crime occurred at night on a seldom-traveled country road. Your defense is misidentification. Wishing to take advantage of the time and place of the events, you ask, “It was to dark to see very well, wasn’t it?” You have just asked the witness to agree with your characterization of the lighting conditions. The witness, being nobody’s fool, answers, “I could see just fine.”
Instead, you should have asked the witness about the facts that led you to the characterization: the sun had gone down, the moon was not out, there were no street lamps, there were no house lights, and there were no illuminated signs. The characterization that it was too dark to see everything well should be saved for final argument – when the witness may no longer refute it.
In addition to avoiding questions that mischaracterize answers, you will also risk objections if you ask cumulative, vague, and argumentative questions during your cross examination. Cumulative or “asked and answered” questions are objectionable because they cover the same ground twice (or more). Vague questions are objectionable because answers to them are also vague. Questions are argumentative when they insist that the witness agree with a conclusion or characterization, rather than a statement of fact.
E. Do Not Ask That Ultimate Question
It will often be tempting to confront an adverse witness with one last conclusory question: “So you just ignored the fire truck, didn’t you?” Resist this temptation. If you have already established all of the incremental facts that lead to your conclusion, then you will have little to gain by making the question explicit. At best you will repeat what has become obvious, and at worst you will give the witness an opportunity to recant or amend the foundational testimony.
Even worse, you may not have established the incremental facts as fully as you thought. Under these circumstances you can expect the witness not only to disagree with your ultimate proposition but to be prepared to explain exactly why you are wrong.
The classic approach to cross examination calls for the lawyer to elicit all of the facts that lead to the ultimate conclusion and to then stop. The final proposition is saved for final argument. By saving the ultimate point for final argument, you ensure that the witness will not be able to change or add to the testimony. To a certain extent you also avoid informing opposing counsel of your argument, and you diminish the likelihood of having your position refuted either on redirect or through another witness.
F. Insist on a Responsive Answer
There is more to controlling a witness on cross examination than asking the right questions. You must also make sure that you have gotten the correct answers. This requires that you listen to the witness. Even the most painstakingly prepared question can elicit the wrong answer. The witness may not have understood you, she may have detected an ambiguity in your inquiry, or she may simply argue with you for the sake of argument. In any event, you must always listen carefully to ensure that the testimony is what you expected.
Below are some methods you can use to insist on a responsive answer:
1. Correct the problem yourself
You can often correct an unresponsive answer by simply re-asking your question. Consider the following scenario from the fire truck case:
QUESTION: Isn’t it true that all of the other traffic stopped for the fire truck?
ANSWER: How would they know to stop? There was no horn or bell.
QUESTION: You didn’t answer my question. All of the other cars did stop?
ANSWER: Yes.
In the above example, the defendant decided that he did not want to respond to the cross examiner’s question so he deflected it by answering a different question. An inattentive lawyer might have interpreted that answer as a denial or otherwise let it go by. The advocate above listened more carefully, however, and was able to obtain the precise information sought,
There are other ways of accomplishing the same outcome. You can repeat your question but this time ask it slower or use simpler language to make sure you are being clear. You can stop, look at the jury and say, “I don’t think you gave the jury an answer to that question,” which is a bit more bold and direct. You can be polite and say, “I’m sorry, perhaps my question wasn’t clear… “ and then restate the question. The possibilities are endless. Whatever you do, pick a method with which you are comfortable and be consistent so that you can effectively train the witness to answer your questions. Using the second example, each time the witness sees you turn and face the jury, she’ll know you are about to accuse her of not giving the jury an answer to your question. If done effectively, eventually the witness will give you her answer as soon as she sees you turn toward the jury box and you may not even have to speak.
Your effectiveness in reining the witness back in will depend in large part upon the level of control that you established at the outset of your examination of the witness. A witness who has become accustomed to answering short, leading, propositional questions will be more likely to stop explaining. In contrast, a witness who repeatedly has been given latitude to explain wil be inclined to keep it up. Additionally, your own level of confidence, not to mention the witness’s natural degree of argumentativeness, will play a large part in your ability to reassert control through these and other means.
Notwithstanding your best efforts and preparation, every once in a while you will encounter an impermissibly uncooperative witness who, for whatever reason, cannot be trained. If you have followed all of the rules above and tried to rein the witness back in, this situation is not your fault – it is the witness’s and you should seek help from the judge to reassert control.
2. Enlist the judge’s help, if necessary
Not all witnesses are inclined to play fairly. Some witnesses are overtly partisan, some are subtly uncooperative, and some are just plain ornery. While there is no requirement that a witness facilitate or enhance the goals of your cross examination, there is a requirement that the witness, within her ability, provide fair answers to fair questions. When it is clear that a witness is utterly incapable of fulfilling this responsibility, you have earned the right to bring in the big gun: the judge.
It is the judge’s obligation to ensure not only that the witness responds to your questions, but also to “strike” any answers that are unresponsive. Thus, the ultimate solution to the problem of the impermissibly uncooperative witness is to seek the judge’s intervention:
QUESTION: Your Honor, could you please instruct the witness to answer my
question?
Or,
QUESTION: Your Honor, could you please direct the witness to answer my
question yes or no?
Or,
QUESTION: I move to strike that answer as non-responsive to my question
and I request that the court instruct the jury to disregard it.
III. PLANNING CROSS EXAMINATION
Like direct examinations, the two fundamental aspects to planning your cross examination are content and organization.
A. Content
The work you did outlining the case according to the method we suggested in Chapter 2 (”Case Preparation”) will come in very handy in considering what to include in your cross examinations. Looking over your final summary of the facts for the witnesses you will cross examine, focus your attention on those facts that are helpful to your case or that diminish opposing witnesses’ credibility. This, along with any information that may be conspicuously missing from each witness’s affidavit, is the entire universe of information you can use to construct your cross examination.
1. Determining the usable universe
The entire universe of facts that may be used in each cross examination must now be boiled down to what we like to call the “usable universe.” Consider the following factors as you decide which facts to include in your cross examination:
First, consider whether one of your own witnesses can testify to the same fact. There may be no point in attempting to extract answers from an unwilling source if a friendly witness can provide you with the same information. On cross examination you always run the risk that the witness will argue or hedge or that the information will not be developed as clearly as you would like. Unless you stand to benefit specifically from repetition of the testimony, you may prefer to bypass cross examination questions that merely repeat evidence.
Of course, you have no choice but to cross examine on important facts that are solely within the knowledge or control of the adverse witness. Such information will range from the foundation for the admission of a document to evidence of the witness’s own prior actions.
Some information, though available from a variety of sources, will be particularly valuable when elicited on cross examination. In the fire truck case, for example, the defendant’s own testimony that he loved driving fast cars would be preferable to accusations about his driving from other witnesses. It is generally desirable to obtain negative or contested evidence from the mouths of the opposition witnesses, when possible.
Next, ask yourself how likely it is that the witness will agree with your assertion of each fact, The best cross examination questions are those that are taken directly from a witness’s prior statement because the witness must concede those answers. There will be times, however, when you cross a witness about facts documented in exhibits or other witness’s testimony. In some instances you will want to confront a witness (especially the defendant) with information he is likely to deny.
For instance, in criminal cases many trial attorneys make it a point to accuse the defendant of committing the crime with which he has been charged. The defendant will of course deny these accusations, but experienced lawyers know that the value of the exchange is in having the fact-finder hear the accusations, not in listening to the defendant’s denials. While this is a fine tactic to use, it cannot be overused. If the trier of fact hears a witness deny every question you ask (or even the slight majority), they may believe that none of your factual assertions are true. This, most of the questions you ask on cross should be ones with which the witness is likely to agree.
The construction of your usable universe depends almost entirely on your mastery of the case as a whole. To prepare for cross examination you must know everything that the particular witness is liable to say as well as every other fact that might be obtained from any other witness, document, or exhibit. Your effective choice of cross examination topics will be determined by your ability to choose those areas that will do you the most good, while risking the least harm.
…
2. Preparing your questions
Once you have selected the topics for each cross examination, write out short, single-thought, strictly factual sentences that develop each topic. For example, assume that the defendant’s affidavit in the fire truck case includes the following statements:
I awoke on the morning of the accident at 7:00 AM (page 3, line 5)
I had to be downtown later that morning to meet an important new client
(page 3, lines 5-6)
Yes, I wanted to get that client’s business (page 3, line 7)
And yes, I stood to make a lot of money (page 3, lines 7-8)
The meeting was scheduled for 8:30 AM (page 3, line 12)
I live about 16 miles from my office (page 2, line 15)
I also rent a monthly parking spot in a garage two blocks form my office
(page 2, line 17)
I left my home at 7:55 AM that morning (page 1, line 20)
There was a lot of traffic that morning (page 2, line 2)
The accident occurred at an intersection seven miles from downtown (page 2,
line 11)
The accident happened at 8:20 AM (page 2, lines 11-12)
Here, the cross examiner has laid out the facts in the defendant’s affidavit that underlie her theory that he was rushed that morning. It should now be a simple matter for counsel to convert this list into cross examination questions. To do this, all counsel needs to do is take each first-person sentence and rephrase it into a second-person question. In fact, it is often best to leave the sentence in the form of a declaration, technically making it a question through voice inflection or by adding an interrogative phrase at the end. The above list then becomes the following cross examination of the defendant:
QUESTION: You awoke at 7:00 AM on the morning of the accident, isn’t that
right? (page 3, line 5)
QUESTION: You had to be downtown later that morning, correct? (page 3,
lines 5-6)
QUESTION: You were meeting an important new client? (page 3, lines 5-6)
QUESTION: You wanted to get that client’s business? (page 3, line 7)
QUESTION: You stood to make a lot of money? (page 3, lines 7-8)
QUESTION: The meeting was scheduled for 8:30 AM, correct? (page 3, line 12)
QUESTION: You lived about 16 miles from your office? (page 2, line 15)
QUESTION: You rented a monthly parking spot? (page 2, line 17)
QUESTION: That spot was in a garage located two blocks from your office?
(page 2, line 17)
QUESTION: You left my home at 7:55 AM, right? (page 1, line 20)
QUESTION: There was a lot of traffic that morning? (page 2, line 2)
QUESTION: The accident occurred at an intersection 7 miles from downtown?
(page 2, line 11)
QUESTION: It happened at 8:20 AM, isn’t that right? (page 2, lines 11-12)
Note that the above questions also fit neatly into the usable universe. Many of the facts are not likely to be available from friendly witnesses. Most others are of the sort that will be most valuable if conceded by the defendant himself. Finally, and best of all, each of the facts are documented in the witness’s own prior sworn testimony.
This technique is useful for developing the content of your cross examination. The organization of the examination and the structure of your individual questions will depend upon additional analysis.
B. Organization
As with direct examinations, the organization of a cross examination can be based on the four principles of primacy and recency, apposition, repetition, and duration. Unlike direct examination, however, on cross examination you will often have to deal with a witness who is reluctant to help your case. You may therefore have to temper your plan in recognition of this reality, occasionally sacrificing maximum clarity and persuasion in order to avoid “telegraphing” your strategy to the uncooperative witness. Thus, we must include the additional organizing principles of indirection and misdirection when planning cross examinations.
1. General tips for organizing cross examinations
Recall that cross examination is your opportunity to tell part of your client’s story in the middle of the other side’s caser. Your object is to focus attention away from the witness’s direct testimony and onto matters that are helpful to your case. On cross examination, you want to tell the story. To do so, you must always be in control of the testimony and the witness.
Remember too that an effective cross examination often succeeds through the use of implication and innuendo. It is not necessary, and it is often harmful, to ask a witness that ultimate question. Final argument is your opportunity to point out the relationship between facts, make characterizations, and draw conclusions based upon the accumulation of details. Do not expect an opposing witness to do this for you.
a. Do not worry about starting strong
It would be desirable to be able to begin every cross examination with a strong, memorable point that absolutely drives home your theory and theme. Unfortunately, this will not always be possible. Many cross examinations will have to begin with a shake down period during which you acclimate yourself to the tenor of the witness’s responses and attempt to put the witness in a cooperative frame of mind. Unless you are able to start off with a true bombshell, it will usually be preferable to take the time necessary to establish predicate facts through indirection.
b. Use topical organization
Topical organization is essential in cross examination. Your goal on cross examination is not to retell the witness’s story, but rather to establish a small number of additional or discrediting points. A topical format will be the most effective in allowing you to move from area to area. You can use it to cluster facts in the same manner that you would on direct examination or to separate facts in order to keep your strategy hidden from the witness.
Assume that you want to use the cross examination of the defendant in the fire truck case to show how busy he was on the day of the collision. You know that he had an important meeting to attend that morning, but he will be unlikely to admit that he risked losing the client (and a lot of money) if he arrived late. You can solve this problem by using topical organization to separate your cross examination into two distinct segments: one dealing with the nature of the defendant’s business and the other covering his appointment on the fateful morning.
In the first topical segment you will show that the defendant is an independent management consultant employed in a very competitive business in which client relations are extremely important. Part of his work involves seeking out potential new clients, whom he is always anxious to please. Since he is a sole proprietor, every client means more money. As a consultant, he must pride himself on professionalism, timeliness, and efficiency. He bills his clients by the hour. Time is money. In short, examine the witness on his business background without ever bringing up the subject of the accident.
Later in the examination, after covering several other areas, you will shift topics to the defendant’s agenda on the day of the accident. Now it is time to establish the details of his planned meeting and the fact that he was still miles from downtown shortly before it was scheduled to begin.
You do not need to obtain an admission that he was running late or that he was preoccupied. Topical organization has allowed you to develop the predicate facts for that argument before the witness was aware of their implications.
There is another advantage to topical organization on cross examination. Assume, in the example above, that the witness was well prepared and that he immediately recognized your reasons for inquiring into his business practices. Because your examination was segmented, however, he could scarcely deny the facts that you suggested. In a portion of the examination limited to the operation of his business it would be implausible for him to deny that his clients value “professionalism, efficiency, and timeliness.” Denying your perfectly reasonable propositions would make him look either untrustworthy or defensive.
Note that you would not obtain the same result without topical organization. IN the middle of the discussion of the morning of the accident it would be quite plausible for the defendant to testify that this particular new client was not dominating his thoughts.
Be sure that as you organize the questions that you plan t ask on cross examination you continue to reference them by listing the page and line number where that fact appears in the witness’s affidavit or deposition transcript. Referencing allows you to impeach or contradict witnesses who give you evasive, unexpected, or false answers.
If you followed the steps in Chapter 2 (“Case Preparation”), you will have already referenced every fact in each witness’s affidavit. Remember that in addition to affidavits and deposition transcripts, reference sources can come from letters, reports, memoranda, notes, and even photographs. The best sources, of course, are the witness’s own prior words. Adequate secondary sources may include documents that the witness reviewed, acted upon, or affirmed by silence. In most circumstances, the testimony of a different person, though perhaps useful, will not be a reliable source for referencing a cross examination.
c. Give the details first
Details are, if anything, more important on cross examination than they are on direct. On direct examination a witness will always be able to tell the gist of the story; details are used in a secondary manner to add strength and veracity to the basic testimony. On cross examination, however, the witness will frequently disagree with the gist of the story you want to tell, and use of details therefore becomes the primary method of making your points. You may elicit details to lay the groundwork for future argument, to draw out internal inconsistencies in the witness’s testimony, to point out inconsistencies between witnesses, to lead the witness into implausible assertions, or to create implications that the witness will be unable to deny later.
Within each segment of your cross examination it will usually be preferable to give the details first. No matter what your goal, the witness will be far more likely to agree with a series of small, incremental facts before the thrust of the examination has been made apparent. Once you have challenged, confronted, or closely questioned a witness it will be extremely difficult to go back and fill in the details necessary to make the challenge stick. Case in point: the example given earlier about the details of the fire truck defendant’s business practices.
d. Scatter the circumstantial evidence
Inferential or circumstantial evidence is most persuasive when a series of facts or events can be combined in such a way as to create a logical path to the desired conclusion. Unfortunately, facts arranged in this manner on cross-examination will also be highly transparent to the witness. As you stack inference upon inference your direction will become increasingly clear. A hostile or unfriendly witness will then become increasingly uncooperative, perhaps to the point of thwarting your examination. A far safer approach is to scatter the circumstantial evidence throughout the examination, drawing it together only during final argument.
e. Save a zinger for the end
The final moment of cross examination may well be the most important. No matter how low key or friendly your style, almost every cross examination will in some sense be viewed as a contest between you and the witness. Were you able to shake the adverse testimony? Did you do what you set out to do? In this regard the final impression that you leave is likely to be the most lasting. Were you able to finish on a high note, or did you simply give up?
It is therefore imperative that you plan carefully the very last point that you intend to make on cross examination. It must be a guaranteed winner. Then, if your entire examination seems to fail, if the witness denies every proposition and the judge sustains every objection, you can always skip to your last question and finish with a flourish. Satisfied that you have made this single, telling, case-sealing point, you may proudly announce, “No further questions,” and sit down.
How do you identify your fail-safe zinger? The following guidelines should help:
i. It must be absolutely admissible
There can be no doubt about the admissibility of your intended final point. Nothing smacks more of defeat than ending a cross examination on a sustained objection. If you suspect even for a moment that your zinger might not be allowed, abandon it and choose another. In fact, you should make an entry in the margin of your notes that reminds you of your theory of admissibility Why is the point relevant? Why isn’t it hearsay? How has the foundation been established? Why isn’t it speculation?
ii. It must be undeniable
It should be obvious by now that your final question must be undeniable. The end of your cross is not the time to argue or quibble with the witness. There are two good ways to ensure undeniability. First, choose a documented fact – the best “gift” given to you in the witness’s statement. Second, phrase your question using the exact language the witness used, making it impossible for the witness to deny you the simple answer you seek.
iii. It must be stated with conviction
No matter what your closing question, you must be able to deliver it with an attitude of satisfied completion. If the subject makes you nervous, worried, or embarrassed, then you must choose another. It is neither necessary nor desirable to smirk, but you must exhibit confidence that your parting inquiry has done its work.
2. A classic format for cross examination
Because almost all cross examinations will be topical, there can be no standard or prescribed form of organization. The following “classic format” is designed to maximize witness cooperation. Of course, you may have a goal in mind for your cross examination other than witness cooperation in that case, feel free to ignore or alter this approach. As a rule of thumb, however, you can best control witnesses on cross examination by following this questioning order.
a. Friendly information
Be friendly first. Begin by asking all questions that the witness will regard as nonthreatening. These will often be background questions. For example, medical malpractice cases are often based upon errors of omission, and you may intend to argue in closing that the defendant physician, by virtue of her extraordinary training should have known about certain available tests. You can start your cross examination, then, by asking friendly questions about the defendant’s medical education, residency, fellowships, and awards. Most people, even defendants on trial, like to talk about their achievements. There is little doubt that a witness will be the most forthcoming when asked about flattering information at the very outset of the cross examination.
b. Affirmative information
After exhausting the friendly information, ask questions that build up the value of your case rather than tear down the opposition’s. Much of this information will fill in gaps in the direct testimony. In fact, a good way to plan this portion of the cross is to list the information that you reasonably hope will be included in the direct. Whatever is omitted from the witness’s actual testimony will form the core of your affirmative information section. Although adverse witnesses may not be enthusiastic about supplying you with helpful information, they will be unlikely to fight you over answers that might logically have been included in their own direct. Be careful, though, not to simply repeat the testimony given during direct in your cross examination as doing so will only reinforce it and bore everyone in the room; instead, skip the information already covered and fill in the gaps with the information that was skipped.
c. Uncontrovertible information
You can now proceed to inquire about facts that damage the opposition’s case or detract fro the witness’s testimony, so long as they are documented in the case file. With these questions, the witness may be inclined to hedge or quibble, but you can minimize this possibility by sticking to the information that ultimately must be conceded.
d. Challenging information
It is unlikely that a witness will cooperate with you once you begin challenging her memory, perception, accuracy, conduct, or other aspects of her testimony. Therefore, it is usually desirable to proceed through friendly, affirmative, and uncontroverted information before you begin to take sharper issue with the witness. As some point, of course, you will have to ask most witnesses questions that they will recognize as challenges: “Mr. Defendant, the fact is that the first thing you did after the collision was to telephone your office?” Such questions are necessary and, when used in their proper place, they will not prevent you from first exploiting the other, more cooperative testimony from the witness.
e. Hostile information
Hostile information involves confronting the witness directly. You may be able to extract the necessary answers to hostile questions, but certainly you can eliminate all hope of cooperation both then and thereafter. Hostile questions involve assaults on the witness’s honesty, probity, peacefulness, character, or background. “Didn’t you spend time in prison?” “You never intended to live up to the contract?” “That was a lie, wasn’t it?”
f. Zinger
Always end with a zinger. You know why.
IV. THE ETHICS OF CROSS EXAMINATION
While lawyers generally consider cross examination to be an “engine” of truth-seeking, we are often criticized for using cross as a device for distortion and confusion. And in truth, as with all powerful rhetorical tools, cross examination can be used to mislead and deceive. Accordingly, certain ethical principles have developed that circumscribe a lawyer’s use of cross examination.
Many cross examinations contain inherent assertions of fact. Indeed, many of the best cross examination questions are strictly “proportional.” Consider this example from the fire engine case:
QUESTION: You were on your way to an important business meeting, right?
This question contains a single fact that counsel is urging to be true. The danger arises that counsel might also propose baseless or knowingly false points. The witness, of course, can deny any untrue assertions, but the denials are likely to ring hollow in the face of an attorney’s presumably superior persuasive skills. Enormous damage can be done by false or groundless accusations. Imagine the impact of this examination in our fire truck case:
QUESTION: Isn’t it true that you had been drinking on the morning of the accident?
ANSWER: No, not at all.
QUESTION: Didn’t you arrive at Meizlish’s Bar at 7:00 AM?
ANSWER: Certainly not.
QUESTION: Well, the truth is that you ran up a $12,00 tab that morning, didn’t you?
ANSWER: No.
QUESTION: $12.00 would cover at least four drinks, right?
ANSWER: I’m telling you that I wasn’t drinking.
The precision of the details in the questions appears to add weight to the cross examination, while the denials can be made to appear superficial. The cross examiner’s ability to control the interchange puts the witness at an extreme disadvantage. This cross examination raises no problems if you have a good faith basis to believe that the witness was indeed drinking at Meizlish’s Bar, but it is intolerable if the charge is baseless.
To protect against the unscrupulous use of cross examination, it is required that every question have a good faith basis in fact. You are not free to make up assertions; as a predicate to any propositional question, you must be aware of specific facts that support the allegation.
In addition, the good faith basis for a cross examination question cannot be composed solely of inadmissible evidence. Counsel cannot allude to any matter that will not be supported by admissible evidence. This, a good faith basis cannot be provided by rumors, uncorroborated hearsay, or pure speculation.
Allegations lacking a basis in admissible evidence may lead to a sustained objection and even a strong admonition by the court.