"The Real Purpose of Cross"
Professor Vince Warbler put together a continuing legal education course on “Commercial Litigation” out at the law school. Part of the program was a panel of local lawyers talking about cross-examination.
Professor Warbler did the introduction. “The purpose of cross-examination,” he said, “is to slash through the soft underbelly of your opponent’s case, to expose every fallacy in the other side’s facts and opinions. A good cross-examination will take an apparently reliable witness and cut him to pieces, both logically and emotionally.”
Warbler went on. “Cross-examination is the most demanding – and the most emotionally draining – part of trying cases because it is the closest thing to hand-to-hand combat that we have in the courtroom.”
“Works for me,” said Myra Hebert (whose real specialty is bar politics). “Litigation is war. The point is to win, and one of the best places to start is with the destruction of the enemy’s forces. Cross-examination is your opportunity to take your best shots at the people who have the temerity to stand up for the thieves and brigands on the other side.
“I mean it is a serious error to leave any opposing witness unscarred,” she said. “The first rule of commercial litigation is ‘Take no prisoners.’ “
“I agree completely,” said Cartwright Buchanan who is on his way to becoming a partner with Windstrom & Crusher. “And the only way to accomplish that goal is through total witness control. You can never afford to let a witness get away from you. You do, and you’re dead. If there is a time to be ruthless with a witness, it is at the start of cross-examination, so the witness knows from the beginning who’s in charge.”
“What claptrap!” said Flash Magruder, the plaintiff’s lawyer.”Doesn’t anybody know what it costs you with the jury if you treat witnesses like that?”
“For once I agree with Flash,” said Barbara Swanson, who has been trying cases longer than I have. “And it goes back to the purpose of cross-examination, which is to put on that part of the opponent’s evidence that will help your case.” “There are always times when the other side’s witnesses will agree with some of your most important facts. But a lot of that gets lost when the jury gets mad at you for kicking the witness around.”
“Everybody’s missing the point,” said Tricky Sutherland (whose real name is Billy). “Cross-examination had nothing to do with witness control or getting information or inflicting damage on the credibility of the witness. And it certainly has nothing to do with truth – despite what Wigmore said about its being the greatest engine for its discovery.
“Nope,” said Strickland, “the real purpose of cross is to let you argue your case during the testimony of the other side’s witnesses. Every witness they put on the stand is another opportunity to give part of your summation right in the middle of their case.”
That’s when Professor Warbler remembered he was supposed to get everybody on the panel involved. “Angus,” he said, “where do you come down in all of this?”
Angus smiled. “My starting point,” he said, “is that you are the most important witness in your case. You literally stand up and speak for your client. You are the first voice that the judge or jury hears from your side, and you want your ‘testimony’ to be believed.”
“You want to be the guide – the one the judge or jury can trust to lead them through the thicket of facts that makes up the case. Even though you never raise your hand and swear to tell the truth, the fact-finders do some of their most important learning by listening to you.”
I was sitting in the back of the room and turned on my little tape recorded. Here is what I got.
There are three times when you “testify” in any trial: opening statement, cross-examination, and final argument. It is four times when you get to do jury voir dire.
But wait a second, you say. Jury voir dire, opening statement, and final argument all kind of make sense. The lawyer is doing the talking and the fact-finders are doing the listening, so it seems like testimony even though technically it’s not.
But cross-examination is different. Now there is a real witness on the stand. The lawyer is just asking questions. How is that “testifying”?
Simple.
You are entitled to lead on cross-examination.
Stop there for a second. Even if you don’t have to lead a particular witness, it is usually a good idea. Think of the underlying message it sends: You can’t quite trust this person. You have to tell her what to say. That is exactly the message you want on cross-examination. It also shows you why you usually shouldn’t lead the witness on direct examination, even if the other side doesn’t object.
Back to cross-examination. If you ask questions the right way, you do all the talking, and the witness agrees (no matter how reluctantly) that what you say is true. In a good cross-examination, you are the real witness, while the one on the stand merely vouches for the accuracy of your testimony.
Look at it this way: cross-examination is your opportunity to give your side of the witness’s story your way. Don’t use cross-examination to ask the witness for information. You already know the information. Use cross-examination to get the information across to the jury.
Okay, you say, what’s the right way to do it?
By using short leading questions that are really simple statements of fact.
Q: You were on 3rd and Proctor?
A: Yes.
Q: Standing in front of the Boston Loan Office?
A: Yes.
Q: Which is actually a pawn shop?
A: Yes.
Q: It was after 10:00 at night?
A: That’s right.
Q: And the Boston Loan Office was closed?
A: Right.
Everybody talks about how short leading questions help control the witness. And it’s true. There is nothing like short leading questions for keeping everybody – judge, jury, witness, and you – on track.
But there is something even more important. Short declarative statements – call them questions – are the best way to make your testimony understandable. Look back at the little snippet of cross-examination, and see how quickly it set the scene. If you are the most important witness in the case, you want all your testimony to be that clear. You are a professional communicator and everything you say has to command instant comprehension.
Instant comprehension is why you need to clean up your language on cross-examination. Get rid of needless introductions. Stop using tag endings. Cut out words that don’t do any work.
Why?
Linguistic clutter gets in the way of instant comprehension. Take a look at the same snippet of cross-examination with the usual unnecessary words put back in:
Q: Now then, Mr. Williams, let me ask you this question. It is true, is it not, that you were on 3rd and Proctor, isn’t that correct?
A: Yes, that’s correct.
Q: And isn’t it also true that you were standing in front of an establishment known as the “Boston Loan Office,” isn’t that so?
A: Yes, I believe so.
Q: And am I correct in understanding that this establishment known as the “Boston Loan Office”
is in truth and in fact actually what is commonly called a pawn shop, isn’t that so?
A: A pawn shop, yes.
Q: Now then, directing your attention to the time of day, it was approximately 10:00 at night when you werestanding in front of the Boston Loan Office. Isn’t that true?
A: I believe that’s about the right time.
Q: And tell the ladies and gentlemen of the jury, if you would, please: the Boston Loan Office was closed at that time, was it not?
A: To the best of my recollection, yes, that is right.
How quickly did the scene jump out at you this time? Even though you already knew what it was, the message was clouded by all those unnecessarywords.
If you need any more convincing to get rid of linguistic clutter, try reading these two bits of cause there I longer answers. The lawyer sets the tone for the cross-examination. Wordy questions invite wordy answers.
How do you train yourself to ask questions like that?
The first answer is to think of yourself as telling the story. You simply break up your narrative into little points that the witness must agree with.
The second answer is easier to say, but harder to do.
Practice.
It is not sufficient to know what to do. You have to practice enough so that you develop the right verbal habits.
Now take a step back from cross-examination techniques for a second and think abut how much you really accomplish in the typical cross-examination.
Not much.
You get to tell a piece of the story your way. You develop a helpful fact here or there. You expose a few inconsistencies. You make the witness uncomfortable for a while with questions about bias.
Yet for all its limitations, no one wants to give up even the most mundane cross-examination.
Why not?
Because there is more to it than mere logic.
Every cross-examination is a contest between you and the witness.
Feeding that challenge leads too many of us into thinking the point of cross is to destroy the witness.
On the contrary, the real purpose of cross-examination is to show the judge and jury that you are the better witness.
Which is why you shouldn’t attack a witness unless you honestly think the jury wants you to do it. When lawyers pounce on decent people as if they were congenital liars, it virtually guarantees that the jury will side with the witness and not the lawyer.
If they hate you and like the person on the stand, they are not going to decide that you are the better witness.
Well, if the point of cross-examination is to win the contest with the witness, how do you do it?
Show the jury that you are the better witness.
You have a tremendous advantage right from the start. Every group of questions you ask is a volley between you and the witness. You are the one who decides which questions to ask and which ones to leave alone.
You literally pick the fight because you decide what the fight is about.
If you want to go after an inconsistency, that’s your choice.
If you want to show the witness’s bias, that’s your choice.
If you want to correct the witness’s mistake, that’s your choice.
Under the circumstances, it hardly seems appropriate to get angry when the witness rises to take the bait; it’s what you wanted her to do in the first place. See how civilized you can be in the process:
Q: Pardon me, Ms. Doyle, the car you saw circling the block was green, true?
A: No, it was blue.
Q: Sure it wasn’t green?
A: No, it was blue.
Q: You told Officer Randall it was green, didn’t you?
A: No. It was a blue car.
Q: Take a look at the statement you wrote out for Officer Randall. That says green, doesn’t it?
Devastating impeachment?
Hardly. But there isn’t any question who knows the facts better.
It’s a technique that really works well on minor points that don’t justify a big battle.
Q: That was back in October of 2003, wasn’t it?
A: No, I believe it was in November.
Q: Take a quick look at that statement again, Ms. Doyle. It was October, 2003?
A: Yes, I guess so.
Q: I don’t want you to guess, Ms. Doyle. It says October?
A: Yes.
Q: Is October O.K. with you, or do you really need it to be November?
A: No. October must be right.
Who won that volley? The lawyer. Twice.
Once you start looking at cross-examinations s the time to show you are the better witness, you will see opportunities everywhere. Every group of questions is like a volley between you and the person you are cross-examining. How you handle yourself determines the score:
By the time you’ve finished cross-examination, you want the jury to think that you are:
Careful.
Fair.
Honest.
And you know the facts better than the real witness does. It makes you the guide worth following.
Professor Warbler did the introduction. “The purpose of cross-examination,” he said, “is to slash through the soft underbelly of your opponent’s case, to expose every fallacy in the other side’s facts and opinions. A good cross-examination will take an apparently reliable witness and cut him to pieces, both logically and emotionally.”
Warbler went on. “Cross-examination is the most demanding – and the most emotionally draining – part of trying cases because it is the closest thing to hand-to-hand combat that we have in the courtroom.”
“Works for me,” said Myra Hebert (whose real specialty is bar politics). “Litigation is war. The point is to win, and one of the best places to start is with the destruction of the enemy’s forces. Cross-examination is your opportunity to take your best shots at the people who have the temerity to stand up for the thieves and brigands on the other side.
“I mean it is a serious error to leave any opposing witness unscarred,” she said. “The first rule of commercial litigation is ‘Take no prisoners.’ “
“I agree completely,” said Cartwright Buchanan who is on his way to becoming a partner with Windstrom & Crusher. “And the only way to accomplish that goal is through total witness control. You can never afford to let a witness get away from you. You do, and you’re dead. If there is a time to be ruthless with a witness, it is at the start of cross-examination, so the witness knows from the beginning who’s in charge.”
“What claptrap!” said Flash Magruder, the plaintiff’s lawyer.”Doesn’t anybody know what it costs you with the jury if you treat witnesses like that?”
“For once I agree with Flash,” said Barbara Swanson, who has been trying cases longer than I have. “And it goes back to the purpose of cross-examination, which is to put on that part of the opponent’s evidence that will help your case.” “There are always times when the other side’s witnesses will agree with some of your most important facts. But a lot of that gets lost when the jury gets mad at you for kicking the witness around.”
“Everybody’s missing the point,” said Tricky Sutherland (whose real name is Billy). “Cross-examination had nothing to do with witness control or getting information or inflicting damage on the credibility of the witness. And it certainly has nothing to do with truth – despite what Wigmore said about its being the greatest engine for its discovery.
“Nope,” said Strickland, “the real purpose of cross is to let you argue your case during the testimony of the other side’s witnesses. Every witness they put on the stand is another opportunity to give part of your summation right in the middle of their case.”
That’s when Professor Warbler remembered he was supposed to get everybody on the panel involved. “Angus,” he said, “where do you come down in all of this?”
Angus smiled. “My starting point,” he said, “is that you are the most important witness in your case. You literally stand up and speak for your client. You are the first voice that the judge or jury hears from your side, and you want your ‘testimony’ to be believed.”
“You want to be the guide – the one the judge or jury can trust to lead them through the thicket of facts that makes up the case. Even though you never raise your hand and swear to tell the truth, the fact-finders do some of their most important learning by listening to you.”
I was sitting in the back of the room and turned on my little tape recorded. Here is what I got.
There are three times when you “testify” in any trial: opening statement, cross-examination, and final argument. It is four times when you get to do jury voir dire.
But wait a second, you say. Jury voir dire, opening statement, and final argument all kind of make sense. The lawyer is doing the talking and the fact-finders are doing the listening, so it seems like testimony even though technically it’s not.
But cross-examination is different. Now there is a real witness on the stand. The lawyer is just asking questions. How is that “testifying”?
Simple.
You are entitled to lead on cross-examination.
Stop there for a second. Even if you don’t have to lead a particular witness, it is usually a good idea. Think of the underlying message it sends: You can’t quite trust this person. You have to tell her what to say. That is exactly the message you want on cross-examination. It also shows you why you usually shouldn’t lead the witness on direct examination, even if the other side doesn’t object.
Back to cross-examination. If you ask questions the right way, you do all the talking, and the witness agrees (no matter how reluctantly) that what you say is true. In a good cross-examination, you are the real witness, while the one on the stand merely vouches for the accuracy of your testimony.
Look at it this way: cross-examination is your opportunity to give your side of the witness’s story your way. Don’t use cross-examination to ask the witness for information. You already know the information. Use cross-examination to get the information across to the jury.
Okay, you say, what’s the right way to do it?
By using short leading questions that are really simple statements of fact.
Q: You were on 3rd and Proctor?
A: Yes.
Q: Standing in front of the Boston Loan Office?
A: Yes.
Q: Which is actually a pawn shop?
A: Yes.
Q: It was after 10:00 at night?
A: That’s right.
Q: And the Boston Loan Office was closed?
A: Right.
Everybody talks about how short leading questions help control the witness. And it’s true. There is nothing like short leading questions for keeping everybody – judge, jury, witness, and you – on track.
But there is something even more important. Short declarative statements – call them questions – are the best way to make your testimony understandable. Look back at the little snippet of cross-examination, and see how quickly it set the scene. If you are the most important witness in the case, you want all your testimony to be that clear. You are a professional communicator and everything you say has to command instant comprehension.
Instant comprehension is why you need to clean up your language on cross-examination. Get rid of needless introductions. Stop using tag endings. Cut out words that don’t do any work.
Why?
Linguistic clutter gets in the way of instant comprehension. Take a look at the same snippet of cross-examination with the usual unnecessary words put back in:
Q: Now then, Mr. Williams, let me ask you this question. It is true, is it not, that you were on 3rd and Proctor, isn’t that correct?
A: Yes, that’s correct.
Q: And isn’t it also true that you were standing in front of an establishment known as the “Boston Loan Office,” isn’t that so?
A: Yes, I believe so.
Q: And am I correct in understanding that this establishment known as the “Boston Loan Office”
is in truth and in fact actually what is commonly called a pawn shop, isn’t that so?
A: A pawn shop, yes.
Q: Now then, directing your attention to the time of day, it was approximately 10:00 at night when you werestanding in front of the Boston Loan Office. Isn’t that true?
A: I believe that’s about the right time.
Q: And tell the ladies and gentlemen of the jury, if you would, please: the Boston Loan Office was closed at that time, was it not?
A: To the best of my recollection, yes, that is right.
How quickly did the scene jump out at you this time? Even though you already knew what it was, the message was clouded by all those unnecessarywords.
If you need any more convincing to get rid of linguistic clutter, try reading these two bits of cause there I longer answers. The lawyer sets the tone for the cross-examination. Wordy questions invite wordy answers.
How do you train yourself to ask questions like that?
The first answer is to think of yourself as telling the story. You simply break up your narrative into little points that the witness must agree with.
The second answer is easier to say, but harder to do.
Practice.
It is not sufficient to know what to do. You have to practice enough so that you develop the right verbal habits.
Now take a step back from cross-examination techniques for a second and think abut how much you really accomplish in the typical cross-examination.
Not much.
You get to tell a piece of the story your way. You develop a helpful fact here or there. You expose a few inconsistencies. You make the witness uncomfortable for a while with questions about bias.
Yet for all its limitations, no one wants to give up even the most mundane cross-examination.
Why not?
Because there is more to it than mere logic.
Every cross-examination is a contest between you and the witness.
Feeding that challenge leads too many of us into thinking the point of cross is to destroy the witness.
On the contrary, the real purpose of cross-examination is to show the judge and jury that you are the better witness.
Which is why you shouldn’t attack a witness unless you honestly think the jury wants you to do it. When lawyers pounce on decent people as if they were congenital liars, it virtually guarantees that the jury will side with the witness and not the lawyer.
If they hate you and like the person on the stand, they are not going to decide that you are the better witness.
Well, if the point of cross-examination is to win the contest with the witness, how do you do it?
Show the jury that you are the better witness.
You have a tremendous advantage right from the start. Every group of questions you ask is a volley between you and the witness. You are the one who decides which questions to ask and which ones to leave alone.
You literally pick the fight because you decide what the fight is about.
If you want to go after an inconsistency, that’s your choice.
If you want to show the witness’s bias, that’s your choice.
If you want to correct the witness’s mistake, that’s your choice.
Under the circumstances, it hardly seems appropriate to get angry when the witness rises to take the bait; it’s what you wanted her to do in the first place. See how civilized you can be in the process:
Q: Pardon me, Ms. Doyle, the car you saw circling the block was green, true?
A: No, it was blue.
Q: Sure it wasn’t green?
A: No, it was blue.
Q: You told Officer Randall it was green, didn’t you?
A: No. It was a blue car.
Q: Take a look at the statement you wrote out for Officer Randall. That says green, doesn’t it?
Devastating impeachment?
Hardly. But there isn’t any question who knows the facts better.
It’s a technique that really works well on minor points that don’t justify a big battle.
Q: That was back in October of 2003, wasn’t it?
A: No, I believe it was in November.
Q: Take a quick look at that statement again, Ms. Doyle. It was October, 2003?
A: Yes, I guess so.
Q: I don’t want you to guess, Ms. Doyle. It says October?
A: Yes.
Q: Is October O.K. with you, or do you really need it to be November?
A: No. October must be right.
Who won that volley? The lawyer. Twice.
Once you start looking at cross-examinations s the time to show you are the better witness, you will see opportunities everywhere. Every group of questions is like a volley between you and the person you are cross-examining. How you handle yourself determines the score:
- When you try to make too much of a point, you lose that volley. The jury can’t trust your view of the facts.
- Quibbles are costly. The quibble is the lowest common denominator. It says this is the best you can do.
- If the jury sees you check a fact when you ask a question, you win at least part of that volley. It sends the message that you are careful.
- If the witness forgets something and you remind him, you win that volley.
- If the witness can’t find something and you remind him, you win that volley.
- Don’t take it personally if the witness evades your question. Rejoice. It means she doesn’t want to answer your question, and it gives you a chance to show that to the jury. “Dr. Maxwell, is there some reason why you don’t want to tell us whether you did that test?”
- If the witness says, “If you say so,” you win that volley. Like the dog that rolls over on its back in doggy surrender, the witness is saying, “I give up.”
By the time you’ve finished cross-examination, you want the jury to think that you are:
Careful.
Fair.
Honest.
And you know the facts better than the real witness does. It makes you the guide worth following.