NCATL TRIAL Briefs Magazine
POINTERS FOR CROSS EXAMINATION
Compiled and adapted by David Ball
Copyright © 1998 by North Carolina Academy of Trial Lawyers
Paul D’Amato, Esq., New Jersey
F. Lee Bailey, Esq., Florida
David Ball, Phd., JuryWatch, Inc, North Carolina
The Honorable Charles L Becton, North Carolina
Wade Byrd, Esq., North Carolina
Wesley Covington, Esq., North Carolina
Gillian Drake, Maryland
Margerie S. Fargo, M.A., Virginia
Mark Kosieradzki, Esq., Minnesota
James J. Lees, Esq., West Virginia
Susan Macpherson, National Jury Project Midwest, Minnesota
Michael Nifong, Esq., North Carolina
Eric Oliver, MetaSystems, Michigan
Bruce Rasmussen, Esq., Virginia
Jeremy Rose, National Jury Project Midwest, Minnesota
Gerry Spence, Esq., Wyoming
Bill Thorp, Esq., North Carolina
Diane Wiley, National Jury Project Midwest, Minnesota
TO BEGIN WITH: Ask yourself, “Is there anything the witness can say that can help my case?” The answer tells you whether to cross and how. You’re not there to show the jury how brilliant you are. Cross examine to show weaknesses in the witness’s position or in his credibility or in his perception of the case, or if there are other ways that crossing that witness will concretely help you. (Paul D’Amato, Esq.)
THREE STEPS. A good cross has three phases. They go in this order: 1) Extricate: extract everything the witness knows that is favorable to you. Do this before you attack, so the witness will be less resistant. 2) Close the doors: before the witness knows what you’re going to ask in phase three, close any doors through which the witness could escape. 3) Impeach. If you start with phase three, phases one and two become hard if not impossible. (F. Lee Bailey, Esq.)
PLAY YOUR OWN GAME. When you play your game, you can win. When you play their game, you lose. It’s just like basketball. (Mark Kosieradzki, Esq.)
CLARITY. Start with a strong, clear point, not something convoluted. In fact, think twice about even bothering with anything convoluted. Why do something that jurors will neither understand nor listen to? (Susan Macpherson, Diane Wiley, Jeremy Rose)
FOCUS. If a juror is asked what the point was of your cross examination of the last witness, that juror should be able to answer in no more than a dozen words. If not, the juror did not get what you were trying to do. You achieve this by having a theme that explains why the witness either is wrong or actually helps your case. “He’s got his facts wrong.” “He’s a liar.” “She likes the defendant.” “He could not see what he says he saw.” “He does not like med mal cases.” Etc. (David Ball)
RED LIGHT, GREEN LIGHT. When you have the burden, you are disadvantaged by the fact that jurors have trouble with complexity. Thus, you want to shape your case in such a way that jurors don’t need to understand complexities to side with you. Find a way to express your main point as simply as, “The light was red.” It can be done in any case. Bring that red light up with every opposition expert. Try to touch on it only as it relates to matters they agree with you about, but even if they disagree with you, you’ve still emphasized it. For example, in a complicated products liability case, the red light might be, “Safety is of paramount importance.” So ask the opposing expert, “Do you agree with me that safety is of paramount concern to GM?” You don’t cross the expert on the substance of whether GM failed to be safe, but only as to whether safety is of paramount importance. If you challenge the expert as to whether GM was safe, you’ll lose. But you can get the expert to verify your red light: that safety is important to this case. Then when you prove in other ways that GM went through that red light (i.e., was not safe), the jurors have heard GM’s own witness say that it was important. You’ve used the opposition to show that the red light should win the case for you. It’s important and possible to reduce every complex case to a simple red light. This keeps you from challenging opposition witnesses in the areas of their expertise, it simplifies the case in your favor, and it commandeers opposition witnesses to your own use. (Bruce Rasmussen, Esq.)
KNOW YOUR GOAL. Don’t spend time beating a dead horse. Know where you’re trying to go and how you’re going to get there. Once you’re there, stop. But don’t be afraid to change your plan if you have good reason to do so. If your original plan isn’t working, or if something comes up that seems to dictate a change, don’t just barge on with the original plan. You have to be flexible enough to make strong decisions on your feet, because as important as preparation is, you can’t plan for every eventuality. Think of it this way: Know your destination in advance, know all the roads in advance, but decide the exact route en route. (Michael Nifong, Esq.)
HOME RUNS. In baseball, the best batters don’t try to hit a home run every time. Don’t try to do it on cross, either. When you miss it gives the witness too much confidence, so the rest of that examination is harder. (Michael Nifong, Esq.)
JUROR SYMPATHY. The jurors’ sympathies are usually with the witness. This is partly because the jurors have recently been through an experience similar to cross: jury voir dire often feels to jurors like cross examination. Thus, when watching you cross a witness, jurors tend to identify with the witness, not you. Keep this in mind before you do anything aggressive or hostile. (Susan Macpherson, Diane Wiley, Jeremy Rose)
HOSTILITY. Being hostile is the worst error. If you treat both direct and cross examination witnesses with respect, you come across as a class act (and that makes it more likely that jurors will believe you in closing (Wesley Covington, Esq.). The jurors on your side will be on your side without your having to be hostile. The jurors against you will hate you for being hostile. (Mark Kosieradzki, Esq.)
SELECTIVE ATTACKING. If you attack every witness, the jury can’t compare, so it all means the same thing. If you attack only one, the jury notices. (Eric Oliver)
OVERKILL. Don’t overdo it. Jurors interpret overkill to mean that you’re trying to inflame them; don’t let them see that kind of attempt. On cross, make your points matter-of-fact and move on. (Mark Kosieradzki, Esq.)
OFF BALANCE. With a witness who’s lying, don’t examine linearly. Don’t hand the witness the alphabet, so that he or she knows you’re going to ask C because you just asked B. Get the witness off balance and keep him or her there. Disrupt their rhythm and don’t let them figure out where you’re going next. That makes it harder for them to maintain their fiction. And don’t fall into the easy trap of letting the order of direct determine your order of cross. Plan by points, not by linearity or by the order of direct. At the start of cross, the witness does not know your plan (so why telegraph it by working linearly or in the same order as direct? (Michael Nifong, Esq.)
FIGHTING. When you fight with a witness, you highlight not only the good thing you’re fighting for. You also run the danger of highlighting the bad thing the witness is saying. (Mark Kosieradzki, Esq.)
ATTACKING: WHEN? Sometimes you’ve got to attack, but decide carefully who and when. Otherwise, take it easy on witnesses. Gerry Spence suggests that you start gently even with, say, a jailhouse snitch. “Jimmy, tell the jury what it’s like to be in jail…. Describe your cell…. How long have you been in jail? … Do you ever get out of your cell? … Did the interviewing detectives take you anywhere? … Did they give you a Coke? … A cigarette? … How many times did they come get you out of your cell to talk to you … ?” And so on. This gentle approach makes Jimmy’s jail world so real to the jurors that they’re more likely to believe he’s lying to get out. You can do the same in a civil case: “Doctor, don’t you practice medicine just down the road from the defendant’s medical office? …. You refer patients back and forth to each other? … You don’t like these malpractice cases very much, do you?” These are attacks, of course, but they are done gently so that jurors focus on he truth of the situation and not on the aggressiveness of the attorney. (Wade Byrd, Esq.)
JUDGING YOUR CLIENT. Jurors do everything they can to figure out what your client is like. One important thing they usually want to know is how your client relates to other people. One way they try to figure that out is by looking at the way you relate to people; they transfer the way you treat people to the way they think your client treats people, because after all, you’re the gun your client chose to hire. This means they judge your client according to the way you treat a witness on cross. (Gillian Drake)
YOUR BEHAVIOR ON CROSS. I try to make myself contrast with my opponent. If she’s measured and quiet, I’ll try to add emotion or vice versa. (Michael Nifong, Esq.)
LENGTH. Keep your cross half as long as you’d like. (Susan Macpherson, Diane Wiley, Jeremy Rose)
ATTACKING CREDENTIALS. Don’t bother attacking credentials. Not only does this rarely help, but it can hurt because jurors can think that if you’re reduced to attacking credentials, then you probably have no substantive issues. (Susan Macpherson, Diane Wiley, Jeremy Rose)
BE POLITE. Whatever you do, remain polite and courteous unless you’re sure the jury will hate or does hate the witness(and you can never be absolutely sure. (Susan Macpherson, Diane Wiley, Jeremy Rose)
BE GENTLE. Treat the witness gently if there’s something small you can get from him or her. A softer approach often gets you something you did not expect, because the witness’s guard is down. (Michael Nifong, Esq.)
COOL IT. You catch flies with honey. Control the witness, but don’t bully. Impeach as you need to, but don’t assault. It may be reflex to attack on cross, but it’s high risk: if your attack fails, jurors can conclude that you misjudged your whole case. (David Ball)
RESPECT. Treat the witness with respect. On cross, the interaction between the lawyer and the witness affects jurors. Also, treating the witness with respect keeps you from alienating the witness, so you’re more likely to get what you want. (Eric Oliver)
TRUTH-SEEKER. I want the jury to see me not as a lawyer but as a person trying to get to the truth. So I don’t attack; my questions imply that I’m seeking the truth, not that I’m trying to aggrieve or discomfit the witness. For the same reason, I don’t use lawyer tricks to try to impeach someone telling the truth. That undermines your image as a person trying to get at the truth. (Bruce Rasmussen, Esq.
HOSTILITY. The jurors on your side will be on your side without your having to be hostile. The jurors against you will hate you for being hostile. (Mark Kosieradzki, Esq.)
INTERRUPTING. Don’t cut off the witness in mid-sentence. Attempts to control the witness are fine, but in the jurors’ minds the witness’s job is to tell his or her story. Anything the attorney does that jurors perceive as an attempt to cut that story off reflects badly on the attorney. It can even create suspicions about that attorney’s case (Susan Macpherson, Diane Wiley, Jeremy Rose). When you stop a witness, jurors think you don’t want them to hear what the witness has to say (Eric Oliver). When the jurors think you don’t want them to hear what a witness has to say, they figure there’s something bad for your case that’s even worse than what they’ve heard so far (David Ball).
ECONOMY. Don’t ask extraneous, irrelevant, or repetitive questions. It’s boring, pointless, and may give the witness the opportunity to shift the focus away from himself and the mistake he has made. (Margerie S. Fargo)
JUST THE FACTS, MA’AM. Ask only for facts, not conclusions. Opposition witnesses will never go with you to the conclusions you want, so use cross to gather the facts you need to make the conclusions yourself in final argument. (Mary Ann Tally, Esq.)
WORK HARD. Work hard. Work hard to prepare before trial. But you also have to work hard in voir dire and opening to build juror rapport and credibility, because rapport and credibility are your best friends on cross. If the jury sees in voir dire and opening that you are honest, then you’re the one they’ll believe during your cross examinations. One of the many advantages of that situation is that it lets you make on-your-feet decisions during cross that might be risky, such as asking a question when you don’t know the answer (but you can afford the risk when you have juror rapport and credibility. If you haven’t developed both during voir dire and opening, then you better not make any mistakes on cross. (Wade Byrd, Esq.)
WATCH OTHERS. Watch a lot of other lawyers do cross examinations. (Wade Byrd, Esq.)
RETRYING YOUR CASE. When you’re crossing a witness you can’t make any headway with, use him or her to retry your case(like a mini-closing:
Q: Jack and Jill went up the hill, isn’t that right?
Q: To fetch a pail of water?
Q: Jack fell down, didn’t he.
Q: Broke his crown?
Q: Jill came tumbling after?
Q: Thank you. No more questions.
In other words, use the witness to verify everything important about your case that he or she won’t disagree with. So even if you can’t make headway where he or she disagrees with you, you bolster the rest of your case and leave the jury with the impression that this witness is good for you, not bad. (Wade Byrd, Esq.)
EXPERTS AND NON-EXPERTS. Non-experts are harder. Jurors allow you to go at an expert as long as you stay within the bounds of propriety. But jurors think that most eye-witnesses are non-biased, non-interested. So be careful not to make the jury angry by how you treat such witnesses. Generally, the most useful approach is to go to their foundation. For example, could they really see what they say they saw? A more sophisticated approach is to show that they’re committed to their story, not to the truth. (Bruce Rasmussen, Esq.)
CAPACITY TO KNOW. Think about the witness’s capacity to know what he’s testifying. Could he actually see it? Was his vision distracted? Could he really hear what he says he heard? Sounds simple, but if you think about it carefully, you’ll unearth problems in a witness’s direct testimony more often than you think. (Bill Thorp, Esq.)
THREE POINTS. On cross, hit no more than three points. Lawyers who go on ad infinitum are a turn-off. Be succinct and professional. If there are more than three or four points, try to do them with other witnesses. This is usually easier to do than it sounds. We lawyers like to hear ourselves talk, so instead of paring cross down to an important three points, we take the witness through direct again. This is extremely helpful for the other side, and they will thank you afterwards. (Wes Covington., Esq.)
AVOIDING TEMPTATION. Avoid the temptation to respond to everything brought out on direct. Doing so only reinforces the witness’s points. (Eric Oliver)
RELAXATION. Making the witness think you are relaxed will keep the witness from relaxing. After all, the other side may prepare the witness for everything else, but not for you to be relaxed. So the witness is more likely to get nervous. When that happens, I call attention to the witness’s nervousness by asking, “Are you okay?” It makes me seem like a good guy because I’m concerned, but it also makes the jury see that the witness is nervous. When jurors see that I’m relaxed and the witness is nervous, they regard me, not the witness, as the credible one. In closing, the jurors know what I’m talking about when I ask them to remember who was relaxed on the stand versus who was nervous (and why that might have been. Nervousness undermines credibility. (Wes Covington, Esq.)
EMPHASIZE. Find a way to emphasize the one key point. When you get the key answer about that key point, respond by using body language or a facial expression different from anything else you’ve done. (Wes Covington, Esq.)
EXPERTS. Even if you have mastered the subject matter, you cannot take an expert head on. He or she will almost always find ways of disagreeing with your propositions and wriggling out of them in spite of even the most authoritative texts. So if you have to attack, don’t attack the opinion; attack how the witness arrived at that opinion (Paul D’Amato, Esq.). Don’t test your knowledge against the expert’s knowledge. The jury has no choice but to believe the expert because you’re just a lawyer (Gerry Spence, Esq.). Rarely, if ever, challenge an expert on the substance of their expertise. You’re not an engineer or physician. Debating an expert on his own subject almost always fails. It’s high risk. It can be done, but it takes a lot of experience. There’s a lot that can be done with less experience and less risk. First, you can attack credibility: show bias by who the witness usually testifies for; find and show inconsistencies in what he said on direct. This is low risk; you can’t get hurt, so it’s good to do even when you’re a relative novice at cross examination. A slightly higher risk (but worth the risk (is to get the expert to admit things about the case that are good for you. You can also find points in the literature that help your case and get the expert to admit to those points. This is a strong 1-2-3: show the expert’s bias, use the expert to admit your facts, and use the expert to validate your good principles. While you’re doing this, there’s always the strong possibility that a really good opportunity of some sort will present itself, so keep your ears open. (Bruce Rasmussen, Esq.)
CROSS AS CLOSING. Think of cross examination as an opportunity to give a closing argument. If you select carefully, the expert on cross will have to admit a whole series of good facts for you. (Bruce Rasmussen, Esq.)
COLLATERAL CROSS: If an opposition expert isn’t likely to say anything that will help you, do a collateral cross. To do this, forget your client. Ask no questions about your client. Just cross on what the witness must say “yes” to. For example, in a soft tissue case, the opposition medical expert will never say “Oh my, yes, your client is hurt and the careless doctor did it.” That expert will never say it, so don’t try to get her to say it. Instead, ask a series of questions like this:
Q: Isn’t it true that wrecks like this can hurt people?
Q: Isn’t it true that injuries from such wrecks often don’t show up on X- rays or MRI’s?
Q: But they can still be there?
Q: And isn’t it true that those injuries might never be visible to an X-ray or any other kind of test until the patient dies and the injury is visible on an autopsy?
Q: Isn’t it true that a hundred years ago there was no way to see a brain tumor?
Q: But people had brain tumors a hundred years ago?
Q: Even though no one could see them they could still be real?
Q: Now, in your practice you have seen these kinds of injuries, haven’t you?
Q: And you have prescribed physical therapy for them?
Q: And injuries like this can keep a patient from walking?
Q: And injuries like this can cause disabling pain?
Q: So the only place we disagree is that you think my client is not hurt?
She’s now proven for you that people do have these kinds of injuries. That’s a major obstacle in this kind of case, and you’ve disposed of it on cross. You can use this method for anything important you need to prove. (Jim Lees, Esq.)
THE FORK IN THE ROAD. You want your cross-examination to get down to an important fork-in-the-road question where either answer (yes or no (is good for you. This is a sophisticated but effective technique. A good fork in the road question is based carefully on facts and principles you first get the witness to admit. For example, “Doctor, do you know the possible consequences of not connecting a ventilator?” Once you get an answer (yes or no (lead the witness down that road with follow-up questions. (Bruce Rasmussen, Esq.)
WAITING FOR YOUR CUE. I had a law school buddy who had a joke prepared for every class. He had it ready to go and waited for the professor to say the right thing to “cue” the joke. When my buddy said the joke everyone thought it was spontaneous. This works on cross. Have a plan and know what to wait for that cues it. Set traps on cross by asking questions designed to have the witness give you the cue. (Michael Nifong, Esq.)
WATCHING JURORS. Watch the jury. They’ll tell you whether or not they are with what you’re doing on cross. (Bruce Rasmussen, Esq.)
RULES. Rules and guidelines for cross examination are useful. But as you get more experience, you’ll know when and how to violate the rules. (Bruce Rasmussen, Esq.)
BUILDING BLOCKS. Jurors pay less attention to ultimate opinions and more attention to the building blocks of ultimate opinions. Experts who are great teachers withstand cross best, because they know how to present their building blocks. (Bruce Rasmussen, Esq.)
OPEN-ENDED QUESTIONS. Don’t ask open-ended questions. You have no idea what the witness will say. Unless you’re really good at exercising control, open- ended questions give the witness the opportunity to make a speech or rehabilitate himself (Margerie S. Fargo). Never ask open-ended questions on cross until you have the skill and experience to handle and control the unexpected and know how to narrow the gate to get the answer you want (Charles Becton, Esq.).
SHORT QUESTIONS: Keep your questions short because jurors more easily understand short questions. One way to make sure your questions are short is for them to contain just a single fact each. (Charles Becton, Esq.)
WRITING QUESTIONS IN ADVANCE. I write out my questions so I can word them in the best possible way(and so I can study them to find any possible objections. That way I can prepare to respond to those objections. Writing out my questions also lets me see if they’re clear, if they relate to the theme, if they contain just a single fact each, and if they do everything else I want them to do. This does not mean for you to read your questions to the witness; it just means to write them out so you can shape and prepare them. (Charles Becton, Esq.)
NOTES. Whether you prepare with notes or not, do not use them during the actual cross examination. Keep your eyes on the witness’s eyes; such things as the witness’s fleeting glance at the floor or a look away will show you any difficulty the witness is having. That tells you where to go next. A stack of notes never does that. Train your memory so you can do without notes, because they will kill you. For example, the witness’s prior testimony must be in your head, not on page 34. And don’t work from a list of questions, because there is no way to know what question to ask until you have heard the previous answer. (F. Lee Bailey, Esq.)
OBJECTIONS. Develop the cross-examination skill of asking unobjectionable questions. Objections give the witness time to breathe. Speed is important. Don’t give the witness breathing room. Move forward relentlessly. (F. Lee Bailey, Esq.)
THEME. Ask only questions that are consistent with your theme. If a question does not help you either advance your theme or impeach the witness, then it might be a good question but it does not help you. Every question has to make a helpful point. (Charles Becton, Esq., Raleigh)
BIAS. One of your strongest tools is bias. Totally impartial witnesses are rare. Even a witness with no personal stake in the case will usually still have an opinion how the case should turn out (and they will think it is fair to bend a little to help it come out that way. In the Simpson case, the North Carolina film teacher who’d taped Mark Fuhrman did not come forward when she heard Fuhrman on the stand even though she knew he was lying, because she believed that justice was on the prosecutor’s side, not ours. She thought it was right to refrain from helping Simpson. If you can convince a witness that you have the better case, he or she will often change and help you. (F. Lee Bailey, Esq.)
THEORY. Ask a question only if it advances your theory of the case. The most common problem I see is that attorneys meander around on cross, as if the witness was going to miraculously change what he said on direct. Instead, all that ever happens is that the witness gets to repeat his or her direct. (May Ann Tally, Esq.)
OPPOSITION ALLY. Sometimes when an opposition witness has established good credibility with the jury, in cross I show that I believe that witness, that I find him or her credible and expert. I validate that witness. Then I use that witness to undermine other opposition witnesses or opposition contentions. Even if there’s no direct way that he’ll undermine other witnesses, you can still use an opposition witness that the jury has come to believe in. For example:
Q: Dr. Pierce, you read every transcript?
Q: You went to the scene of the accident?
Q: You spent two days there taking measurements?
Q: You reviewed all the literature on the subject?
Q: You spoke to colleagues with the same experience as yours?
Q: You checked every known standard?
Q: You read every known treatise?
Q: You did all this so you could do the best possible for this jury?
Then in summation you say, “Dr. Pierce showed you the kind of methodology that experts have to use to make conclusions. But compare him to the other two experts on that side. They didn’t prepare like that. They were sloppy. They just shot from the hip.” In other words, I’m not dealing with his conclusions. I’m just contrasting his meticulous method with the sloppiness of the other opposition witnesses. (Paul D’Amato, Esq.)
PET THE DOG. With witnesses and dogs, get the good stuff first, attack afterwards. If you pet the dog he’ll like you, but he won’t like you if you start by hitting him with a stick. It’s the same with witnesses. (Mary Ann Tally, Esq.)
CONSTRUCTIVE QUESTIONS. When you have questions that will elicit answers that support your case, ask them first, before you try to undermine that witness, so the jury will hear the answers that help you while they still believe that witness. (Eric Oliver.)
NEAT QUESTIONS: Is that a new thought you just had or is it the same as the thought you’ve had all along? (F. Lee Bailey, Esq.) Is it your testimony that all her symptoms were just a coincidence? (Bruce Rasmussen, Esq.) Did you say that or did the court reporter make it up? (F. Lee Bailey, Esq.)
PREPARATION. You don’t have to be logical and analytical to cross well. You have to know your case so well that you begin to feel it. That takes a lot of preparation. If you spend hours and hours thinking about how to cross a witness, you don’t need a script. You probably should not have a script, because a script can’t predict the most important things that are going to happen. But if you haven’t prepared well enough to have a solid feel for crossing this witness, you will not be prepared for the important things that happen. In fact, if you’re my opponent, the biggest mistake you can make is to let me prepare overnight to cross examine your witness. Because that preparation is what lets me work well on my feet, and that makes for effective cross. (Wade Byrd, Esq.)
LISTENING. Never underestimate the importance of listening carefully. Lawyers aren’t always good listeners, and we should be. Listening wins cases and not listening kills you. For example, when your opponent has a witness on direct, you have to listen so you know what’s important to cross about. You can’t make that decision the night before. You can’t make that decision until you hear how the direct comes out in front of the jury. If instead of listening you’re thinking about your script of prepared cross examination questions, you’ll miss it. (Wade Byrd, Esq.)
1998 WL 34002797 (NCATL)