By Albert G. Stoll, Jr.
Great cross-examination is developed from the day the case comes into your office, beginning with investigation, through discovery, the preparation of your client for deposition, arbitration and trial. This paper will discuss the following:
1. Two Viewpoints About Cross-Examination
2. 7 Steps To Great Cross-Examination: Control, Control, And Control
3. .5 Steps To Great Cross-Examination: A Few Extra Points
4. Protecting The Personal Injury Plaintiff While They Are Being Cross-Examined
5. Protecting Your Client On Cross With Objections
1. Two Viewpoints About Cross-Examination
The constant references to cross-examination as an art form have induced lawyers to believe that cross-examination is intuitive and that without careful preparation they can rise to the occasion and mesmerize the witness, jury, and court. Despite some cute barristers’ anecdotes, spirited best-selling paperbacks, and nightly television programs, it isn’t necessarily so. More cross-examinations are suicidal than homicidal. When in doubt, don’t ask a question. When in doubt, don’t cross-examine. Do only what’s necessary, and then get the hell out. [PeterMegargee Brown, The Art of Questioning, Thirty Maximsof Cross-Examination, 1987.]
A shoddy, ill thought out cross-examination will do great damage to your client’s case. At the same time a controlled methodical cross can spell doom for your adversary. Roy Black’s cross-examination of the victim’s friend Ann in the William Kennedy Smith trial was simply devastating to the prosecution.
John W. Davis a New York trial lawyer and presidential candidate in 1924 stated:
Undoubtedly cross-examination is among the most difficult of the arts of the advocate. It is also the most valuable. Every person familiar with the courts has seen cases won almost solely because of its skillful use, and also, sad to say, cases wholly lost by a bungling, an indiscreet, or an overconfident cross-examiner; just where the line lies between a cross-examination that is helpful and one that is harmful only experience can teach. Only experience can give the advocate that sixth sense which tells him when he has reached dangerous ground, when he may advance, when he must retreat, and when he can risk his case upon a single throw.
2. 7.5 Tips For Conducting Cross-Examination: Control, Control, And Control
Cross-examination is the opportunity to fashion undisputed facts into a speech in the form of questions. Control of the witness is the single most important way to reach your goals on cross-examination. If control of the witness is lost the adverse witness can simply remind the jury of all the damaging testimony they just gave on direct examination.
“If one were training a horse that was not on a tether, the only way to insure that the horse would remain within your area of control would be to lock the corral. By the same token, everyone is familiar with the axiom regarding the ineffectiveness of “locking the barn door after the horse is gone.” [The Modern Artof Cross-examination, Robert E. Goldman, 1993.]
1. The first maxim is to ask clear simple questions calling for short simple answers. The wordier a question is the easier it is to lose control and allow a witness to give a non-responsive answer.
2. Second, keep cross-examination short. A very successful evangelist once said about his sermons, “Nobody ever got religion after the first twenty minutes.” Do not attempt to develop complicated arguments through cross-examination.
3. Write your questions down verbatim before examining the witness. This will check your urge to ask questions that are not well thought out or to which you do not know the answer. Writing out each question will quell that urge to ask one to many questions. There is no guesswork to cross; it is completed before you arrive to the courthouse.
4. Characterizations are dangerous. Characterizations of prior inconsistent statements or facts allow the witness to wiggle out of the question. Characterizations of facts also subject the question to objection on the ground of argument.
Great cross-examination is developed from the day the case comes into your office, beginning with investigation, through discovery, the preparation of your client for deposition, arbitration and trial. This paper will discuss the following:
1. Two Viewpoints About Cross-Examination
2. 7 Steps To Great Cross-Examination: Control, Control, And Control
3. .5 Steps To Great Cross-Examination: A Few Extra Points
4. Protecting The Personal Injury Plaintiff While They Are Being Cross-Examined
5. Protecting Your Client On Cross With Objections
1. Two Viewpoints About Cross-Examination
The constant references to cross-examination as an art form have induced lawyers to believe that cross-examination is intuitive and that without careful preparation they can rise to the occasion and mesmerize the witness, jury, and court. Despite some cute barristers’ anecdotes, spirited best-selling paperbacks, and nightly television programs, it isn’t necessarily so. More cross-examinations are suicidal than homicidal. When in doubt, don’t ask a question. When in doubt, don’t cross-examine. Do only what’s necessary, and then get the hell out. [PeterMegargee Brown, The Art of Questioning, Thirty Maximsof Cross-Examination, 1987.]
A shoddy, ill thought out cross-examination will do great damage to your client’s case. At the same time a controlled methodical cross can spell doom for your adversary. Roy Black’s cross-examination of the victim’s friend Ann in the William Kennedy Smith trial was simply devastating to the prosecution.
John W. Davis a New York trial lawyer and presidential candidate in 1924 stated:
Undoubtedly cross-examination is among the most difficult of the arts of the advocate. It is also the most valuable. Every person familiar with the courts has seen cases won almost solely because of its skillful use, and also, sad to say, cases wholly lost by a bungling, an indiscreet, or an overconfident cross-examiner; just where the line lies between a cross-examination that is helpful and one that is harmful only experience can teach. Only experience can give the advocate that sixth sense which tells him when he has reached dangerous ground, when he may advance, when he must retreat, and when he can risk his case upon a single throw.
2. 7.5 Tips For Conducting Cross-Examination: Control, Control, And Control
Cross-examination is the opportunity to fashion undisputed facts into a speech in the form of questions. Control of the witness is the single most important way to reach your goals on cross-examination. If control of the witness is lost the adverse witness can simply remind the jury of all the damaging testimony they just gave on direct examination.
“If one were training a horse that was not on a tether, the only way to insure that the horse would remain within your area of control would be to lock the corral. By the same token, everyone is familiar with the axiom regarding the ineffectiveness of “locking the barn door after the horse is gone.” [The Modern Artof Cross-examination, Robert E. Goldman, 1993.]
1. The first maxim is to ask clear simple questions calling for short simple answers. The wordier a question is the easier it is to lose control and allow a witness to give a non-responsive answer.
2. Second, keep cross-examination short. A very successful evangelist once said about his sermons, “Nobody ever got religion after the first twenty minutes.” Do not attempt to develop complicated arguments through cross-examination.
3. Write your questions down verbatim before examining the witness. This will check your urge to ask questions that are not well thought out or to which you do not know the answer. Writing out each question will quell that urge to ask one to many questions. There is no guesswork to cross; it is completed before you arrive to the courthouse.
4. Characterizations are dangerous. Characterizations of prior inconsistent statements or facts allow the witness to wiggle out of the question. Characterizations of facts also subject the question to objection on the ground of argument.
Good Way |
Bad Way |
Q. Your shirt is hanging out of your pants right now? A. Yes. Q. Your shirt was hanging out of your pants on Monday when this trial began? A. Yes. Q. When you went to Church on Sunday your shirt was hanging out of your pants? A. Yes. Q. Your shirt was hanging out at work all day Tuesday? A. Yes. Q. You left work at noon on Tuesday? A. Yes. |
Q. You are a slacker?(Characterization) A. No I am not I just don’t tuck my shirt in. |
Here is another example of improper characterization of a crucial cross-examination question in an automobile case[i]:
Q. Mr. Witness, did you see the traffic light at the intersection of Main and Broad Streets seconds before the accident?
A. Yes.
Q. Could you tell us what the color of the light was from Main Street?
A. Green.
Assume that the witness had given a statement minutes after the accident to a police officer investigating the accident, saying the light was red. Cross-examiners sometimes take this unproductive approach:
Q. Mr. Witness, you’re lying! (Characterization) You said on an earlier report that the light was red. OBJECTION ARGUMENTATIVE.
At this point the jurors could believe the lawyer, because he was merely telling them the witness is lying. If the witness happens to be a sympathetic person, the jurors might believe the witness instead. Consider another approach:
Q. Mr. Witness, did you talk with a police officer immediately after the accident?
A. Yes.
Q. Did he ask you what color the light was from Main Street?
A. Yes.
You produce the police report and read the part where the witness stated the light was red. Human experience tells us that if a person says something contradictory he may be lying. What you have done is set the stage and then let the jury arrive at the conclusion that the witness is lying. Develop your evidence out of the witness’s mouth, not your mouth. Elicit the evidence with concise polite questions without characterization and let the jury discover the contradictions and lies.
5. Dealing with the “May I explain?” response. Many judges will let the witness explain the answer. The questioner can keep control and limit explanations by using short understandable questions. If the witness responds to a question with, “May I explain” simply interject that, “Your lawyer can ask you to explain if he wants when I am finished” or, “I just want to know (and restate your simple understandable question).”
6. Dealing with non-responsive answers. Here judges are likely to help the lawyer who has a witness who simply will not answer the question. Follow up the non-responsive answer to your short, concise question with, “Did you understand my question?” or “Are you willing to answer my question?” Judicious use of the non-responsive objection may get the judge on your side as well.
7. Is it permissible to ask “why” questions? Many lawyers recommend against asking “why” questions. More often asking “why” provides a witness the chance to launch into a poignant, self-serving, monologue. Asking the “why” question may cause you to lose control. If you know the answer is helpful to your case go ahead. “Why” questions are good to ask at deposition. If you like the answer to a “why” question at deposition revisit the same question trial.
Asking a why question goes along with the maxim of never asking a question without knowing the answer. Don’t do it unless any potential answer helps your case.
3. .5 Steps To Great Cross-Examination: A Few Extra Points
Demonstrative evidence during cross-examination is a very powerful tool. Us a transparency or butcher paper to write down each damaging point one after another. The poster you create keeps testifying even when the witness is not talking.
Begin and end your cross-examination with your strongest questions.
Listen to yourself and the witness. The witness may provide a clue to their veracity by hesitating to a question. Practice listening to your cross-examination by videotape before trial. Listening to your questioning will cut down on nervous habits such as saying “O.K.” or “all right” after each question.
Do not be hostile to the witness. A jury’s natural sympathies lie on the side of the witness. Be moderate and let the facts speak for themselves.
4. Protecting The Personal Injury Plaintiff While They Are Being Cross-Examined
The single most common way for a plaintiff’s injury case to be lost is while the plaintiff is on the stand being cross-examined. This section of the paper will discuss the issue of how to prepare your own client for the looming cross examination that can so easily destroy a good plaintiff’s case.
The personal injury plaintiff must know that cross-examination will hurt no matter what is done to prepare. The right to ask leading questions alone makes cross-examination a very difficult exercise to survive without significant damage to your case. There are numerous ways to help your client survive cross-examination so that all is not lost.
1. Inform the client where the danger lies or where the bullets will be coming from. The complaint, deposition, interrogatories, medical records, medical questionnaires, doctor intake forms, prior personal injury complaints, and prior workers compensation claims are all potential sources for cross-examination of the plaintiff.
Showing the plaintiff all of the damaging documented prior statements is step one in the preparation process. The process of preparing the plaintiff for cross-examination begins by identifying all of the potential prior testimony, and medical records that may result in a question on cross. Prepare a binder, which includes a copy of every potential document that contains admissions or facts that will likely be used on cross-examination. Introducing the client to the source of potential cross introduces them to the basis for the difficult questions they will face.
2. After review of all the potentially dangerous (documented) prior statements, discuss the difference between leading and non-leading questions. Lay people do not spend anytime thinking about the difference between leading and non-leading questions. Tell your client the difference and inform them that every single question that is posed to them on cross-examination will be a leading question that generally requires a yes or no response.
3. Step three in the process is a discussion of how to respond to each potential question. This is the part of the process where there may be resistance from your client. People’s natural urge to defend themselves while under questioning is a great pitfall during cross-examination. Inform the client that the typical cross-examination question calls for one undisputed fact, which the witness cannot quarrel with. The sources of cross-examination questions are indisputable and unbiased documents, which speak louder than spoken words.
Discuss the dangers of disputing the twisted misleading, out of context questions your client will be forced to acknowledge. Defensive responses like, “may I explain”, “that’s not right”, or “that’s not what I meant” are natural but very damaging. Each question that is denied or not recalled results in a parade up to the witness stand where the defense attorney gets to draw even more attention to the point they are making by showing the witness the document and saying, “Do you remember now?”
Lack of memory shown by an, “I don’t recall” answer permits use of prior inconsistent statements. See People v. O’Quinn (1980) Cal App 3d 219.
Use the binder you have created with all of the damaging medical records and do a mock cross-examination in front of a video camera as a teaching tool. What follows is a way to illustrate for your client how an “I don’t remember” response will play out in front of the jury.
Q. Mr. Witness, did you see the traffic light at the intersection of Main and Broad Streets seconds before the accident?
A. Yes.
Q. Could you tell us what the color of the light was from Main Street?
A. Green.
Assume that the witness had given a statement minutes after the accident to a police officer investigating the accident, saying the light was red. Cross-examiners sometimes take this unproductive approach:
Q. Mr. Witness, you’re lying! (Characterization) You said on an earlier report that the light was red. OBJECTION ARGUMENTATIVE.
At this point the jurors could believe the lawyer, because he was merely telling them the witness is lying. If the witness happens to be a sympathetic person, the jurors might believe the witness instead. Consider another approach:
Q. Mr. Witness, did you talk with a police officer immediately after the accident?
A. Yes.
Q. Did he ask you what color the light was from Main Street?
A. Yes.
You produce the police report and read the part where the witness stated the light was red. Human experience tells us that if a person says something contradictory he may be lying. What you have done is set the stage and then let the jury arrive at the conclusion that the witness is lying. Develop your evidence out of the witness’s mouth, not your mouth. Elicit the evidence with concise polite questions without characterization and let the jury discover the contradictions and lies.
5. Dealing with the “May I explain?” response. Many judges will let the witness explain the answer. The questioner can keep control and limit explanations by using short understandable questions. If the witness responds to a question with, “May I explain” simply interject that, “Your lawyer can ask you to explain if he wants when I am finished” or, “I just want to know (and restate your simple understandable question).”
6. Dealing with non-responsive answers. Here judges are likely to help the lawyer who has a witness who simply will not answer the question. Follow up the non-responsive answer to your short, concise question with, “Did you understand my question?” or “Are you willing to answer my question?” Judicious use of the non-responsive objection may get the judge on your side as well.
7. Is it permissible to ask “why” questions? Many lawyers recommend against asking “why” questions. More often asking “why” provides a witness the chance to launch into a poignant, self-serving, monologue. Asking the “why” question may cause you to lose control. If you know the answer is helpful to your case go ahead. “Why” questions are good to ask at deposition. If you like the answer to a “why” question at deposition revisit the same question trial.
Asking a why question goes along with the maxim of never asking a question without knowing the answer. Don’t do it unless any potential answer helps your case.
3. .5 Steps To Great Cross-Examination: A Few Extra Points
Demonstrative evidence during cross-examination is a very powerful tool. Us a transparency or butcher paper to write down each damaging point one after another. The poster you create keeps testifying even when the witness is not talking.
Begin and end your cross-examination with your strongest questions.
Listen to yourself and the witness. The witness may provide a clue to their veracity by hesitating to a question. Practice listening to your cross-examination by videotape before trial. Listening to your questioning will cut down on nervous habits such as saying “O.K.” or “all right” after each question.
Do not be hostile to the witness. A jury’s natural sympathies lie on the side of the witness. Be moderate and let the facts speak for themselves.
4. Protecting The Personal Injury Plaintiff While They Are Being Cross-Examined
The single most common way for a plaintiff’s injury case to be lost is while the plaintiff is on the stand being cross-examined. This section of the paper will discuss the issue of how to prepare your own client for the looming cross examination that can so easily destroy a good plaintiff’s case.
The personal injury plaintiff must know that cross-examination will hurt no matter what is done to prepare. The right to ask leading questions alone makes cross-examination a very difficult exercise to survive without significant damage to your case. There are numerous ways to help your client survive cross-examination so that all is not lost.
1. Inform the client where the danger lies or where the bullets will be coming from. The complaint, deposition, interrogatories, medical records, medical questionnaires, doctor intake forms, prior personal injury complaints, and prior workers compensation claims are all potential sources for cross-examination of the plaintiff.
Showing the plaintiff all of the damaging documented prior statements is step one in the preparation process. The process of preparing the plaintiff for cross-examination begins by identifying all of the potential prior testimony, and medical records that may result in a question on cross. Prepare a binder, which includes a copy of every potential document that contains admissions or facts that will likely be used on cross-examination. Introducing the client to the source of potential cross introduces them to the basis for the difficult questions they will face.
2. After review of all the potentially dangerous (documented) prior statements, discuss the difference between leading and non-leading questions. Lay people do not spend anytime thinking about the difference between leading and non-leading questions. Tell your client the difference and inform them that every single question that is posed to them on cross-examination will be a leading question that generally requires a yes or no response.
3. Step three in the process is a discussion of how to respond to each potential question. This is the part of the process where there may be resistance from your client. People’s natural urge to defend themselves while under questioning is a great pitfall during cross-examination. Inform the client that the typical cross-examination question calls for one undisputed fact, which the witness cannot quarrel with. The sources of cross-examination questions are indisputable and unbiased documents, which speak louder than spoken words.
Discuss the dangers of disputing the twisted misleading, out of context questions your client will be forced to acknowledge. Defensive responses like, “may I explain”, “that’s not right”, or “that’s not what I meant” are natural but very damaging. Each question that is denied or not recalled results in a parade up to the witness stand where the defense attorney gets to draw even more attention to the point they are making by showing the witness the document and saying, “Do you remember now?”
Lack of memory shown by an, “I don’t recall” answer permits use of prior inconsistent statements. See People v. O’Quinn (1980) Cal App 3d 219.
Use the binder you have created with all of the damaging medical records and do a mock cross-examination in front of a video camera as a teaching tool. What follows is a way to illustrate for your client how an “I don’t remember” response will play out in front of the jury.
Good Answer For The Plaintiff |
Bad Answer For Plaintiff |
Q. Just two weeks after the collision you told your doctor you were doing much better? A. Yes. |
Q. Two weeks after the collision you told your doctor you were doing much better. A. I don’t remember. Q. May I approach your honor. Ms. Jones I want to show you a document marked exhibit A. Does this document refresh your recollection that two weeks after the collision you told your doctor you were doing much better. A. Yes. |
5. Protecting Your Client On Cross With Objections
Judges generally give wide latitude to defense attorney’s during cross-examination. Obvious objections should be anticipated, and ruled on out of the presence of the jury, before the plaintiff takes the stand. The decision to object in open court while you client is on the stand should be done with great restraint. Make sure the objection is a winner or you will simply wake the jury up to the damaging point the defense lawyer is trying to make.
It is our job to limit impermissible questions. A question framed as closing argument is improper.
Q. How can you pretend that my client hurt you when you were in another collision the day before where you were hospitalized? OBJECTION ARGUMENTATIVE.
Q. How can you say that my client is responsible for the cost of 55 massages for a sore neck when you suffered from a bad neck before the accident in question? OBJECTION ARGUMENTATIVE.
Q. Would you please tell the jury whether you are telling the truth now or at your deposition? OBJECTION ARGUMENTATIVE.
The binder I spoke of earlier should have every conceivable piece of paper that may form the basis for a cross-examination question for the plaintiff. The plaintiff’s lawyer must know each potential damaging prior statement to prevent an overzealous defense attorney from misquoting the prior statement.
Stop the misquoting or misstatement of evidence by the defense lawyer. It is simply impermissible to intentionally misquote testimony or misstate evidence in a question. Keep in mind if defense counsel attempts to impeach the plaintiff with a deposition question that is out of context evidence code section 356 allows you to immediately read other parts of the document or testimony to provide proper context.
California Evidence Code section 356 states:
Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.
Conclusion:
The respect I have for cross-examination has grown out of the mistakes I have made during cross-examination. Many times adverse witnesses have restated their damaging testimony for a second time after I lost control during cross-examination.
It seems that no matter how many times I read about keeping questions short, not asking the “why” question, or the question that I do not know the answer to, the temptation to go one step farther is too great. Restraint is the greatest virtue on cross-examination. Exercise restraint by writing down each question on cross-examination and then sit down. When we all become as accomplished as Roy Black, Jerry Spence, and Browne Greene then we can get away with making a few questions up as we go along.
Good luck with your next cross-examination!
Judges generally give wide latitude to defense attorney’s during cross-examination. Obvious objections should be anticipated, and ruled on out of the presence of the jury, before the plaintiff takes the stand. The decision to object in open court while you client is on the stand should be done with great restraint. Make sure the objection is a winner or you will simply wake the jury up to the damaging point the defense lawyer is trying to make.
It is our job to limit impermissible questions. A question framed as closing argument is improper.
Q. How can you pretend that my client hurt you when you were in another collision the day before where you were hospitalized? OBJECTION ARGUMENTATIVE.
Q. How can you say that my client is responsible for the cost of 55 massages for a sore neck when you suffered from a bad neck before the accident in question? OBJECTION ARGUMENTATIVE.
Q. Would you please tell the jury whether you are telling the truth now or at your deposition? OBJECTION ARGUMENTATIVE.
The binder I spoke of earlier should have every conceivable piece of paper that may form the basis for a cross-examination question for the plaintiff. The plaintiff’s lawyer must know each potential damaging prior statement to prevent an overzealous defense attorney from misquoting the prior statement.
Stop the misquoting or misstatement of evidence by the defense lawyer. It is simply impermissible to intentionally misquote testimony or misstate evidence in a question. Keep in mind if defense counsel attempts to impeach the plaintiff with a deposition question that is out of context evidence code section 356 allows you to immediately read other parts of the document or testimony to provide proper context.
California Evidence Code section 356 states:
Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.
Conclusion:
The respect I have for cross-examination has grown out of the mistakes I have made during cross-examination. Many times adverse witnesses have restated their damaging testimony for a second time after I lost control during cross-examination.
It seems that no matter how many times I read about keeping questions short, not asking the “why” question, or the question that I do not know the answer to, the temptation to go one step farther is too great. Restraint is the greatest virtue on cross-examination. Exercise restraint by writing down each question on cross-examination and then sit down. When we all become as accomplished as Roy Black, Jerry Spence, and Browne Greene then we can get away with making a few questions up as we go along.
Good luck with your next cross-examination!