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Getting Cross-Examination Right – Trials & Appeals & Compensation



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Cross-examination can determine whether you win or
lose your case. It’s a crucial opportunity to reinforce
advantageous points and undermine problematic ones. Maintaining
control of the process is key. Here are some ways to do
so.

  • Know where you are going.

Organize your strategy and questions, prepare rigorously, and
know what you want to accomplish with each witness. Pay close
attention to the order of your questions, because jurors tend to
remember the first and last things they hear the most. Always ask
yourself: Is it even necessary to cross-examine this witness?

Never ask open-ended questions. Ask only questions you already
know the answer to, because you have deposed the witness. Never ask
that “one questions too many.”

  • Know which form of cross-examination to use
     constructive or destructive —
    and when.

Use the constructive approach to elicit helpful testimony to
corroborate testimony of one of your witnesses or to impeach an
opposition witness. Either or both may be helpful.

The format “Mr. Jones, can we agree that …?”
is often an advantageous question in such situations. Frequently,
constructive cross-examination is initially used with the other
party’s expert witness. For example, it can be valuable in
getting the witness to agree that your expert’s methodology
is reliable and accepted in the field.

The goal of destructive cross-examination is to destroy, or at
least seriously damage, the witness’s credibility or limit
the testimony’s effect. It has the reputation of being a
“gotcha” tactic.

And as with everything else, timing is key. If you need
constructive testimony from a witness, it is better to get it
before moving into destructive cross-examination. Once his
credibility is challenged, the witness will be more likely to fight
about points on which you are seeking agreement.

  • Make the most of destructive cross-examination when
    questioning a critical adverse witness.

When dealing with a critical adverse witness, your goal is to
start strong by establishing control over the witness in his mind
and in the minds of the jurors. If you pull punches, jurors might
assume you are unable to impeach the witness. Finish strong by
holding certain zingers until the end of the cross. And keep in
mind, again, that jurors remember what they hear first and
last.

  • Rely on cross-examination rules to set/retain control
    over the witness.

Maintain control by adhering to traditional rules of
cross-examination: Ask only leading questions, ask only questions
that can be answered with a “yes” or “no,”
and never ask a question unless it’s absolutely necessary and
you know the answer.

Ask questions that dare the witness to disagree with you.
Assuming you’ve deposed the witness, put the deposition on
counsel table or lectern where the witness can see it. This
technique reinforces your challenge to the witness to disagree with
you, and it shows you expect certain answers and the witness will
pay for varying from them.

Each question should be tight and limited to one fact. A witness
may easily quibble with or deny a complicated and fact-intensive
question, especially if a sub-part or minor fact is technically
incorrect. Don’t open that door.

Avoid the “Isn’t-it-true-that … ?”
format — such as, “Isn’t it true that the light
was red?” or “Isn’t it true that you were going
95 miles per hour?” Instead, speak as though you are
testifying: “The light was red” or “You were
going 95 miles per hour.”

Opposing counsel might object on the grounds that you are not
asking a question, but your tone will imply that it is indeed a
question. If the objection is sustained, you can revert to the
“isn’t-it-true-that” format to cure the
objection. You can win points even then because you’ve made
opposing counsel look foolish for objecting to a question so easily
corrected, and the jury has now heard the same question twice.

Expert fees can be a fertile topic in your questioning. For
example, consider this cross after the expert’s presumably
lengthy and technical testimony, where opposing counsel
didn’t ask the expert about their fees.

Q: Dr. Jones, you’re getting paid $450 per hour to testify
here today?

A: Yes.

Q: I won’t take another minute of your time.

A colleague claims to have done this and, while the story is
perhaps apocryphal, it does illustrate the value of brevity.
Sometimes the best cross-examination, even of a critical witness
who just completed a lengthy direct examination, consists of only a
question or two.

In summary, make your “statement,” get your
“yes” or “no” answer, and move on.

  • Remain firm, but not hostile, with an evasive
    witness.

It’s a common situation: The witness is evasive,
won’t answer directly with a “yes” or a
“no,” or claims not to know what the meaning of
“is” is. Never interrupt the witness; just repeat your
question verbatim. Never rephrase it. If the evasiveness persists,
continue to repeat the question, slowing down and pausing between
words if necessary. The goal is to make the witness look
obstructionist or ridiculous to the jury. In that way, you have
already succeeded in your cross even if the witness still
hasn’t answered your question.

Demand a “yes” or “no” answer if
that’s what you’re seeking, but don’t invoke the
judge unless all else fails. You will look like a tattletale
running to the teacher. Establish and maintain control, but
don’t be rude, ugly or hostile to the witness. For example,
if the witness dodges or gives a rambling answer to a simple,
direct question, let her finish and then start over by saying,
“I’m sorry, I must not have been clear. My question
actually was …” Hostility is not necessary, and jurors
are likely to resent it.

  • Keep the reason for cross-examination in
    mind.

Cross-examination can be a turning point in a trial, but is not
a time for drama. It is a time to exhibit your best traits —
topnotch preparation; hard work; and a solid grasp of the facts,
the law and the witness’s previous testimony — so the
jury will see the case your way. Remember that, and you’ll
have conducted a successful cross-examination.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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