Trial Magazine

Unlike direct examination, opening, or closing, cross-examination cannot be easily scripted. It requires preparation, listening, and thinking on your feet. One of the most important yet difficult parts of a trial, a devastating cross-examination can swiftly change the trial’s momentum. Get the testimony you need with these  tips gathered from what I’ve observed as a judge.

1. Lead with your best punch.

Start strong. After watching trial scenes in movies or television shows in which sparks fly immediately, most jurors expect you to come out swinging. Most witnesses testify on direct with certainty and self-assurance; some even carry a bit too much bravado. Expert witnesses often display arrogance or a bit of smugness. You need to catch them off-guard and shake their confidence.

This is your time to turn the tide. Begin with a question that you know will score. Remember, the defense has called the witness for a specific reason. Almost every witness who testifies has a weakness. The key to your success is to discover it and then formulate a plan of action. You need to grab the jurors’ attention. Jurors are more likely to remember the first powerful jab that you strike in a cross-examination—as well as the last one.

2. Prepare, prepare, prepare.

A correlation generally exists between the most successful cross-examinations and the amount of preparation time. Read and re-read the entire file, outline the topics you intend to cover, and set goals for each witness. You must master the facts and know them backward, forward, and better than anyone else. For example, in a car crash case, you cannot properly cross-examine eye witnesses without visiting the scene to get a better understanding of the witnesses’ ability to observe the crash, any obstructions, the timing of traffic control devices, and the role that weather may have played. A good cross-examination rarely results from chance.

Get creative. It’s amazing the amount of information you can find by simply doing a Google search and looking on social media sites such as LinkedIn, Facebook, and Twitter.

3. Don’t be afraid to get help.

Witnesses may refuse to answer questions, become evasive, and even make derogatory comments. This can throw you into a temporary tailspin. How do you get the witness back on track? Some lawyers refuse to take any action, hoping the witness will come off as a bully and turn off the jurors. This is a huge misstep. The best response is to remain calm, cool, and collected and ask for assistance. When the witness refuses to answer the question, turn to the court reporter and politely ask him or her to repeat the question. Then ask the witness to answer it again. This will get the jurors’ attention and may also cure the problem.

If the witness continues to avoid the subject matter, turn to the judge for relief. Knowing the traits of your judge can direct you. The judge already may be irritated by the witness’s conduct. When he or she observes the witness dodging questions, the judge may welcome the opportunity to intervene. If the witness’s unacceptable behavior continues, the judge may sanction the witness, which could destroy the witness’s credibility in the eyes of the jurors.

4. Control is fundamental.

The most fundamental rule is: Don’t ask a question if you don’t know the answer to it. Don’t go on a fishing expedition. You don’t want to ask unnecessary questions with no idea where the exchange is headed. That allows the witness time to editorialize or expound, often providing damaging information against your client’s case. You must control the cross-examination on all levels. Too many lawyers forget the best method to manage an inquiry is to keep it simple.

Do not repeat direct examination. Phrasing questions in a one-fact, concise manner allows the cross-examination to move faster. A crisp dialogue with the witness is easier for the jury to follow. You typically want to target five or six major points. By the time you’ve conducted interrogatories, completed depositions, and reviewed exhibits, you should know most of the answers to the questions. If you choose to ask questions without knowing the answers, you need to tread carefully; you’ve taken a risky venture and may be surprised by what the witness says.

Trial is not the time to find yourself surprised. Non-leading questions generally open the door to a host of complications. If you allow the witness to answer these types of questions, you’re heading toward a disaster. Ask leading questions to which you already know the answers. Leading questions legitimately call for only a yes or no response and prevent the witness from veering off track. Keep the questions short and straightforward. Each should be developed with the intent to force the witness to acknowledge an item that bolsters your case. What point are you trying to make by asking the question?

5. Listen.

Even though your cross-examination should be carefully plotted, you still have to keep your ears open and listen. Sometimes witnesses give answers that are unexpected and destructive to their side. Don’t waste opportunities to follow up on an incriminating admission or to undermine a witness’s credibility.

Sometimes it’s not what witnesses say but the tone of their answers that provides ammunition. Do they come across as confident, unsure, or biased? If they are hesitant, that may create doubt about their testimony. An unwilling attitude could indicate that there is more to their story. Listen to what the witnesses are telling you, observe their body language, and be flexible enough to change your planned course.

6. Not every witness must be cross-examined.

After months or years of preparation for trial, lawyers practically jump out of their seats when called on to begin cross-examination. But ask yourself: Is this a good idea? Sometimes the smartest thing to do when the defense finishes direct is to stand up and pronounce, “I have no questions.” This type of strategy takes a bit of moxie, but it signals to the jury that the witness’s testimony may not be important or that it doesn’t worry you. Jurors may feel the same way and remember that later.

If you’re not sure what to do, then ask yourself, what will my client gain? Did this testimony hurt the case? If your line of questioning would add nothing new, leave it alone. By cross-examining a witness, you’ll allow opposing counsel the opportunity to redirect or rehabilitate the witness. You don’t need to demonstrate to the jury that you’re a tiger. If the witness hasn’t hurt you, why gamble by asking anything?

7. Know when to sit down.

Every lawyer develops some type of game plan, most often a checklist of points to address. However, a question may elicit an unexpected response so damaging to the opposition’s case that it leaves you open-mouthed. If that happens, consider sitting down rather than asking another question.

This can be difficult to do if you planned to address other topics and are worried about whether to continue. But asking one question too many can have devastating consequences. It could allow the witness to explain the hurtful statement just disclosed. It also gives the witness the opportunity to wiggle out of the predicament, providing time to explain. Although you had the witness right where you wanted, now you’ve let him or her off the hook. So don’t be tempted to go too far.

8. Technology can hold the jurors’ attention.

Using technology in cross-examination is swiftly becoming the norm, not the exception. It’s a persuasive way to make a powerful point. Present critical documents on a screen so you can highlight or enlarge portions of the exhibit to make your point. Most judges will permit you or the witness to draw on the points to be emphasized. Computer graphics can be a colorful and clear way to display visual aids and charts. Animations are a very powerful way to help the jurors visualize an event such as a traffic crash or medical negligence.

Another technological advantage is using videotaped depositions. If a witness is unprepared or offers contradictory or inconsistent testimony, presenting clips of prior statements live at trial can leave a powerful impression on jurors.

9. Consider the proper pace.

One of the most overlooked features of cross-examination is pace. The initial adrenaline rush as you begin is intense, but it is important to stay composed. The tempo you set will determine whether the cross-examination enhances your case or not. Find a pace that allows the jurors to follow but does not permit the witness to consider other responses. This can be done by asking quick, direct questions to the witness. The less time the witness has to think about the question, the more difficult it will be to concoct another answer.

To control the pace, you must have a sharp memory and a familiarity with all the facts. It may be best to start slow to allow any adverse admissions to sink into the jurors’ minds. When you intend to spring the trap, then a rapid-fire series of questions may pin the witness down.

However, it’s critical to avoid the appearance of being a bully. Be careful not to interrupt witnesses or to cut them off in the middle of their answers. Also, keep a pace that doesn’t frustrate the court reporter or irritate the judge.

10. End on a high note.

Jurors tend to remember what they hear last, so it’s important to end on a high note. With all the testimony and exhibits thrown at the jurors, you risk overloading them with information, making it difficult for them to identify and process the critical details.

Don’t end on a meaningless point. Asking questions until you simply run out is even more damaging. The final query should touch on a critical fact that will grab jurors’ attention and remain in their thoughts. Saving a nugget for the end of your cross-examination can create a mighty impact—one that will last with the jury.

Frank G. Forchione is a judge in the Court of Common Pleas, Stark County, Ohio and can be reached at JudgeForchione@starkcountyohio.gov.