15.5 - A. General Checklist

JurisdictionNew York

A. General Checklist

1. Have a purpose, plan and direction. Virtually every question should have a purpose that you can articulate. Casey Stengel warned us, “If you don’t know where you’re going, you might end up someplace else.”
Your examination should have a style, and the style should be appropriate to the witness, the subject and the objective. Styles generally fall into three categories:

a. The question is asked in a simple interrogatory form in which the witness is asked a question in a neutral fashion, for example, “Did you mail this document?”

b. The question is not a question at all, but a statement of fact requiring a single word response, for example, “You did not mail this document.”

c. The statement is made in an anticipatory style which anticipates what the proper course of conduct would have been, but with the knowledge that that conduct was not followed, for example, “Of course you mailed this document” (with the foreknowledge that the witness never did mail the document).

Appropriate styling of the statement is important and, to any extent possible, varying the style will help the pace of, and sustain interest in, the cross-examination.

2. Listen to direct. What the witness is saying as well as how the witness is saying it are important. How hard is the lawyer working to get the information from the witness? Does he have to attempt to lead the witness frequently in order to get the information out? Is there unanticipated testimony? Does the testimony expand on or narrow previous statements? Are there contradictions, inconsistencies or improbabilities within the direct testimony, as well as between the direct testimony and prior statements or information that you have? Cross-examination is limited to the subject matter of the direct testimony and reasonable inferences therefrom, as well as matters affecting the credibility of the witness, so you must hear everything that is said on direct examination as that defines in large measure the opportunities for cross-examination.
3. Watch direct. The witness’s demeanor is critical. Is it consistent or does it vary depending upon the subject area of the questioning? If there are areas where the witness seems uncomfortable, mark those for cross-examination. Is the witness focused on the jury or on the person asking the question?
4. Tailor-make each cross-examination. Each witness is distinctive and the objective for the cross-examination should be specific to that witness. The manner of implementing that objective, your approach to the witness and presentational style, must also be specific to that particular witness’s characteristics.
5. Start strong (psychological principle of primacy). The beginning of the cross-examination must be on an important issue or point and you must have the ammunition to assure that it will go the way you want it to go.
6. End strong (psychological principle of recency). You should know how you are going to conclude your cross-examination before you begin it. The conclusion must go as you planned it and, therefore, you must make statements to the witness that must be answered the way you wish, or the witness will be destroyed by incontrovertible impeaching evidence available to you. The conclusion of a cross-examination should be statements consistent with and directed to one or more of your case themes and to your summation argument.
7. Use demonstrative evidence. Studies have shown that three days after an event people remember 10% of what they have only heard and 20% of what they have only seen, but 65% of what they have both seen and heard. Demonstrative evidence can vitalize oral testimony and provide the jury with a visual hook for recalling that testimony.
8. Control the witness. The most effective means of controlling a witness is by the form of the statement you make to the witness. The question in the form of declarative statement that is short, contains but a single fact in simple, plain and straightforward language, does not allow a rambling response.
9. Never permit a witness to repeat hurtful testimony.
10. Never permit a witness to explain unless there is no plausible explanation.
11. Declarative statements or questions should be:

a. short;

b. single fact;

c. unambiguous;

d. plain, simple, straightforward, clear, precise language;

e. single thought; and

f. all in a single sentence.

12. If possible, eliminate all adjectives and adverbs from the question. Adjectives modify nouns. Adverbs modify adjectives or another adverb. Adverbs are almost always, and adjectives are most of the time, relative terms that eliminate precision from the question and, therefore, do not demand a precise answer.
13. Do not ask—tell. Do not request information—provide it. The information you want the jury to hear and take away from your cross-examination is contained in your statement to the witness. The answer you seek from the witness is, ideally, a single word response confirming and affirming the information displayed to the jury in your single fact, leading declarative question or statement.
14. Listen to the answer. Good cross-examination is responsive to the information developed, the answer given, and the language used by the witness. You cannot be thinking about the question you are going to ask next or the unanticipated response of the witness will go unexploited if more favorable than had been planned, or unchallenged if less favorable than had been expected. While the goal is always to limit the witness’s response to an affirmation of the information you are providing in your question and to, therefore, “know” what the answer should be, more expansive or qualified or hedged answers and unscheduled responses are inevitable, and if you are not concentrating on what is being said by the witness you cannot effectively follow up with the witness.
15. “Know” the answer to your question. (Do not ask a question unless you are able to handle whatever answer the witness gives.) Where you do not “know the answer” but it is nonetheless important to attempt to develop with the witness certain information, a cautious question-by-question commitment of the witness to certain foundational information will in turn commit the witness to answer the next question the way you
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