Cross Examination

• Author: Jim Wren
• Pages: 475-508

17-1

17. Cross

Examination

Chapter 17

Cross Examination

I. Effective and Ineffective Cross Examination

§17:01 Take a Disciplined Approach

§17:02 Avoid Ineffective Tendencies

§17:03 Understand What Makes Cross Examination Powerful

II. Foundational Techniques

§17:10 Your Role Is to Be a Teacher

§17:11 Your Goal Is to Validate Your Story

§17:12 Your Tool Is One Fact Per Question

§17:13 Your Organization Is by Themes and Points

§17:14 Your Attitude Is Respectfully and Relentlessly Persistent

III. The Defendant

§17:20 The Objectives of Cross Examination

§17:21 Encouraging Anger as a Motivation for Damages

§17:22 Validating the Cause of Injury

§17:23 Validating the Extent of Injury

§17:24 Validating the Consequences of Injury

IV. The Opposing Damages Expert

§17:30 Aim at Credibility Rather Than Correctness

§17:31 Planning the Cross Examination

§17:32 The Defense Medical Expert

§17:33 Undisclosed Opinions and Bases for Opinions

V. Lay Witnesses

§17:40 Look for Personal Knowledge That Matches the Damages

VI. Impeachment in Cross Examination

§17:50 Document and Video Impeachment

§17:51 Preparation for Video Impeachment in Trial

VII. Handling Problem Witnesses

§17:60 The Sympathetic Witness

§17:61 The Hostile Witness

§17:62 The Nonresponsive Witness

§17:01 Proving Damages to the Jury

17-2

17. Cross

Examination

I. Effective and Ineffective Cross Examination

§17:01 Take a Disciplined Approach

A popular misconception of cross examination comes from television, where witnesses

are often crushed and humiliated in a few brief questions. That really does happen

occasionally, but it’s not the routine.

Unfortunately, I see lawyers flounder by impatiently trying to be too aggressive in cross,

or fall flat at the opposite end of the spectrum by fearfully attempting too little. There is

a disciplined approach that yields consistently effective cross examination, and it is more

dependent on technique and preparation than on personality.

Discipline comes with a price. I personally believe that preparation for cross examination

of key witnesses (along with preparation of opening statement, and voir dire in those

jurisdictions allowing attorney-conducted voir dire) merits a disproportionate share of final

trial preparation time. Opening statement presents the opportunity to create initial beliefs

about your case, and cross examination of key witnesses allows you to tell the story of your

case while making your opponents validate it.

§17:02 Avoid Ineffective Tendencies

There are several common ineffective tendencies that can sabotage effective cross

examination:

• Conducting cross examination as a rehash of the deposition.

The lawyer simply goes through the deposition, marks the deposition questions

he or she wants to ask again at trial, and serves them up. Don’t do that.

Opposing witnesses will love you for making their job so easy and much less

stressful, but that’s not really the point.

Of course, the deposition and the cross examination at trial should be related.

Assuming a witness will be appearing live at trial, the deposition sets up the

cross examination, which means you should have ideas prior to the deposition

about how you want to ultimately conduct the trial cross examination. But, the

purpose of the deposition is to explore and confirm, to establish foundations for

cross, and to eliminate surprises. The design of a successful cross examination

is very different from the design of an effective discovery deposition.

Effective cross examination is a form of performance art, not exploration. The

purpose of cross examination is to tell your story through adverse witnesses,

and make them validate your story for the jury. Time is limited by the attention

span of jurors. Pace, crispness, and control are vital.

• Examining in global terms, jumping to questions tha t are conclusory without

leading the witness and jury through the details.

This tendency springs from an impatience to quickly get to the perceived meat

of the case, and from a failure to recognize that the process of getting to the

conclusion is as important as the conclusion itself. This tendency, however,

will completely undercut a cross examination for two reasons: one is practical

and the other is psychological.

Cross Examination §17:02

17-3

17. Cross

Examination

From a practical standpoint, it is easy for a witness to argue with a conclusory

type of question: “You took my client’s livelihood away, didn’t you?” What’s

more, if the conclusion is unflattering to the witness, the witness feels virtually

compelled to argue and resist. The result is a cross examination that quickly

devolves into nothing more than an argument, and back-and-forth arguments

aren’t generally very persuasive. On the other hand, while conclusions may

normally be disputed, the facts that lead to and support the conclusion are

much harder to dispute.

The psychological reason is that people (i.e., jurors) are most persuaded by

conclusions they reach on their own, as opposed to simply being told the

conclusions they should reach. This means that your job on cross is to present

the facts (rather than just conclusions) in an organized way that helps the jurors

reach the conclusion on their own.

As a cross-examiner, you must train yourself to think in greater detail, and that

detail must be analyzed and prepared before the questioning starts.

• Chasing too many point s on cross examination without tying them together into

persuasive themes.

I see lawyers who seem to think that cross is about scoring points, whether

the points work together or not. Juries, however, have only limited patience.

If they don’t see how the cross examination is helping them to decide the

questions they’re there to answer, the cross is useless or worse.

Limit each cross examination to two or three themes that you want the jury

to conclude about the witness or the witness’s testimony (e.g., the witness is

biased by a financial incentive, the witness is not trustworthy, and the witness

is being unfair to the plaintiff; or, the witness wants to help the defendant, but

the witness nevertheless agrees that this type of injury can be devastating).

There may be multiple points made in support of each theme, but keep the

basic themes of the cross clear and limited. Recognize that persuasion requires

creating an impression. [See “Cross-Examination With Purpose,” Mark R.

Kosieradzki, paper presented at AAJ Summer 2007 annual conference.]

Effective cross examination uses clear themes to create those impressions with

jurors. These themes may not necessarily be as encompassing as the overall

case themes set forth in the opening statement, but they should correspond to

and help support the overall case themes.

• Acting overly caut ious by limiting cross examination to proof of inconsistencies only.

With this type of approach, proof of any inconsistency in testimony is erroneously

seen as a victory, regardless of its consequence (or lack of consequence).

Certainly proof of inconsistencies, even with nothing else, can be an effective

strategy for cross if those inconsistencies are shown in support of a theme

such as, “this witness will say anything and can’t be trusted.” But, I’ve seen

many lawyers who reflexively resort to chipping away at inconsequential

inconsistencies and then call it a day.

If the cross examination fails to show what those inconsistencies tell jurors

about the witness in general or the case as a whole, and fails to effectively get

your story validated by opposing witnesses, the cross examination is robbed of

any persuasive power.