Next Generation of Cross-examination: Constructive Cross-examination

• Citation: Vol. 49 No. 2 Pg. 14
• Year: 2026
• Pages: 14

Next Generation of Cross-Examination: Constructive Cross-Examination Vol. 49 No. 2 Pg. 14 Wyoming Bar Journal April, 2026

For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent's theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.

Constructive Cross-Examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the crossexaminer's theory of the case.

The Old Way: Destructive Cross-Examination

Historically, cross-examination was a series of techniques designed to challenge the witness' testimony, including attacks ¦ on the witness' credibility. 'The primary goal of Destructive ¦ Cross-Examination was to attack the witness or the witness' story whenever and wherever feasible. It was essentially negative or destructive in its outlook. For generations, trial lawyers were schooled in this outlook. The operable phrase was "to attack." The cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent's theory of the case.

Consequently, the tone of Destructive Cross-Examination was aggressive and negative. The courtroom climate generated by this form of cross-examination was tense. By the end of the cross-examination, someone was going to be damaged, whether it was the witness or the cross-examiner.

Under the former generation of cross-examination, the cross-examiner consciously or unconsciously believed that the critical goal of teaching her theory of the case to the factfinder would be left to her direct examinations. This most critical goal of trial was specifically reserved for direct examination of the cross-examiner's own witnesses.

What' is Constructive Cross-Examination?

Under this newest generation of Constructive Cross-Examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner's theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent's theory of the case, this goal becomes secondary under Constructive Cross-Examination.

This exponential expansion...