The Power of a Purpose-Built Cross-Examination

• Date: 01 April 2024

Published i n Litigation New s Volume 49, Numbe r 3, Spring 2024 . © 2024 by the Ameri can Bar Asso ciation. Rep roduced with pe rmission. A ll rights rese rved. This inf ormation or any p ortion there of

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our Honor, I have no further questions

for this witness,” your opponent says,

moving back across the courtroom to his

post. The judge swivels in your direction.

“Cross-examination?” he asks. As you rise,

the jury leans forward in anticipation. You grab the notes

that you hastily scribbled on a legal pad throughout the direct

exam, head to the podium, and…

Hopefully, whatever you do next in this scenario is back-

stopped by methodical preparation invested throughout dis-

covery and over the lifetime of the case. Hopefully, you have

an actual plan for this cross-examination that’s more than

just a series of “hot takes” on the direct testimony that you

just heard. All too often, however, while preparing every other

aspect of a trial from opening to closing, and every direct

examination in between, lawyers treat cross-examination as

an improvisational art.

That’s a mistake, often resulting in a confused, overly

long, and unfocused inquiry into tertiary minutiae. As Louis

Nizer, one of the 20th century’s leading trial lawyers famously

observed, “[p]reparation is the be-all of good trial work.

Everything else—felicity of expression, improvisational bril-

The Power of a Purpose-Built

Cross-Examination

By Hon. Carl A. Aveni, Litigation News Asso ciate Editor

Just_Super/iStock/Getty Images Plus via Getty Images

liance—is a satellite around the sun. Thorough preparation is

that sun.” That’s as true for cross-examination as it is for every

other aspect of the work.

Know Your Objectives

Is the Disput ed Testimony Impor tant?

As with every other part of a trial, the rst question to ask

yourself when preparing a cross-examination is “how does

this testimony affect the handful of central issues or themes in

the case?” If it doesn’t, your job is to briey establish that fact

and then sit back down. By maintaining discipline and focus

on those central issues, you reinforce to the jury that those are

the central issues on which they too should deliberate.

Conversely, a lawyer risks diluting his or her central facts

or themes by chasing down every tangential inconsistency

revealed on direct as if they are all somehow equally impor-

tant. If the inconsistencies are immaterial to the central

questions, and don’t strike at the heart of any of the other

objectives described below, they might not be worth the chal-

lenge.

The most effective cross-examination I have seen in my

time on the bench was barely a minute long and consisted

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