The Gentle Art of Cross-Examination

Alan C. Kohn¹

I. Introduction

This is a primer on the gentle art of cross-examination. “Gentle” because there is a presumption that the jury is sympathetic with the witness, who has been well-prepared and therefore has made a good impression during direct examination. The jury believes that the cross-examining lawyer is trained to destroy the credibility and the testimony of the witness. Therefore, it initially identifies with the witness and not with an educated and experienced assailant. Hence, it is important for the lawyer to take the high road, to look good, to use his or her power effectively and with respect, and to tread lightly and carefully, at least at first, and treat the witness humanely. There will be plenty of time to express indignation or to deal with the witness aggressively. Even then, it is important to remember that the primary purpose of cross-examination is to help advance the story of your client and not necessarily to destroy the witness or make him or her look bad.

Cross-examination is, in the final analysis, an “art.” The lawyer must create something out of the information before him. This information must be used to advance the cause of the client. The lawyer must be flexible and not stick to a script but must be ready to adjust any given approach at a moment’s notice. It is important to be alert to new opportunities which may arise because of an unexpected misstatement or moment of candor by the witness. And the lawyer must do whatever can be done to create those new opportunities and know instantly how to take advantage of them. Most importantly, cross-examination should be approached with humility, using the lawyer’s own individual style and personality, not someone else’s. Good trial lawyers come in all sizes, shapes and personalities. Bring your own personality to the trial table and do not change it just because you are engaged in cross-examination.

It is important to remember that the cross-examiner is communicating both with the witness and with the jury. That means the lawyer must establish eye contact with both. Probably the best time for eye contact with the witness is when asking a question and the best time to establish eye contact with the jury is at some time during the answer and just before asking the next question. Eye contact with the jury should be brief and is best established by looking slightly above their eyes. No individual juror should be favored.

There are some basic tools of cross-examination which can be learned and which will enable a lawyer to conduct a credible cross-examination. Good, effective cross-examinations occur every day, and even an inexperienced lawyer can do well if fundamental principles are used and applied.

II. Preparation

The first rule for good cross-examination is preparation. The cross-examiner must know exactly what the witness will say and the weaknesses of that testimony. In preparing for trial generally, the lawyer should have an outline of what facts the opponent expects to prove and what witnesses will be used to prove them. That outline will reveal the name of the witness to be cross-examined and what facts the witness will be expected to prove. Hopefully, the witness’s deposition will have been taken and will have disclosed everything that the witness knows about the facts in question. Of course, the deposition may not have been a complete debriefing, and there may not even be a deposition. Statements of the witness may exist, and documents which the witness has authored or has received may be available. These have to be examined carefully for any information in them which will help establish facts favorable to the examiner. Sometimes, of course, there may be no paper trail at all, and the cross-examiner must listen closely to the direct examination in order to detect areas where the witness may be vulnerable.

The same rules apply when the witness to be cross-examined is an expert. If the witness is a medical expert, spending time at a medical library and talking to your own expert should give you knowledge sufficient to enable you to know what to ask and what not to ask. Of course, authoritative texts consistent with your medical views should be reviewed and be available for cross-examination. The preparation for cross-examination of non-medical experts should follow the same procedure. Generally, an honest expert will agree with you if your position is authoritative. But if the witness is an experienced testifier, you could be hurt badly if you do not keep your questions very specific.

III. Back-Up for Cross-Examination

In conducting a cross-examination, the lawyer should have a detailed outline of the questions to be asked and the answers expected, and, yes, unexpected answers also. It is important to understand that the outline is just that – an outline – and the examiner cannot cross-examine by slavishly following that outline or by memorizing it and then parroting its words. Once cross-examination begins, the outline is there for reference only. The lawyer must engage in eye contact with the witness, not with the outline, because that will be what makes the examination interesting. That is also how the lawyer may observe nuances in the witness’s testimony and demeanor that may open the door to questions never anticipated.

The lawyer should also have at the ready the witness’s deposition testimony and key documents and statements which will or might be used during cross. Fumbling around for a document wastes time and causes the jury to lose interest. And, if the witness’s deposition testimony is in your stack of documents, it will be fair warning that the witness would be best advised to own up to what has been said in previous deposition testimony. In the appropriate case, if it is worth the cost of the technology, or if the technology is in place in the courtroom, it is helpful to use visuals of key deposition testimony or letters or other exhibits so that the jury can see, first hand, the point that needs to be made.

IV. Impeachment

Having thoroughly reviewed the witness’s deposition and prior statements or the witness’s words written in a letter or email or other document, the lawyer should be ready to impeach the witness with prior inconsistent statements. This raises the question whether the prior statement is, in fact, inconsistent and whether the inconsistent statement is collateral to the principal points to be made. If it is not fairly clear that the statement is inconsistent and helpful to the lawyer, it should not be used, or else the cross-examination will fall flat.

Once it is decided to use the prior inconsistent statement, the process is usually rather straightforward:

Q. “Was your deposition taken in this case?” (Or did you write such and such a letter or provide X with a statement dated such and such?)

A. “Yes, I did.” (If well-prepared, the witness will acknowledge deposition testimony or other statements given by the witness. If not, the witness needs to be shown the deposition or document, or acknowledge the witness’s signature on a letter, etc. The longer this takes the better, because the jury will begin to wonder why the witness does not just admit the statement.)

Q. “Let me ask you if you were asked the following question(s) and gave the following answer(s):” (and then read the question and answer or the statement in the letter, etc.).

A. “Yes, I was.” (It will not be helpful to the witness to deny the authenticity of the quote. If, for example, the witness says the court reporter got it wrong, that should be helpful to you and not to the witness.)

Q. “Was the answer you gave to that question true and correct?”

A. “Yes it was.” The witness may say it was not correct and that the witness’s mind is fresher now about the facts than it was when the statement was made. Then it may be appropriate to ask if the witness’s memory of the underlying facts was fresher six months ago about something that happened earlier or whether it is fresher now, six months later. The witness may say it is fresher now because the witness has now had time to review the matter more closely than before. One might then ask about all the preparation the witness did in preparation for the deposition and how an oath was administered at the time of the deposition. The point is that one should not let the witness off the hook easily, but, on the other hand, one should not lose the upper hand by beating a dead horse.

After the witness has acknowledged the truthfulness of a prior statement (or even has denied its truthfulness), the best course of action will probably be to move on rather than to try to guild the lily. Hopefully, the jury has understood what you have established, and you will have an opportunity to remind the jury at the time of closing argument of the admission of the witness.

V. Order of Areas to Be Covered

Another question that arises in preparing for cross-examination is the order of the subject matters to be addressed. Like most human beings, jurors have a limited span of concentration. Also, the jury is awaiting with some interest your cross-examination. It is therefore suggested that the most important points should be addressed early, even if a point does not seem to be in logical or historical order. At the same time, insofar as possible, cross-examination must be organized to make sense and to advance the client’s version of the events in question.

VI. Leading Questions

It is fundamental that a cross-examiner has the right to ask leading questions. But it is important to note that this is a right and not a duty. It is suggested that cross-examination is often more effective if the witness gives you the answers you want in response to non-leading questions. It may come as a surprise to the jury that the witness has said something helpful to you without any prodding. Of course, if the witness is not forthcoming, it will then become important to push with leading questions.

For example, in an antitrust case, plaintiff wants to show that defendants conspired to force plaintiff to overpay for goods defendants wanted to sell and plaintiff wanted to buy. Defendants contend that the price plaintiff paid was independently dictated by a broker for the goods so that the broker would get a higher commission. The president of plaintiff admits by deposition that the negotiations to buy the goods were with the broker, not with defendants, and that the plaintiff thought that the broker was being greedy in order to get an exorbitant commission. That admission undercut plaintiff’s contention that the defendants, not the third party, had forced the high price. During cross-examination, the lawyer for defendants could ask the president: “Isn’t it true that you felt the broker was being greedy” in the negotiation with plaintiff for the goods. The president will have to admit that this was true. Instead, the lawyer asks a non-leading question: “In the negotiations with the broker, did you feel that the broker was being greedy?” The president knows this was admitted in his deposition and so the response is, “Yes, I personally thought the broker was being greedy.” Hopefully, the jury will wonder how the lawyer got the president to say that when the president should have denied it and said that the defendants were the greedy ones, not the broker. If the lawyer had led the witness (“Isn’t it correct that...”), the jury is less likely to be impressed because it will suspect that the lawyer indeed had a deposition as back-up. Thus, by asking a non-leading question, the lawyer has probably caused more memorable testimony to be given. Moreover, continually asking leading questions can become quite boring. A lawyer saying over and over again, “Isn’t it true that . . .” may cause the jury to lose interest.

VII. Taking Advantage of Unexpected Mistakes

Sometimes, a witness blurts out something helpful. For example, you ask the defendant who rear-ended your client’s car whether defendant saw your client’s car after crossing the intersection just before the intersection where the incident occurred. The defendant “does not remember” and was not “paying any attention” at that time. The defendant should have just pled a lack of memory without adding the gratuitous remark about not paying attention. This mistake offers you the possibility of asking whether the defendant was “paying attention” and saw plaintiff’s automobile when defendant was 200 feet from the next intersection? 100 feet? And “Where were you when you started paying attention to where defendant was in relation to your car?” And so on, the point being to emphasize to the jury that this is a defendant who does not “pay attention” when driving and was therefore negligent in connection with this incident.

Another example is a case where the defendant bought a building from plaintiff for $5 million and, two days later, sold the building for $10 million, thereby making a quick $5 million profit. Plaintiff sues for fraud, contending that defendant failed to disclose the impending sale for $10 million although specifically having been asked questions that would have disclosed it. You are cross-examining the defendant to show that the $5 million profit is a lot of money for defendant to make in two days and for little or no work. You ask if the defendant agrees that $5 million is a lot of money, and while acknowledging that it is, surprisingly, adds that it wasn’t so much money because “I have a lot of other money.” That should open the door to inquire about how much other money the defendant has, was the $5 million a small amount compared to all the “other money” defendant had, etc. The purpose is to emphasize that the defendant is rich and arrogant and is not being forthcoming when downplaying $5 million which, to the jury, is certainly a lot of money.

VIII. Proceed Cautiously Step-by-Step

Another good basic rule of cross-examination is not to ask a question you do not know the answer to and to ask only questions the answer to which will not damage your case. A corollary to that rule is to ask short, simple questions and do not ask broad, open questions which give the witness an open path to hurt you with an answer. For example, an issue in the case is how much money your client earned in the year just ended. A surprise witness put on the stand by your opponent testifies that your client told the witness late last year that your client had made, say, $500,000, a sum far more than the amount your client claims was earned. Perhaps you are alerted to an opening because the witness says it was “late last year.” (Was it, perchance, New Year’s Eve?) Or perhaps your client passes you a note that the conversation indeed took place on New Year’s Eve and they were both intoxicated. You are concerned that if you do not tread carefully, the witness may deny the New Year’s Eve date and the intoxication point. You proceed carefully, never asking a question that will ruin your hoped-for response. You ask whether “late last year” was in December and the witness acknowledges that it was. And then you ask whether it could have been on December 31, and, again, there is an affirmation that this is the case. You then ask if the witness and your client were at a social gathering, and then if they were attending a New Year’s Eve party. You ask if liquid refreshments were being served and, of course, there were. Did that include alcoholic beverages? What was being imbibed? How much? Did the witness observe your client drinking? How much was your client drinking? By this time you have made your point without being hurt by a bad answer along the way, such as, “No, we were at a breakfast business meeting and we were both sober as church mice.”

IX. The Combative Witness

It can happen that the witness at some point becomes exasperated, angry and abusive. That, of course, is a hoped-for occurrence, and the lawyer can take advantage of this simply by being nicer as the witness becomes more pugnacious. (“I am sorry. I am just trying to find out the facts.”) Or the witness becomes sarcastic or tries to be funny, at which point the lawyer might say, “Does what happened to my client amuse you?” Unless the witness stays on the straight and narrow, there may be many impeachment opportunities by questioning the attitude, the credibility or the truth of witness’s testimony on direct examination.

X. When To Quit

It is not that unusual for the witness’s version of the facts to be helpful to your case. In that event, there is little to lose and much to be gained to go over all that favorable testimony once again during cross. There is the danger that the witness will recant what was said on direct, and so it is important to ask questions where answers are favorable to you but are not so controversial that the witness does recant. Or, depending on the circumstances, it might be desirable after direct examination merely to say, “Your Honor, I have no questions.” It could be that you will want to explain to the jury in closing argument how the witness’s testimony was so favorable to you that there was no reason to cross-examine. Or maybe the opposing lawyer on direct examination has not asked a critical question, either through forgetfulness or with the intent to bring out that testimony on redirect. By asking no questions, you have not given the other lawyer the chance to bring out the unfavorable information. As always, these are exquisite questions of judgment for which there is no definite answer. Hopefully, you will be able to quit at the right time and will repress that urge to ask that “one last question” which could be your undoing.

XI. Conclusion

Yes, cross-examination is an art, not a science. And it takes a great deal of experience and practice to become a good artist. But there are basics which can be learned and used to advantage even if the lawyer has only limited experience. Fundamental to good cross-examination is preparation, which is a tedious, time-consuming and often a boring task. But if the lawyer has done the necessary preparation and has stuck to the basic rules, the cross-examination can be effective. Of course, as is always the case, there is always room for improvement, and a good cross-examination could always have been better.

Footnotes

1. Alan C. Kohn is a St. Louis trial lawyer.