In this episode of his "The Trial Lawyer's
Handbook" podcast series, litigation attorney Dan
Small emphasizes the importance of preparation and
organization when engaging in cross-examination. Mr. Small
addresses the various stages of cross and explains how to approach
it to effectively engage the judge and jury. Additionally, he
illustrates these points with examples of the do's and
don'ts that attorneys should be wary of.
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Mr. Small is also the author of the new American Bar Association
(ABA) book Lessons Learned from a Life on Trial: Landmark
Cases from a Veteran Litigator and what They Can Teach Trial
Lawyers.
Podcast Transcript
Cross-examination, by its nature, is kind of scattershot. Instead of creating a narrative like on direct, you're usually picking one apart. This is a commando raid, it's not the Normandy invasion. Get in, score your points and get out. But that doesn't mean you shouldn't prepare thoroughly. On the contrary, the shorter it is, the more prepared you have to be. And the more organized it is, the more effective it will be and the better you'll be able to handle the things that you didn't anticipate.
Planning a cross-examination means not only planning the substance and the questions, but also the order in which you want to make your points. You're not telling a story on cross like you are on direct. So your order of battle doesn't need to be strictly chronological. It can be more thematic or strategic, but it should still have an order, not simply be a series of random topics. In the words of Aristotle, a whole is that which has a beginning, middle and end. Remember Aristotle and let's look at each piece of your cross-examination.
First, the beginning. Studies show that people are more likely to remember and are most affected by the first and last things they hear. Primacy and recency. Try to begin strong and end strong. The moment that you stand up and begin your cross-examination has an element of drama. You have the judge and the jury's attention. Take advantage of that opportunity. Don't undermine your cross with a weak or silly beginning. Begin your cross not only with substance, but with confidence. Never start with:
"I have a few questions-,"
or something semi-apologetic like that. It's almost never true, and it adds nothing to the force of your presentation. You also risk annoying the judge and the jury. Why are you wasting their time if you don't have anything important to ask?
Take a lesson from The Simpsons of all things. When Homer and Apu visit the head of the Kwik-E-Mart company who lives on a mountaintop in India, for some reason, the head of Kwik-E-Mart says:
Head of Kwik-E-Mart: Approach my sons. You may ask me three questions.
Apu: That's great because all I need is one.
Homer: Are you really the head of Kwik-E-Mart?
Head of Kwik-E-Mart: Yes.
Homer: Really?
Head of Kwik-E-Mart: Yes.
Homer: You?
Head of Kwik-E-Mart: Yes, I hope that this has been enlightening to you.
Apu: But wait, wait, I —
Head of Kwik-E-Mart: Thank you. You're done. Come again sometime.
The middle. Think about the best ways to sequence your points. Try to put your cross into some sensible order. Cross-examinations are peculiarly susceptible to having a random quality, and anything that seems disorganized or disjointed may obscure your best points. Help the jury to follow the bouncing ball. Of course, narrowing the number of topics you cover helps considerably.
And finally, the ending. You, not the witness, get to pick the order of your cross-examination. Choreograph your cross so that you end on a high note. Ideally a moment of triumph, but at least something strong. Hopefully you've accomplished something, so make it look that way. Be careful not to ask one question too many, or your cross-examination may end in disaster, but don't end on a note of apparent defeat, such as a failure to get a responsive answer or a sustained objection. To avoid ending on a sustained objection, plan out your last couple of questions and make them unobjectionable. If you are on the receiving end of a sustained objection anyway, don't just end there. Think of something else to ask before sitting down, and don't end on a weak note either. A surprisingly high number of examinations end something like this:
The lawyer says, "One moment, Your Honor."
Long pause as the lawyer studies his notepad.
Lawyer consults with colleague over at the table.
Lawyer consults with client over the table.
Lawyer returns to the podium.
Further pause as the lawyer reviews his notes and formulates a question.
Lawyer asks some inconsequential question out of sequence.
Witness gives some inconsequential answer, and the lawyer says, "Nothing
further, your Honor."
This is an insipid way to end any examination, but especially a cross-examination of an important witness. DON'T DO IT.
Planning and organization are important elements of a successful cross-examination. Start strong, end strong and keep a good flow and progression in between.