More Thoughts on Cross Examination at Trial
More than five years ago, I wrote about cross examination at trial. Since then, I’ve tried more cases and crossed a bunch more witnesses. And so I thought I’d share some additional perspectives on one of the more tense aspects of trial.
My post stated that in cross examination you should never ask a question you do not know the answer to. This maxim in the legal world can’t always be followed. Sometimes a lawyer has no choice but to ask. A new witness appears, or a new subject has come up since discovery, or there is important information to elicit that only that particular witness has. In that case, it may be helpful for a lawyer to clarify before the examination that she and the witness have never spoken before. A judge or jury who hear this context may be more likely to forgive a bumpy, unrehearsed examination.
Everyone has their own style for examining witnesses, but I have found that a friendly approach works better than posturing, like a jerk. Many people try the jerk approach and sarcastically hammer home how much of a “bad guy” the opposing side’s witnesses are. This rarely persuades anyone. Instead, being nice may get the judge or jury to see your point of view.
Sometimes, no cross is necessary. A lawyer may feel pressure to respond to every point a witness makes, but when cross examination draws attention to arguments that aren’t your side’s strength, the best thing is to move past them quickly.
I’ve never seen a lawyer in real life use the classic TV line, “Were you lying then, or are you lying now?” when a witness changes her story. There’s no good way to call someone a liar. People get defensive to explain their inconsistencies, and you don’t want to end up in a verbal quagmire. It’s easier to allow the opposing counsel’s witness to share an inconsistent story. Just take note. Later, when the witness has stepped down, you can point out the lie in your closing argument.
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The closest a commercial trial gets to exciting is during cross examination. This is when a lawyer from one side examines witnesses who testify on behalf of the other side. And although there is almost never a scene in which a witness tearfully renounces their case and reveals a shocking truth, there are often heated exchanges.
Although lawyers on television may make cross examination seem like an extemporaneous exercise, it really requires a lot of preparation.
Why should you continue to read this post about cross examination?
I refuse to answer that question on the grounds of the attorney-client privilege.
I evade that question by talking about some of my other blog posts.
I confess! You should study cross examination from the greats instead of this blog.
Image credit: Attorney impeaching a witness during mock trial, 2007.
Eric Chan, Palo Alto, CA, United States, Witness impeachment, CC BY 2.0
Research
Before trial, each side needs to exchange a list of witnesses. For each, a lawyer should research them to learn as much information as possible. This may include performing Google and public records searches to see if there is any information that may undermine their credibility or prior statements they made that may conflict with the testimony they may offer at trial. This is particularly useful for expert witnesses, who testify at numerous trials on similar subjects, and therefore run the risk of making conflicting statements.
In addition to reviewing publicly available information, a lawyer should review documentary evidence about each witness. For example, the other side may have disclosed emails that the witness sent or received. Reviewing these documents may provide helpful evidence with which to confront a witness on cross examination.
Ideally, the lawyer performs this work prior to the deposition of the witness. That way, the lawyer can ask her questions at the deposition and see what the answers are without worrying about wasting the judge’s time or looking foolish if a hunch doesn’t lead to a stunning revelation.
But there are often several months or even years in between a deposition and a trial, and so lawyers often perform additional research before trial to make sure they know what evidence could be useful in confronting a witness.
Drafting Cross Examination Questions
According to an old adage, in cross examination, you should never ask a question you do not already know the answer to. This is because an adverse witness will likely provide unhelpful testimony except on specific subjects where you know they cannot or will not. And if you spend too much time asking questions, hoping to accidentally find a good answer, the judge may get tired and cut off the examination.
So to prepare questions you already know the answer to, a lawyer often reviews the transcript of a witness’s prior deposition and identifies the specific questions where a witness provided a helpful answer. Then the lawyer asks the same question at trial, modifying it as little as possible so that it makes sense independently from the other questions posed at the deposition.
According to another old adage, in direct examination, the witness is the star, but in cross examination the lawyer is the star. And so lawyers often draft cross examination so that the questions are long and the answers are short. Although there is often a rule against “leading questions” for direct examination, that rule does not apply to cross examination. As a result, lawyers can ask questions that are really statements with a “right?” at the end. For example: “You saw the light turn red, right?” Asking questions with short answers is meant to reduce the time the witness speaks because the more an adverse witness speaks, the more they will probably provide unhelpful testimony.
Lawyers often spend a lot of time crafting cross examination questions in just the right way that they will not be subject to an objection by opposing counsel or evasion by the witness. This involves, among other things, phrasing the question in an exact way that makes sure the question is clear and focused on the specific point the lawyer wants to make.
Actually Cross Examining a Live Witness
It may take many hours to prepare a friendly witness to testify, so cross examining a hostile witness with no preparation at all can be a challenging experience.
But a few things make this process easier. The first is to practice the cross examination with a colleague who is familiar with the case. This allows a lawyer to revise the questions accordingly or to anticipate possible responses and draft follow-up questions.
Another is to have documentary exhibits ready to contradict the witness if she strays from the truth or to re-center the conversation if she goes off-topic. Similarly, the lawyer should have the witness’s deposition transcript with her and, for each question she poses, have the citation where the same question was posed at deposition immediately available.
And third, the lawyer should make her point quickly and move on. Unlike direct examination, where a lawyer may spend time introducing a witness or telling a story, cross examination is about eliciting specific helpful facts or undermining a witness’s credibility. In my experience, a few succinct questions can do this more effectively than an hour of meandering questions.
One major challenge in cross examination is the fact that a lawyer needs to pay attention to the direct examination and object when necessary, and then be ready as soon as the direct examination is over for cross examination. This often involves writing down questions and shuffling around pre-written questions at the same time as listening to testimony. This is why preparing as much as possible before trial is a good idea, even if some testimony will come up during trial that may require a question written on the spot. And even so, writing the questions out before speaking makes it much easier to speak coherently than speaking off the cuff in front of a judge, a hostile witness, and an anxious client.
Sometimes during cross-examination, things don’t go as planned. The witness may give a bad answer or the judge may cut off a line of questioning even though the lawyer really wanted to continue it. In those events, a lawyer is usually best served by remaining calm. Acting like these are huge losses may communicate to others that even the lawyer thinks their case is in bad shape. And while those losses are scary in the moment, a trial often has numerous opportunities for each side to make its case.