A Few Tips on Cross-Examination
“An astute lawyer approaches trial preparation strategically and meticulously, leaving nothing to chance.” – Louis Nizer, New York City trial lawyer
Back in the day, a young associate came to me after losing a case at trial and asked how she could improve her cross-examination. She went on to state:
I followed every rule of cross-examination:
I asked only leading questions.
I asked short questions and used plain words.
I was brief.
I asked no questions to which I did not know the answer.
I didn’t quarrel with the witness.
I didn’t go over direct examination.
I didn’t ask one question too many.
I didn’t let the witness explain anything.
When I asked her what the purpose of her cross-examination was, she became silent, as if someone had flipped a switch. I offered her experienced advice. I told her that your role as a cross-examiner is to search for weaknesses in witness testimony and use it to win the case. The key to effective cross-examination is that you must have a purpose. The goal is to damage the credibility of adverse witnesses. It is an opportunity for the advocate to tell their side of the story.
When cross-examining, the adverse witness should respond to every question asked with “true” or “correct.” Questions should be more like statements of fact than inquiries. Every cross-examination should make a point. The sooner you get to the point, the better the jury will get it. But you want the jurors to figure it out on their own as to what supports your case. The advocate must decide to use this tool subtly for the jurors to figure it out immediately or to save it for summation. The material to make your point can be found in depositions, interrogatories, direct examination, prior inconsistent statements, learned treaties and other materials.
Cross-examination is frighteningly difficult, but preparation is the key. Careful and meticulous preparation with objectives will bring results. You want to minimize the effect of direct examination by an inconsistent statement, admissions or even a simple inaccurate or incomplete statement made on direct examination. Prepare a checklist on what you want to accomplish on cross for each witness. Prepare a short list of constructive and destructive facts to elicit from each witness to make in final argument. Good preparation means not only planning what is going to be asked, but also planning effective phrasing and choice of words to use in advance. The common denominator of skillful cross-examination is a combination of preparation and instinct. Listen, Analyze and Think. The acronym is LAT. Focus on the witness. Think about what the witness said in response to your questions. Nothing should come as a complete surprise if you have done your homework. Everything at trial should be anticipated and planned.
To be sure, cross-examination requires skill, but skill alone will not get the job done effectively. Of all the prerequisites to skillful cross-examination, meticulous preparation is by far the most important. This should be the one the average trial attorney can do to improve. Even the most skilled trial lawyer must be thoroughly prepared to conduct an effective cross-examination.
Motion In Limine
Another tip for preparation in cross-examination is the pretrial motion in limine. This motion is made to offer or exclude evidence. The proponent may obtain an advance ruling of the evidence’s admissibility or exclusion. A motion in limine can shape the preparation of the entire case, including cross-examination. For example, motions in limine can be used to prevent any mention of a civil defendant’s liability insurance or a criminal defendant’s prior convictions. The tactical reason is that objectionable evidence might be highly prejudicial. An advance ruling for a criminal defense attorney can preemptively help evaluate the risk whether to put their client on the stand. Moreover, an objection at trial would be inadequate protection.
Adverse Witness Rule
The attorney for the civil plaintiff should consider calling your opponent’s witness as part of your case-in-chief. Federal Rule of Evidence 611(c)(2) provides in pertinent part, “When a party calls a hostile witness an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” Calling an adverse witness not only permits the proponent to use leading questions on direct examination but also puts your adversary on the defense. There is no requirement that you notify the opponent in using this tactic. Your opponent may be greatly surprised, and this can cause their case to fall apart. Moreover, you will have the advantage to present desired evidence during your case-in-chief. Call the witness toward the end of your case-in-chief. Ask short questions to control the witness.
The advocate should decide in advance to proceed chronologically or by themes. Proceeding chronologically often leads to the witness restating damaging testimony. Consider organizing cross-examination by themes or issues. The theme is a one-sentence summary of your theory that determines what facts to bring out on cross-examination. The theme approach permits the lawyer to refer to sequential documents or depositions. One theme should be used immediately when your opponent completes direct examination. The themes should be prepared in advance and reorganized until you have found the best two themes for each witness. The second theme should be saved as you exit the witness. Locate the best point you can use against each witness from an exhibit or deposition for the conclusion of the examination. Stay strong and end strong.
James A. Johnson of Southfield, Michigan, focuses on serious personal injury, insurance coverage, entertainment and sports law and criminal defense. Johnson is an active member of the Michigan, Massachusetts, Texas and federal court bars.
This article originally appeared in One on One, a publication of the General Practice Section (2022, vol. 43, no. 2). For more information about the General Practice Section, please go to NYSBA.ORG/GEN.