by: Dr. Ken Broda Bahm
It has been long recognized that an aggressive and thorough cross-examination can feel better (to the examiner) than it plays (to the judge or jury). Attorneys often act as though there is just one rule of cross-examination: “thou shalt control thy witness.” But control, as an end in itself, is over-rated. The real issue, as a recent McElhaney piece in the ABA Journal points out, is persuasion: Will your cross strategy make your case more persuasive? In that vein, I’d recommend 10 commandments:
1. Thou Shalt Respect the Witness
Remember that the jury always identifies with the witness, not the attorney. Remember also that you’re an attorney and many of your normal habits of reasoning and speaking can be easily mistaken for irritation, obfuscation, and condescension. No matter how vile the party or how bad the testimony, if you show contempt for the witness, you create an angry juror who quickly forgets the point you were trying to make. As McElhaney points out “You can be firm. You can be insistent. You can be tough when it’s called for. But you’ve got to be fair, polite and respectful—throughout the case and especially on cross.”
2. Thou Shalt Not Trick The Witness
Bear in mind that anything that tricks the witness can be seen as tricking the jury as well. If it could be viewed by the jurors as just a tactic, then don’t do it. Keeping a witness separated from notes and important documents, for example, just to get a less specific answer is a strategy for someone who doesn’t have a very good case.
3. Thou Shalt Have a Clear Point
Don’t think of questions to ask. Instead, think of conclusions you want jurors to draw and work backward to the questions that will highlight that conclusion. And remember that the point of the testimony may be contained in the witness’s answer, non-answer, in the question, in the document, or in some combination.
4. Thou Shalt Never Leave The Witness in a Position of Strength
A well prepared witness will get a good speech in from time to time. If your witness does, never leave that speech ringing in jurors’ ears as you move on to another topic. Instead, circle back with another question so that witness ends on a “no, I didn’t,” a “yes, that is correct,” or an “I don’t know.” Then move on to the next point.
5. Thou Shalt Undermine Any Effective Teaching by the Witness
Good examples, demonstratives, and analogies are all good for teaching the jury. If a witness is a good teacher to the jury, then that witness is also credible. Even if you can undermine the point in other ways, it helps lessen the witness’s credibility to mess with the very tool the witness used – complicate the example, turn the analogy, revise the demonstrative.
6. Thou Shalt Begin Each Segment with a Chapter Heading
Jurors need to understand your purpose, so start each segment with “I’d like to ask a few questions about _____.” Sometimes that level of clarity will tip off a witness, but that is probably the exception, not the rule. Whatever you get from the witness, the jury needs to get it too, so err on the side of clarity.
7. Thou Shalt End Each Segment With a Conclusion
Unless you’ve been beaten by the witness on your point, make sure the jurors know what you got before moving on. Ask a question that wraps it up and telegraphs its importance to the jury.
8. Thou Shalt Impeach Only on Important Black & White Issues
An answer with a shade of a difference from the deposition doesn’t justify an impeachment. Even a big difference doesn’t justify impeachment unless that difference makes a difference to the jurors. While it can be necessary, more than half the time impeachment is just an irritating waste of time to jurors.
9. Thou Shalt Distinguish Between ‘Lawyer Points’ and ‘Juror Points’
Sometimes you need to just get something for the record. Do that as quickly as possible, then move on to something that jurors will find meaningful. Don’t spend a lot of time extracting something that only a lawyer would love.
10. Thou Shalt Remember That “Brevity is the Soul of Wit”[1]
Direct tells a story, so even if it extends over hours and days, it is less likely to be seen by jurors as wasted time. Cross is different, and after just a short time it can come across as tedious nit-picking. Use the time you need, but no more.
[1]William Shakespeare, Hamlet, Act 2, Scene 2, 86-92.