Monday, November 11, 2013
ORGANIZING A DYNAMIC CROSS-EXAMNATION
Are the jurors following your cross-examination? Or, are they lost? Is your cross-examination easy to comprehend? Or, is it just a jumble? Is the structure of your cross achieving your purpose? Or, is it just rehashing the direct? While a great deal of attention in trial advocacy texts and teachings is devoted to cross-examination techniques, such as ask only leading questions, less is spent on how to organize. Consequently, many cross-examinations are disorganized and leave jurors in a quandary. You want a cross-examination that is organized into a dynamic and persuasive presentation. What follows is a checklist of do’s and don’ts for organizing your cross-examination.
DO – THINK CASE THEORY
James W. McElhaney, the trial lawyers’ sage, explained this principle as follows: “It is the theory of the case, then, that provides the starting point for organizing cross-examination. If we once again take organization in the broader sense – content as well as order – the first question is not just what to include, but whether to cross-examine a witness at all.
“The obvious answer is, do not cross-examine a witness unless it would help the case to do so. The only difficulty with that is knowing when it would help the case.
“Understandably, it is a point about which thoughtful lawyers can disagree. There are some, for example, who are quick to say ‘no questions.’ And there are some far more who ought to follow their example.” McElhaney’s Trial Notebook.
The primary goal of cross-examination is to either bolster your case theory or undermine your opponents. And, the focus of the concession-seeking cross should be on making main points, not exploring minutia.
DO – START STRONG
Because you have the jury’s attention when you begin your cross and because what they hear first will be more likely to be retained than what they hear later (rule of primacy) make the beginning of the cross count for something. If, on that rare occasion, you can decimate the witness at the start of cross, do it. But, more often, you can begin the cross by gaining the concessions that support your case theory or undercut the other side’s. Here, you start cross in a non-confrontational and friendly manner with a series of questions to which the witness should answer in the affirmative. Save your impeachment cross for later, and if you turn the witness to your own, abandon the impeachment.
DON’T – THINK DIRECT
Counsel listens carefully to the witness’s answers to opposing counsel’s direct examination and takes copious notes marking up those notes with points to make on cross. “Your witness” says opposing counsel, and the cross-examiner embarks on a cross that tracks those notes taken during the direct. For at least two reasons, this is the worst organizational structure for a cross-examination. First, the order of questioning is dictated by opposing counsel rather than the cross-examiner. Second, inevitably, the cross-examiner rehashes the direct – “You testified on direct that . . .”
DO – THINK TOPICAL UNITS
Think of your cross as a compilation of topical units, like short stories. Each one has a single topic to cover. These are main points, not minutia. For example, the topic could be the deficiencies in the qualifications of the other side’s expert witness. In Cross-Examination Handbook, we discuss how to brainstorm for and structure these topical units. Once you have formulated the topical units, organize those units into the best possible logical presentation.
DO – POINT THE WAY
Nothing helps the jurors more in their effort to keep up with your cross than providing them with sign posts along the road. Simply declare your topic: “Now, let’s talk about the data you relied upon in reaching your opinion.” This is not a question, but nobody ever objects. Everyone in the courtroom appreciates you telling them where things are heading.
DO – END STRONG
Nothing is worse than a cross that ends with a fizzle rather than a bang. There is no excuse for a bad finish. You want to end strong because the jurors will remember best what you did last (principle of recency). Always reserve for your last line of questioning a powerful, invulnerable point founded on admissible evidence which the witness must concede or be impeached. Couple that strong point with your confident appearance and “No further questions,” and you have concluded an organized dynamic cross.