Tuesday, September 26, 2017


Recently Paul Luvera discussed his 12 fundamental rules of cross-examination in the NWLawyer magazine, and it is republished here with its permission . Mr. Luvera is the past president of the Washington State Association for Justice and the Inner Circle of Advocates as well as a member of the American College of Trial Lawyers, International Academy of Trial Lawyers, and International Society of Barristers. He has taught at the Trial Lawyer’s College and is the only Washington lawyer inducted into the National Trial Lawyers Hall
of Fame. He can be contacted at pnl6700@gmail.com.  His blog is: www. plaintifftriallawyerstips.com.
The following is Paul Luvera’s article:
Cross-examination can be challenging and intimidating for the attorney conducting it as well as for the witness.
The initial decision about how to conduct cross-examination depends upon the general approach of the lawyer, who the witness is, and what the testimony being offered is. Some lawyers are more intellectual and logical and, as a result, think of cross-examination from that standpoint. Their cross is focused chiefly on challenging the testimony or opinions of the witness. The downside of this kind of cross-examination is that it can become a confusing struggle between attorney and witness without any clear “winner.” While attacks on the substance of relevant and important testimony are important, be careful that your cross-examination doesn’t become just a confusing debate.
However, when the primary goal is to challenge the credibility of the witness—with only targeted challenges to the accuracy of the testimony—the focal point of cross-examination becomes the believability and trustworthiness of the witness rather than the specific testimony. A credibility cross-examination avoids the risk of the examination be- coming a bewildering argument between two people. If you undermine credibility, it doesn’t make a lot of difference what the witness testified to, if the jury doesn’t believe him or her. Further, in my experience, jurors tend to focus more on the general impression the witness and lawyer make rather than the substance of what the witness says.
Whatever approach you choose to use in conducting a cross-examination, consider these principles as you prepare:  
1. Make big points and ignore small ones.
Make your points on cross-examination major ones that are significant to your case and do it without irrelevant details. Ignore issues that aren’t important. Don’t bore the jury. Make cross-examination on the big issues short, to the point, and interesting.
2. Don’t wait for closing argument to explain important points made on cross. Don’t make the mistake of waiting until closing argument to try to ensure that the jury under- stands the significance of important points made in cross-examination. By asking follow-up questions during the cross-examination you can underscore for the jury why the point is important. It is better to deal with the witness trying to explain it away than to lose the drama of the moment or count on the jury to remember it long after it happened. For example, if you impeach
a witness, follow-up questions highlight the conflict: “Today you testified the light was green, but in your deposition a year ago you testified, under oath, that the light was red, isn’t that true? Yet both can’t be true, can they? Your recollection a year ago would be more recent than one year later, isn’t that so?”
3. Approach cross-examination as a big picture, not a series of details.
Cross-examination is a continuation of your client’s story. It is a repetition of the basic theme of your case. Don’t plan your cross-examination as if you were looking through a microscope for details. Make sure your cross-examination is one of the big pictures in the case. No one cares and few will understand a detailed, intellectual, and complicated cross-examination, nor do jurors care about issues they feel aren’t important. Moreover, when you waste time on details or the irrelevant, the jury will assume you are not being fair to the witness. Make your points big ones and important ones—think of a rifle and not a shotgun.
4. Don’t react to every issue your opponent raises. Your opponent may try to distract you and the jury by raising issues about insignificant matters. Having a major theme and sticking to it
is essential to a successful outcome. What you spend time talking about is what is important in the minds of the jury. Ignore the insignificant and concentrate on the important facts during cross-examination.
5. Have a basic theme and stick to the main story.
You have a story to tell based upon your case themes. You need to develop a central theme that highlights the positives of your case and explains the negatives as well. Stay on theme throughout the trial and be sure to weave your client’s story into your cross-examination.
6. Deal with negative issues head on.
The negative issues about your case must be acknowledged and dealt with openly and honestly. They can’t be ignored—they are like an elephant in the room. Plan your cross-examination by deciding how to deal with these issues, but be careful not to spend too much time doing so.
7. The right to ask leading questions is a gift. Use it. Use your right to ask leading questions in cross-examination. If done well, you can tell your client’s story through leading questions, irrespective of the answers the witness gives. A series of short and clear leading questions is a powerful way to communicate your client’s story to the jury.
8. The three most important rules are: Listen, listen, and listen. Listen carefully to the witness on direct examination for issues to ask about on cross. Good trial lawyers are not good note-takers. They are good listeners. If you have a prepared outline of questions you plan to ask on cross-examina- tion, you will often be looking at the outline or planning your next question instead of listening to the witness’s answers. As a result, you may think you received an answer to your question when you didn’t or you may miss important testimony that needs follow-up. Concentrate on what the witness is saying. Think while you work and listen, listen, listen.
9. If you decide to impeach a witness, do it right.
Too often, lawyers lose the drama of the moment while attempting to impeach on cross-examination because they don’t do it right. The first step for impeachment is to make sure the witness’s statement is significant enough to use. The impeaching material must be clearly inconsistent and not something obscure. The next step is to get the witness totally committed to the inconsistent statement before impeaching. If it is from a deposition, you need to identify the page and line number before bringing out the impeaching evidence. Lay a proper foundation before you attempt impeachment. Do it right or don’t do it at all.
10. Cross-examination should be brief and to the point. Talk is not cheap when it comes to what you spend your time on in cross-examination. Too many lawyers, after making an important point, go on to overdo it with too much talk. Don’t gild the lily. But don’t forget to pause long enough or otherwise make clear to the jury the importance of what was said. Make your major points short, simple, and to the point, then move on to the next subject.
11. Be firm but always fair in cross-examination. Your credibility depends upon the impression you make on the jury. At all times, you need to be firm, professional, and fair with the witness. Make sure you get an answer to your question, but don’t browbeat the witness to get it. Jurors start out by identifying with the witness, not the lawyer, and they regard the overly aggressive lawyer on cross-examination as being unfair. Jurors expect professional conduct from credible and trustworthy lawyers. Be professional and never be a bully or a showboat.
12. If you use exhibits or slides, do it right. There is nothing worse for a jury than cross-examination about an exhibit they aren’t shown. If you are going to talk about an exhibit, make sure it is admitted and that you show or share it with the jury. If you use illustrative slides on cross-examination, be sure they are well done and don’t violate the basics of good visuals. Slides that have too many words or print too small to read should never be used.

Historically, lawyers have argued about “the most important part of trial” without any consensus of opinion about the answer. One thing we do know, however, is that jurors are attentive to cross-examination. You can usually count on having the jury’s attention at the start of cross-examination, so plan it well, with a powerful start, and end with a strong finish. Follow the basics of good cross-examination to improve your chances of doing an efficient and effective job. The most import- ant secret to good cross-examination is preparation and planning.

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