THE CROSS-EXAMINER’S DEMEANOR

We have previously discussed how to behave on cross and that discussion of the cross-examiner’s deportment is worth revisiting. The do’s and don’ts of how to behave during cross-examination are as follows:

Don’t Show the Damage

You asked the “Why” question on cross-examination and paid the consequences. You opened the door for the expert witness to expound on the other side’s case theory. You wish you could go hide under counsel table. But, that’s not an option.

Don’t let the jury see you bleed. Remain calm, and don’t let the damage register on your face. The jurors are constantly watching you. If you reveal how much the witness’s answer hurt, it will just compound the harm. Even worse, your crushed reaction may turn the jury against you and your client. It’s to your advantage to maintain a poker face.

Don’t Be Cross and Don’t Get Ahead of the Jury

Axiom for cross-examination: You don’t have to be cross to cross-examine. James W. McElhaney in McElhaney’sTrial Notebook put it this way when discussing quarrelling with a witness on cross: “. . . Once again, the hallmark of poor cross-examination is arguing over unessential details.

“Part of the problem of the needless quarrel is the demeanor of the cross-examiner. Usually it is not a good idea to ask questions in an accusatorial manner. The jury has a lot of sympathy with the person in the witness box. The advantage of the lawyer in being able to ask questions and insist on answers to them is obvious to the jury. Unnecessary hostility is likely to backfire.

“Yet there may be a time for a raised eyebrow, a series of rapid fire questions or even righteous indignation. To some extent the jury gets its cue from counsel how to respond to the testimony, and you should not neglect this role. The problem is to strike the proper balance without putting on a transparent act. One good way to approach this balance is to keep from being hostile with a witness even one you know is lying, unless the jury can see you have a good reason for it.”

Another way to express this principle is: Never get ahead of the jury. In other words, don’t go after a witness harshly unless you are convinced the jury thinks the witness deserves it.

Don’t Be Nasty

In On Trial: Lessons from a Lifetime in theCourtroom, Henry G. Miller states: “A soft word turneth away wrath. A smile can disarm the most hostile witness. Be courteous and fair to all witnesses and by your decency carry the jury with you. I believe these sentiments and try to practice them.”

Do Be a Seeker of Truth and Show It

The proper demeanor for the cross-examiner is to be professional and a seeker of truth. As a seeker of truth, you may ask tough questions. While jurors do sympathize with witnesses who are being subjected to cross, witnesses differ and so must the cross-examiner’s demeanor. When cross-examining the vulnerable witness, such as a child, counsel’s manner normally should be solicitous. On the other hand, when cross-examining an expert witness, particularly one who is gives evasive answers, counsel’s demeanor may be more assertive. Again, never get out ahead of the jury.

Do Be Confident

Henry G. Miller in On Trial offers another sound piece of advice: “Act Like You’re Getting Somewhere. Great cross-examiners always act as if they’re getting somewhere. They start smartly. They finish smartly. They exude confidence. They seem to find guilty inferences in every answer, no matter how innocent.”

ORGANIZED EFFECTIVE CROSS-EXAMNATION

An effective cross-examination is one that is easy for the jurors to follow and has a dynamic impact on them. 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 the cross. 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 republication of 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-ExaminationHandbook, 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.

ORGANIZING A DYNAMIC CROSS-EXAMNATION

Do’s and Don’ts for Organizing a Dynamic Cross

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.