RELAX – “IT’S EXRAORDINARILY RARE TO LOSE A CASE ON CROSS-EXAMINATION” BUT EXCEPTIONS EXIST

Observations in The Elements of Trial by Friedman and Cummings

In their new book TheElements of Trial (Trial Guides 2013), Rick Friedman and Bill Cummings make a point that we make in Cross-Examination Handbook that a well- planned cross-examination presents little risk to the cross-examiner. We point out that cross-examination is the examiner’s opportunity to elicit concessions. Friedman and Cummings point out that as a rule there is little chance that you’ll lose a case based on your cross, but there are exceptions. These excerpts from The Elements of Trial explain their view:  

“As you decide whether to lead or not, you should know that it is extraordinarily rare to lose a case on cross-examination. If you think about this for a minute, you will understand why. If a witness has bad things to say about your case, your adversary will know them and bring them out on direct examination. If you ask some poor cross-examination questions, the witness will repeat the bad things he said on direct, but the jury has heard them already – hearing them again may be unpleasant, but not likely to kill your case. So exploring areas your opponent already covered in direct may not get you anywhere, but is unlikely to lead to catastrophe. . .

“Again, you are very unlikely to lose a case on cross-examination. However, there are two notable exceptions to this pronouncement.

“First, you can lose a case on cross-examination if you go exploring in an area where there is highly prejudicial information available about your client that the judge excluded from evidence. If your client has a conviction for child molestation that the judge excluded in response to your motion in limine, you better not ask the hostile witness about your client’s character. Always have the rulings on your motion in limine in mind when you cross-examine, and don’t ask questions that might give the witness the opportunity to answer with prejudicial material. The judge may rule that you have opened the door to that evidence by asking the question.

“Second, you can lose a case on cross-examination if you are rude and obnoxious toward the witness. If you work hard enough at this, you can get the jury to dislike yu enough to rule against your client. But you are not going to do that, are you?

“If you realize you are unlikely to lose a case on cross-examination, it can free you up to relax a little and explore the witness’s story. The world will not come to an end if you don’t do this perfectly.”