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.
