Have a Perry Mason Moment with Your Cross-Examination

 

This and the following series of articles here will focus on the methodology that is key to an effective cross-examination. The methodology has four components: 

1st – CONTENT – how to select the content of your cross

2nd – CONSTRUCTIONS – how to construct the cross – form of the questions. Transitions. Sequencing.

3rd – CHARACTER – how to behave during cross so project fairness to the jury

4th – CONTROL – how to control the witness – particularly the evasive and runaway ones

So, where do we begin preparing the content of cross-examination? We start with an understanding of the two purposes of cross and the reasons behind them.

We begin by asking: What is the purpose of cross-examination?

To answer the question, watch a clip from the documentary - The Case Against 8 – it chronicles the effort to overturn California’s proposition 8 which as you may recall was a ballot proposition banning same sex marriage in California. Theodore Olson, who was solicitor general, recruited David Boies who had been on the other side of Bush v. Gore, to be his co-counsel in the lawsuit.

Watch Olson and Boies discuss the purpose of cross-examination and how it can be the concept that shapes what you pursue during cross:

David Boies’ PURPOSE in cross was to CAPTURE THE TRUTH. The truth that built his case against 8.

As he put it: Before you can get a witness to admit the truth you have to get the witness to understand what the truth is.

Having the primary purpose of cross being to build your case theory is nothing new. The second-best book on cross-examination was written by a New York assistant district attorney who practiced in the 1880s and 1890s and was famous for his superb cross-examinations. The book is the Art of Cross-Examination. In the Art of Cross-examination, another trial lawyer Emory Buckner wrote: “More cross-examinations are suicidal than homicidal.” He attributes this to a mistake in conception as to the purpose of cross. He wrote: “The purpose of cross-examination should be to catch the truth, ever an elusive fugitive.”

The primary purpose of cross is to gain concessions that construct or bolster our case theory. Think of cross as an opportunity to persuade the jury of your case theory. Impeachment is a secondary purpose.

Three other reasons exist for using cross to bolster your case theory. First, studies have shown that one admission on cross is equal to ten pieces of evidence on direct. Second, it’s easier to gain admissions than to impeach – isn’t it? Third, if you get concessions, you can be satisfied with those and not impeach the witness.