Wednesday, June 21, 2023

What Not to Say in Cross-Examination


In this month's issue of the Bar Bulletin there is an article by Dr. Kevin Boully and Thomas M. O'Toole (my co-author on the Jury Selection Handbook) focusing on what not to say in trial. Regarding cross-examination the article discusses the important advice given in the Cross-Examination Handbook about not asking one question too many  and amplifies on why the axiom makes sense:

“The classic advice of not asking one question too many is consistent with the overarching goal of letting your jury reach the conclusion on their own, without you cramming it down their throat. In cross-exam, we still find far too often that trial lawyers want to ask the extra question, or worse, ask about the topic and areas of inquiry that dilute the overall effectiveness of the exam.

“During cross, pick your topics and areas of focus wisely and with discretion. There are few occasions a “scorched earth” approach is warranted and far more times when the most economical and effective approach is to be surgical, targeting those areas where the cross exam can score, simple, direct, useful points. A few criteria to consider for what not to say in cross exams include:

Does the jury need the answer or its implication to make their decision? If not, you probably don't need it. 

Does the jury know how the answer fits into your overall trial message? If not, you may not need it, or you may need to make it more clear before the jury can use it.n

Will the jury receive the answer as consistent with the witnesses message? If the jury feels you want them to trust the witness on some things, but not others, you may need to pick an approach and stick to it. 

Has the jury heard the same thing from another witness already? If so, you may want to consider whether the answer creates a positive cumulative effect (i.e., carries the power. of multiple voices) or creates unnecessary repetition (i.e., feels redundant). 

“Have the courage to be decisive about what not to say and what to leave out of your case presentation at these key moments. These approaches empower the jury to reach their own conclusion and use their own experiences and perceptions to fill the gaps for you leave for them. These approaches appeal to the egocentrism of processing information through their own lens (which can engage in the gaps you left for them), their penchant for efficient and economical decision making, as well as symbolic processing that is often based on the scenes, moments, and events that you give them the freedom to envision and complete.”