What are the most effective cross examination methods?
Trial Guides is the leading publisher of books on litigation. Most of our books are written by the leading practicing lawyers in the United States including by members of the Inner Circle of Advocates, American Board of Trial Advocates, and American College of Trial Lawyers. These leading lawyers share the most effective practical skills that help them practice at the highest levels of the legal profession.
One of the fundamental skills for lawyers is the cross examination of adverse parties, lay witnesses and expert witnesses both in deposition and trial. As noted by Lloyd Paul Stryker;
"The only legitimate object of a trial is the ascertainment of truth. To achieve this end, the instrumentality of cross examination is the most potent weapon in the lawyer's arsenal. 'For two centuries past,' Professor Wigmore writes, 'the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.'"
Cross examination is often considered the skill of greatest interest for all lawyers trying cases, and is often referred to as the "sexiest" part of a trial creating high attendance at cross examination CLEs nationwide. Despite this, most lawyers rarely stray from the well worn and outdated cross examination methods taught in many law schools.
Trial Guides publishes many of the best selling books and CLE videos on cross examination for trial lawyers. But lawyers may wonder about the differences in what each of these teach. Are they sufficiently different to justify reading more than one book, or viewing more than one CLE?
This article considers our most popular legal books on cross examination, as well as one of our videos that compares different methods of cross examination.
The Fearless Cross Examiner
Cross examination has been considered a fundamental skill in the legal process throughout history, with its origins going back to ancient Rome. Many lawyers conduct their cross examinations using time tested methods – including those in Francis Wellman’s The Art of Cross Examination, and revised in Irving Younger’s lecture “The 10 Commandments of Cross Examination.” Through the history of American law, trial legends such as Earl Rogers, Clarence Darrow, Moe Levine, Al Julien, Max Steuer, Gerry Spence and others have forged new ground in pushing the boundaries of cross examination.
In The Fearless Cross Examiner, Patrick Malone examines these methods for use with today’s jurors, and proposes ways to conduct the most effective method of cross examination for modern litigation. It is Trial Guides’ top selling cross examination book in the company’s history, and follows Malone’s other Trial Guides bestseller, Rules of the Road. The book helps lawyers refine and perfect the methods of cross examination used by most lawyers.
Dynamic Cross Examination
Many lawyers live by the premise that you should never ask a question that you don’t already know the answer to. Always lead on cross. Only seek yes or no answers. And never take on an expert witness on their own turf.
Nearly all of the traditional methods of cross examination you learned in law school are discarded by Jim McComas in Dynamic Cross Examination. McComas suggests learning the case and the subject matter better than the adverse witness and then directly attacking their position. Is it scary? Yes. Can it produce spectacular results? Absolutely.
This is the method used by trial great Rick Friedman, Trial Guides founder Aaron DeShaw, leading lawyer Dorothy Clay Sims, and a smaller number of litigators willing to push themselves to learn the finest details of their topic material in order to achieve outstanding results. Friedman, commenting upon his use of the Dynamic Cross Examination method notes his earliest experience using it in trial;
In the forward to Dynamic Cross Examination, Friedman notes that over the course of his legendary trial career, "every cross examination I've done since 1987 has been a Dynamic Cross Examination."
If you are looking for the "killer cross examination" method this is it. It takes more work, but can result in case changing admissions from opposing witnesses. Further ideas for using the Dynamic Cross Examination method with defense doctors is contained in Dorothy Clay Sims book Exposing Deceptive Defense Doctors.
Trial Guides has several CLE videos on cross examination, many of which cover the methods discussed in the above books. If you are looking for a great video CLE on cross examination where a variety of cross examination methods are compared and contrasted by two highly respected lawyers, we strongly recommend Trial Tactics.
No discussion of cross examination would be complete without mentioning cross examination guru Roger Dodd. Pozner and Dodd’s cross examination tome, Cross Examination: Science and Techniques is one of the best selling legal books of all time.
Trial Tactics is one of the true gems of the Trial Guides video library. Initially intended to be a CLE for newer lawyers on fundamental trial skills expanding upon The Elements of Trial, the CLE evolved into Rick Friedman and Roger Dodd discussing the best methods on every aspect of trial, covering topics at a level that was helpful for new, intermediate, advanced and expert level trial lawyers. It covers Rick and Roger's recommendations on everything from trial preparation and case themes to voir dire, opening, direct examination, cross examination, closing and everything in between.
One high point of the video features Roger Dodd and Rick Friedman discussing cross examination and how their methods differ. The discussion compares the traditional methods of cross examination, Dodd's decades of research into cross examination methods, to Rick's successful use of the methods in Dynamic Cross Examination. One particularly interesting section is Roger Dodd's advice about constructive cross examination versus destructive cross examination and which he believes is more effective.
Trial Tactics is an incredible resource on all aspects of trial practice, providing some of the best instruction in any Trial Guides product from two of the most notable and influential trial lawyers in US history.
Conclusions on Best Selling Cross Examination Books and CLEs
Reading or watching any one of these best selling cross examination products will help you improve your critical skills in taking depositions and cross examining witnesses during trial. Buying all three helps you challenge yourself to make the most of each cross examination and lead to far better outcomes in your cases.