Conduct a Winning Cross Examination

Top 10 Tips on Cross Examination

In the words of famous law professor John Henry Wigmore (1863-1934), cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” We’ve gathered expert advice from the authors of both historically important treatises on cross exam as well as our best-selling books on cross examination to bring you our Top 10 Tips to master the art of cross examination.

Experienced trial lawyers use the most effective cross examination methods of Trial Guides’ authors as they try today's most challenging and groundbreaking cases. Our cross examination methods are used in everything from small motor vehicle cases to Top 10 verdicts each year. New lawyers willing to invest the effort, benefit by learning what works and what doesn't from successful litigators. This post provides an efficient study guide to prepare for and conduct winning cross examinations. 

If you’ve ever watched Perry Mason (based upon trial great Earl Rogers), you realize that cross-examination is the most thrilling part of many trials. It carries the possibility of the most compelling testimony and with the right approach can unveil key evidence that destroys your opponent's case. But even with great preparation you seldom achieve a "Perry Mason" moment.

But, what happens when you’re faced with a difficult witness? Or, what if you’ve never deposed the opposing expert before, you don’t know what questions to ask on cross examination, or you just aren’t good at asking leading questions? Or worse yet, you face a highly biased insurance doctor engaged in moral turpitude, who has a 30 year career claiming every injured person is malingering while making millions of dollars doing nothing but defense medical examinations? Or a mentally unstable opponent eager to perjure themselves just to hurt your client.

These Top 10 Books on Cross Examination will teach you how to effectively elicit facts that are favorable to your case from every credible witness you examine, or alternatively, demonstrate the witness is so biased they will not admit even the most obvious facts that support your case. Whether you practice in the area of personal injury, business litigation, domestic relations, employment law, toxic torts, intellectual property litigation, criminal law, or another area of law, knowing how to do a great cross examination is very important.

Tip 1: Preparation is Key - Create Lists for Each Witness 

Starting with the most basic principles of trial, former President of the Inner Circle of Advocates, Rick Friedman reminds us in his book, The Elements of Trial, that “the key to good cross-examination is preparation." The nation’s most influential trial consultant, David Ball recommends The Elements of Trial as a must-read for new lawyers because it provides a “clear concise checklist organized for every stage of trial.” Starting with the basic lessons on cross in The Elements of Trial is a great place to start preparing for cross examination in deposition, arbitration or trial.  

In the book, Friedman teaches that one of the main objectives in conducting a great cross-examination is asking questions that raise doubts about an adversary’s credibility. However, he also poses an important question: whether to attack or not to attack the witness. While impeachment is sometimes a goal of cross-examination in some instances, Friedman teaches “many of the best cross-examinations do not attack the witness’s credibility, but elicit—from the ‘hostile’ witness—facts favorable to your case.” In order to determine this you first must know what you must prove in your case, and then determine whether the purpose of cross examination with an opposing witness should be to "construct" or support your case through admissions, rather than to "destruct" the witness through an attack. The knowledge that "constructive" cross examination is more effective than "destructive" cross examination is a sign of a more highly skilled advocate.

How do you elicit key facts from witnesses during cross-examination? In The Elements of Trial, Friedman suggests the first step in preparing for cross examination is to collect and organize information by topic. The best part about Friedman's book is that it’s loaded with helpful templates and checklists for every stage of trial, as David Ball points out in his review. Friedman's sample outlines for preparing for cross-examination are some of the most helpful.

In Chapter 11, Rick Friedman shares an easy cross examination template featuring the journalistic method: who, what, when, where, why and how. For example, under "who", outline that particular witness’ relation to the case / key evidence, potential bias, etc. What will they say? What statements do you have from the witness? When did they make the statements? When did they witness key events? Why would they testify this way? How did the person become a witness for the other side?

Once you have this information listed for each witness, make an outline addressing each topic or area you might want to question the witness about. Based on the information collected for each witness, list the topic, and all evidence that you’ll want to point out during your examination of the witness. Friedman also shares a sample topic outline template to reference while preparing for your next deposition or trial. Here are a few examples from the book, of how you might prepare the cross-examination of a police officer in a police misconduct case:

Bias/Credibility

  • Personnel file, p. 4 [Was the officer disciplined for making statements that raise questions of bias or credibility?]

Incriminating Statements

  • Police report—no mention of statements on the way to the police station.
  • Grand jury, p. 68—says on ride to police station, client refers to having a gun.

Favorable Facts

  • Police never saw client with drugs (grand jury testimony, p. 89)
  • The officer looked where he says client threw “gun” and found nothing (grand jury, p. 93)
  • Client never ran or resisted (grand jury, p. 58)
  • Not client’s house (police report, p. 17, grand jury, p. 63)       

A simple topic outline such as the one from Friedman's book can be used to prepare for any type of witness in deposition, arbitration or trial. Rick Friedman says for an expert witness, the citations may include prior testimony from other cases, medical or scientific articles or text, or even television interviews. When done correctly, all of the source material for your citations will be in a trial notebook, in a tab behind the witness’s name. Preparing a trial binder or notebook for court is crucial. While preparing or conducting your cross examination, you should immediately be able to find any document or transcript you need.

Friedman points out, "with all of your material organized, and comprehensive outlines created, you have two big advantages over the witness you’re about to cross-examine; you know the details of the entire case better than any single witness; and you decide what subjects to address with the witness, and what subjects to avoid." These two simple outlines are just a few of the templates Friedman shares in his top-selling book, The Elements of Trial. This book is the first step in preparing and conducting a winning cross-examination.

Tip 2: Lay the Foundation First When Impeaching a Dishonest Witness

An important part of becoming great at cross examination is distinguishing an important but outdated legal treatise on cross examination, from one that works most effectively today. Law schools, and many of the advocacy texts still used in law school based upon outdated methods, often do not help you distinguish between the two.

The Art of Cross Examination, by Francis Wellman first published in 1903, is often considered by law school professors the definitive text on cross-examination and is listed as required reading.  While the original form of "The Art of Cross" (and its reprints) does still have important lessons on cross examination (mixed with truly awful advice for modern lawyers), we feel it is important to clearly distinguish the good from the bad for law students and new lawyers. In order to minimize the risk to new law school graduates, Trial Guides reprinted the second edition of Wellman’s landmark text, annotated with important contemporary insights from America’s leading expert on the practice of cross-examination, Roger J. Dodd.

Dodd, who co-authors the best selling modern text on the topic, Cross-Examination: Science and Techniques, guides the reader through Wellman’s famous lessons, shares advice on what still works, and makes important points about how things have changed since Wellman wrote the book. The Art of Cross Examination is a short and entertaining read. As Dodd points out, “Wellman is the first, and one of the only authors on cross-examination to identify, let alone analyze, how to sequence portions of any cross-examination.”

In Chapter 5, "The Sequence of Cross-Examination," Wellman teaches that when conducting a cross-examination of a dishonest witness, “you should never hazard the important question until you have laid the foundation for it in such a way that, when confronted with the fact, the witness can neither deny or explain it.” As excited as you may be to prove the witness is not credible, Wellman explains the importance of resisting the urge to discredit the witness too quickly.

Here is one example Wellman shares in the book: “if you have possession of a letter written by the witness, in which he takes an opposite position on some part of the case to the one he has just sworn to, avoid the common error of showing the witness the letter for identification, and then reading it to him within your inquiry, 'what do you have to say to that?' While you’re reading his letter, the witness will be collecting his thoughts and preparing explanations in anticipation of the question that is to follow, and the effect of the damaging letter will be lost."  

Instead, Francis Wellman teaches the correct method of using such a letter is to lead the witness quietly, into repeating the statements he has made in his direct testimony, and which his letter contradicts. For example, “I have you down as saying so and so; will you please repeat it? I am apt to read my notes to the jury, and I want to be accurate.” The witness will repeat his statement. Then, Wellman suggests you suddenly spring the letter upon the witness. “Do you recognize your own handwriting, sir?” Then read him the letter. You will make your point in a way the jury will not easily forget it.

Your work isn’t done. While you might be eager to move on to the next topic before the witness tries to wriggle his way out, Wellman says now is the time to use your advantage. He states that when you have a witness under oath, who is orally contradicting a statement he has previously made when not under oath, you have him caught in a lie and there is less danger of him getting away without jeopardizing his credibility even more. Put his self-contradictions to him in as many different forms as you can invent before moving on:

           “Which statement is true?”

           “Had you forgotten this letter when you gave your testimony today?”

           “Did you tell your counsel about it?”

           “Were you intending to deceive him”

           “What was your object in trying to mislead the jury?”

Another form of sequencing is deciding when to attack the adverse witness. While modern lawyers often say you shouldn’t play your best cards first, in The Art of Cross-Examination, Wellman opines “sometimes it is advisable to deal the witness a stinging blow with your first few questions; this, of course, assumes that you have the material with which to do it. The advantage of putting your best point forward at the very start is to two-fold: 

First, 'the jury has been listening to his direct testimony and have been forming their own impressions of him, and when you rise to cross-examine, they are keen for your first questions. If you land one in the first bout, it makes far more impression on the jury than if it came later on when their attention has begun to lag, and when it might only appear as a chance shot.'

The second, and perhaps more important effect of scoring on the witness with the first group of questions, is that it makes him more afraid of you and less hostile in his subsequent answers, not knowing when you will trip him again and give him another fall. This will often enable you to obtain from him truthful answers on subjects about which you are not prepared to contradict him.”

This method allows you to lead the witness back to his original story, giving him the opportunity to tone it down, or even change it to the point that he finds himself supporting your side of the case. If, however, you don’t have the material at hand to frighten the witness into correcting his perjured testimony, Wellman says “never waste time by asking questions which will enable him to repeat his original testimony in the sequence in which he first gave it.” Select the weakest points of his testimony and circumstances he would be least likely to prepare for. Don’t ask your questions in a logical order, but instead “dodge him about in his story and pin him down to precise answers on all the accidental circumstances indirectly associated with his main narrative.” 

Wellman goes on to instruct, when the witness begins to invent his answers, ask your questions faster, asking several unimportant questions for every important question, all in the same tone of voice. Wellman says “if you have the requisite skill to pursue this method of questioning, you will be sure to land him in a maze of self-contradictions from which he will never be able to extricate himself.” Get good enough at this method and you’ll make your opponent’s witnesses seem like your own.

The Art of Cross Examination is the best selling, and arguably the most influential book ever written on cross-examination. It continues to be recommended by law schools as required reading. But we do not suggest reading a version of the book without a highly qualified modern expert to interpret the lessons because some of the ideas are very outdated and will damage your case if used with today's jurors. The methods highlighted in Trial Guides’ edition of The Art of Cross Examination, with annotations by Roger Dodd will help you learn important lessons of cross-examination; to elicit evidence favorable to your case no matter the witness you’re up against. This book is a staple in a trial lawyer’s library for those seeking to master cross examination.  

 

Tip 3: Eye Contact is Important

Many older lawyers are also familiar with Irving Younger’sTen Commandments of Cross-Examination” as it is often considered standard (albeit again largely outdated) advice on the topic. Roger Dodd opines in his commentary in Chapter 18 of The Art of Cross Examination, “Golden Rules for the Examination of Witnesses,” that Frances Wellman influenced Younger’s 10 Commandments of Cross as they apply to any type of cross examination.

The first of Wellman's "Golden Rules for the Examination of Witnesses," is: “Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss which nothing can compensate.” At first, this may seem outdated, but eye contact during cross is still discussed by some Trial Guides authors, most notably Jim McComas in Dynamic Cross Examination. But, as McComas points out, the best eye contact today isn't always with the witness.

Not only is eye-contact considered a sign of respect in today’s society—which jurors expect a lawyer to show even the most hostile or despicable of witnesses—it also allows you to remain connected to both your witness and the jury, as Jim McComas points out in his cutting edge book on cross-examination, Dynamic Cross Examination.

McComas illustrates the value in questioning the witness while making eye contact with the jury, so as to make them feel as if they're posing the questions themselves. This method puts the lawyer in the role of questioning witnesses on behalf of the jury, seeking the truth rather than acting as an advocate for one party. The witness must now answer to 13 people, 12 of whom he or she must convince. Maintaining eye contact also gives an otherwise distracted juror a reason to pay attention to what is occurring in the trial. When done correctly, cross examining a witness as a representative of the jury can also build rapport.

Dynamic Cross Examination largely discredits Irving Younger's 10 Commandments of Cross Examination. In particular, it discards the commonly accepted rule to "never ask a question you don't already know the answer to" by only asking leading questions. Keeping the witness and jury engaged with leading questions can be difficult, especially when the cross examining attorney's instinct is to look down at their notes. The more prepared you are with easy to reference outlines and a neatly organized trial binder, the easier it is to achieve success in cross. With trial skills so rare on both the plaintiff and defense sides, the opposing party might interpret your confidence and preparation as a threat and settle the case during trial when their witnesses fall apart on the stand.

The importance of eye contact with the witness during cross does have clear benefits. You must see the witness’s facial expressions and emotion in order to catch them in a lie. In Cross Examination Handbook, by Ronald H. Clark, George R. (Bob) Deckle, Sr. and William S. Bailey, legendary trial attorney F. Lee Bailey, who famously joined O.J. Simpson’s “dream team” in The People of the State of California v. Orenthal James Simpson, illustrates a great example of masterful eye-contact during his impeachment of Detective Mark Fuhrman during cross-examination.

F. Lee Bailey’s questioning of Detective Fuhrman concerning his racist remarks shows how O.J. Simpson’s Dream Team won what is widely considered the most famous trial of the 20th century by attacking the credibility of the police. In the video you can see Bailey’s laser-beam focus on the adverse witness as he first lays a foundation of trust with his gentle manner. He is exceptionally well prepared and his questions are deliberate and swift—leading the witness to destroy his own credibility. It is as if Mark Fuhrman didn't know the contradictory "Fuhrman tapes" even existed, despite him knowing he had made 13 hours of recordings between 1985-1994 using racist slurs and admitting that planting evidence was common at the Los Angeles Police Department.

In one of his several books, Excellence in Cross Examination, F. Lee Bailey recommends that in order to maintain eye contact, the cross-examiner must cross-examine without notes. In order to do this effectively you must know your case intimately. If you need to look at your notes, you should pause and go back to your table to do so. Continue to question the witness while maintaining eye-contact once you are ready. The importance of preparing for witness testimony cannot be stressed enough. When preparing for your next deposition or trial, keep this advice in mind if you want to conduct an effective cross examination.

With trial greats from the late Francis Wellman and Irving Younger, to modern masters Roger Dodd, Jim McComas, and F. Lee Bailey, it’s safe to say this is one golden rule of cross-examination that remain timeless. Trial Guides' second edition of The Art of Cross Examination, including Roger Dodd's practical commentary is a must read for any law student or new lawyer who wants to connect with the jury and conduct a great cross examination.

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