10 Tips on Conducting a Winning Cross Examination
Posted by Alex Miller on May 22, 2021
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.” Unfortunately, what you learned in law school and most CLEs won't help you much because much of what is taught about cross examination is long outdated, ineffective and potentially dangerous for your case. In this in-depth dive into cross examination we address historical teachings on cross examination, why they are no longer relevant, and how new methods will help you succeed. This article is intended to help everyone from law students to 40 year veteran trial lawyers.
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, family 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. (Attacking during cross is often referred to as "destructive cross.") 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.” (This is often referred to as "constructive cross.")
In order to determine whether to attack or not, 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. If you can master this early, it will help your success in deposition, arbitration, and trial.
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:
- Personnel file, p. 4 [Was the officer disciplined for making statements that raise questions of bias or credibility?]
- 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.
- 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 Examination (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 destructive 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’s “Ten 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 as does Patrick Malone, in Trial Guides' best selling cross examination book, The Fearless Cross Examiner. Both books discard Irving Younger's 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 an 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 investigation. In the video of the cross examination, you can see Bailey’s laser-beam focus on the adverse witness as he first lays a foundation of trust with a 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 more modern masters Roger Dodd, Jim McComas, Patrick Malone, 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.
Tip 4: Learn to Ask Leading Questions
While leading questions are not allowed during direct examination, you are expected to ask leading questions on cross-examination. Learning to lead is important in order to best advocate for your client during cross-examination.
In Trying Cases to Win, by Herbert J. Stern and Stephen A. Saltzburg, the authors instruct that instead of asking open ended questions, like you would on direct examination, you should make statements to the witness on cross. In Chapter 16, titled “Cross-examination: Purpose, Methods and Techniques”, they suggest a simple training exercise recommended for law students, new lawyers, and anyone trying to learn how to effectively ask leading questions during cross examination.
It’s a simple practice: begin each question with “isn’t it a fact?”, or end a question with “Isn’t that true?” This training method forces the trial lawyer to make statements rather than ask questions. Once a lawyer understands this technique they will be more comfortable simply stating the proposition. For example:
Q: It rained that day?
Q: For hours?
Q: Beginning at 10 a.m.?
Q: Continuing until 2 p.m.?
In their book, Judge Stern and Professor Saltzburg note this does not mean that all questions on cross examination are questions, and remind their readers “there is a time for questions, and even exploratory questions to which the answers are unknown.” Jim McComas, in his book “Dynamic Cross Examination” similarly rejects the adage that you must never ask a question to which you do not know the answer, and instead illustrates the importance of being flexible and willing to take risks.
Patrick Malone, in his book, The Fearless Cross Examiner, also agrees the outdated rule of cross examination--that you must only ask questions you know the answer to--”is one of those hoary maxims of trial law passed down through so many generations that its paternity has been lost. Which is good, because it’s self-evidently wrong.”
Malone (co-author of Trial Guides' best selling book Rules of the Road) offers a helpful explanation on this topic in Chapter 2 of his book, titled “Freeing Yourself from the Ten Commandments of Cross.” He teaches us that “a leading question is not simply a yes-or-no question. A leading question is one that suggests an answer.” Malone opines that a plain statement, without “true,” “correct,” “right,” or “fair” added on is “probably the best way to ask a leading question” Malone suggests “silence, coupled with a gesture or a voice inflection that tells the witness this statement has a question mark at the end”
Pat Malone also points out another problem with asking only leading questions. Depending on your jurisdiction and court rules, it’s routine for the judge to give preliminary instructions before the first witness testimony, one of which is that questions from lawyers are not evidence; only the answers from the witness stand are evidence. Jurors may believe your leading questions do not provide evidence under the rules of the court. (For more on this issue see The Fearless Cross Examiner.)
In Chapter 11 of Trying Cases to Win, titled, “The Purpose of Direct Examination: to Argue Your Case” Stern and Saltzburg point out that “we must recognize at the outset that although both the definition of leading and the prohibition against it are universal, both are illusory.” They note the universal definition of leading is asking a question that suggests the answer. This seemingly objective definition is, in reality, entirely subjective. What one person finds suggestive, another may not.
For example, the question “what happened next?” Is that question leading? Sure, it suggests that something happened next, but it does not suggest what happened next. In their book, Stern and Saltzburg offer this valuable lesson on leading questions:
Lesson: In the subjective world of what is or is not a leading question, you can make any question sound not leading by appearing to give a choice, and you can make any question not leading by giving a choice.
Tip 5: Establish Rules Your Opponent Can’t Argue
Who better to show us how to elicit favorable facts from a witness, than an award-winning investigative journalist turned leading plaintiff attorney Patrick Malone. Malone, alongside Rick Friedman, co-authored the book most civil lawyers have on their shelf already, Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liability.
The tried and true Rules of the Road™ method has been hailed as a “road map to success” by trial lawyers everywhere, as it can be applied to every case type. Malone's discussing use of the Rules of the Road™ method, titled Winning Medical Malpractice Cases with Rules of the Road provides important insights for cross examination.
Malone recommends that using the Rules of the Road™ approach can help you set up beautiful cross-examination―but only if you establish Rules of the Road for the case that the defense cannot argue with.
For example, in a car accident case when the lawyer is cross-examining a defendant in civil court, she might ask the defendant if he agrees that, by taking a driver’s test and signing the back of his driver’s license, he understands it’s his duty to follow traffic laws such as stopping at red lights. Most defendants will agree that they accept such duty.
Most jurors will connect to traffic laws that they know to be true. Malone notes this plants the seed for allowing the jurors to discount one side’s experts without having to judge them liars, which many feel reluctant to do. Remember, the purpose of cross-examination is not to call opposing party liars, but to elicit the truth from their witnesses.
In Winning Medical Malpractice Cases with Rules of the Road, Malone states this can be done even if the rule itself sounds somewhat technical. This advice is especially important when cross-examining an expert witness. Malone offers an example from Brian McKeen, another member of the Inner Circle of Advocates. McKeen devised the following patient-safety rule in a case in which a baby suffered terrible brain damage from too low blood sugar levels at home, after having been treated in the hospital for low blood sugar:
“Keep the baby in the hospital until the baby has the proven ability to maintain safe blood-sugar levels on oral feedings at home.”
This rule fits into the common sense idea that when treating any baby for a life-threatening condition, the doctor must not let the baby leave the safety of the hospital until it has been proven that it is safe. Once McKeen put this rule to defense lawyers, the defense lost all steam.
This straightforward approach coincides with keeping your questions simple. This book also offers wisdom from what Lawdragon called "the Dean of the plaintiffs' bar for all the Northwest,” Trial Guides author Paul Luvera. Luvera offers this advice for bringing the Occam’s Razor concept to preparing for the cross-examination of defense experts:
“I am unlikely to get into technical disputes or expert literature arguments. My cross-examination of medical experts will focus on issues of bias or insufficient information or inconsistency with common sense, rather than technical issues.”
Luvera and Malone are both highlighting the fact that even though the expert witness testimony is focused on technical aspects of the case, your questions should remain focused on easy to understand rules that the jury can connect with.
By applying Occam’s Razor to the Rules of the Road™ method, you’re allowing the jury to understand the simplicity of your case―the truth―even when the facts are complex. The more the witness is in conflict with or disagrees with the simple truth of these rules, the more credibility the witness will lose with the jury.
Like with many other Trial Guides publications, Pat Malone offers many helpful examples and trial transcripts showing you how to conduct an effective cross-examination of an expert witness using Rules of the Road.
Tip 6: Resist the Urge to Attack on Cross-examination
For those with less trial experience, this tip might seem very odd. For most lawyers cross examination is the "sexiest" part of the trial because you get to attack the other side's case through their witnesses. This is part of why CLEs on cross examination sell out, while education on direct examination is seldom of interest.
If you want to fully understand why you should prioritize getting helpful testimony from adverse witnesses rather than attacking them, you can get a career worth of excellent advice from cross examination expert Roger Dodd's lecture about cross examination on the Trial Tactics video. Dodd notes that it is always preferable to do constructive cross than destructive cross if you have the choice. But, let's discuss why a bit more here.
As Rick Friedman and Bill Cummings opine in their book, The Elements of Trial, far too many lawyers think the purpose of cross-examination is always to attack the opposing party witness’s credibility. In Trying Cases to Win, Stern & Salzburg agree that “many lawyers relish the opportunity to attack the character of a witness.”
Friedman warns that attacking a witness’s credibility may, in fact, only hurt your own case. Not to mention the cross examining attorney could miss out on testimony that provides favorable facts for his/her case. Rick stresses the importance of eliciting favorable facts from the adverse witness when asking cross examination questions.
Even if you have the cross examination skills necessary, and the material to attack the witness’s credibility, your better course may be to leave credibility alone and bring out favorable witness testimony instead. Rick teaches in his book that it’s during cross examination that the jury decides if they like you or dislike you as a person. They’re judging you as much as they’re judging the witness, and therefore how you treat the witness during your trial examination matters. This is why very experienced trial lawyers from Gerry Spence to Bill Barton, to Nick Rowley strongly suggest treating even the worst defendants with respect - often more respect than they deserve. In Barton's words, failing to do so will vanquish the juror's anger at the bad witness and decrease your verdict. Spence, Barton and Rowley all note that plaintiff lawyers can compromise their verdict by attacking too stridently in cross.
When the witness answers your questions they’ll be much more likely to offer the truth / favorable facts if you’ve built trust and rapport. This doesn’t mean aggression is never warranted. In his book, Dynamic Cross Examination, Jim McComas says the witness’s behavior in front of the jury might earn our aggression.
Even then, McComas teaches we should always measure aggression, and not be excessive. But, aggression does sometimes have a role to play in our cross-examination of a hostile witness. McComas says we should treat badly motivated witnesses, whom we need the jury to disbelieve, as if they are “wholly unworthy of belief.”
If we anticipate the need for a destructive cross, we suggest reading David Ball on Damages in terms of discussing the need for this with potential jurors in voir dire. Ensure they give you permission to attack an adverse witness if necessary to get to the truth.
Adversarial cross examination dates back to the 1700s common law trial. History reflects many important developments in trial practice since then, including the birth of ethics and professional etiquettes that, depending on your jurisdiction, might impact how you handle an adverse witness today.
Juries’ perception of a lawyer attacking a witness during cross-examination has changed over the years. While discrediting testimony might be an important goal to keep in mind during the examination of a witness in your case, it should be done with more careful thought than aggression. Leading questions can be formed so that the type of cross-examination is less hostile sounding to the jury.
In Chapter 17 of Trying Cases to Win, titled "Three Tools of Cross-Examination" Sterns and Saltzburg warn us there is reason to doubt that credibility attacks on non-party / expert witnesses are likely to win the day for the cross-examiner. Most courts have rules that regulate a lawyer’s ability to attack the general character and integrity of a witness. Modern court rules limit the use of prior convictions, prior bad acts and other prejudicial evidence.
Furthermore, most of us believe that even dishonest people sometimes make honest statements, and most people lie about something. You might think you're discrediting the entirety of the witness’s testimony by attacking his/her character, when in fact you’re risking the jury members discrediting your side for trying to put the witness in a false light.
In The Elements of Trial, Rick says to conduct an effective cross examination you must “resist the temptation to place the witness in a false light.” Not all trials will provide thrills like the famous cross examinations of Earl Rogers or Clarence Darrow (or the fictional ones of Perry Mason), but each should be treated with great care and preparation. Next time you’re preparing to cross examine a witness, don’t just think about the content of your questions, but also remember your demeanor.
Lastly, we also live in a world where some may argue that truth and credibility may not matter as much to some jurors as they once did. Particularly for jurors who believe that making a lot of money, no matter what that takes, deserves respect even when it requires outright lying or hurting other people. Before attacking for bias because an opposing witness has made millions of doctors per year for decades from the insurance industry in exchange for opining that no plaintiff has ever been injured, ask yourself will the jury even think that lying for money is bad. But, if you are civil plaintiff counsel don't even think about misrepresenting something, or hiring experts that have credibility problems. Establishing and building credibility remains a requirement for all parts of your case.
Tip 7: Reveal Bias & Prejudice
Next to Rules of the Road, you’ll find Rick Friedman’s, Polarizing the Case on the bookshelves of most experienced trial lawyers in the United States. Cross examination examples and techniques are some of the many valuable lessons found in the book.
One of the best examples of questions to ask on cross examination offered by Friedman in the book, is with regards to the testimony of an insurance or "IME" doctor. Friedman says to reveal bias whenever you can, especially when it comes to expert witness testimony. In regards to a plaintiff’s auto injury case, for example, he says “the IME doctor is the major spokesperson for the defense story.”
In the book, Friedman uses a continuum outlining a horizontal line with the defense “D” on the left side, and plaintiff, or “P” on the right, ranging from 1-10. He demonstrates that “we don’t need admissions from the IME doctor to destroy his credibility.”
For example, if a doctor is vague about whether the plaintiff suffered a serious injury in the accident一press her on this point. Do this with each critical issue. For each, we want the doctor to either adopt our position (an 8) or move further away from us (move to 1).
Friedman says, if she agrees, we have important admissions. If she disagrees, she looks more radical and less credible, because we have lay witness testimony that says otherwise. This cross examination technique attacks the credibility of the expert witness, and also forces her to take a stand.
The more in conflict the expert witness is with your lay witness testimony, the less credible they will become to the jury. Friedman notes you should not be afraid of the negative things he / she might say about your client, but rather embrace them. This is all part of polarizing your case.
Cross examination training includes preparing cross examination questions, and doing your homework in order to expose bias. You should always do thorough research on opposing counsel’s expert witnesses to find out their education, website, fees, publication history, association involvement, clientele; read prior reports, notable testimony, etc. This style of cross examination is discussed in Dynamic Cross Examination.
The easiest bias to expose during your cross of an IME doctor, is the fact that they’re generally hired by defense counsel on behalf of insurance companies to testify against the plaintiff, and they get paid an exorbitant amount of money to do so. Always examine all sources of information in order to find bias and prejudice.
In Chapter 16 of Polarizing the Case, titled “Cross Examination of the IME Doctor”, Friedman recommends reminding the jury that the witness [IME Doctor] is not a treating physician, and therefore has no ethical interest in the well being of the patient. There are many ways to reveal an adverse witness’ bias during trial.
In 1925, Clarence Darrow provided one of the clearest examples of exposing bias during cross examination in the highly publicized (first-ever trial broadcast on radio), State of Tennessee v. John Thomas Scopes (AKA the Scopes Monkey Trial), when he put his opposing counsel, William Jennings Bryan, on the witness stand to question him about the theory of evolution at issue in the case, and his views on the Bible.
After the conservative judge (who began each courtroom presentation with a prayer, and banned expert scientific witnesses) declared all the defense’s testimony on the Bible irrelevant, Darrow questioned Bryan―who was leading the prosecution team―for roughly two hours, on his literal interpretation of the Bible.
Darrow proceeded to demonstrate Bryan's bias caused by his firmly held religious beliefs as he questioned him on everything from whether Eve was actually created from Adam’s rib, to where Cain got his wife, and how many people lived in Cairo, Egypt. Bryan fell into every one of Darrow’s traps and further undermined his credibility by stating, “I do not think about things I do not think about.” In demonstrating his refusal to deviate from his firmly held beliefs, he discredited the prosecution's position by demonstrating his bias to believe even when the literal translation made no sense. This case also demonstrates the difference between a paid adverse witness who is willing to say anything for money, and one who simply isn't correct due to an honest belief system that they accepted without considering that it cannot be accurate.
Some lawyers believe that bias attacks are the most powerful attacks. As Stern and Saltzburg point out in Trying Cases to Win, “support for this is found in the United States Supreme Court decisions that hold that a criminal defendant has a Sixth Amendment confrontation right to explore the bias of a government witness. Attacks on a witness' bias or interest are intended to demonstrate that a witness has a motive to shade testimony for or against a party.”
More examples of ways to reveal bias from adverse witnesses during cross examination can be found throughout Patrick Malone's The Fearless Cross Examiner, Rick Friedman’s, Polarizing the Case, Trying Cases to Win, by Herbert J. Stern and Stephen A. Salzburg, and Pozner and Dodd’s Cross Examination: Science and Techniques, among others.
Tip 8: Lay the Groundwork in Opening Statement
There may not be a special formula for winning trials, but many would argue that Rick Friedman’s book, Polarizing the Case, outlines a tried and true technique that will certainly help win civil plaintiff’s personal injury cases, and will set you up for a beautiful cross-examination of a defense IME doctor.
In the book, Rick offers some of his greatest advice for law students, new lawyers and experienced lawyers alike―plainly stated: “evolve or die.” He emphasizes the importance of taking risks in order to see results in today’s trials, and cautions against finding comfort in the way you practiced in the past despite being unsatisfied with the results. The need to constantly evolve and to improve one's skills in today's environment is why Trial Guides exists.
The first step is laying the foundation for a productive cross-examination in your voir dire, opening statement, and case in chief with effective direct examination of the witness. Rick’s book offers many examples of questions to ask on direct and cross examination of an expert witness at deposition or trial.
First and foremost, Rick says you must always speak the truth to the jury. Also, as a plaintiff lawyer you should remind yourself that defense counsel wants the jury to believe your client is “a liar, a cheat, and a fraud.” While they might not come right out and say it, the defense will ultimately try to convince the jury that you and your client are not to be trusted.
The malingering defense, as outlined in Polarizing the Case, is commonly used by insurance companies to defend personal injury cases in the United States. Rick advises to introduce your polarizing theme, such as the malingering issue, in your opening statement. This is where he famously suggests that you task the jury with answering an initial question: "Is my client a liar, a cheat and a fraud?"
Next, Rick suggests you pin down the defense by showing the jury how the opposing party and their defense doctor has attacked your client. Instead of shying away from bad things they have to say about your client, embrace them. Explain to the jury what malingering means. “Characterize it as the attack on your client that you know it is.”
This is all part of polarizing the case, and laying the foundation for an effective cross examination of their key witnesses, such as the IME doctor. By pinning down the malingering defense in your opening statement, Rick points out, the defense lawyer is left with an immediate choice: embrace your characterization of her defense, or start to retreat from it.
The more she embraces it, the closer you are to impeachment. Whereas, the more she retreats, the closer you are to proving defense counsel has no clear or convincing case to allow the jury to believe that your client is a liar, cheater and a fraud.
The book goes on to instruct ways to compare and contrast the defense malingering theme with the actual facts, and continue to refer to your client as “this person they are calling a liar, a cheat and a fraud”, to help the jury connect with the plaintiff and your case in chief.
One of the key pieces of advice Rick shares in regards to Polarizing the Case in preparation for cross-examination, is in Chapter 15 titled “Case in Chief | Direct Examination.” Friedman says, “the more, the better” when it comes to good lay witnesses who can advance your case.
As noted previously in this article, the more the expert witness contradicts your lay witnesses, the less credible they become in the eyes of the jury. So, the more lay witnesses you present to support your case in chief and subsequently discredit the malingering defense, the better.
Sample expert witness direct examination questions, cross examination questions, and pertinent case law fill the pages of this easy-to-read manual on polarizing your case. This book offers insights and methods that can be implemented immediately, and applied to every subsequent plaintiff you represent. Whether you are just starting your practice, or looking to sharpen existing tool sets, this book is a must read for every trial lawyer learning the art of cross examination.
Tip 9: Restrict the Witness to One Subject
In his latest, cutting-edge book on the art of cross examination, Dynamic Cross Examination, Jim McComas says we can (and should) use leading questions to identify and limit the relevant area of questions and answers at the beginning of any section of cross-examination, or at any other point during our questioning of a witness.
McComas says to rely on the leverage points obtained in your direct examination of the expert witness. In Chapter 5 of his book, titled “The Dynamic Method of Cross-Examination,” McComas teaches how the yes-no method of questioning can help us apply leverage points established for our case, to cross examination.
In his book, McComas offers a “Leverage Points List” that outlines lies admitted by the adverse witness, related statements, and contradictory stories that you can use in your direct and cross examination of a witness. He says you should always have leverage points easily accessible so that you can use them seamlessly during cross-examination. “Delay and fumbling dissipate the impact of Dynamic Cross-Examination”, Jim says.
The book instructs that using the yes-no method to restrict witnesses to single-subject matter spheres also allows us to move to a “safe zone” if we need to reduce tension for a few minutes to gather ourselves following unexpected witness testimony, or gear up for particularly tense deliberations to come.
When used by the cross-examining attorney, the yes-no method of questioning can also help regain control over “runaway witnesses.” McComas suggests that the best way to avoid runaway witnesses is to prevent it from happening in the first place, of course. But, if you do encounter this problem, do not interrupt the witness, as it almost always elicits objection from opposing counsel.
Instead, use your leverage points to regain control of the witness and conduct an effective cross-examination, bringing them back to the topic of your questioning. Here are a few ways to regain control of your witness using leverage points:
- Repeat the exact question you asked, which led to the run on answer, and referring to the leverage point;
- Ask: “Sir, what was the question you were just asked?
- Ask: “There’s a reason you don’t want to tell us [insert the subject of the prior question], isn’t there?”
Assuming re-cross examination is permitted in your court, McComas offers tips on using cross-examination leverage points on redirect examination and re-cross, too. McComas even provides an outline for trial preparation in Dynamic Cross Examination, along with helpful examples of questions to use when you prepare to examine your next witness.
McComas often refers to trial transcripts and templates used to demonstrate the purpose of cross examination, and other trial techniques that he has conveniently organized for lawyers pursuing the art of cross, in his supplemental text, Case Analysis.
Trial greats such as Paul Luvera, focus on the main points of contention in your case during cross examination, and staying out of the woods with unimportant details and complex medical facts, allows you to focus the jury’s attention towards liability and damages.
The type of cross examination you conduct depends on your case, opposing party, and your witness. Regardless of your facts, however, there’s no doubt McComas’s Dynamic Cross Examination and Case Analysis will help you conduct winning cross-examinations.
Tip 10: Defend Your Witness’ Testimony During Deposition
You must also prepare your clients and witnesses for deposition and cross examination. Resources for that purpose include Preparing for Deposition (for the client to view), The Deposition Handbook (for your review prior to the client or witness meeting), and Repile's Witness Preparation video featuring Don Keenan and David Ball.
There is also the issue of "cleaning up" testimony by one of your witnesses. One of the many helpful maxims offered by Judge Herbert Stern in his books, Trying Cases to Win, is: never leave a record dirty if it can be cleansed. When it comes to defending a deposition of your client, these are certainly words of wisdom to live by. In their book, Stern and Saltzburg point out that, if damage has been done during your witness’s testimony at deposition, for instance, it is your duty to offer an explanation for the record.
The authors urge that “if an adversary has scored against a witness or party, and you have something that could be used to ameliorate the harm, use it!” It is your only defense against the admission at trial of the hurtful material. Under the doctrine of completeness, you will have the right to read the other relevant portions of the testimony during cross examination, and therefore you better make sure you’ve taken the opportunity to explain the admission as it fits into the parameters of your case in chief. This is why it can be critical to ask your client questions at the end of their deposition in order to ensure the record is complete, and the explanation is in the record.
This concept applies to trial as well. While a trial lawyer’s instinct may be to get their witness on and off the witness stand as quickly as possible, if the defense lawyer has caused harm with their questioning of your witness, you must not leave the line of questioning ‘dirty’ or unanswered, but rather, clean it up with clarifying questions that elicit more favorable facts for your case during re-direct.
You have an obligation to see if you can limit the harm. The more you do to ‘cleanse the record’ and defend your witness’s testimony at deposition, the easier it will be to elicit favorable facts during trial.
In order to defend statements made by your witnesses, and conduct an effective cross-examination, you must always listen intently during direct examination. If you don’t listen to the testimony of the witness during direct examination how will you be able to effectively prepare your questions for re-direct?
Let’s say you’ve read The Fearless Cross Examiner, Dynamic Cross Examination, Pozner & Dodd's Cross Examination: Science and Techniques, and Trying Cases to Win; you’ve prepared every checklist recommended in Rick’s, The Elements of Trial and memorized all the latest treaties on cross-examinationㄧthe fact is: you still cannot know exactly what the witness will say on direct. Therefore, you must pay attention and take thorough notes during the opposing witnesses direct examination.
In Chapter 26 of Trying Cases to Win, Stern and Saltzburg make the important point that “the cross-examiner must win the vote [of the jury] as the battle takes place.” During direct examination, the lawyer does all she can to reinforce testimony by calling for it to be repeated. But, the opposite is true during cross-examination.
An inexperienced lawyer shows his distress on cross-examination when he finds himself simply repeating the answer the witness has just given him. That is why the authors of Trying Cases to Win suggest the cross examiner should not make an assertion he is not prepared to vindicate forcefully, and preferably immediately, using the tools of cross examination.
The cross examining lawyer should take notes during the opposing counsel’s opening statement, and direct examination, of topics they wish to address in a particular opposing witnesses' cross-examination. Don’t be afraid to stray from your outline. Part of mastering the art of cross examination is learning to conduct a Dynamic Cross Examination, keeping all windows of opportunity open for your case.To learn more about Cross Examination, please see Trial Guides Top 10 Books and Videos for Cross Examination.