BY PAUL LUVERA
“Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail or the fearful; rough to the ruffian; and a thunderbolt to the liar.”
–Francis L. Wellman
Cross-examination is an important part of trials. In fact, it is incorporated into the Sixth Amendment of the United States Constitution. The overall purpose is to establish truth. Factors the jury should consider in evaluating the credibility of a witness are outlined in Washington Pattern Jury Instruction 360.02:
In considering a witness’s testimony, you may consider these things: the opportunity of the witness to observe or know the things [he] [she] testifies about; the ability of the witness to observe accurately; the quality of a witness’s memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness’s statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony.
Cross-examination requires preparation and planning. The question to ask yourself as you prepare for this part of trial is: What are you trying to tell the jury with your cross-examination? The goals of cross-examination include: getting the truth; clarifying facts; and showing the witness’s lack of credibility, bias, self-interest, inconsistent testimony with previous testimony, testimony inconsistent with common sense, or failure to be fully informed about the facts.
Here are some basic rules for preparing an effective cross-examination:
1. Do your homework.
Prepare for cross-examination by:
• determining your objectives,
• dividing your objectives or points into individual separate chapters for trial use,
• organizing the individual points or chapters by importance and timing of planned use, and
• gathering documentation to support each point for use or admission as an exhibit.
Ordinarily you will have the witness’s deposition testimony available. Study it carefully, along with all discovery, and create an outline that includes the topic, objective, and identification of the deposition or other statement you will rely on during cross-examination. (An enlargement of the deposition page or statement for exhibit on a screen can be used as well.) If the deposition was videotaped, consider using video clips for impeachment. Conducting a practice cross-examination before a focus group may provide helpful insight. Finally, be ready with organized documentation to avoid fumbling or delay.
2. Remember that cross-examination is a battle for impression and not logic.
Whether you “win” or “lose” in cross-examination depends on the impression you and the witness make with the jurors. It does not depend upon the jurors making a logical evaluation of the facts. It’s not only about what is said. People decide credibility based on how others look, how they sound, how they are dressed, and how they act. Keep in mind that much of the impression the jury forms will be based on nonverbal communication.
3. Listen, listen, listen.
When we are nervous, we tend not to listen carefully to the witness’s testimony. Instead, we focus on the questions we intend to ask. If we don’t listen to the witness’s answers carefully, we can be mistaken about what the witness actually said. We can miss something significant that should be followed up on. Concentrate on what the witness is saying. Go slow. Think while you work.
4. If you decide to impeach a witness, do it right.
Too often lawyers lose the drama of having made a significant point on cross-examination because they don’t do it effectively. The first step in impeachment is to examine the impeaching material to make sure that it is clearly inconsistent with the witness’s trial testimony before disclosing or using it. The second step is to make sure the witness’s trial testimony is clear enough so that he or she won’t be able to evade what they have said or the content of the impeaching material. Lay a proper foundation before you attempt impeachment. And finally, make the importance of the point clear to the jury, even if you think it was obvious. Pause long enough for what was said to sink in with the jurors. Avoid losing the drama of the point by rushing on too quickly. Do it right or don’t do it at all.
5. Be clear, be brief, and stop.
A common mistake lawyers make is that they talk too much and for too long. That’s particularly true in cross-examination. Think in terms of television programs about legal trials. The scenes are short, entertaining, and to the point. Jurors bore easily. Focus on your major points in short and simple terms and then move on.
6. Be firm but always fair.
Your credibility depends upon the impression you make on the jury. Never come across as a bully or a showboat. At all times you must be professional and fair with the witness. Make sure you get an answer to your question, but don’t browbeat the witness to get it. Jurors regard an overaggressive lawyer on cross-examination as unfair. Furthermore, they may start the examination by identifying with the witness being questioned and not the lawyer. They expect fair and courteous conduct by the lawyer toward witnesses. To be seen as a credible and trustworthy lawyer, you must be professional in your trial demeanor.
7. Don’t overlook the use of hypothetical questions.
Remember you have the right to ask witnesses hypothetical questions that assume facts and evidence. The rule is generally broad enough to allow you to ask a hypothetical question based upon direct or circumstantial evidence or reasonable inferences therefrom. A hypothetical question assuming your facts on cross-examination is a powerful instrument for telling your client’s story or raising cross-examination points.
8. Stay focused.
Make sure your cross-examination points are all big points. Eliminate irrelevant details. Approach cross-examination from a big-picture point of view. Jurors can get bored by detailed, intellectual, or complicated cross-examination. Stay focused on the story of your client’s case with a consistent theme.
9. Don’t try to respond to every issue raised.
Opposing counsel may raise an issue about insignificant matters in order to distract from the main issue in the case. Confusion that misdirects attention from the real subject in a trial works to the benefit of the party creating it. If you try to respond to irrelevant matters or distractions, you will not be focusing upon your case and the consistent story you want the jury to hear. Jurors assume the time spent in trial on an issue is what the case is all about. Ignore the insignificant and concentrate on the important.
10. Meet critical issues head on.
Where there are important issues favoring the other side’s case or undermining yours, you cannot ignore them. Confront them squarely. One effective way of doing this is through cross-examination, where an appropriate witness is used to rebut or attack the validity of the issue.
There is no common consensus among lawyers about “the most important part of a trial.” But we do know that jurors commonly think cross-examination is important and are attentive to it. Consequently, we should regard that part of trial as an important step in advancing our client’s theory of the case. The key ingredients to good cross-examination are preparation and planning. Take the time to learn how to do an effective cross-examination. You owe that to your clients.