THE ART OF CROSS EXAMINATION
“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it”.
– John Henry Wigmore –
Cross-Examination is the heart of litigation and international arbitration. A single mistake might cause losing the case no matter how diligent the lawyer has been in the preparation of the case in all other aspects. Cross-examination requires monolog and intelligible tactics to examine the witness and getting what is needed to win the case from the witness. Professor Irving Younger’s lectures on the “Ten Commandments of Cross-Examination” are followed by many lawyers in the United States. The following is summarized from the Art of Cross-Examination by Professor Irving Younger;
- Be brief, short and succinct:The number of points you need to make on the cross-examination depends on the particular witness and type or complexity of your case. The principle here is “less is more”. Human minds are fragile, and the attention span of some people can be very limited and if the attorney asks lengthy questions, the judge or arbitrator may lose interest.
- Use plain words: If the lawyer uses many technical jargons, it might deviate the concentration of the judge or arbitrators. The adjudicator will be able to better understand and connect with the lawyer if she uses plain simple words.
- Use leading questions: The lawyer has to lead the witness to the answer she needs in cross-examination. Cross-examination is not the phase in which you try to find out about the case. Cross-examination is the phase where the lawyer can take control of the witness, take him where he wants to go and tell your case through the witness. This can be done by making four types of statements; a) an open question b) open-ended question c) leading question and d) statements.
- Should never ask questions you do not know the answer to:Cross-examination is not a fishing expedition in which you uncover new facts.
- Listen to the witness’ answers: Seems easy but it is not only about listening but also observing to tackle situations where the witness gives you something that you did not expect. You should presume (and hope) that the judge or arbitrator is indeed listening. If you ask questions that suggests that you are not listening, you will certainly lose credibility with the judge or arbitrator.
- Do not quarrel:Do not quarrel with the witness on cross-examination. When the answer to your question is absurd, false, irrational or contradictory; stop, sit down and process. Resist the temptation to respond with “how can you say that?” or ” how dare you make such an outrageous claim?” The answer to the question often elicits a response, which explains away the absurdity and rehabilitates the witness.
- Avoid repetition: Don’t allow a witness to repeat his direct testimony. The judge is more likely to believe the witness’ story if it is repeated during cross-examination.
- Do not allow witness explanation: That is the job of the other lawyer. This represents the very reason that leading questions are designed to elicit “yes” or “no” answers.
- Limit your questioning: Don’t ask one question too many times. After you have made your point, stop and “sit down.”
- Save the ultimate point of your cross for summation: A prepared, clear and simple leading cross-examination that does not argue can be best brought together in final summation
In addition to the above, the following are tactics based on the lectures and practical course run by Prof. Pedro J. Martinez-Fraga at the NYU law school that can be used to help you win the case;
- Control: The expert or fact witness is averse to you. Therefore, if you appear to be in control, you are in control. You should never let the witness regain control. You must be in declarant/narrative mode; cross-examination is your opportunity to state your case. Also, get the witness in a fragmented, monosyllabic style. Witness is a pretext to tell the case so that the extent lawyer measures control in this business is a monologue mode and witness would be fragmented.
- Short questions tend to lead to short answers that will help lawyers gain control.
- Should not use suffix or prefix: your lawyer should not ask question like, “…isn’t it correct that..?” or “…isn’t it right that..?”. Rather than that, use the phrase “Do you agree with me that?”
- Only use short statements and occasionally leading questions.
- No introduction or incantation: lawyer should not introduce himself and waste time building rapport.
- Use primacy: First Impact – Make sure to come in strong by exposing your strongest argument immediately.
- Use headers: Telling the witness and the tribunal what is going to follow. Headers can be used to influence a thinking of a witness (i.e. mentioning timeframe is important, the witness is going to focus on the time frame). Under the headers put a series of statements.
- Challenge whatever is not actually “personal knowledge.”
- Verisimilitude: Taking the witness’ position to show how arrogant or absurd a position is. Expose arguments that do not seem credible.
- Focus on things within the scope of a fact or expert witness.
- When the witness is recalcitrant, the question can be asked again but slowly the second time. (Remember that this is the only time to humanize the witness by using the witness’s name).
- Eye contact: With the witness and judge. This builds a bond.
- Looping or recurring emphasis: When you obtain a confession, emphasize it via repetition to gain the judge’s attention.
- Map out the issues on which to question the witness: Plan 15 minutes per examination.
- Use ethical duties of witnesses: you can intimidate and remind them of the binding ethical rules. E.g. “You’re a lawyer? You are a member of the bar? An active member of the bar?”
- During cross-examination it is important to be wary and to correct mistakes. Moreover, it is also essential to identify mistakes that have been made in cross-examination to tackle it in re-cross examination.
Cross examination is a fluid process where you must have an inert understanding of the facts of the case and the testimony you wish to extract from the witness. No matter how much you prepare, the one unpredictable element of a cross examination is the witness- how they would react and what they may or may not say. However, by asking the right questions in the right way and in the right order, you can control the narrative and ensure that you extract the testimony you require. In addition to these guiding principles, it is important to develop your own style- one that you are comfortable with.