CROSS-EXAMINATION: SCIENCE AND TECHNIQUES

Cross examination has been described as “greatest legal engine ever

invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367, p. 32 (J.
Chadbourn rev. 1974). Although I think e-discovery is a more powerful
engine for discovering truth, cross examination comes in at a close second
and is indispensable when e-discovery isn’t available. The essential text
is Cross Examination: Science & Techniques by Pozner & Dodd.

This book did for my deposition and cross examination skills what
the Georgetown E-Discovery Academy did for my e-discovery skills. It was a
game-changer. Based on Pozner and Dodd’s teachings, cross-examination
can be defined by three tasks. Successful cross examination is not about
charisma and oratory, but about hard work and following simple
tips. Preparing for cross examination is like preparing for a marathon.

One must:

1. Examine every document, transcript, email, and writing

2. List the available evidence on every subject and cross reference each
source
 3. Prepare detailed sequences of questions for each fact to be proven

Hours of work go into composing a single line of questioning, but the

benefits are overwhelming. By the day of the cross, the lawyer knows the
facts better than the witness and knows exactly what to do if the witness
gets off track or attempts to deceive. After gathering the facts, it is time to
draft the questions for the witness.

Three simple rules apply:

(1) Ask only leading questions

Leading questions simply state a fact with an implied question mark at the
end. Questions that begin with “how,” “what,” “when,” “why,” or “where” are
the hallmark of non-leading questions and should be avoided at all costs.

(2) Establish exactly one fact per question

Compound questions, such as “you saw the blue car approach the
intersection on January 15”, are the enemy of clarity.

(3) Ensure each question leads to a specific goal

Purposeless questioning is a waste of time and an opportunity for the
witness to score points.

Keeping these rules in mind, let’s examine a few examples of a bad cross
followed by an example of a well prepared for cross.

First, an example of a non-leading question. Assume it’s an age-

discrimination case where the lawyer handling the cross represents the
plaintiff and the witness is the plaintiff’s former supervisor

Q: When did you decide to terminate Mr. Jones?

A: I decided to terminate him when his work quality started dragging the
department down. I had given him three previous warnings, but he failed to
improve, and it was essential for the company to let him go so that we could
serve our customers with the degree of care they expect.

By asking a non-leading question, the lawyer loses all control and hands the
adverse witness a golden opportunity to reiterate the defense’s theory of the
case. Bad move.

Next, we'll see how compound questions can lead to similar problems;
however, their main flaw is that they can lead to a loss of control.
Q: You saw the blue car drive through the light without stopping on
September 1?

A: I saw a blue car driving.

Now the same question has to be rehashed because the witness only
admitted one of the several facts that were combined in the question. This
could be a calculated move by the witness, or it could be thoughtlessness,
but either way, it’s not helpful.

Lastly, questions lacking a clear goal can derail the questioning.

Q: What were you doing at that intersection on September 1st?

A: Well, that morning I realized we were out of milk. So, I had to rearrange
the order I normally run my errands before work in the morning. Because of
that, I needed to pick up my dry cleaning at lunch rather than before going
to the office. There was not street parking, so I was trying to find a nearby
space.

Asking questions that don’t lead towards a specific goal causes of a variety
of problems. First, any question can be dangerous if it gives the witness an
opportunity to hurt the case. Second, unfocused cross is boring and irritates
the jury. In the example above, none of the information the witness
provided is relevant to the case.

What to do instead? Here is a brief example of what a cross that follows the
above rules looks like (we will again use an age-discrimination case as the
example):

Q: You work at X Corp?

A: Yes.

Q: You are a supervisor at X Corp?

A: That is correct.

Q: Mr. Jones used to work at X Corp?

A: Yes.

Q: Mr. Jones no longer works at X Corp?

A: True.
Q: Mr. Jones’ last day at X Corp was November 1, 2014?

A: That’s right.

Q: On November 1, 2014 you met with Mr. Jones?

A: Correct.

Q: In that meeting, you told Mr. Jones to collect his belongings?

A: Yes

Q: You told him to leave the building?

A: Yes

Q: You told him his job was terminated, effective immediately?

A: Yes

Much better. Here, the attorney controls the narrative and the order in which
facts are presented. The witness has no wiggle room. By establishing a
rhythm and asking precise, focused, and leading questions in service of a
particular goal (perhaps showing that Mr. Jones never had a fair opportunity
to address performance concerns), the lawyer highlights his client’s themes
and theory using the testimony of the adverse witnesses.The power of this
last point can’t be overstated: it’s hard to lose when you prove some or all of
the key elements of your case using the other side’s witnesses. Juries are
inherently distrustful of direct examinations because they think a witnesses
will say anything to benefit their own case.

Preparing for cross examination is a huge task; having a system for

organizing and preparing is vital to drafting an efficient cross. Scattering
notes across dozens of notepads and loose pages risks missing key evidence
that should be addressed. A computerized system that enables you to cross-
reference facts, dates, witnesses, and key issues is preferable. Litigation
management software addressing these concerns is a huge value to firms
with high case volumes or highly complex cases, as it allows for quick-
reference, easy access to facts via case timelines, and reduces the risk of
facts being missed. For example, CaseFleet’s unique Timelines feature brings
this aspect of case management into our law office practice management
software.
 Pozner and Dodd’s method can and should be utilized as a vital tool in cross-
examination. Their book is over 1,000 pages and is filled with useful tips and
detailed examples. I also strongly recommend the companion DVD, which
summarizes the key concepts well and is also funny and entertaining. I also
recommend investing in a service that allows you to track relevant case
information to make deposition and trial prep more efficient and centrally
located.

Tips for Effective Cross-Examination

 Organize. Do not necessarily follow the order of opposing counsel’s direct

examination of the witness. Use principals of primacy and recency. What the
jury hears first and last are most memorable.

 Utilize the Two Types of Cross-Examination, as Appropriate. There are

two types of cross-examination, constructive and destructive.
With constructive cross-examination, the lawyer seeks to get helpful
testimony from the witness. Such testimony can corroborate the testimony
of one of your witnesses or impeach another witness, either or both of which
may be helpful to your case. The format, “Mr. Jones, can we agree that…?”
is often useful in framing constructive questions. Frequently, constructive
cross-examination is initially used with the other party’s expert witnesses.
For example, getting the witness to agree with you that your expert is, in
fact, an expert or that his methodology is accepted and reliable in the field
can be valuable.
With destructive cross-examination, your goal is to destroy, or at least
seriously hurt, the witness’ credibility or limit the effect of her testimony.
This is the type of cross-examination we typically think of and, more
importantly, that jurors have come to expect from watching television and
movies. Destructive cross-examination is “gotcha” time.
Generally speaking, if you need constructive testimony from a witness, it is
better to get it first before moving into destructive cross-examination. After
having her credibility challenged, the witness will be more likely to fight you
on the points about which you seek her agreement.

 Destructive Cross-Examination of Critical Adverse Witnesses. Your

goal is to establish your immediate control over the witness in his mind and
in the minds of the jurors. Again, jurors have come to expect this and if you
fail to come out swinging, they’ll assume you can’t impeach this critical
witness. In addition to starting strong, you should finish strong holding
certain “zingers” until the end of the cross. Remember, utilize principals of
primacy and recency. The first and last things jurors hear stick with them.
Establish and maintain your control over the witness by following the
 traditional rules of cross-examination: Ask only leading questions, ask only
questions which can be answered with a “yes” or “no” (if possible in a
situation where either answer hurts the witness) and never ask a question
unless, first, it is absolutely necessary and, second, you already know the
answer. Don’t ask that one question too many.
Ask questions in which you dare the witness to disagree with you. Assuming
you’ve deposed the witness, lay the deposition on counsel table or the
lectern where the witness can see it. This visual technique reinforces your
challenge to the witness to disagree with you and tacitly tells the witness
you expect certain answers from her and that she will pay dearly for varying
from those answers.

 Framing your Questions. Your questions should be tight and limited to

one fact per question. The more complicated a question or the more loaded
it is with facts, the more easily the witness can quibble with it or deny it. The
witness may fairly deny the question based the fact that a sub-part or minor
fact, for example, is technically incorrect. Don’t give the witness that
opportunity—leave out the extraneous stuff.
In framing your questions, and in keeping with the notion that you should
dare the witness to disagree with you, don’t use the “Isn’t it true that…?”
format. Instead, you, the lawyer, should testify. For example, don’t say
“Isn’t it true that the light was red?”, “Isn’t it true that you were going 95
miles per hour?”, etc. Rather, say, “The light was red.”, “You were going 95
miles per hour.”, and so forth.
While opposing counsel might object on the grounds that, technically, you
are not asking a question, the question is implied from your tone of voice. In
any event, if the objection is sustained, you can revert to using the “isn’t it
true that” format to cure the objection. In the process, you’ve succeeded in
making opposing counsel look foolish for objecting to a question so easily
corrected and the jury has now has gotten to hear the same question twice.
In summary, make your “statement”, get your “yes” or “no” answer and
move on. Sometimes the best cross-examination, even of a critical witness
who just completed a lengthy direct examination, consists of only a question
or two. For example, consider a case in which the other side has an expert,
but you don’t for whatever reason (and your not having one doesn’t hurt
you). Following the expert’s presumably lengthy and technical testimony
where opposing counsel didn’t “draw the sting” by asking the expert about
her fees, consider this cross:

Q:Dr. Jones, you’re getting paid $450 per hour to testify here today?
A:Yes.
Q:I won’t take another minute of your time.
A colleague of mine claims to have done this and, while the story is perhaps
apocryphal, it does illustrate the value of brevity.
 The Evasive Witness. The witness is evasive, won’t directly answer your
question with a “yes” or “no” or claims not to know what the meaning of “is”
is. Never interrupt the witness, just go back and repeat your question. Never
rephrase it. Repeat it verbatim. If the evasiveness persists, continue to
repeat the question exactly slowing down and pausing between words, if
necessary. Eventually, the witness will look obstructionist or ridiculous to the
jury. You have succeeded already in your cross even if the witness still
hasn’t answered your question. Demand a “yes” or “no” answer if that’s
what you’re seeking, but never invoke the judge unless all else fails. You will
look like a tattletale running to the teacher. Establish and maintain your
control, but don’t be rude, ugly or hostile to the witness. For example, if the
witness dodges or gives a rambling answer to a simple, direct question, let
him finish and then start over saying, “I’m sorry, sir, I must not have been
clear. My question actually was…” Hostility is not necessary and the jurors
likely will resent it.
 Remember the Point of Cross-Examination. Cross-examination is not a
time for the lawyer to grandstand or win a battle of wits with the witness.
Cross-examination is, like all other parts of the trial (opening, direct
examinations and closing), a means by which you argue your case. If
nothing else, remember that and you’ll have conducted a successful cross-
examination.