Effective Ways of Cross Examination

Effective Ways of Cross Examination

Experienced trial Court lawyers often say that “while it takes several trials to become proficient at cross-examination, mastering it requires an entire life”. Despite Hollywood's portrayal of cross-examination as a dramatic showdown between a lawyer and a witness, in reality, it is an opportunity to strengthen your client’s case with the "assistance" of an opposing witness. However, the unpredictability of the opposing witness can jeopardize a cross-examination.

It is often said that Cross-Examination is an Art. It is the most important step of a trial case. Fortunately, there are steps lawyers can take both before and during cross-examination to enhance its effectiveness.

1. Most Important- What not to ask than what to be asked.

It is the golden rule for Cross-Examining a witness as to where the Trial Advocate Shall stop asking questions. Asking relevant questions is one aspect of the matter whereas more important is to know what not to be asked. 
The question asked to a witness shall not be a self-goal.

2. Establish Your Goals for Each Witness

Not every witness needs to be cross-examined. If cross-examining a witness won't benefit your client’s case, or could potentially harm it, it's best to avoid it. However, when cross-examination can support your client’s case, it's crucial to establish your goals beforehand.

- You want the witness to confirm important facts?
- Your goal to validate your client’s case theory?
- You aiming to undermine the witness’s credibility?

Understanding your objectives will shape your cross-examination strategy. You can then construct this strategy with carefully crafted, leading questions based on a thorough review of the witness’s previous testimony in depositions and at trial, as well as relevant admissible evidence.

3. Structure Your Questions well in advance and be ready to generate further question

A fundamental principle of cross-examination is to ask only questions you know the answers to. This enables you to control the witness and compel them to testify in a way that benefits your client’s case. The manner in which you ask these questions is crucial to obtaining the desired responses.

Each question during cross-examination should be leading, such as, "It was raining that evening, correct?" Leading questions make witnesses answer toward the answers you seek while limiting their ability to elaborate.

Focus each question on a single fact, ensuring it remains concise. Succinct questions are harder for witnesses to evade while maintaining credibility with the jury.

Additionally, cross-examine witnesses about facts, not opinions. Opinions vary person to person and can be subjective, whereas facts are constant. For instance, instead of asking a witness if they thought an item was “heavy,” ask questions that demonstrate their knowledge of its weight: “For safety reasons, you required your coworkers to move the machine with a forklift, correct?”

4. Strategically Use Constructive & Deconstructive Cross-Examination

There are two types of cross-examination: constructive and deconstructive. Constructive cross-examination aims to build your client’s case, while deconstructive cross-examination seeks to undermine the witness’s credibility. Each requires a distinct approach.

Constructive Cross-Examination

When engaging in constructive cross-examination, your goal is to elicit helpful testimony from an adverse witness. This should resemble a conversation rather than an attack. When an adverse witness confirms a fact that benefits your client’s case, the jury is likely to give it significant weight during deliberations. Therefore, whenever possible, aim to establish beneficial facts through constructive cross-examination.

Deconstructive Cross-Examination

Deconstructive cross-examination, on the other hand, focuses on controlling the adverse witness and damaging their credibility. This is the dramatic style of cross-examination familiar from movies and television. Judges will expect a strong start and a powerful finish, with continuous challenges to the witness and efforts to box them in using the structured questions outlined earlier. Failure to deliver this type of cross-examination might result in a loss of credibility. Deconstructive cross-examinations are most effective when they challenge facts essential to your opponent’s case theory.

In some situations, it may be necessary to use both constructive and deconstructive cross-examination with the same witness. If you do both, always start with constructive cross-examination. This approach ensures that any facts favorable to your client’s case confirmed by the witness are seen as credible by the jurors, which might not be the case if you begin with a deconstructive approach.

5. Know Witnesses’ Prior Testimony Inside & Out

Regardless of your objective for each witness or your strategy for achieving it, thoroughly knowing each witness's prior testimony and relevant admissible evidence is crucial for eliciting the desired responses.

Before deciding to cross-examine a witness, you should have already reviewed their deposition testimony, trial testimony, and any relevant admissible evidence. This review helps identify opportunities to strengthen your client’s case or undermine the witness’s credibility. However, more than a cursory knowledge of this information is required. Utilize tools like public records to deepen your understanding.

If, during cross-examination, a witness provides an answer that conflicts with their prior testimony or evidence, you need to reassert control and hold them accountable to their previous statements. Achieving this requires being well-versed in all instances of their prior testimony and the admissible evidence supporting the testimony you seek to elicit. Without this comprehensive knowledge and preparation, pinning the witness down becomes challenging.

6. Keep Your Cool with Uncooperative Witnesses

No matter how meticulously you prepare and execute a cross-examination, you will likely encounter a witness who refuses to give straightforward “yes” or “no” answers and challenges you instead. When this happens, maintaining your composure is essential to preserve your credibility.

As the witness becomes less cooperative, remain calm and professional. Maintain eye contact and politely interrupt their evasive answers, reminding them of your question and that they should respond with a simple “Yes” or “No.” Use subtle body language cues, such as holding your hand up to signal the witness to stop or shaking your head to indicate “No.” If the witness continues to be uncooperative, politely request the judge to direct the witness to answer the question directly.

Rise to the Occasion

Cross-examinations carry high stakes, as the testimony you elicit can significantly impact your client’s case. With proper preparation, strategy, and execution, one can conduct effective cross-examinations that benefit his client’s case.

A crucial aspect of preparation and developing a successful strategy is using the right tools. Effective research on your witness before entering the courtroom is vital, and not all tools provide the same level of support.

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