testimony for the jury; the lawyer’s capacity to respond to the moment
A Guide to Direct Examination and Cross-
Examination
Vol. 31 No. 5
ByJack E. McGehee
Jack E. McGehee is senior partner at McGehee, Chang, Barnes, Landgraf in Houston, Texas,
and specializes in personal injury trial law. This article is excerpted and adapted from the
author’s book The Plaintiff’s Case: From Voir Dire to Verdict (1997).
Witness examination is the “meat and potatoes” of a jury trial. Contrasted with the
flexibility of opening statement, witness examination is more rigid, often more
mundane, but also more precise. These qualities are both strengths and
weaknesses. Countless cases have been lost by lawyers who have blockbuster
opening statements but who failed to appreciate adequately the purpose of direct
and cross-examination.
Direct examination is your turn to put your money where your mouth is—to let the
jury hear from the witnesses you’ve said will prove the case or see the documents
you said will set your client free. Cross-examination, on the other hand, is where
you limit damage by pinning the witness down with very specific questions—and
by knowing when to stop asking questions for the sake of your case.
Direct Examination
Regardless of the brilliance and eloquence of voir dire and opening, the jury is
eager to meet the people they’ve been hearing about, to listen to real evidence, to
go to work.
For good or bad, jury members are confident their impressions of the litigants are
correct and complete. The introductory moments of direct examination are a
valuable chance to show jurors there is more to be heard, learned, and assessed.
Although the trial to date has centered on the lawyers, now both spotlight and
style shift to focus on witnesses and testimony. That shift in no way implies an
attorney’s abdication of courtroom command, however. In fact, the style shift
underscores command as it yields the starring role and assumes the vital function
of facilitator. The jury, therefore, sees a new and comforting facet of attorney
competence, confidence, and mastery of the case.
Instead of narrative teaching, direct examination shifts to short, crisp bursts of
inquiry that invite attentive listening and satisfy curiosities. The staccato style
quickly is perceived as a juror service, almost instantly voicing questions as they
pop into the jurors’ own minds. For example, if a witness finishes an answer by
stating, “I was shocked,” the greatest jury service (and highest drama) is
performed with a prompt and simple “Why?”
Qualities of a good direct examination. After analysis of the available
evidence, the next most important decision is how testimony will be “packaged.” If
the witness will tell a story, the best form is a chronological line of inquiry,
beginning as early as is pertinent and ending in the courtroom. Example:
 When did you first lean about Timmy's condition?
 What happened after that?
 Then what happened?
On the other hand, a witness whose testimony supports a case theme or lists
reasons why the event in question might have occurred will be showcased better
using a “logical” line of inquiry. Example:
 Please list for us all the reasons why the machine was dangerous.
 Why don't you stand up and write them on the blackboard as you explain them
to us.
A combination of the two approaches, when appropriate, will add variety and make
the examination more interesting.
Accrediting the witness. Early on, probably first, explain how this witness fits
into the big picture. Using and annotating the visual aids (storyboard or checklist)
used in opening works well here. Example:
 Now you actually saw the accident?
 Let's discuss everything you saw.
 What did you see first?
Framing questions. The trial’s purpose is to connect the jurors’ minds and hearts
to the facts of the plaintiff’s case. Common, straightforward language enhances
the connection; “lawyer talk” is static on the line. A question that begins with a
stuffy “Tell the ladies and gentlemen of the jury” isolates the jury and impedes
communication. Better is a simple “tell us.” Instead of the formal “state your
name,” an informal “introduce yourself to us” moves things forward more
gracefully.
A greater threat is that the impact of a key witness can be diminished if defense
counsel’s barrage of objections interrupts testimony. Careful question
construction—with special attention to first words—can avert most “leading”
objections:
 Who
 What
 Where
 When
 Why
 How
 Describe
Using eye-lines. After a witness is sworn in, a well-prepared lawyer need never
consult notes or look away from the faces of the witness and (occasionally) the
jurors. It is similarly wise to avoid looking to the judge for feedback or reaction.
Doing so risks missing a facial expression that calls for pause, a grimace that
needs response, or a reaction that suggests an important point requires
clarification. Undivided attention to the witness emphasizes the importance of the
underscores the exchange’s spontaneity and the advocate’s command.
Don’t lead, but tag the question. Before a parade of “What happened next?”
questions becomes tiresome, one should capitalize on a favorable witness
response with a “base-tagging” technique. A repetition of the favorable response
to tag the next question (“After you saw the defendant’s face, what happened
next?”) amplifies importance and varies the pace while it offers a sense of logical
and unrehearsed dialogue between examiner and witness.
Using vocal inflections. In normal conversation, questions end with an upward
vocal inflection. Rote intonation implies that witness and testimony are dull and
unworthy of attention. A vocal rise, on the other hand, segues attention to the
witness and piques the jury’s curiosity.
Styling: A three-way conversation. A perfect opening statement sounds exactly
like we are talking to a trusted friend about something that might change her life.
Similarly, the perfect direct examination sounds like two interested people having
a normal conversation about an exciting subject; the jury is welcomed as the
conversation’s third party. No matter how tempting it might be to mimic the
successful, compelling approaches of mentors and heroes, a lawyer’s most
effective trial style is consistent with the mood and tone established in voir dire
and opening—competent, helpful, decent, and real—with honor and confidence
enough to reveal the contents of the attorney’s head and heart to the jury.
Programming for primacy and recency. Most memorable data come first and
last in a presentation. Keep this in mind when planning and outlining any witness’s
testimony. A wise examiner often kicks off by positioning the witness in the case,
then builds to the questions for which the witness was called for a final flourish of
testimony that reinforces case themes.
Cross-Examination
Cross-examination’s role is damage control. If it is done well, the hostile witness
will not gain much ground. If it is done poorly, however, cross-examination can
result in a turning of the tide. An important, and obvious, goal during cross-
examination is to avoid assisting the witness with being persuasive to the jury.
The two most difficult tasks facing us in cross-examination are eliminating wiggle
room in our questions and knowing when to stop. Wiggle room is available to the
hostile witness whenever the question asks too much. We should avoid wiggle
room by asking questions that can be answered only “yes” or “no.” A string of
“yes” answers implies that the witness has been won over; a string of “no”
answers implies some kind of weakness or failure on the part of the witness.
Q: You’re not a medical doctor.
A: No.
Q: You never studied toxicology.
A: No.
Q: You don’t know the scientific theories that support Breathalyzers.
A: No.
Q: You don’t even know how a Breathalyzer works.
A: No.
Q: So you have no opinion about how the Breathalyzer registered 0.20 after you
were pulled over by the policeman.
A: No.
Superb cross-examinations have been compromised when the examiner did not
know when to stop. An advocate who gets greedy or compulsive after scoring big
points sometimes pursues untested or equivocal answers that risk both
momentum and the dramatic “high note.” Gauging when to sit down is often the
most important power tool in the cross-examiner’s tool box.
Qualities of a good cross-examination.
Questions. Planning the testimony all the way through, with focus on damage
control, produces questioning that preserves courtroom command and reaffirms
that the plaintiff’s advocate is more interesting to the jury than the defendant’s
witness.
Good questions:
 Are leading
 Are short
 Are simple
 Maintain control
Seek facts, not conclusions. The opponent’s witnesses are “their” witnesses. It’s
not on their agenda to support the plaintiff’s case. It is important to keep this in
mind, particularly when plaintiff’s attorneys are so saturated in case details that
certain facts lead to conclusions that seem obvious and inevitable. Even when they
look like sure winners, it’s best to avoid questions that run afoul of this wisdom.
Safer is stronger in cross-examination—and it’s safer to stick with facts.
Poor example:
Q: The plaintiff was fired because he hurt himself on the job, wasn’t he?
A: No. The plaintiff was fired because he didn’t do the job.
Good example:
Q: The plaintiff was hurt on February 12, 1996, correct?
A: Yes.
Q: You learned about his injury on February 13, 1996, correct?
A: Yes.
Q: And you fired him on February 14, 1996, correct?
A: Yes.
The examiner. It is important to protect the investment of head and heart made in
voir dire and opening and to use cross-examination to deepen the impression that
the jurors have a reliable and accurate picture of the advocate.
The effective cross-examiner is:
 Friendly Courteous
 Respectful
 Efficient
 In command
 Requesting facts, not conclusions
 Aware of a “high note” and ready to sit down after one occurs
The effective cross-examiner does not:
 Argue over irrelevant details
 After command has been established, it often is appropriate to attempt witness
 Ask a question without knowing the answer
impeachment. Typical grounds include bias, ability to observe, ability to recall,
 Give a witness a chance to explain unfamiliarity with facts, and lack of qualifications.

 Ask “Why?” On the other hand, these effective elements of cross-examination are instantly
Asserting authority with question structure. Leading questions that begin with a abandoned if the witness surrenders the chance for an unexpected knockout
statement and leave the query to the end reinforce command by underscoring that punch. Handled well, it is a great opportunity for high drama: (1) Hold the
the examiner is completely confident of the answer. It is better to construct the moment with stillness of movement and words, then (2) abruptly dismiss the
inquiry with the questions coming after a statement of pejorative fact. Example: witness. (Remember the impact in the movie A Time to Kill, when the prosecutor’s
“And you flunked the Breathalyzer test, didn’t you?” voice, dripping with disgust, said “I have no further use for this witness, Your
Words/phrases to avoid: Honor.”)
Two steps to impeachment. Impeachment is a tough sell, even when the law is
on the examiner’s side, if only because the jury is not experienced in discerning
 Did you . . . ?
discrete and subtle points of law. What may be obvious to professionals may be
 Do you . . . ? lost on the jury unless it is framed in a way that warns the finders of fact that they
are on the brink of hearing something big.
 Have you . . . ? Establishing the maxim. An open-ended question signals high drama to come
 Is there . . . ? when setting up a witness for impeachment. This example, from testimony in a
divorce case, reveals how the witness husband was allowed to dig his own verbal
 Was there . . . ? grave:
 Could . . . ? Q: Sir, fidelity in marriage is important, isn’t it?

 Would . . . ? A: Yes.
Common objections during cross-examination. Good cross-examination
Q: Why?
controls the damage done by the opponent’s witness, while it seeks opportunities
to undermine the impact and credibility of the opponent’s case themes. Effective A: [Any answer helps the examiner.]
cross-examiners structure questions to avoid losing the momentum and command
that are yielded when testimony is peppered with the opponent’s objections. It is In fact, if the witness responds with more than one reason, it might be useful to
recommended that you keep in mind a list of the most common objections in list answers on the blackboard or flipchart. The key is to present a maxim or rule
cross-examination in order to plan well-controlled testimony. that is virtually universal in order to corner the witness into a first-step “Yes”
answer:
Common objections:

 No good-faith basis for question

 It is important to be truthful with police officers.

 Argumentative
 Tenants should be able to trust that their landlords have taken reasonable
steps to ensure safety.
 Misquoting witness
 Experts should be completely honest when they write their reports.
 Assuming facts not in evidence
 Manufacturers should protect their customers from dangerous products.
 Compound question
 Experts should remain neutral when reviewing a case.
 Asked and answered Confronting the witness. Once a witness has endorsed the maxim as universal,
impeachment is available through confrontation of the witness with facts of the
 Improper impeachment
case that imply violation of the universal rule. Vigilant examiners avoid asking the
 Beyond the scope of direct witness directly if he violated the rule; the wiser approach is to confront the
witness with the bare minimum facts that reveal the violation, keeping in mind the
 Hearsay dangers of questions that ask too much or that ask for conclusions. Careful
Outline of a good cross-examination. question construction restricts and exposes the witness at the same time.
Planning the questioning. Following are guidelines for planning three major types Following are bad and good examples of this technique. They came from a divorce
of cross-examinations, keeping in mind that effective technique usually covers the case.
territory with queries beginning with a statement and ending with a question
designed to elicit a simple yes or no answer. Poor execution:

On events: Q: And you lack fidelity, don’t you, sir?

 When?
A: No. I’ve always been faithful. She just never believed me.

 Where? Good execution:

 How long? Q: And your wife stated in her petition that you had an affair with your secretary
last year, correct?
 Who was there?
A: Yes.
 Where are they today?
Remembering the key to cross-examination—damage control through the
 Who else knows?
elimination of wiggle room and recognizing when to stop—will assist you in
On conversations: focusing your questions and staying on task. Unless the opponent’s witness is
completely inept, some ground is expected to be lost. The question of how much
 How many? ground, however, depends on you.

 When? Conclusion
 Where?
Direct and cross-examination are where the jury becomes familiar with the
 How long did it last? evidence, with the credibility of witnesses, and with your true belief in your case.
Be prepared, but be fluid. Although direct and cross are more structured than
 Who was there? opening statement, they are still dynamic. Your ability to connect with the witness
 Where are they today? during direct, or discredit the witness during cross, ultimately requires you to stay
true to your own style and believe in yourself. If, during direct and cross, you
 Substance? score half the goals you set out to score, then you will be a world champion.
 Recorded?
 Actions taken after conversation?
On documents:

 When prepared?
 Why prepared?
 Who prepared?
 Prior drafts?
 Where is the original?
 Any attachments?
 Anything missing?
Elements of cross-examination. Cross-examination seeks to invalidate the impact
of the opponent’s direct. A good plan for structuring the inquiry is to go for the
questions to which the witness must agree with a string of “yes” responses,
followed by a series of questions the answers to which the witness does not know
or must answer “No.” It can go something like this:
“Yes” questions:

 Doctor, do you agree that the most likely cause of meconium staining is
hypoxia?
 You agree that hypoxia can causebrain damage?
 You agree that an episode of hypoxia can affect the fetal heart activity as
revealed on monitor strips?
 You agree that if a fetus shows this kind of distress, the OB should consider a
C-section?
“No” questions:

 Now, you weren’t there?

 You didn’t see the incident?
 You don’t know how badly the car was damaged?
 You didn’t see the condition of the passengers when they were removed from
the car?