CROSS-

EXAMINATION
Big Secret # 1

■you don’t have to cross-

examine
Big Secret # 1
■If the witness did not hurt you and you have
no tactical or substantive reason to cross -
consider not doing it
■you need a goal - if you don’t have one,
don’t cross
■you need to know what the answers are to
every question. If you don’t know, don’t
ask.
Big Secret # 2

■you are not looking for

information from the witness
Big Secret # 2
■This is your chance to “testify”
■never allow the witness to restate anything she
said on direct (except as a setup)
■her substantive testimony either
a) hurt you - why allow her to do it again?
b) helped you - save it for summation/
trial memorandum
Goals of Cross-
Examination
■to help your own case
■to hurt your opponent’s case
■create attitudes
■induce actions
Not Goals of Cross-
Examination
■to impress the client
■to show the judge that you are
smarter than the witness
■to embarrass an honest person in
front of the judge
Types of Cross

■friendly
■hostile
■mixed (if you mix, obviously do
friendly first)
Questioning form
■Always leading
- except if there is no right answer (and
then it’s dangerous)
■make the witness answer your question
- I understand sir, but please answer my
question.
- Your Honor, would you be good enough to
instruct the witness to answer the question
Friendly Cross

■used to establish
- evidence that helps you
- impeachment of other adverse
witnesses
- bolstering of your witnesses and
evidence
Hostile Cross
■used to impeach
a) the witness and/or
b) the witness’s perceptions
■reserve it for the witness who hurts you and
refuses to back off
- it is always better to tell the judge that
someone is mistaken than that someone
lied.
Impeachment
■ Factual
 witness could not have had opportunity to observe
 witness’ recollection is faulty
 witness does not recount what actually transpired
 Intoxicated
 mentally impaired
 Impeachment
■ Factual
 prior inconsistent statement
- build it up the first time you use it
- not direct evidence unless deposition testimony or functional equivalent (if it is, make
sure you offer it) or is an admission (party witness)
- foundation
- did you Ms witness on (date) tell [put in more facts if you have them] Mr. X that _____
- if yes => that ends it until summation
- if no, can be proven extrinsically
― either use it on
- one or two critical facts; or
- lots and lots of statements (may render witness unworthy of belief)
- don’t use it on three or four non-crucial facts and stop
Impeachment
 Factual
 prejudice, bias, interest
 prior conviction
- can be proven extrinsically (but only if you did
your homework before trial) – even if admitted
 habitual intoxication or addiction
 prior bad or immoral act
 bad reputation for truth and veracity
Demeanor (yours)
■courteous and professional
■resolute - be brief
■be visibly prepared
■always build the box quietly before you
shut the door
■outrage should be saved for liars
■don’t ever whine – it accomplishes nothing
and annoys everyone
Demeanor (theirs)
■ during deposition, try to find the “hot buttons”
■ use them when appropriate
■ a witness who is angry at you is not thinking – that is
good on two grounds (but only if you are being fair)
 a witness who has stopped thinking is manipulable
and may blurt out the truth
 uncalled-for anger impresses the judge negatively
Planning
■cross is planned
■don’t waste your first question
■Thinking on your feet is a valuable skill, but
usually comes in second to thinking before
you rise
How do you plan?
■ 1) read
a)everything
b) very particularly everything the witness has said or
written
■ 2) index all of it topically
a) pick 6-8 topics
b) make an MSWord table topic date substance
c) sort by topic (maybe also by date)
■ 3) Do the same for the other witnesses who will testify in
the same areas
How do you plan?
■ 4) Outline

a) what you need to establish

b) what you need to impeach
c) what the witness has said she knows
d) question the witness where “a” and “c” or “b” and “c” are congruent
■ 5) Listen

e) to what the witness says

f) to what the witness doesn’t say
■ 6) Watch

g) the witness
h) the other lawyer
i) the judge
Planning

■good cross is structured

 usually work topically, rather than
chronologically
 start big
 finish big
Crossing the Expert

■ go after credentials, if appropriate

■ if your expert has the same or better qualification
(e.g. learned society), play it up; if not –
Example: Isn’t it a fact that anyone with an
engineering degree and two hundred dollars can
become a member?
■ know what she has written in the past
■ know what she has testified to (contact other
lawyers)
Crossing the Expert

■ Google; LexLibris; Lexis;

■ if he has taught, get a syllabus & what texts were
used
■ find out what texts he has acknowledged as
authoritative
■ speak with your expert about avenues of cross
■ experts make assumptions (economists are
probably the worst)
 make the assumptions explicit
Crossing the Expert

■find out (before trial) what the expert was

told
■show that there was material withheld from
the expert
■find out about payment (this is double-
edged)
■who does he testify for regularly?
■is this a real
Crossing the Expert

■ Would it change your opinion if I told you that

X...Y...Z?
 no – excess rigidity
 yes – malleable opinion – and – you may actually
get an opinion favorable to you.

 demystify - and make it clear that her opinion is

just that – opinion, and that other, equally well
qualified people in her field could differ
Crossing the Expert

■Properly done, you will probably

not destroy the adversary on cross,
but you will hurt their case and
help your own.
■ “cross-examination is the greatest engine for the
discovery of truth that was ever invented.”
O’Brien v. Commissioner of Education, 4 NY 2d
140, 173 NYS2d 265 (1958) Van Voorhis, J,
concurring, quoting Professor Wigmore
■ “No enterprise is more likely to succeed than one
concealed from the enemy until it is ripe for
execution.” Niccolo Machiavelli
■ “Keep him under a strain and wear him down.”
The Art of War, Sun Tzu