The Art of Cross-Examination
Many a legal career has been pursued because of popular courtroom dramas. Whether it’s Tom Cruise’s character in “A Few Good Men” or “ADA Jack McCoy” in “Law and Order,” the cross-examination is often the climax of courtroom dramas. Unfortunately, real-life cross-examinations are never as exciting, or as dramatic. The chances are slim that a witness will confess or give up a crucial detail that will sink their case and make yours. Even the scripted moot court examples in law school don’t fully prepare you for what you’ll face in practice. As someone who’s examined a fair number of people, I’ve learned the hard way that the key to an effective examination is to control the witness. Whether you’re in a courtroom or at a deposition, here are some tips for a more effective examination:
- Know what you’re trying to prove: any examination must begin with an objective in mind. It’s unwise to go in expecting to create your plan as you go. Once, before cross-examining a criminal defendant, I remember trying to create a list of possible answers he might give to my questions and what my response would be to each possible response. To make a long story short, he gave responses I hadn’t planned on and was able to drone on with self-serving responses (complete with crocodile tears) that hurt my case. Instead, I should have had a game plan for exactly what I was trying to prove and limited my questions to those topics.
- Ask leading questions: In the famous scene from “A Few Good Men,” military lawyer Lt. Daniel Kaffee exclaims “I want the truth!” causing Col. Nathan Jessep to lose his cool and confess. In real-life, you should never expect or hope that a witness will lose their cool or that you can outsmart them. Once you know what you’re trying to prove, ask questions that you know the answers to and frame them tightly to elicit yes or no responses. Instead of: “Did he know that you were coming over?” ask, “You didn’t tell him you were coming over before you arrived that day, right?”
- Follow up on evasive answers: Despite a direct, leading question, a witness might still try to avoid a direct response. In the previous example, imagine that the answer given is: “I go to his job all the time.” In that case, don’t allow the witness to get away with not answering the question. Restate the question; say something like: “I’m not asking about other times. On that day, you didn’t tell him you were coming over before you arrived, right?” Even if the witness tries to keep avoiding the question after you’ve restated it, he has lost credibility because his evasiveness makes him look dishonest.
This is not an exhaustive list, as there are many other factors to consider, such as whether it’s a criminal case where a judge might be present or a pre-trial deposition where only the opposing lawyer is present. Nonetheless, keeping these things in mind will definitely get you off on the right foot.