Spring 2017, Issue 2

Cross-Examination Boiled DOWN TO BASICS

This is not intended as a treatise on cross-examination, but rather a reduction sauce of tips that will help with the mastery of cross-examination.

What you need for that Perry Mason moment is knowledge, preparation, and practice.

The purpose of cross-examination is to (1) test the truth of direct testimony, (2) elicit favorable testimony and minimize the damage of harmful testimony, and (3) show the court the witness’s demeanor when answering unexpected questions and not giving rehearsed testimony.

John Henry Wigmore, Dean of Northwestern Law School, who wrote what is commonly known as “Wigmore on Evidence,” said of cross-examination, “it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

Preparation for cross-examination should begin long before a witness is on direct examination.

I. Basics to Weave Into Cross – Examination
A. Words.

Judges and all of us remember the first words of a presentation—and the last. Those are the two pieces of the presentation that have the most impact and continue the stream of your theme (whatever it is) throughout the trial.

Who can forget these famous first words:

“Fourscore and seven years ago our fathers brought forth, on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”

or the last:

“that government of the people, by the people, for the people, shall not perish from the earth.”

or the first word of John Lennon’s hit song:

“Imagine…”

and the last phrase of the song:

“And the world will live as one.”

Before you ever get to cross-examination, establish memorable words and phrases to use throughout the case that create mental images that demonstrate your theory for each issue.

In every court appearance and pleading, use these same words and phrases that conjure up the mental images that demonstrate your theory on each issue, as well as the overarching theme of case.

B. Theory for Each Issue.

  1. Develop a theory for each issue in the case—custody, child support, spousal support, property characterization, reimbursements, off-sets, fees, breach of fiduciary duty, etc. Gather through discovery the documents/evidence to support your theory.
  2. Base your theory on concrete facts.
  3. Make sure your theory matches the facts that cannot change.
  4. Finally, apply the law to those facts.

Examples:

If you represent the wife—

Spousal support issues: Wife is a successful business executive. Her professor husband loses his job post-separation, claims disability, and seeks spousal support. Your theory might be that wife has moved on, developed a new relationship, and husband seeks to punish wife by self-destructing, seeking lifetime support, and wanting full custody (because now he’s a stay-at-home dad).

If you represent the husband—

Child custody issues: Husband should be awarded the majority of custody time because he now has no job, and even when he did, his teaching hours allowed him to pick up the children after school and take them to their various activities and lessons.

Child support issues: Of course, husband is going to need child support since he is now devoting all of his time to caring for the children.

Property award issues: Since the children have lived in the family residence their whole lives, husband should be awarded the residence so that the children need not be disrupted.

Paint the picture of your theory with the facts that cannot change.
What might those facts be?

For wife—

  1. Documents (degrees; warning letters to husband from his department head [subpoena]; incident report; termination letter; medical report; vocational evaluation).
  2. Photographs (husband being active).
  3. Texts and emails (threatening to wife).
  4. Physical evidence (wife’s cut up clothes; torn up books). Evidence of anger/desire to punish.
  5. Scrapbook of wife and children at every sort of destination and event without husband.
  6. Pediatrician records as to who takes children to the doctor, and school sign in sheets as to who takes the children to school, if it benefits wife.
  7. Open professorship for which husband qualified.

For husband—

  1. Medical records and psychiatric records.
  2. Records documenting layoffs at the college or university, staffing problems, downsizing of the department.
  3. Photographs (husband with children).
  4. Texts and emails (wife asking husband to take children to doctor, after school activities, need to work late).
  5. Physical evidence (husband’s “thank you” cards and certificates from children’s teams he’s coached).
  6. Scrapbook of husband and children at every sort of destination and event without wife.
  7. Pediatrician records and school sign in sheets, if it benefits husband.
  8. Job applications and rejections.

The above lists are only a sampling of documents that help lend credibility to your theory and help convince the judicial officer. Although a document, photograph, text, email, or piece of physical evidence cannot be changed, it can be interpreted differently, so be prepared to align the piece of evidence with your theory of the case, and insofar as possible, prevent different interpretations.

C. Theme.
Whatever your theory is on a particular issue, hammer it home throughout the case as a continuing theme.

II. Advance Preparation

A. Sequence of Events Charts.

For each issue, draft a chronological sequence of events so that you can cross-examine when the witness gets it out of order, or presents it in a different order than in previous pleadings, deposition, or hearings. Label a separate page for each issue in your case, for example, domestic violence, property acquisition, transmutation, debt incurred. List what happened in the order it happened as presented in prior testimony and pleadings. Start at the beginning (be sure to use dates, for example, with real estate, list and date the deed, financing, transfers, transmutations, and refinancing) for each issue and carry it through, one step at a time. At a hearing or trial, use this page during opposing counsel’s direct to draft cross-examination questions with respect to each issue, noting differences, time and date changes, deletions and additions to descriptions, or recovered memories.

Exhibit A (available on the ACFLS website on the Current Newsletters page) is an example of cross-examination of a physician who failed to reveal his medical group was being purchased.

B. Witness Statement Charts.

These are a demonstrative tool and serve a different purpose than the sequence of events charts. Witness statement charts highlight inconsistencies in previous written or oral statements and bring forth more accurate and additional information for the court on cross-examination. Exhibit B (available on the ACFLS website on the Current Newsletters page) is a witness statement chart which, in a low tech way could be mounted on an easel in the courtroom, or in a high tech way displayed with computers and screens.

To prepare a witness statement chart, go through the Preliminary and Final Declarations of Disclosure, Declarations submitted with Requests for Orders, Responsive Declarations and Reply Declarations, deposition transcripts, hearing transcripts, and all other written or oral statements made by a witness. Make a witness statement chart for each issue in the case and track what the witness has said in PDDs, FDDs, declarations, depositions, and previous hearings.

Exhibit B is a witness statement chart showing the cross examination of a husband who claimed his wife took community funds.

Remember the lawyer’s job is to search for the truth. The witness may perceive his or her job is to wiggle out. A chart can pull the rug out from under a witness who is stumbling over a story.

C. Make a Chapter for Each Issue.

Although sequence of events charts and witness statement charts are extremely valuable with the right set of facts and issues in a case, every case should have a written “chapter” for each issue. This doesn’t have to be complicated, but rather a page on which you note pertinent facts that need to be brought to the attention of the court for the issue, previous statements about those facts, what you may need to mitigate facts harmful to your case or to explain facts for the court, and what, optimally, you need to elicit from your own or opposing witnesses. Include what you need to prove in order to prevail on a substantive issue. The chapter could include a sequence of events chart and/or a witness statement chart for each issue.

III. It’s Show Time—You’re Live on Cross.

If you remember nothing else, remember these rules:

A.  Ask leading questions only.

No open-ended questions. No who, what, when, where, why, and how. These are questions for direct examination. These are laying a foundation questions. These are not cross-examination questions.

B. Make your question declare the answer.

NOT “How do you feel about Joe?”
BUT “Do you like Joe?” or “You don’t like Joe, do you?”

Use just one new fact per question so the answer relates to that fact.
Repeat good facts that have already been established.

C. Eliminate all subjective standards.

Don’t use any subjective words like “did something well” or “fine,” etc., because the witness might say “I don’t know if it was that great or that big or that well.”

D. Let the judge draw the conclusion.

Facts, not conclusions persuade.

Opinions are not facts.

Legalisms, such as “negligent” are not facts.

Labels are not facts.

“Crazy” is not a fact but rather an opinion or a label.

Instead say: “You sit every Tuesday on the corner of First and Main and talk to your shoelaces with a group of friends, don’t you?”

“Negligent” is not a fact.

Instead say: “You left your three-year-old daughter sitting on the trail while you went rock climbing, didn’t you?”

“Wealthy” is not a fact.

Instead say: “You shop exclusively on Rodeo Drive, don’t you?”

Judicial officers should draw the conclusions, not you. Your job is to make the conclusion drawn inevitable, or at least make the judicial officer want to know more.

IV. Know Where you are Going.

The opposing counsel may have a direct examination that shuffles the issues back and forth between topics, events, time frames, and so forth. Don’t follow that pattern on cross-examination. Move topic to topic, issue to issue. Finish your cross-examination on one issue or event before embarking on another. Use the chapter for each issue, which may include sequence of events charts and witness statement charts. Take notes in the chapter during direct examination. You can then execute an organized cross-examination in response to a disorganized and jumbled direct examination, and the judge will understand where you are going on each issue.

Know your goal for each issue and let your questions move toward it. Never wander from topic to topic, or chapter to chapter, regardless of how disorganized or jumbled the direct examination. A good cross-examination is methodical.

V. One Fact at a Time, and Insist On “Yes” and “No” Answers (if it Benefits you).

One fact at a time. That is the way you do it, marching the witness through the facts on any issue addressed in direct examination, one fact at a time.

NOT:

“You were eating in a restaurant when you claim your wife walked in and socked you, right?

BUT RATHER:

“You decided to go out to eat?”

“You decided to go to XYZ Restaurant?”

“You went to the restaurant alone?”

… and proceed with each detail of the event.

Box in the witness. This is a very simple technique that will limit your witness’s answers to a “yes” or “no.” This will prevent the witness from veering off into explanations. So start your cross with:

Q: If the truthful answer to a question is “yes,” will you say “yes”?
A: Yes.
Q: If the truthful answer to a question is “no”, will you say “no”?
A: Yes.

Throughout the cross-examination, hammer away at the witness’s promise to answer every question with a “yes” or “no” and don’t let the witness veer off course to start explaining or saying, for example “Well, I described it this way but really meant that way.” Keep the witness to a “yes” or “no” answer.

VI. EFFECTIVE CROSS.

Don’t bother with details that don’t affect the outcome or have only minor significance.

Don’t bore the judicial officer, but spark interest that your cross-examination is important to the decision.

Always correct misimpressions left by a direct examination that deliberately didn’t flesh out the context.

Cross-examination is a time to develop your own theory and theme while undermining your opponent’s theme.

Remember the goal of cross-examination, just like the goal of direct examination, is to inform the trier of fact. On cross-examination, always:

  • Ask leading questions only.
  • Declare the answer you want.
  • Use no subjective terms.
  • Address one fact at a time.
  • Use each question in a logical progression toward the goal you wish to achieve.
  • Never allow the witness an opportunity to repeat damaging testimony.

Prepare for cross-examination. Know what your theory is, and know what the witness is going to say, because you have reviewed in depth the pleadings, deposition transcript, and all other oral or written statements in the case.

VII. KNOW YOUR PERFORMANCE COUNTS.

Preparation and practice cannot be stressed enough. They are in law and in the courtroom, as in life, what makes success possible.

When you have a witness on cross-examination, after you have done all of the preceding, remember:

  1. Stay calm and in control.
  2. Ask respectfully but forcefully.
  3. Recognize there are limitations to impeaching a witness.
  4. Establish bias, if possible.
  5. Bring in prior inconsistent statements.
  6. Keep eye contact with the witness.
  7. Insist on “yes” or “no” answers.
  8. Halt an unresponsive answer or one that starts “explaining” and “wiggling out” of the question or fact.
  9. Move to strike an unresponsive answer and ask the question again.
  10. Display authority and grit.

VIII. DON’T BEAT YOURSELF UP.

On occasion we all get into our cars after a hearing or trial, sit there without turning on the ignition, and ask ourselves “Why didn’t I ask that?” “Why did this slip by?” “I could have said that.” Put as many tools in your toolbox as you can, practice and prepare, and accept that Perry Mason was a great TV lawyer, but you’re a real one, and those scripted Perry Mason triumphs are few and far between.