Keys for a successful cross-examination.
By Lynne Z. Gold-Bikin and Stephen Kolodny
To Read Part 1 Click Here
Be Cogent, Clear, and Brief
The questions should be short. They should each have one fact only. If each question has only one fact, the witness cannot question what is to be answered. A rapid submission of facts, well thought out, to which they must say “yes” will get them into a groove, a pattern, of saying “yes.” There is a real benefit to cogency, clarity and brevity. If there are pearls in the cross-examination answers, do not hide them in a load of marbles. If there is one pearl on the table, its shine is easy to see. If there are marbles all around the pearl, the judge may no longer see it.
Do Not Repeat Damaging Testimony
If it hurt the first time, why give the witness another opportunity to say the same thing again, hurting twice? For example, if the expert witness testified on direct: “Based on my expert opinion, I believe that the children are unable to talk over their problems with their mother,” why say, “Dr. Leonard, you stated on direct examination that the children are unable to talk over their problems with their mother.” The judge heard it once; why give him another opportunity to hear the painful testimony? Instead, explore what you know about the positive interactions between mother and children. Questions such as “Doctor, Carol told you that when she was having problems with her math teacher, it was her mother she went to for help, wasn’t it?” are far more effective and undermine the potentially damaging testimony rather than reinforcing it.
Don’t Argue with the Witness
Know what you want to accomplish with this witness. How has the testimony hurt you? Where has it hurt you? What can you do about it? Always have a reason for all questions asked on cross-examination. This witness is not your friend, so don’t keep him on the stand longer than necessary.
If the witness is not answering the question, ask the judge to tell the witness to answer the question asked. Then, ask that their “non-answer” be stricken. If counsel attempts to chastise the witness for not answering the question, the judge may feel the need to protect the witness or feel that the lawyer is stepping on the job of the judge. (“And I am the one wearing the black robe, correct, Counsel?”) Often, some witnesses will suddenly attempt to add surprise testimony on cross-examination that they failed to give in the direct testimony or suddenly remembered and want to slip in to the case. Such sudden recollections can hurt the case, as they layer on details supporting their direct testimony. A witness who is controlled with leading questions, obviously, cannot do this. That is why the dreaded “so” questions are so dangerous.
Counsel: So, what you mean is, you are just guessing at the value of the house?
Witness: No, Counsel, what I’m saying is that, after selling over forty homes in that community and after my years of experience as an MAI appraiser, I am providing my expert opinion that the value of that property is $430,000.
Yikes! Don’t give the Witness a golden opportunity to repeat and explain.
Stick to Your Theory
What is the theory of the cross-examination? What does counsel intend to accomplish with the questions to this witness? How do the expected answers support the structure of the theory? If there is no theory, no structural support, there should be no cross-examination of this witness. lf this witness hasn’t hurt you, there need be no cross-examination in which his original testimony is reinforced. If there is no structure to and for the questions, there should be no cross. Shot-gunning questions at an adverse witness with no purpose or sructure will accomplish nothing but allow an adverse witness more time on the witness stand to hurt your case.
Listen to the Answers Given
It should be unnecessary to tell experienced counsel to listen to the answers given to the questions asked. But let’s repeat that. Listen to the answers to the questions asked. Too many lawyers write out their questions for cross-examination and fail to amend the questions by the answers. The questions, when counsel fails to listen, may become ridiculous.
Loop the Questions
Looping is a technique on cross-examination in which the question builds on the answer previously given. It requires the examiner to listen to what is said and to use some of those words to create what is asked next and the direction in which the questions will travel. [Looping picks] up on the answers of the witness, building on [his/her] original answer, [using his/her] words to build the next question addressed. By listening to the answers and by moving very carefully with short questions, counsel [is] able to lead the witness.
Don’t Repeat the Answers
Where the witness has stated an answer, why repeat it? Use a piece of what was said and ask the next question. There is no benefit to your case to repeat what has already been said, and it may irritate or bore the judge. By repeating the statements of the witness, the questioning goes nowhere. Good cross-examination is one in which the examiner controls the witness, the pace of the questions, and the direction of the testimony.
Resist your inclination to repeat what was said so the judge “gets” it. The judge “got it,” and you’ll remind the bench in your closing argument. For example, this series of questions to undermine the wife’s claim of adultery by the husband is effective until the summary question:
Counsel: Mrs. Albert, the letter you found in your husband’s briefcase had no signature?
Witness: No, it did not. Counsel:
Witness: It was typewritten?
Correct. Counsel: It was typed on blank paper with no letterhead?
Counsel: There were no names or identifications in the letter?
Counsel: You showed the letter to your husband?
Counsel: He denied ever seeing the letter before?
Counsel: So, what you’re saying is, you don’t really know if he had an affair.
What is the purpose of this “so” question? Why give this witness the opportunity to expound on women’s intuition, on lipstick she may have found on his shirt when he returned home late from the office party, or other tidbits she may have forgotten to mention on her direct testimony? This series of questions is better ended right after the wife acknowledges that her husband denied having seen this letter. Closing argument is the opportunity to argue that she hasn’t proven her claim of the affair based on a letter that has no identifying marks, no names, and no letterhead. Save the argument for a closing; summary questions in cross-examination give witnesses an opportunity to explain and justify their position.
Know When to Quit
Begin and end the cross-examination on a high point. There was once a man who visited the same restaurant every evening for ten years, had the same waiter, and ordered the same bowl of soup. The man would eat his soup, call for the check, pay it, and leave. On this particular evening, after the soup was delivered, he sat there, unmoving. The waiter, noticing this tableau, came to the table and said, “Sir, is there something wrong with the soup this evening?” “Try it” said the man. The waiter looked around and then said, “I can’t; there’s no spoon. “Aha!” said the patron.
Cross-examination is all about “Ahas!” Throughout the examination, the judge should be sitting on the edge of his or her seat, waiting for the next “Aha!” What was not told during the direct examination? What other explanation is there? What was misstated? Start on a high point to keep the attention of the court; start with a strong, positive thing that can be highlighted from the direct examination. What exhibit has been ignored that will undermine something testified to during direct examination? Try to find something that will grab the judge’s attention. Always have a few questions prepared in advance to start the examination.
So, too, with the end of cross, try to end on a high note. Do not keep asking questions until you run out and you just sit down. Make sure your last question is a good one and the witness is forced to say nothing more than yes or no. If the custody expert has testified that primary custody should be with the mother and you represent the father, what thought should remain in the judge’s mind when the witness leaves the stand? If the theory is that this expert should not have made a recommendation at all, but under the guidelines should only have gathered the psychological facts to offer to the judge for her discretion, a final series of questions might go like this:
Counsel: You agree, Doctor, that under the APA guidelines, your job was to assess the best psychological interests of the children?
Doctor: Yes, that’s what the guidelines recommend.
Counsel: There are other factors for the court to consider in placing these children?
Doctor: Of course.
Counsel: You have no training in predicting the future?
Doctor: Of course not.
Counsel: Thank you, Dr. Expert, you’re excused.
The last thing in the judge’s mind is the acknowledgment that the expert witness cannot predict the future but is attempting to tell the court the best future placement for the children. Closing argument will highlight the fact that these experts can no more determine the appropriate placement for the children than can a fortune teller, as you ask the court to discount the doctor’s recommendation.
Once you have accomplished your goal with the witness, get the adverse witness off the stand as quickly as possible; their job is not to help the opposition, and that is you. Their job is to support their case, not yours. If you have properly prepared for the cross-examination, you know the areas to cover with each witness and the appropriate questions to ask. Ask them and then quit. No one witness makes an entire case. If you can highlight some good points and maybe point out weaknesses, exaggerations, or falsehoods in the testimony of an adverse witness, thank her and excuse her.
After the weak points of the direct examination and counsel’s strong points have been made, excuse the witness. There are no brownie points granted for the length of the cross-examination. Too many questions of the adverse witness may prove to be the “bridge too far.”
Lynne Z. Gold-Bikin concentrates her practice in the areas of divorce, custody, support, prenuptial agreements, and protection from abuse. She has authored numerous books including Divorce Trial Manual: From Initial Interview to Closing Argument and Divorce Practice Handbook, as well as authored or co-authored numerous articles on family law matters. She has served as a lecturer at various law schools, including as an adjunct professor at the South Texas College of Law in the Trial Advocacy Institute.
Stephen Kolodny is a family law attorney and serves as a traditional trial lawyer in challenging cases involving high assets, high support, and disputed custody. The Managing Partner of KolodnyLawGroup in Beverly Hills, California, he has garnered a number of accolades. Named many times in Best Lawyers in America, Stephen Kolodny also achieved listing as one of the Top 10 Southern California Super Lawyers by Super Lawyers rating service.
Reprinted with permission from The Divorce Trial Manual, From Initial Interview to Closing Argument, available for purchase
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