Part 1 of 2
Keys to becoming a skilled cross-examiner.
By Lynne Z. Gold-Bikin and Stephen Kolodny, Family Lawyers
Theory of Cross-Examination
Why cross-examine this witness? The first step in developing your skill as an artful cross-examiner is knowing why you want to cross-examine each adverse witness. Before proceeding with any cross-examination, ask yourself:
What is the reason for cross-examining this witness?
Did the testimony hurt the case?
ls it likely that the witness can be made to change the testimony based on any cross-examination questions?
Where is the witness vulnerable?
Can you show that the witness has lied in one area and then argue “False in one, false in all”?‘
ls it necessary to show that the witness is biased? For example, is it not assumed that the opposing client’s mother will favor her son in the custody case? ls it really necessary to spend half an hour to try to show that the mother of the adverse party has a bias toward her son or daughter?
The cross-examination shifts the spotlight from the witness to the lawyer. Now is the time for leading questions. Now is the time to control witnesses; to prevent them from saying whatever they want to say. Counsel is never to ask the “w” questions, or give the hostile witness an opportunity to pontificate. Counsel must control the witness so that the only testimony will be what is expected and desired. It is never more true than on cross-examination that counsel should not ask a question to which they do not know the answer.
Before cross-examination is undertaken, counsel should develop a theory on why this witness is being questioned at all. Peppering a hostile witness with questions will not advance the case unless there is a purpose to the questions and the expected answers. There are even witnesses for which cross-examination may hurt rather than help the case. Do not give the witness an opportunity to repeat testimony that hurt the first time and will not be better on the repeating. Know why the witness is to be questioned and what you expect to elicit from the testimony.
Cross-examination questions should be brief and to the point. Taking small bites at the issues is the best approach so as to further control the possible answers. For example, where the issue in a financial case is the precipitous drop in income when the husband filed his divorce, how should the questions be phrased? Rather than, “It’s true, isn’t it, that your income dropped when you filed for divorce? — a broad question that can elicit all kinds of answers and maybe objections — ask a series of questions such as:
You filed for divorce on January 3, 1998, correct?
For the year 1997, your income from your practice was $300,000?
You and your accountant decide what you will be paid?
Your tax return for 1998 shows an income of $120,000?
Each of these questions should elicit an “answer,” and the point is made. The key is asking short questions in which there is only one fact and to which there is only one answer.
There are a number of other traps that the cross-examiner must avoid. One of the easiest to fall into, when counsel is “on a roll” with series of questions that have elicited all the appropriate answers, is to follow up with one question too many the dreaded “so” question. After the defendant has acknowledged that he set his own income with his accountant and indicated what his income was for the years before and after the divorce, stop the questions on that subject. Do not ask, “So, you dropped your income when you filed for divorce? A good witness will “feed counsel his lunch” in response. Save all the “so’s” for summing up or the closing argument. Check off on a legal pad the points that are made to prepare the summary and to show the judge how you have proven your theory of the case.
Allowing adverse witnesses to state their theory of the case as they want it to be accepted will not help your client. Cross-examination gives you an opportunity to challenge their version of the facts and to bring out other evidence that might call their claims into question. It gives you the opportunity to challenge their credibility and to bring out your truth rather than theirs. It provides you with the opportunity to tell your story in your words, with the adverse witness agreeing or disagreeing with your statements.
Although Perry Mason may have appeared to win all of his cases during the cross-examination, few, if any cases are actually won on the evidence that is gleaned from the adverse witness. There are points that can be scored, however, as long as you understand the theory of your case and use the cross-examination to move your case forward or impede the progress of the case of the other side. First, remember that most of the talking should be done by you, the lawyer, rather than the witness. Your job is to develop leading questions, and their job is to say “yes” or “no.” The questions not only expect a “yes” or “no” answer, they demand such an answer. For example, assume in a support case you must ask a series of questions of an owner of a small corporation who claims he retains earnings rather than increase salaries.
The questions might go as follows:
Counsel: This is your tax return?
Counsel: You were involved in its preparation?
Counsel: You provided the information to the accountant who prepared it?
Counsel: The information was accurate when you provided it to your accountant?
Counsel: You signed the return?
Counsel: This is the return you filed with the government?
Counsel: This is the schedule “L,” otherwise known as the balance sheet on your return?
Counsel: It shows a balance of loans to officers of $145,000?
Counsel: You are the only officer of your corporation?
Counsel: At the beginning of the calendar year of this return, the loans to officers balance was $25,000?
Counsel: At the end of the year, the balance was $145,000?
Counsel: The schedule shows that retained earnings in your corporation at the beginning of the year were $220,000?
Counsel: The retained earnings at the end of the year on the tax return were $270,000?
Counsel: Your W-2 income from your corporation as reported on this return was $35,000?
Counsel: You and your accountant determine your salary, correct?
This series of questions not only provides a picture to the finder of fact that the corporation has more retained earnings at year end than at the beginning of the year, but allows counsel to argue that Mr. Businessman has taken loans from his corporation rather than take a reasonable salary in the hopes that his support obligations would be minimal. By resisting the urge to say “So, you took loans instead of salary?” or “So, you have more retained earnings at the end of the year than you did at the beginning of the year?” the witness does not get the opportunity to explain, perhaps, that the bank set his maximum compensation or otherwise controlled his annual salary or some other explanation for your brilliant observations. You have advanced your “turnip truck” theory, as well as your theory that he’s under reporting what he should have been paid and is retaining earnings in the corporation to avoid increasing his income.
Counsel’s questions are not evidence; it is only the answers that are, and they should be admissions or denials by the witness. While they may rarely be the “smoking gun” hoped for, a correctly phrased cross-examination may be very helpful indeed. It should advance counsel’s theory or, at the very least, undermine the validity of the opposing cause or witness.
Practice Tips for Cross-Examination
I. Don’t ask a question if you do not know the answer.
2. Always ask leading questions.
3. The spotlight shifts from the witness to the lawyer as the lawyer will now be telling the story for the court.
4. In your questioning, move from general to specific.
5. Be clear and brief.
6. Never repeat a question that hurt you on direct examination.
7. Do not argue with the witness.
8. Know the theory of your case and how the questions that you are asking of your witness add to your theory of the case.
9. Loop each question from the answers given in the preceding answer
10. Never ask a summary question that might give the witness an opportunity to retract testimony or otherwise explain away responses that helped your case.
11. Begin and end the cross-examination on a high note.
Basic Rules of Cross-Examination
Cross-examination is a skill that must be developed with experience. There are, however, rules for an effective cross-examination that apply to every cross-examination of every adverse witness. Following the basic rules ensures that an adverse witness will not damage counsel’s case in chief. The rules will aid in moving the case forward and keep the case from a sudden torpedo. They provide the structure for advancing the theory of the case and not allowing the witness to drop surprises into the case. These basic rules are as follows:
1. Never Ask a Question If You Don’t Know the Answer
Cross-examination is no place to experiment. It is safer to avoid the question than to chance an answer that can really hurt the case. Many witnesses will hold back powerful testimony during their direct examination, just waiting for an opportunity to blast the opposing counsel in response to a loose question during cross-examination.
2. Always Ask Leading Questions
The questions on cross-examination, unlike those on direct examination, are not open questions asking for a discourse. They never begin with why, when, who, how, describe, or explain. That would allow witnesses a forum to expand on what they’ve said on direct examination or to explain their answers. Counsel must control the witnesses so they don’t have free rein to “chat it up” with the judge. It is the lawyer making statements that end in a question mark, or “Is that correct?” or similar words that control what is said. If the witness appears to want to continue to speak after answering the properly formed yes or no question, counsel may say, “Thank you, Mr. Witness, you’ve answered my question.” Often an expert witness, comfortable with the courtroom setting, will turn to the judge and say “I haven’t finished my answer, Judge; may I explain?” Counsel may attempt to say “Your Honor, I am sure his counsel will give him that opportunity on redirect” or “Judge, I believe he answered the question I asked.” If you are confronted with a completely obstreperous witness who continues to talk, explain, and ignore the request to answer the question, a request to the judge to not only strike the answers but also give sanctions may be in order.
3. Ask Questions in Small Pieces
Cross-examination questions, in order to be effective, must be asked in small bits, one fact at a time so as to ensure the answers desired by the lawyer. To ask a complex question will not only draw an objection (“Objection, Your Honor, compound question”), but will give the witness an opportunity to play games. If they can say no to a part of the question, the other parts fall, as well. The correct way to form the cross-examination question, therefore, is to break it up into one fact at a time.
4. Move from General to Specific
In structuring the areas to cover in the cross-examination of the witness, plan to work from the general to the specific. Introduce the Subject and then go into the details.
Counsel: Mr. Real Estate Appraiser, in your report you provided three houses you referred to as comparables in your appraisal?
Mr. REA: Yes, ma’am.
Counsel: These are all single-family residences as is the subject property?
Mr. RBA: That’s correct.
Counsel : The first house is two and one-half miles away from the subject property?
Mr. REA: Yes.
Counsel: It was sold three years ago?
Mr. REA: That’s true.
Counsel: You’d agree that the real estate market has changed in the past three years?
Mr. REA: Yes, I’d agree.
Counsel: You’re aware that there have been other houses sold in the three blocks surrounding the subject property?
Mr. REA: That’s true, but…
Counsel: Thank you, Mr. Expert, I just asked you if other houses had been sold within three blocks of the house you appraised.
Mr. REA: Yes.
Counsel: You didn’t use those neighboring houses as comparables, did you?
Mr. RBA: No.
Counsel: You are aware that one of the neighboring houses was sold within one week of its exposure on the market?
Mr. REA: Yes, I knew that.
Counsel: You’re aware that a second neighboring house sold within three days of its exposure on the
Mr. REA: Yes.
The questions began in the general area of comparables and went to the specifics of the neighboring houses and the time in which they were on the market before being sold. The next series of questions will be designed to show that the real estate market is “hot” in this area and the value of real estate is increasing. All of this is designed to show an undervaluation of the subject property.
To Read Part 2 Click Here
Working with witnesses in stages will ensure that they are more prepared and able to assist your client.
Almost anything can be an exhibit, if it will advance the cause and lead to proof of the case.
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. www.wglaw.com
Stephen Kolodny is a family law expert and serves as a traditional trial lawyer in challenging cases involving high assets, high support, and disputed custody. A Founding Partner of Kolodny & Anteau in Beverly Hills, California, he has garnered a number of accolades. www.kolodny-anteau.com
Reprinted with permission from The Divorce Trial Manual, From Initial Interview to Closing Argument, available for purchase from: http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=214317&term=kolodny
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