Cross examination has been described as “greatest legal engine ever invented for the discovery of truth.” 5 J. Wigmore, Evidence § 1367, p. 32 (J. Chadbourn rev. 1974). Although I think e-discovery is a more powerful engine for discovering truth, cross examination comes in at a close second and is indispensable when e-discovery isn’t available. The essential text is Cross Examination: Science & Techniques by Pozner & Dodd.
This book did for my deposition and cross examination skills what the Georgetown E-Discovery Academy did for my e-discovery skills. It was a game-changer. Based on Pozner and Dodd’s teachings, cross-examination can be defined by three tasks. Successful cross examination is not about charisma and oratory, but about hard work and following simple tips. Preparing for cross examination is like preparing for a marathon.
- Examine every document, transcript, email, and writing
- List the available evidence on every subject and cross reference each source
- Prepare detailed sequences of questions for each fact to be proven
Hours of work go into composing a single line of questioning, but the benefits are overwhelming. By the day of the cross, the lawyer knows the facts better than the witness and knows exactly what to do if the witness gets off track or attempts to deceive. After gathering the facts, it is time to draft the questions for the witness.
Three simple rules apply:
(1) Ask only leading questions
Leading questions simply state a fact with an implied question mark at the end. Questions that begin with “how,” “what,” “when,” “why,” or “where” are the hallmark of non-leading questions and should be avoided at all costs.
(2) Establish exactly one fact per question
Compound questions, such as “you saw the blue car approach the intersection on January 15”, are the enemy of clarity.
(3) Ensure each question leads to a specific goal
Purposeless questioning is a waste of time and an opportunity for the witness to score points.
Keeping these rules in mind, let’s examine a few examples of a bad cross followed by an example of a well prepared for cross.
First, an example of a non-leading question. Assume it’s an age-discrimination case where the lawyer handling the cross represents the plaintiff and the witness is the plaintiff’s former supervisor
Q: When did you decide to terminate Mr. Jones?
A: I decided to terminate him when his work quality started dragging the department down. I had given him three previous warnings, but he failed to improve, and it was essential for the company to let him go so that we could serve our customers with the degree of care they expect.
By asking a non-leading question, the lawyer loses all control and hands the adverse witness a golden opportunity to reiterate the defense’s theory of the case. Bad move.
Next, we'll see how compound questions can lead to similar problems; however, their main flaw is that they can lead to a loss of control.
Q: You saw the blue car drive through the light without stopping on September 1?
A: I saw a blue car driving.
Now the same question has to be rehashed because the witness only admitted one of the several facts that were combined in the question. This could be a calculated move by the witness, or it could be thoughtlessness, but either way, it’s not helpful.
Lastly, questions lacking a clear goal can derail the questioning.
Q: What were you doing at that intersection on September 1st?
A: Well, that morning I realized we were out of milk. So, I had to rearrange the order I normally run my errands before work in the morning. Because of that, I needed to pick up my dry cleaning at lunch rather than before going to the office. There was not street parking, so I was trying to find a nearby space.
Asking questions that don’t lead towards a specific goal causes of a variety of problems. First, any question can be dangerous if it gives the witness an opportunity to hurt the case. Second, unfocused cross is boring and irritates the jury. In the example above, none of the information the witness provided is relevant to the case.
What to do instead? Here is a brief example of what a cross that follows the above rules looks like (we will again use an age-discrimination case as the example):
Q: You work at X Corp?
Q: You are a supervisor at X Corp?
A: That is correct.
Q: Mr. Jones used to work at X Corp?
Q: Mr. Jones no longer works at X Corp?
Q: Mr. Jones’ last day at X Corp was November 1, 2014?
A: That’s right.
Q: On November 1, 2014 you met with Mr. Jones?
Q: In that meeting, you told Mr. Jones to collect his belongings?
Q: You told him to leave the building?
Q: You told him his job was terminated, effective immediately?
Much better. Here, the attorney controls the narrative and the order in which facts are presented. The witness has no wiggle room. By establishing a rhythm and asking precise, focused, and leading questions in service of a particular goal (perhaps showing that Mr. Jones never had a fair opportunity to address performance concerns), the lawyer highlights his client’s themes and theory using the testimony of the adverse witnesses. The power of this last point can’t be overstated: it’s hard to lose when you prove some or all of the key elements of your case using the other side’s witnesses. Juries are inherently distrustful of direct examinations because they think a witnesses will say anything to benefit their own case.
Preparing for cross examination is a huge task; having a system for organizing and preparing is vital to drafting an efficient cross. Scattering notes across dozens of notepads and loose pages risks missing key evidence that should be addressed. A computerized system that enables you to cross-reference facts, dates, witnesses, and key issues is preferable. Litigation management software addressing these concerns is a huge value to firms with high case volumes or highly complex cases, as it allows for quick-reference, easy access to facts via case timelines, and reduces the risk of facts being missed. For example, tools like CaseFleet can make preparation easier and more thorough by automatically creating and linking facts based on your annotations to documents.
Pozner and Dodd’s method can and should be utilized as a vital tool in cross-examination. Their book is over 1,000 pages and is filled with useful tips and detailed examples. I strongly recommend the companion DVD, which summarizes the key concepts well and is also funny and entertaining. I also recommend investing in a service that allows you to track relevant case information to make deposition and trial prep more efficient and centrally located. To learn more about how software can help you prepare for cross examination, sign up for a demo today.