The Trial Practice Tips Weblog

Cross-Examination: Some Representative Posts

Over the years, I've done almost fifty posts on cross-examination. The easiest way to find them is in the weblog's cross-examination category.

Some representative posts:

• "Scott Turow's Five Essentials of Cross-Examination"
• "Cross-Examining by Body Language and Tone of Voice"
• "Cross-Examination at Trial: Just Say No."
• "Craft a Cross-Examination Using the Witness's Own Documents." 
• "Where and How to Stand During Direct and Cross-Examination"
• "Cross-Examining the Liar at Trial: Two Absolute Prerequisites"
• "Preparing for Expert Depositions by Looking Ahead to the Cross-Examination at Trial."

To make this weblog easier to navigate, almost every post has been assigned to one or more categories. These categories are listed in a column on the weblog's left side.

In addition to cross-examination, you can find categories for legal writing, depositions, voir dire, opening statement, evidence, experts, closing argument, and many other topics.

Deposition Tip: Help with Sniffing Out the Liars

From Forbes: "How To Sniff Out A Liar," by Melanie Lindner--

While there is no surefire on-the-spot way to sniff out dissemblers, there are some helpful tactics for uncovering untruths.

Liars often give short or one-word responses to questions, while truth tellers are more likely to flesh out their answers. According to a 2003 study by DePaulo, a liar provides fewer details and uses fewer words than an honest person, and talks for a smaller percentage of the conversation.

Skilled liars don't break a sweat, but the rest of us get a little fidgety. Four possible giveaways: shifty eyes, higher vocal pitch, perspiration and heavier breathing. Of course, not everyone who doesn't meet your gaze is a liar.

If you think this advice might be helpful to your deposition-and-trial practice, check out the full article. While not written specifically for lawyers, much of it applies to what trial lawyers do.

Related posts:

1. "Practice Tip: Assume Your Deposition Witness Is Lying."

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites."

Objections to the Form of a Question: A Partial List

Lawyers who are defending depositions (or learning how to to defend depositions) sometimes like a handy list of form objections. If the form objection is not made during the deposition, this type of objection is normally waived.

Here are some typical form objections:

• "Vague." The question is unclear. The question might be too long, some of the key words in the question might have more than one meaning, or the period of time to which the questioner is referring might be unclear. (Similar objections: "ambiguous" and "confusing.")

• "Compound." The question is actually two questions.

Example: "Did you find the cancelled check on the ground and take it with you?"

• "Argumentative." Though it might be a question grammatically, the questioner is asking it not to get an answer, but to make communicate some other message to the witness.

Example:"When you arrived at the deposition this morning, had you already decided not to give me your full attention?"

• "Asked and answered." The questioning lawyer is covering the same ground a second time, asking a question to which he has already received an answer.

• "Assumes facts not in evidence." The question contains a factual statement that has not yet been established.

Example: "Did you interview the employee before firing him?" (asked when there is no testimony that the employee was fired.)

• "Misstates the evidence" or "misstates the witness's testimony." The question contains a factual assumption for which there is no evidence in the case, or the question incorrectly quotes or paraphrases what the witness has testified to in the deposition.

• "Leading." The lawyer is asking a leading question to a witness to which he is not permitted to ask leading questions.

Example: "When you proceeded into the intersection, the light was green, correct?"

• "Lacks a question." Sometimes a lawyer will make a statement rather than ask a question. The defending lawyer can object by saying something like, "Objection, that's not a question," or "Objection, the question was preceded by a statement that wasn't a question." (However, it's likely that you could get the offending comments removed from the transcript before trial even without a timely objection at the deposition.)

• "Lacks foundation." The questioning lawyer is asking the witness concerning a fact or topic about which the witness lacks personal knowledge.

Example: "What warnings were contained on the package insert?" (without establishing that the witness received and read the package insert.)

Some common objections that are not to the form of the question include irrelevance and hearsay.

If you'd like to add other objections to the list, please leave a comment. For more information on deposition objections, see my book, Deposition Checklists and Strategies (James Publishing)

Related posts:

1. "The Anatomy of the Perfect Deposition Question."

2. "When Are Leading Questions Permitted During Federal-Court Depositions?"

3. "Depositions: Don't Ignore Form Objections."

4. "Depositions: Asserting Control with the 'Nonresponsive' Objection."

Cross-Examination: Tips from a Pro

I've written before about Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo.

One of the contributors, Peter C. John, has an article titled "Cross-Examination and Jury Ego," in which he advises lawyers to "lead but don't feed." In other words, you should aim to paint a picture for the jury which allows them to draw their own conclusion, the one you want them to reach. But you shouldn't make this conclusion too obvious, since the jury's "jury ego" requires it "to find the answer based on their own evaluation of the evidence, not yours."

If you force-feed the jury, it could be counterproductive. For example, you can demonstrate that the witness has changed his testimony time and again, but you shouldn't ask the follow-up, "Were you lying then or are you lying now?" Jurors will get the point on their own.

If you own (or can borrow) the book, check out the article. At the end, John gives some other general tips, including the following:

• "If you can score ten points in cross-examination, prioritize and only use five of them for maximum impact."
• "Never belabor your point so that witnesses can gather themselves and finally explain an answer."
• "Control the testimony by your questions, not the witness's answers, especially with expert witnesses."
• "Do not change your personality from direct unless it is an honest disbelief from the testimony or actual surprise. False reactions are obvious to the jury."

In addition to John's article, Your Witness contains another 49 articles from Chicago lawyers, plus an introduction by Scott Turow.

Cross-Examination: A Refresher

At his weblog Plaintiff Trial Lawyer Tips, Paul Luvera has been posting on cross-examination, always of interest to trial lawyers--plaintiff or defense.

Luvera has two recent posts:

Five Steps of Preparation for Cross-Examination. The five steps are fully explained in the post--

• Determine the goals.
• Divide goals into individual topics.
• Document the cross examination.
• Use Role Reversal.
• Divide the cross examination into chapters.

Basic Cross-Examination Principles. Again, these basic principles are explained in the full post--

• Make big points and ignore the details.
• Tell the jury what you just did.
• Approach cross examination from a big picture viewDon’t answer every defense issue.
• Be consistent and stick to the main story.
• Meet major defenses head on.
• The right to ask leading questions is a gift. Use it.
• Listen, listen, listen.
• When impeaching, make sure you lay a foundation first.
• Be Brief
• Make your point and quit.
• Be firm but fair.

If you like these two posts, Luvera also has a few other posts about cross-examination here, plus lots of other useful information on the rest of his weblog.

Impeachment During Cross: What Really Matters

Here's a tip from a recent article in Trial magazine:

Impeachment is not about convincing a witness to change testimony; it is about showing the jury that a witness has changed his or her story.

The author expounds on this point later in the article:

Highlighting prior inconsistent statements. Show that the witness has lied, changed his or her story, or testified differently in the past. Impeachment is about discrediting a witness. It is not about showing that someone is pond scum; it is not about histrionics or convincing a witness to change testimony. Impeachment is showing the jury that a witness has changed his or her story. Save everything else for closing arguments.

Source: "The impressive cross-examination," by Mark R. Kosieradzki, Trial, March 2009. Kosieradzki's article has a number of other good tips (for both plaintiff and defense lawyers) and is recommended if you have access to a copy of Trial.

Scott Turow's Five Essentials of Cross-Examination

In his foreword to the book "Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers," Scott Turow gives a quick list of the "essential rules" of cross-examination.

Here's the list, quoting Turow--

• Never ask a question to which you do not know the answer--unless it doesn't matter, or you have nowhere else to go.
• Always listen to a witness's answer before asking your next question.
• Never ask the one question too many that will allow the witness to explain away a damaging answer he's already given.
• Forget Perry Mason. The purpose of cross is not to win the trial at once, so much as lay the foundation for closing argument, or for the testimony of other witnesses.
• Know when you've accomplished enough and sit down.

It's a good, quick summary of the key goals to which all cross-examiners should aspire.

Related posts:

1. "A Book All Trial Lawyers Will Want to Read"

2. "Cross-Examining the Liar at Trial: Two Absolute Prerequisites"

Cross-Examination at Trial: Just Say No

Cross-examination at trial? Don't do it, especially if you're a new lawyer. That's the advice of one commentary-judge in Litigation magazine, Mark R. McGarry, Jr., who writes, "It must be said that very few new lawyers (almost none) have the skills necessary to succeed at cross-examination."

If you try it, something bad is bound to happen--

• You'll overemphasize the testimony of a witness your opponent has chosen, by allowing a re-telling of his story on cross, then again on direct;
• You'll allow the witness your opponent has chosen to correct any mistakes (or fill any gaps) left over from direct;
• You'll allow the opposing lawyer to correct any mistakes (or fill any gaps) when he continues on redirect;
• You'll make one of those errors that are easy to make on cross, like asking a question "that will ruin the case for you."

According to McGarry, you should think about doing the smart thing, which is to say "No questions," since "you just can't improve your case with your opponent's witness."

Source: "McGarry's Illustrated Forms of Jury Trial for Beginners," by Mark R. McGarry, Jr., The Litigation Manual: Trial, page 123-132.

Related post:  "Another Book to Think About: The Litigation Manual: First Supplement."

Cross-Examining the Liar at Trial: Two Absolute Prerequisites

In the new book, Your Witness: Lessons on Cross-Examination, there is a chapter titled "Cross-Examining the Liar" by Chicago lawyer Dan Webb.

Webb, who has cross-examined scores of liars during his long career, begins the chapter by describing the two requirements that must be present before you even begin to think about trying to take on a liar at trial--

• First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";
• Second,  you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

In one of Webb's examples, he tells of a medical expert who was clearly biased against his client, but whose testimony was so technically complicated that Webb wasn't sure he could make it clear to the jury that the expert was lying about the results of certain scientific studies. As a result, Webb chose not to confront the expert.

Webb also discusses the proper demeanor to use when cross-examining a liar at trial. You should be aggressive--"firm, confident, and assertive." Yet you should never raise your voice, at least not in an over-the-top way. "Anytime I hear a lawyer scream and yell in the courtroom," writes Webb, "then I know the lawyer is a failure."

Related Post: "A Book All Trial Lawyers Will Want to Read."

Related Post from Legal Underground: "Being Dan Webb=Tons of Good Press."

Communicating with Juries: The Well-Placed Pause

There's an article at Winning Trial Advocacy Techniques titled "Adding Impact to Opening Statements" that makes this observation:

One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

Read the full article to learn why, when, and how to pause for maximum effect during your opening statements and closing arguments.