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."

Comments

[S. Pietrick]

In my view, this is a ridiculous suggestion. New lawyers just shouldn't cross-examine? Crazy. The solution for new lawyers is to prepare ten times as much as a more experienced lawyer so mistakes are avoided, otherwise, a "new" lawyer never gets the experience needed to ever do a cross-exam under Judge McGarry's point of view. A new lawyer can give away the case with a poor opening statement too, so maybe we should just have new lawyers waive the right to do openings under Judge McGarry's theory. By the way, I note that the judge thinks its OK for new lawyers to try cases so long as they buy his book and follow his advice -- $$$.

[Nohl Bryant]

Poor judges. They just don't have enough time for golf, especially when they have to put up with the inability of newbies to get to the point. I suppose the correct path to cross-examination bliss is to spend five to ten years watching your opposition destroy your witness. Only then will you have acquired the skills necessary to actually speak in a courtroom.

[Leslie Sansone Williams]

I agree with the above posters. Better not to sit back, play dead and have the opposition walk all over you.

It's really "learn as you go" anyway, so why shirk our responsibility?

Perfection isn't necessary, just the attorney doing his/her best.

Leslie
http://www.legaledpro.com

[Leslie Sansone Williams]

I agree with the above posters. Better not to sit back, play dead and have the opposition walk all over you.

It's really "learn as you go" anyway, so why shirk our responsibility?

Perfection isn't necessary, just the attorney doing his/her best.

Leslie
http://www.legaledpro.com

[Stephen R. Sweigart]

The best advice is for young lawyers to get and follow "Cross Examination: Science and Techniques" by Posner & Dodd. My first jury trial out of law school was a first degree murder acquittal I did all by myself. I blindly followed the book and only resisted cross-examination to the extent I couldn't follow the rules laid out therein.

The only mystery to cross-examination is perpetuated by those who have not read that book. I suggest if the judge had read the book, his advice would be different.

[Paul Stuckle]

I was thinking this guy must be an idiot until seeing he was a judge which confirmed it. Wonder how well this approach will fare with the grievance board. Sure there are minefields aplenty in cross examination, but every lawyer has to trudge through to the best of their ability. Prepare hard and even novice lawyers can score important points with cross.

[Gavin Craig]

I think in general this is very good advice. Why allow the adverse party to tell their story a second time. But I think there are exceptions. As when the witness contradicts everything they said in a deposition, or other documents.

I had a case once where my client testified completely contrary to his early deposition testimony – and his courtroom testimony basically killed our case. The other side wisely passed on the opportunity to cross-examine.

[John]

I think there are exceptions. As when the witness contradicts everything they said in a deposition, or other documents.

[John]

I think there are exceptions. As when the witness contradicts everything they said in a deposition, or other documents.

[John Davis]

As a retired judge after 28 years, I saw a awfully lot of cases botched by poor cross. Most of the time, experienced lawyers or freshman, all that was accomplished was to emphasize the direct evidence.

[tom o]

Yes, of course we've all seen BAD cross that emphasizes the original testimony. But even young lawyers are capable of GOOD cross, which, at its most simplistic, can consist of asking leading yes/no questions re the favorable aspects of the case. Or the impeachable aspects.

And juries are electrified by a powerful or effective cross. They want to see it. It's the most dramatic event at trial. You blow a huge opportunity when you sit down with no questions.

[Anthony]

Holy Crap! This guy is a freakin' idiot!! No cross? Don't you think the jury will notice?

I also suggest reading "Cross Examination: Science and Techniques" by Posner & Dodd" but I suggest getting the CD's first. The book, at about 1300 pages, can be overwhelming. And yes, you will take 10 times longer to prepare, but you will kick some major ASS at trial.

First trial a murder trial? I ain't buyin' that. What do you think I am, a freakin' idiot?