Trial work is tough, but perhaps the toughest part of being a trial lawyer, whether criminal or civil, is pulling off an excellent cross examination.
It’s every lawyer’s dream not only to score winning points against your opponent on cross examination, but also to do it so brilliantly that it reduces the witness to a mass of quivering flesh a la Perry Mason — “Alright, I admit it. I did the crime.”
This, of course, never happens, but it is more than possible that with proper planning, experience, and cool, to pull off a very good cross examination even if it doesn’t leave the witness whimpering.
Last weekend, I spent three days at a conference in San Francisco hosted by the National Association of Criminal Defense Lawyers that focused exclusively on cross-examination. Even though I’ve been a trial attorney for several decades and have successfully tried dozens of cases, I still get pre-cross examination jitters. It’s like being at the edge of cliff about to dive off. There’s no turning back once you take the first step. I don’t know anyone (no matter how practiced) who’s not concerned about asking the wrong question or losing control. Mastering all the information you need to have at your fingertips is difficult and time-consuming. Being well organized is, thus, the key to maintaining control. If you control the witness, you can lead them where you want, instead of the reverse.
Prosecutors’ direct exams are often rote, boring, and chronological. Defense attorneys, on the other hand, have more play. They can put the big ideas first — the ideas that best support the theme of their case. It’s good to come out punching. If you’ve got a one-two punch against a witness (such as his testimony at trial is different from what he’s said before), lead with it. Set him off balance. Show the jurors right off that this witness is not to be trusted.
As the guru of cross examination, Larry Pozner (a speaker at the conference) teaches that cross-exams should be organized like chapters in a book. First you need a book title, for example — “The Wrong Guy’s on Trial.” Part One could be: Why the eye-witness is unreliable. Under each part there are chapters and even subchapters to further parse out ideas. For example, 1) the witness couldn’t have seen what he said he saw because, a) it happened too fast, b) he was scared, c) the victim is a different race than the perpetrator. Another chapter might be — The witness doesn’t have a good memory because: a) he said he saw something different earlier, b) he didn’t notice key descriptive information like weight, height, prominent scar, etc., 3) the show-up identification was suggestive. Police surrounded the defendant and he was the only one cuffed when he was IDed.
Each chapter should be simple and easy to digest. No run-on questions, no run-on ideas. Some chapters might involve just a question or two while others could take pages of questions.
The amount of time it took to commit the crime has nothing to do with the amount of time the cross examination should take. A 30-second fight might call for a three-hour cross.
Because organization is key, have the paperwork you’ll need to impeach the witness on hand and easy to access. Similarly, know the law and be ready to cite it in relation to any anticipated objection from your opponent.
The defense attorney is in the position of power. He’s got the open-book test; the witness is dealing with closed-book.
– Don’t fear the witness. If you’ve prepared properly, they’ll fear you.
– If you get a good answer, don’t rub the witness’s nose in it. Make your point and sit down. There’s no point in that kind of gamesmanship.
– The only bad question is one that elicits a bad answer. Everyone gets these once in a while, so keep a poker face; don’t let ’em see you sweat.
– When you’re prepping your cross, DO NOT multitask. Focus only on the job at hand. Tell your friends, family, and colleagues that you can’t answer the phone, look at emails, or go out to dinner. That’s the concentration it takes.
– Finally, and perhaps above all, get enough sleep. Only by having an alert, fresh mind, can the cross-examiner deal with the give-and-take spontaneity that cross examination involves.
All of this is, of course, easier said than done. There are lots of nuances — how to deal with an evasive witness, a child witness, an expert witness, a surprise witness. How to manage the ton of discovery that’s dumped on you just before the trial starts. But no matter what, the core principles remain the same — be prepared, know your material, follow your theme.
The best attorneys make this look effortless, but every lawyer worth his salt will tell you, it takes hard work and preparation. The more you do, the more clearheaded you are in finding your theme no matter what answer comes your way — the better you’ll be. And while the jitters may never completely go away, they’ll eventually become a lot more manageable.
Culled: Above the Law
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