The Art of Cross-Examination

Cross-examination is decided before the hearing

Most of what looks like brilliant improvisation in the courtroom is the result of work done weeks earlier: reading the witness's affidavit against all the evidence in the case and marking every statement that does not square with a document, with correspondence, with an expert opinion or with earlier testimony of the same witness.

Each such contradiction yields one question, sometimes two. An hour of cross-examination is built from dozens of such items, arranged in an order that keeps the witness from seeing where it is heading.

The ground rules

• Closed questions only: a question that lets the witness explain is an opportunity handed to him to correct himself. A closed question allows only yes or no.
• Never ask a question to which you do not know the answer: there is no room for curiosity in cross-examination.
• One fact per question: a compound question invites an evasive answer.
• Do not argue with the witness: arguing hands him the stage and diminishes the examiner in the eyes of the court.
• Know when to stop: once the answer has been obtained, every further question merely allows it to be softened.
• Save the argument for closing submissions: in cross-examination you collect bricks; you do not build the wall.

The expert witness: a different arena

Cross-examining a witness who gives expert opinion evidence, such as a real estate appraiser or an engineer, is conducted not through legal questions but through professional ones. The gaps usually lie in the underlying assumptions: what data he relied on, what he measured himself and what he received from the party that engaged him, which standards he applied, and what would have changed had the basic assumption been different.

This calls for command of the engineering or appraisal material itself, not only of the rules of evidence. It is also the stage at which we examine what the same witness said in earlier cases, and whether his opinions have drawn judicial criticism in the past.

Recurring mistakes

• Cross-examination that runs too long: a focused quarter of an hour is better than two hours that blur what was achieved.
• Repeating the examination-in-chief: gives the witness an opportunity to reinforce his version.
• A single open question: is enough to wipe out an hour of good work.
• Ignoring the court's reaction: cross-examination is aimed at the judge, not at the witness, and not at the client sitting in the courtroom.
• No fallback plan: when a witness changes direction, you need to have prepared for it in advance.

What it gives the client

Thorough preparation for cross-examination has an effect even when the case ends in a settlement. A party that knows its witness will be cross-examined on every contradiction usually comes to the negotiating table in a more realistic frame of mind.

Nothing in this article constitutes legal advice or a substitute for it.