Cross Examination at Trial
The closest a commercial trial gets to exciting is during cross examination. This is when a lawyer from one side examines witnesses who testify on behalf of the other side. And although there is almost never a scene in which a witness tearfully renounces their case and reveals a shocking truth, there are often heated exchanges.
Although lawyers on television may make cross examination seem like an extemporaneous exercise, it really requires a lot of preparation.
Why should you continue to read this post about cross examination?
I refuse to answer that question on the grounds of the attorney-client privilege.
I evade that question in my response by talking about some of my other great blog posts.
I confess! You should probably study cross examination from the greats instead of this blog.
Research For Cross Examination
Before trial, each side needs to exchange a list of witnesses. For each, a lawyer should research them to learn as much information as possible. This may include performing Google and public records searches to see if there is any information that may undermine their credibility or prior statements they made that may conflict with the testimony they may offer at trial. This is particularly useful for expert witnesses, who testify at numerous trials on similar subjects, and therefore run the risk of making conflicting statements.
In addition to reviewing publicly available information, a lawyer should review documentary evidence about each witness. For example, the other side may have disclosed emails that the witness sent or received. Reviewing these documents may provide helpful evidence with which to confront a witness on cross examination.
Ideally, the lawyer performs this work prior to the deposition of the witness. That way, the lawyer can ask her questions at the deposition and see what the answers are without worrying about wasting the judge’s time or looking foolish if a hunch doesn’t lead to a stunning revelation.
But there are often several months or even years in between a deposition and a trial, and so lawyers often perform additional research before trial to make sure they know what evidence could be useful in confronting a witness.
Drafting Cross Examination Questions
According to an old adage, in cross examination, you should never ask a question you do not already know the answer to. This is because an adverse witness will likely provide unhelpful testimony except on specific subjects where you know they cannot or will not. And if you spend too much time asking questions, hoping to accidentally find a good answer, the judge may get tired and cut off the examination.
So to prepare questions you already know the answer to, a lawyer often reviews the transcript of a witness’s prior deposition and identifies the specific questions where a witness provided a helpful answer. Then the lawyer asks the same question at trial, modifying it as little as possible so that it makes sense independently from the other questions posed at the deposition.
According to another old adage, in direct examination, the witness is the star, but in cross examination the lawyer is the star. And so lawyers often draft cross examination so that the questions are long and the answers are short. Although there is often a rule against “leading questions” for direct examination, that rule does not apply to cross examination. As a result, lawyers can ask questions that are really statements with a “right?” at the end. For example: “You saw the light turn red, right?” Asking questions with short answers is meant to reduce the time the witness speaks because the more an adverse witness speaks, the more they will probably provide unhelpful testimony.
Lawyers often spend a lot of time crafting cross examination questions in just the right way that they will not be subject to an objection by opposing counsel or evasion by the witness. This involves, among other things, phrasing the question in an exact way that makes sure the question is clear and focused on the specific point the lawyer wants to make.
Actually Cross Examining a Live Witness
It may take many hours to prepare a friendly witness to testify, so cross examining a hostile witness with no preparation at all can be a challenging experience.
But a few things make this process easier. The first is to practice the cross examination with a colleague who is familiar with the case. This allows a lawyer to revise the questions accordingly or to anticipate possible responses and draft follow-up questions.
Another is to have documentary exhibits ready to contradict the witness if she strays from the truth or to re-center the conversation if she goes off-topic. Similarly, the lawyer should have the witness’s deposition transcript with her and, for each question she poses, have the citation where the same question was posed at deposition immediately available.
And third, the lawyer should make her point quickly and move on. Unlike direct examination, where a lawyer may spend time introducing a witness or telling a story, cross examination is about eliciting specific helpful facts or undermining a witness’s credibility. In my experience, a few succinct questions can do this more effectively than an hour of meandering questions.
One major challenge in cross examination is the fact that a lawyer needs to pay attention to the direct examination and object when necessary, and then be ready as soon as the direct examination is over for cross examination. This often involves writing down questions and shuffling around pre-written questions at the same time as listening to testimony. This is why preparing as much as possible before trial is a good idea, even if some testimony will come up during trial that may require a question written on the spot. And even so, writing the questions out before speaking makes it much easier to speak coherently than speaking off the cuff in front of a judge, a hostile witness, and an anxious client.
Sometimes during cross-examination, things don’t go as planned. The witness may give a bad answer or the judge may cut off a line of questioning even though the lawyer really wanted to continue it. In those events, a lawyer is usually best served by remaining calm. Acting like these are huge losses may communicate to others that even the lawyer thinks their case is in bad shape. And while those losses are scary in the moment, a trial often has numerous opportunities for each side to make its case.