The Art of Cross Examination at Trial - Where The Control Freak is King!
Sometimes things get all emotional on cross!
A Civil Action, the Movie (starring John Travolta and William H. Macy)
The Basics / Fundamentals of Cross Examination
As is true with respect to most non-routine aspects of litigation generally, and more specifically when an attorney is actually in a Courtroom trying a case, cross examination is an art. And just as a sculptor must first learn the fundamentals about the properties of clay and how to mold it before he's able to create high-quality works of art, a Courtroom lawyer must learn and practice the fundamentals of the various different elements of trying a case before he or she can develop into even a competent trial attorney, much less a great one.
In my opinion, the reason why the vast majority of attorneys never step into a Courtroom to try a case is that there is often a tremendous amount of pressure on the attorneys who do so. Of course, the pressure is greatest when an attorney is trying a "close" case, with highly disputed facts and allegations, and no clear indication as to which way the jury or judge (in a "bench trial") is leaning. But there is also a good deal of pressure on attorneys when the facts are heavily in favor of his or her client, because in these instances, the expectation of all involved (most importantly, their client) is that the odds are stacked in favor of their client, and anything less than winning the case is a complete failure.
The above-described pressures faced by trial attorneys will be present in virtually every contested civil or criminal case, as the stakes are always high for the client. Otherwise, he or she wouldn't be there in the Courtroom trying their case! Moreover, most trial attorneys are very competitive people concerned with their professional reputation as skilled trial lawyers, causing them to heap additional pressure onto themselves.
In my opinion the most exciting, but also perhaps the most nerve-wracking, part of trying a case in Court is cross examining a witness. An effective cross examination can destroy a witness' credibility, weakening the other side's case, and can also serve to bolster your own client's credibility and the strength of their case. For my money, there is no better opportunity in our justice system to get to the bottom of things, pursue the truth, and damage your adversary's case than cross examining their witnesses.
If You Are Unwilling or Unable to be a Control Freak, You Don't Belong Anywhere Near a Cross-Examination!
In this article, I am going to focus on a single concept, and that concept is control. There are many aspects of litigation that a trial attorney has little to no control over, but when it's your turn to cross examine a witness, it is within your power to sit alone in the driver's seat and take total control over the proceedings.
Unlike direct examination, when the witness is supposed to be "the star of the show" and you cannot ask the witness leading questions about substantive issues (except, of course, when laying a foundation, eliciting basic background information, etc.), during an attorney's cross examination, except in very limited circumstances, he or she would be doing their client a great disservice if they were to ask the witness any question that doesn't demand a simple "yes" or "no" answer.
The ability to ask a witness such "leading" questions is such an incredible advantage that attorneys should simply never relinquish it unless they have a damn good reason to do so. Leading questions deprive the witness of "wiggle room." Done properly, during cross examination, a witness should never be given the opportunity to qualify or caveat their answers to death, answer questions in what they believe is the most favorable context, or to otherwise explain away their own very damaging "yes" or "no" answers to your questions, given right in front of the judge and (where applicable) the jury.
Depriving a witness of "wiggle room" is especially important when that witness has an interest in the case, including witnesses that are biased towards the other side for whatever reason, but most especially witnesses with a tangible interest in the outcome of the case (e.g., a family member of a party and, most obviously, a party his or herself).
In this regard, if you believe I am overstating the importance of not deviating from "yes" or "no" questions, I ask you to take into consideration that a witness does not have to be particularly intelligent to give evasive or "rose-colored" answers to questions when given the opportunity to do so. After all, this is a skill most humans have mastered in early childhood!
Properly Formulating Questions in Order to Maintain Control Over the Witness
A big part of being a competent trial attorney is having the ability to think fast "on your feet" and to adapt to the inevitable surprise twists and turns a case takes over the course of a trial (the easiest example of the need for trial attorneys to be able to "think on their feet" being the making of, and responding to, objections, immediately, and without any advance notice that they would be debating the issue at hand). However, notwithstanding the importance of a trial attorney being a master of "wingin' it," it goes without saying that proper and thorough preparation remains critical.
And in this regard, (broken record alert!) the part of a trial where diligent preparation is most likely to pay off is during cross examination, because this is the one part of a trial where - if you play your cards right - you can essentially exercise total control over the proceedings. You have the opportunity to limit the unpredictable, to steer clear of the twisting and turning that so often rears its ugly head in other parts of a trial.
In order to do so, as you are preparing your questions to be asked during cross examination, you should be actively formulating any and all plausible, non-frivolous objections that might conceivably be made by the other side. Take away the ability of your adversary to pick the proverbial "low-hanging fruit" by making the most common and obvious objections to your overall line of questioning, as well to your individual questions, by structuring them to avoid these pitfalls. After raising these objections to your own questions, re-write them to prevent your adversary from being able to raise them at trial.
Depriving your adversary of easy and obvious objections is essential to protecting your "flow," (i.e., your ability to be in a groove during a smooth and effective cross examination. "Flow" is a critical, though tragically often overlooked, component part of any great cross examination. Any competent trial attorney must therefore take into account that even with respect to your adversary's objections that are overruled, by mere virtue of raising them, in a sense they have out-maneuvered you! Small victories add up during a hotly-contested trial, which often turn into wars of attrition, so make sure that your adversary doesn't achieve them!
If your adversary's right to make objections is abused, your adversary will likely be admonished by the Court in front of your client and, if applicable, the jury; this is never a good thing, for you or your client!
I'll Close With One of my Greatest Trial "War Stories"
There will be times when a trial lawyer is cross examining a witness when she or she wants to ask a question that elicits an answer that is damaging to that witness' credibility and/or to the other side's overall case, but the attorney knows in advance that the question will be of the aforementioned "low hanging fruit" variety with respect to objections that are almost certain to be raised by your adversary, and sustained by the Judge.
This "war story" involved a witness I was cross examining who was called by the other side to bolster their client's credibility, reputation and business acumen. The witness presented as a perfectly solid and upstanding citizen (it was entirely possible as of the date of that trial that the witness was a solid and upstanding citizen, and had been for years). As was entirely anticipated, the witness gave very flowery and glowing praise for the opposing party, and his testimony was favorable to him..
But my client knew that over a decade earlier, the witness had spent a few years at the Danamora Correctional Facility in upstate New York, and - understandably - was pestering me to ask him about his criminal conviction and subsequent incarceration in order to attack his credibility. However, any trial attorney worth his or her own salt would have immediately objected (almost certainly successfully) to me asking him about it on various different grounds, most obviously relevance.
Their objections would have likely been sustained because the conviction resulting in his serving time in prison was so remote in time (15-20 years before that day in Court, when he was closer to being a kid than the middle-aged man he evolved into), and was the result of relatively minor drug charges. And convictions for relatively minor drug-related crimes are not generally considered to be crimes which reflects one's "moral turpitude" and/or crimes involving dishonesty (which would have arguably had some relevance with respect to the witness' credibility).
Beyond the foregoing, all that remains to be explained in order to put this story into an appropriate context is that the witness - a cousin of my adversary's client (we will refer to the opposing party as "the bad guy") - provided testimony to the effect that he had been engaged in business interests with the bad guy for about 25 years, and was thereby able to attest to the bad guy's business acumen and ethical conduct in business affairs.
In order to elicit testimony from the witness as to his own, nearly two-decade-old conviction for a drug-related offense - which again, I am virtually certain would not have otherwise been deemed admissible by the Judge based upon my asking him about it - I began my cross examination of him by probing into whether the witness' business relations with the bad guy over the past few decades were uninterrupted. In doing so, I asked whether at all times and without interruption during the time period in which the witness testified to having had business relations with the bad guy, the witness lived in close proximity to the bad guy.
The following, in words or substance, is a summary of the questions asked and answers given which allowed me to succeed in getting the witness to put his own conviction for a relatively minor drug charge - otherwise almost certainly inadmissible - onto the record.
Me: "Throughout this 25-or-so year period in which you testified that you had close business relations with Mr. Bad Guy, were you at all times continuously associated with the business?"
Witness: "Yeah, basically."
Me: "Well, I'm going to ask you to clarify that statement for the Court, and I'm going to try to do so by asking you whether, during this entire period, you lived in close proximity to Mr. Bad Guy?"
Witness: "More or less."
Me: "Okay, that isn't a clear answer, I'll try again. You testified that you've always lived in New Jersey, at most an hour away from where the business was located, during this time period, is that your sworn testimony?"
Witness: "yes, except for a short period when I lived in upstate New York for a few years."
Me: "oh, I was born in upstate New York! Where in upstate New York did you live during that time period?"
Witness: "I was at Danamora."
Me: "Why were you there? For business-related reasons or something like that?"
Witness: "No sir, Damamora is a correctional facility."
Me (in an awkward tone): "oh, I see. Well, thank you for clearing that up, sir. I have no further questions for this witness, Your Honor." [I would argue that this is a trial attorney's equivalent of "dropping the mike."]