During the trial, your cross-examination of the opposing side's witness is an opportunity to make him or her appear unreliable. A successful cross-examination caught the attention of the jury and judges, and exposed loopholes in the opposing side's case. Good re-examiners use lead questions to elicit the desired response from witnesses and take the case in a positive direction.
Step
Part 1 of 3: Preparing for the Cross-Witness Examination
Step 1. Have control of the case
To an outsider, cross-examination may seem like a series of random questions, but the process is actually very well planned and requires many hours of preparation. It's important to know the ins and outs of the case so you can ask the right questions. Start doing research for cross-examination well in advance of the trial.
- Know all the facts of the case, not just what you need to know before the trial begins. When gathering information to structure a case, determine how the reexamination will affect it. For example, if you are re-examining a doctor who is acting as an expert witness, find out if showing that the witness is somehow unreliable will help your defense. The entire defense may depend on discrediting a witness.
- Do extensive research on the witnesses you will be re-examining. Knowing all of the witnesses' backgrounds will help you know what questions to ask to get the answers you need to strengthen your defense. Make sure you can back up the facts with sources such as signed statements, transcripts and official documents.
Step 2. Create a re-examination plan
This is the agenda you will follow when re-examining witnesses. Any questions you will be asked, as well as the answers you anticipate receiving, should be planned in advance. The goal is to ask a series of direct questions that will lead the witness to answer in your favor by revealing gaps, biases, and weak points in witness testimony.
- Write the question in one column and the answer you want to get in another. Write down everything you want to say in detail and try to fully anticipate what the witness will say. Ask questions about specific evidence, whether it is for explanation, clarification, or to refute something else that has been said during the trial.
- Each answer must be supported by the research you have done. For example, if you ask the witness how long he has worked at a particular health institution, you must have documented evidence from the hospital concerned that the witness has worked there for a certain time. That way, if a witness gives an unexpected answer, you already have evidence to suggest otherwise.
Step 3. Don't plan to ask a question you don't know the answer to
Knowing the case well is essential so that you can predict how witnesses will answer your questions. Otherwise, the results may come as a surprise and will actually hurt your argument. Any questions you ask should be calculated to encourage witnesses to admit dubious facts or weaknesses.
If you know the facts and have backed up research, you should know the answer. For example, you ask an expert witness if he or she works on the evening of June 19. You should already have documents showing that he worked or didn't work that night. If a witness gives a surprise answer that you know is not true, you will have facts with which to accuse the witness
Step 4. Ask your questions on deposition
Make sure the overall retrial plan is in place on the day of deposition, so you can see how the witness will respond. Think of this as a test run to determine if your plan will work. After deposition, edit and streamline the plan for the actual day of cross-examination.
- If you don't like the answer given, you may decide to drop the question in court. You should only ask questions whose answers are in your case.
- If the deposition answer and the answer given later differ, you have grounds to accuse the witness.
Step 5. Find the inconsistency
When witnesses are asked about the same subject more than once, inconsistencies tend to arise, and your job is to find and use them. At each opportunity, ask the same question and record the answers. When you find something you can use, formulate questions that will make the inconsistency visible to the jury and judge during cross-examination.
- Also look for bias. Starting cross-examination with witness bias can cast doubt on the rest of his testimony.
- For example, you might start by asking the witness how many times he or she has performed a certain type of operation. If he said "8 or 9" during the deposition, and this time he said "15 or 20," reiterate the statement he made during the deposition in your second question.
Part 2 of 3: Formulating Effective Questions
Step 1. Include only one fact per question
If a question contains too much information, you may get an unexpected answer. Make sure each of your questions is simple with only one important fact in it. Start with small steps, getting the witness to confirm each fact with a "yes" before continuing. This way you can move the argument slowly but steadily, and you'll maintain control of the situation.
Step 2. Ask mostly leading questions, not open-ended questions
Almost every question should be structured in such a way that the witness must answer with one word: "yes." Lead the witness by stating the facts in the form of questions, then move on to the next fact. This allows you to stay in control of the cross-examination, eliminating the chance for surprises to arise. This makes the witness seem to agree with everything you say.
- For example, instead of saying "What is your relationship with the defendant?" Say, "You met the defendant in January 1999, when you were both set to be roommates at the University of Virginia, correct?"
- Asking open-ended questions gives witnesses too much leeway to give subjective and unpredictable answers instead of simple confirmations of facts you already know are the truth.
Step 3. Use non-driving questions strategically
In some cases, it's better to ask a slightly more open-ended question than just "yes". Long series of leading questions can be tedious for jurors and judges to hear, and sometimes you can emphasize a point better by getting witnesses to speak.
- When you're re-examining an expert witness, for example, it may be more effective to get information straight from his mouth, especially if you plan to come back and catch inconsistencies.
- However, open-ended questions should be handled with care. You need to be relatively sure of what answer the witness will give, and continue with more leading questions to keep the cross-examination on track.
Step 4. Make sure your questions move the trial plan forward
There's no need to bring up inconsistencies unless it works in your case. Don't ask pointless questions, because with each question you ask, the chances of surprises increasing. Each question should bring you closer to the result you want.
Step 5. Avoid boring judges and jurors
Vary the order of your questions so you don't just state them the same way every time. New lawyers generally structure any and all questions the same way. "You are right?" or "Is it true that _?" There's no need to keep using the words "true" or "correct" to ask effective herding questions. You will sound stronger and more convincing if you don't fall into this bad habit.
Try stating facts and using your tone of voice to indicate that it is a question. For example, you might say "You met with Mr. Lee on the morning of August 2nd." The witness will answer "yes" even if you do not use the word "true" to indicate that it is a question
Part 3 of 3: Carrying out Cross Checks
Step 1. Stick to the plan
Whenever possible, do not deviate from the outline of the cross-check. The entire inspection should be planned so that you know exactly what to expect. It may be tempting to ask additional questions in reaction to something a witness said, but only do so when you are positive that the question will benefit your case, and you are reasonably sure of what the answer will be.
If you get an answer you don't like, don't argue with the witness. This will make you look ugly, not the witness. If you have evidence that there is an inconsistency, you can accuse the witness
Step 2. Design questions for each individual
Do not treat all witnesses in the exact same way; focus on the weak points that will make the reexamination what you want. After practicing with different types of witnesses, you will begin to understand how to adjust the tone and style of cross-examination for the apparent response of the jury, judge and witness.
- Ask easier questions at the start to make the witness feel comfortable, and move on to more complex questions once trust has been established with the witness.
- You have to be persistent and aggressive without being rude.
Step 3. End strongly
The witness's response to the last question will be the last thing the jury remembers. Once you've effectively completed your list of questions and you've got what you want, it's time to stop before you ask too many questions. When you have a good outline, there is no need to ask additional questions.
Step 4. Know when to “no” cross-examine witnesses
If you think cross-examination will not benefit the case, then it will be counterproductive. If you don't have enough support to ask a strong herding question, don't take the risk. Focus your argument on the weaker point of the claim.
Tips
- Remember to stay in control. When an attorney cross-examines a witness, that attorney is the one to direct the conversation. Do not allow witnesses to slip in unneeded or damaging information or statements. Ask the judge to order the witness to only answer questions directed at him.
- Practice cross-checking. Do it with a partner or colleague to practice asking questions, introducing evidence, and pressing with follow up questions.
