Make big points and ignore small ones.
Make your points on cross-examination major
ones that are significant to your case and do it
without irrelevant details. Ignore issues that
aren’t important. Don’t bore the jury. Make
cross-examination on the big issues short, to the
point, and interesting.
Don’t wait for closing argument to explain important
points made on cross.
Don’t make the mistake of waiting until closing
argument to try to ensure that the jury understands the significance of important points
made in cross-examination. By asking follow-up
questions during the cross-examination you can
underscore for the jury why the point is important. It is better to deal with the witness trying
to explain it away than to lose the drama of the
moment or count on the jury to remember it long
after it happened. For example, if you impeach
a witness, follow-up questions highlight the
conflict: “Today you testified the light was green,
but in your deposition a year ago you testified,
under oath, that the light was red, isn’t that true?
Yet both can’t be true, can they? Your recollection
a year ago would be more recent than one year
later, isn’t that so?”
Approach cross-examination as a big picture, not a
series of details.
Cross-examination is a continuation of your
client’s story. It is a repetition of the basic theme
of your case. Don’t plan your cross-examination
as if you were looking through a microscope for
details. Make sure your cross-examination is one
of the big pictures in the case. No one cares and
few will understand a detailed, intellectual, and
complicated cross-examination, nor do jurors care
about issues they feel aren’t important. Moreover,
when you waste time on details or the irrelevant,
the jury will assume you are not being fair to the
witness. Make your points big ones and important
ones—think of a rifle and not a shotgun.
Don’t react to every issue your opponent raises.
Your opponent may try to distract you and the
jury by raising issues about insignificant matters. Having a major theme and sticking to it
is essential to a successful outcome. What you
spend time talking about is what is important
in the minds of the jury. Ignore the insignificant
and concentrate on the important facts during
Have a basic theme and stick to the main story.
You have a story to tell based upon your case
themes. You need to develop a central theme that
highlights the positives of your case and explains
the negatives as well. Stay on theme throughout
the trial and be sure to weave your client’s story
into your cross-examination.
Deal with negative issues head on.
The negative issues about your case must be acknowledged and dealt with openly and honestly.
They can’t be ignored—they are like an elephant
in the room. Plan your cross-examination by
deciding how to deal with these issues, but be
careful not to spend too much time doing so.
The right to ask leading questions is a gift. Use it.
Use your right to ask leading questions in
cross-examination. If done well, you can tell your
client’s story through leading questions, irrespective of the answers the witness gives. A series of
short and clear leading questions is a powerful
way to communicate your client’s story to the jury.
The three most important rules are: Listen, listen, and
listen. Listen carefully to the witness on direct
examination for issues to ask about on cross.
Good trial lawyers are not good note-takers. They
are good listeners. If you have a prepared outline
of questions you plan to ask on cross-examination, you will often be looking at the outline or
planning your next question instead of listening
to the witness’s answers. As a result, you may
think you received an answer to your question
when you didn’t or you may miss important
testimony that needs follow-up. Concentrate on
what the witness is saying. Think while you work
and listen, listen, listen.
If you decide to impeach a witness, do it right.
Too often, lawyers lose the drama of the moment
while attempting to impeach on cross-examination
because they don’t do it right. The first step for impeachment is to make sure the witness’s statement
is significant enough to use. The impeaching material must be clearly inconsistent and not something
obscure. The next step is to get the witness totally
committed to the inconsistent statement before
impeaching. If it is from a deposition, you need to
identify the page and line number before bringing
out the impeaching evidence. Lay a proper foundation before you attempt impeachment. Do it right or
don’t do it at all.