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Cross-examination has been known as “a search for the truth.” In every lawsuit involving claims of medical malpractice, car accidents or even wrongful death here in New York, there are always competing stories.
The injured victim knows what occurred. The person who's being sued knows what occurred. Often times, those two stories are diametrically opposed.
In every lawsuit there are claims and there are defenses. The jury's goal is to determine whether the person bringing the lawsuit, the injured victim, is more likely right than wrong and that what they're claiming is true.
An injured victim need not show with 100% certainty that what they are saying is true.
During the course of the trial, each side will bring in various witnesses and put on specific evidence in support of their claim or their defenses.
Whenever a witness gets up on the witness stand and testifies, either for or against a particular side, the opponent has the opportunity to question the credibility and the veracity of that particular witness.
For example, if the defense calls a medical expert to support their defenses and argue that they did everything right in this medical malpractice case, I am fully entitled to question this witness in an attempt to learn the truth.
This witness might be paid an exorbitant fee for his services. This witness might have something in his background that the jury needs to know about to determine if he is leaning in favor of one side or the other.
Maybe this expert has never testified for an injured victim before. Maybe he only reviews cases for doctors who are sued in medical malpractice cases. There are many different types of strategies and tactics to use when cross examining a witness at trial.
Importantly, cross examination is not done solely for purposes of searching for the truth.
In some cases, we can use defense experts to bolster our own case. There are many times when we can get a defense witness to acknowledge and accept that certain facts are true and undisputed. When we can get the defense witnesses to accept that certain facts or statements are true, we have now narrowed down what the jury must ultimately do and determine which specific set of facts they must now evaluate.
Anyone who's watched a courtroom drama on TV or in the movies knows how fascinating cross examination can be.
In the movie A Few Good Men with Tom Cruise, there is a scene where Tom Cruise is cross examining Jack Nicholson on the witness stand. Cruise's character, McAfee is questioning Col. Jessup and it makes for great courtroom drama.
Another great courtroom thriller is classic called The Verdict with Paul Newman. There are two key cross-examination moments during that movie that changed the outcome of that trial.
Despite all their dramatic movies on TV and in the theater, there are still instances where cross examination is conducted politely. So many people, attorneys included, think that cross examination equals angry and screaming questioning. Nothing could be further from the truth.
There are instances when righteous indignation is called for. There are instances where sarcastic comments are called for. There are other instances where those strategies would simply be inappropriate. Such as when question an elderly grandmother who's now giving testimony against my client.
imagine what the jury would think if I was screaming and yelling at some nice elderly grandmother. Instead of focusing on her, they'd turn their anger on me.
As a young attorney, learning from more experienced lawyers, we are always advised to use leading questions cross examining a witness.
There is a key reason for this.
Let me put it this way.
When I put a friendly witness who's supporting our claim on the witness stand, I will be asking open-ended questions, known as a direct examination. I want the witness to explain to the jury. I want the witness to explain why things happened and when.
By asking open-ended questions the jury gets to hear from the witness personally exactly what they observed, what they saw and what they did.
A really good attorney who wants to conduct a great cross examination is likely to keep an opposing witness on a very short leash. That means that you never want to give the witness an opportunity to explain anything.
There are two key reasons for this:
By asking leading questions, I am the one literally testifying and simply getting the witness to acknowledge "Yes, No, I don't know" or “I can't answer the question the way you asked it."
There is one exception though...
That's what we call a “Throw away question.”
A throw away question is where we ask the witness a question and we simply don't care about the answer. In that instance, the witness can say whatever he wants. We really don't care. However, you still must be careful because if you give the witness any opportunity to explain, he will simply take that chance and run with it.
Another reason why you never want to ask an adversarial witness an open-ended question, is that you never truly know what the witness is going to say. Because of that, there is always the expectation that when the witness says something, he's going to hurt you and your case, and you never allow that to happen.
Let me share with you a sample cross examination of a medical expert that will give you a clear understanding of what I'm talking about.
Here's the fact pattern:
Let's assume this is a failure to diagnose lung cancer case and now the defense has called a lung specialist, known as a pulmonologist to the witness stand to defend the doctor who's being sued. I'm now getting up to cross examine this defense witness...
You should recognize that in all of these sample questions, I am putting words into the witness' mouth. I'm simply asking for a “Yes, no, I don't know or I can't answer.” That's all I want to witness to do.
I am not asking who, what, why, where, how, when. Instead, I am telling this story through my questions in the form of leading questions.
All of these questions are being asked in a polite manner. Even if the doctor were to argue with me, I'm simply going to rephrase the question multiple times to get the jury to recognize that the doctor is being evasive and simply does not wish to answer my particular question.
Each attorney has their own style of questioning. Some are aggressive. Some are pleasant. Some combine both qualities. There are even some attorneys who don't know when to stop questioning a witness. There's a phrase that we hear when an attorney continues to question a witness beyond the point he should stop. The phrase is “You are beating a dead horse.”
As a trial attorney with more than 25 years of experience, I will tell you that cross examination is the most exciting part of any trial. It's the most contentious. It's the most dramatic. It's an opportunity where you can try and show that the witness is a liar. You can try and show that the witness is biased or prejudiced.
If you conduct cross examination successfully, you can sit down knowing that you poked many holes in the defense's arguments and maybe even gotten that witness to support and bolster your own case.
However, if you think that really good trial attorneys can turn any witness into quivering Jell-O simply by virtue of their legal prowess and ability to ask leading questions, I will tell you that that is incorrect. It is the very rare attorney and the very rare witness who is being cross examined that breaks down on the witness stand, throws his hands in the air and admits that everything you are saying is true.
Cross examination is an opportunity for each attorney to test opposing witnesses credibility and their propensity for the truth.
The only way the attorney can be successful when cross examining a witness is with extensive preparation and practice. If you watch real lawsuits with experienced attorneys, you will find that the most experienced attorneys tend to be the best cross examiners. The reason?
They've done this many, many times. They know what works and what doesn't. There is no substitute for experience. As a mentor told me once, experience simply means that you have tried something and failed at it many times before finally getting it right.
What should you do now with this great information?
To learn even more about cross examination strategies, I invite you to watch this video below...