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3 Ways to SCREW UP Cross Examination BIG TIME

Ready for it?
Here we go...

  1. Don't ask leading questions.

  2. Don't listen to the witness' answers.

  3. Fight with the witness about the way you've worded your questions.

That's it. 
That's the list.
Have a great day!

You think that's the end of this article?
Not exactly.
I've just given you a list of the basic ways to screw up cross examination in a trial.

There are more.
Many more.
But let's focus on just these three for now.

ASK LEADING QUESTIONS

In any trial, the opposing lawyer gets to question the credibility of your witnesses.
That's the nature of a trial.
We put on a witness to support your case and the defense gets to probe his testimony after I'm done.

The same thing happens in reverse when the defense puts on a witness to support the defense.
I get to question him after my opponent is done.
We like to say that cross examination is a 'search for the truth'.

I suppose that's true.
It's a chance to confront the witness.
It's a chance to lock the witness into his sworn testimony.

It's a chance to show the witness has lied.
It's an opportunity to show the witness is less than truthful.
On the other hand, maybe the witness is a world class medical expert.

Maybe, just maybe, he has a good moral compass.
Maybe, when confronted with an opposing viewpoint, the expert actually supports our part of our position.
We can sometimes use him to bolster our claims.

The best way to conduct cross examination is to ask leading questions.
That's the opposite of open-ended questions.
Questions like 'who', 'what', 'where', 'when', 'how' and 'why' are open-ended questions that allow the witness to explain.

That's fine when we're questioning our own witness.
We want our witnesses to explain everything.
But not during cross examination.

I want an opposing witness to answer ALL my questions just yes or no.

The ONLY way I can make that happen is if I use short leading questions.

"On January 1 did you see Dr. Jones?"
"Did you complain of a breast lump on that day?"
"You went to the office with your best friend, correct?"

"Dr. Jones asked you about your medical history, right?"
"He asked you whether your family members had ever had this condition, correct?"
"Dr. Gold, you graduated from XYZ medical school, right?"

These are short, leading questions that call only for a yes or no answer.

Of course there are two other answers that the witness can give.
"I can't answer the question the way you asked it."
"I don't know."

Of course, the witness can try and weasel out of answering just yes or no and try to explain their answer.
A really good trial lawyer will stop the witness in their tracks when trying to do just that.
"Mr. Jones, do you remember just a few minutes ago, you agreed to answer my questions yes or no?"

"You promised me that if you couldn't answer yes or no to tell me you couldn't answer my question yes or no, correct?"
"You also promised not to explain WHY you couldn't answer yes or no, correct?"
"Now, let me ask you the question again..."

If he tries to weasel out of the question again, I'll simply bring him back to the promises he made to me and the jury at the very beginning of my cross examination.

If a lawyer allows a witness to explain an answer, he's lost control.
If a lawyer allows a witness to fight over the wording of his question, he's lost control.
If a lawyer asks open-ended questions and expects the witness to only answer yes or no, he's lost control.

That's just one way an attorney screws up cross examination.

DON'T PAY ATTENTION TO THE ANSWERS

Another way is to not pay attention to the witness' answers.
He's too focused on the questions he's going to ask.
He's two steps ahead.

He's not paying attention to what the witness is saying.
He's not carefully listening to the witness' answers.
If he was, he'd have heard some useful testimony that he could use to pounce on the witness.

It's not enough to be in the courtroom and 'hear' what's going on.
When you ask a question, you've got to listen to the answer.
If the witness gives you a nugget of gold, you've got to follow up immediately.

If you don't hear it, it's gone forever, along with your opportunity to destroy the witness' credibility.

DON'T ARGUE WITH THE WITNESS

Lawyers forget this often.
They think that they can debate the witness.
They think they're sharper than the witness.

They want to show the jury they have faster and wittier come-backs than the witness.
They want to appear more knowledgeable than the witness.
They have no problem arguing and fighting over every word that is said.

"Dr. Jones, assuming those facts are true, would you agree that failing to do X,Y and Z would be a violation from the basic standard of medical care?"
"Well, I don't assume those facts are true. They're not!" the medical expert yells out.
"Doctor, it doesn't matter what you believe. FOR THIS QUESTION YOU ARE TO ASSUME THEY'RE TRUE, UNDERSTAND?" the lawyer says condescendingly.

"NOW ANSWER MY QUESTION PLEASE..."
"What was your question again?" the doctor says quietly.
"Judge, can I have the court reporter read back my last question?" asks the attorney doing the cross examination.

"Uh, which standard of care are you referring to?" the expert asks the attorney, clearly screwing around with him.
"Doctor, you'd agree that it's important to keep accurate medical records of your patients, correct?"
"Well, it depends on how you define accurate," the expert say slyly.

This is frustrating.
You can lose your cool quickly.
You want to look the expert in the eye and ask "Are you an idiot or do you just play one in court?"

That would be inappropriate.
A really good trial attorney will try to control his frustration and channel these little word fights into a withering cross examination.
One that shows the jury that the witness is being evasive and confrontational.

But you have to be careful.
You can't step over the line where now YOU become a bully.
Why not?

Because the jury will not like you for doing that, in most cases.
They may feel bad for the witness.
They may feel like you're taking advantage of him.

They may start to feel sympathetic for how you turned him into a quivering blob of jello.
That's why an attorney has to balance how aggressive he is with the need to extract certain information from the witness.

These are just three basic ways to screw up cross examination.

To learn how to control a witness during cross examination and other really interesting cross examination strategies, I invite you to watch the quick video below and the videos that follow in this playlist...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer