|Commentary authored by Dallas Attorney Quentin Brogdon and published in Texas Lawyer newspaper |
Commentary: Seven Deadly Myths of Cross-Examination
|June 20, 2011 6:00 am|
by Quentin Brogdon
Cross-examination perhaps is the most difficult skill for trial lawyers to master. In his seminal work, "The Art of Cross-Examination," Francis L. Wellman noted more than 100 years ago that great lawyers had "failed lamentably" in cross-examination, while lawyers "who might otherwise have been regarded as of a mediocre grade in the profession" had achieved "marvellous success" through their skills in cross-examination.
Many lawyers seem to believe that effective cross-examination skills are the exclusive province of the lucky few born with the necessary innate talents. But any trial lawyer can develop a minimum level of skill in cross-examination through practice and a thorough study of the relevant principles.
Myths concerning cross-examination abound. Here are the seven deadly myths that can trip up a cross-examiner.
Myth No. 1: Only experienced lawyers can be effective cross-examiners. Experience is important, but preparation and a carefully formulated game plan can offset inexperience to a great degree.
Myth No. 2: The effective cross-examiner need not be caring or sensitive. Jurors usually identify more with the witness than the lawyer, and jurors more often than not expect the lawyer to be courteous and respectful. A lawyer who sheds basic humanity in the courtroom appropriately risks being viewed as manipulative and insincere.
Myth No. 3: Lawyers must conduct cross-examination in an extremely aggressive manner. Again, jurors more often than not expect the lawyer to be courteous and respectful. In addition, an overly aggressive cross-examination may cause the witness to turn the cross-examination into a contest in which the witness denies the cross-examiner even the most basic concessions. Some of the best cross-examinations are done with a carrot instead of with a stick.
Myth No. 4: The witness always must be destroyed during cross-examination. This approach leaves little room to obtain helpful concessions from the witness, and little room for the jurors to decide that the witness is mistaken or confused, as opposed to dishonest.
Myth No. 5: Cross-examinations should always yield dramatic results. Sometimes, the best approach, depending upon the witness, is no cross-examination or only a limited cross-examination.
Myth No. 6: Cross-examinations are an opportunity to debate with the witness. Often, going down this path only allows the cross-examiner to lose control of the witness and gives the witness an opportunity to expand further upon the harmful testimony.
Myth No. 7: Cross-examinations that appear on television and in the movies are realistic and appropriate models for the cross-examiner. Cross-examinations on film tend to be unrealistically argumentative, sarcastic exercises. Their only real importance to a cross-examiner may be that they help the examiner understand the jurors' expectations of cross-examination.
The Big 10
A key threshold issue is determining whether to cross-examine the witness at all. Somelawyersfeel compelled to cross-examine vigorously everyadverse witness.
However, the cross-examiner should consider forgoing cross-examination altogether or, at most, engaging in a limited cross-exam, if the witness did not hurt the case; the witness was not credible; the witness is unimpeachable; opposing counsel laid a trap with the witness; the cross-examination will involve only a repetition of harmful testimony; or the risks of achieving any worthwhile objectives outweigh the potential benefits.
As one commentator, Edward T. Wright, wrote in his book "Winning Courtroom Strategies," "If the witness is a decent, unprejudiced citizen who has told the substantial truth or has said little to hurt you, leave him alone, smile at him, but don't cross examine him."
Many lawyers were trained to follow Irving Younger's famous 10 commandments of cross-examination. Dozens of sources repeat and discuss his commandments, including Wright's book. Although Younger's commandments are generalizations, they are a useful place to start. Younger's commandments are:
1. Be brief. Enough said.
2. Use short questions with plain words. Although the lawyer is asking the witness the question, he actually is directing the question at the jurors.
3. Ask only leading questions. Some lawyers say counsel cannot always follow this rule. But, when in doubt, usually it is best to lead.
4. Never ask a question to which you don't know the answer. Some lawyers say this rule should be modified to: A lawyer should not ask a question to which she does not know the answer, unless she is prepared to deal with whatever answer the witness provides, the answer really does not matter, or there is only one answer that makes sense.
5. Listen to the answer. Cross-examining lawyers lose much valuable follow-up because they look at the next question on the outline instead of listening to the witness' answer.
6. Do not quarrel with the witness. Some lawyers advocate adding to the end of this maxim: "unless the jury wants you to and the judge will let you get away with it."
7. Do not permit the witness to explain. This only gives the witness a chance to expand upon harmful testimony.
8. Do not ask the witness to repeat the testimony given on direct. In "The Art of Cross-Examination," Wellman lamented the approach of lawyers who "take the witness over the same story that he has already given our adversary in the absurd hope that he is going to change it in the repetition, and not retell it with double effect" on the jury.
9. Avoid asking one question too many. Thisgives the witness an opportunity to alter or clarify earlier helpful testimony.
10. Save the explanation for summation. Summation is the format best-suited for the lawyer to pull together all of the separate threads of the case.
Contrary to popular belief, effective cross-examination skills are not the exclusive province of the lucky few born with the necessary innate talents. Instead, practice and a thorough understanding of the relevant strategies give anytrial lawyer the chance to achieve the "marvellous success" in cross-examination to which Wellman alluded in "The Art of Cross-Examination . "
Quentin Brogdon is an attorney with the Law Offices of Frank L. Branson in Dallas. He is board certified in personal-injury trial law and in civil trial advocacy, and he is an associate member of the American Board of Trial Advocates. He was president of the Dallas Trial Lawyers Association in 2008. His e-mail address is firstname.lastname@example.org.
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