Trial lawyers with years of experience will tell you that although they may have learned the art of cross-examination in a few trials, it took them a lifetime to master it. Contrary to what Hollywood would have us think, a cross-examination is not so much a dramatic confrontation between a lawyer and a witness as it is an opportunity to strengthen your client’s case with the “assistance” of an opposing witness.
But the unpredictability of that opposing witness can sink a cross-examination. Fortunately, there are steps attorneys can take to improve the effectiveness of a cross-examination both before and during it.
1. Determine Your Objectives for Every Witness –
It’s not necessary to cross-examine every witness. You should probably refrain from cross-examining a witness if doing so will not strengthen your client’s case—in fact, it might even weaken it. However, it’s crucial to decide your objectives in advance of starting a cross-examination if it could support your client’s case.
Do you need the witness to attest to any significant facts?
Is verifying the theory behind your client’s case your main objective?
Is undermining the witness’s credibility your intention?
Your strategy for cross-examination of a witness will depend on where you want to go with them. Afterwards, you will prepare this path by asking clever, leading questions that are founded on a close examination of the witness’s earlier deposition and trial testimony as well as pertinent admissible evidence.
2. Arrange Your Inquiries in a Box –
Witnesses in asking only questions you are certain of the answers to is a cornerstone of cross-examination technique. When you do, you have the ability to manipulate a witness and compel them to provide testimony that supports your client’s case. However, the secret to finding the answers you seek lies in the way you phrase your inquiries.
During your cross-examination, every question you pose should be a leading one. For example, “It was raining that evening, correct?” Leading questions limit the amount of time witnesses have to explain their responses while also nudging them in the direction you want them to go.
You should center each question around a single fact. When it happens, it will unavoidably be brief. It can be challenging for witnesses to avoid concise questions without losing their credibility.
Asking only questions you are certain of the answers to is a cornerstone of cross-examination technique. When you do, you have the ability to manipulate a witness and compel them to provide testimony that supports your client’s case. However, juries believe that the way you pose your questions will determine whether or not you receive the information you need.
Lastly, you ought to cross-examine witnesses regarding facts rather than views. Individuals have flexible opinions that vary. Data are neither and cannot be. For instance, you shouldn’t inquire about the witness’s perception of an object’s “heavyness.” Rather, you ought to pose inquiries that demonstrate the witness was aware of its weight, like “You needed your colleagues to move the object for safety reasons.”
machine using a forklift, is that right?
3. Use Constructive and Deconstructive Cross-Examination Strategically –
Cross-examination comes in two varieties. Constructive cross-examination is used to strengthen your client’s theory of the case, while deconstructive cross-examination is used to undermine the credibility of a witness. Each calls for a distinct strategy.
Positive Reverse Interrogation
Constructive cross-examination is the process of extracting useful testimony from an unfavorable witness. Rather than being an attack, the cross-examination ought to come across as a dialogue. The jury is likely to give substantial weight to a helpful fact you establish through constructive cross-examination because it came from an adverse witness rather than one of your own witnesses. When you can use constructive cross-examination to bolster your client’s case by confirming a fact, you should.
You are trying to exert control over an unfavorable witness and undermine their credibility when you conduct a deconstructivity cross-examination. Jurors are accustomed to seeing cross-examinations like this in television shows and motion pictures. This implies that they’ll anticipate you to challenge the witness frequently and box them in (using the above structure for questions) in order to end on a high note. You run the risk of losing credibility if you don’t. When your opponent challenges facts central to their case theory, deconstructive cross-examinations work best.
In certain cases, you might want to cross-examine a witness in a constructive and deconstructive manner. If you choose to do both, make sure to complete the former first. Otherwise, jurors
may not think it credible if the witness confirms information that is favorable to your client’s case.
4. Understand the witness’s earlier testimony in detail – you need to know every witness’s past testimony and pertinent admissible evidence about them like the back of your hand in order to elicit the testimony you seek, regardless of your objectives for each witness or how you intend to achieve them.
Naturally, before choosing to cross-examine a witness, you will have gone over the witness’s deposition, trial, and pertinent admissible evidence to make sure you have every chance to strengthen your client’s case or cast doubt on the witness. However, you will need to know more about that testimony or evidence than just the bare minimum; you can get assistance from resources like Public Records.
Regaining control and holding the witness to their previous testimony or evidence is necessary if, during cross-examination, the witness responds to a question that differs from your expectations based on their previous testimony or supporting documentation. The only way to accomplish that is to be aware of (and have ready for trial) every instance in which that witness has already testified, or in which admissible evidence corroborates the testimony you are now trying to extract from that witness. If not, you won’t be able to apprehend the witness.
5. Remain Calm Around Uncooperative Witnesses –
Regardless of how well you plan and carry out a cross-examination, there’s a good chance that the witness won’t initially provide you with
a straightforward “yes” or “no” response and start to test you. You need to maintain your composure when they do that. If not, you’ll probably become less credible. Remain composed and professional even if the witness starts to lose cooperation. Keep your eyes open. Interrupt them politely, reminding them that you are asking a question and that their response should only be “Yes” or “No.” Employ nonverbal cues to convey your disapproval, such as shaking your head indifferently or raising your hand to stop the witness. Kindly request that the judge give the witness instructions to respond to the question if they are still not cooperating.
Ascend to the Occupation
Cross-examinations carry a lot of risk. The evidence you
elicit from a witness has the power to make or break the case for your client. However, you can conduct cross-examinations that effectively advance the cases of your clients if you have the proper planning, strategy, and execution. When questioning a witness in cross-examination won’t improve.
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