I grew up watching L.A. Law. My favorite character was Michael Kuzak, the firm’s hotshot trial lawyer. Nobody cross examined witnesses like Kuzak. You knew when he stood up in the court room, buttoned his jacket and approached the witness stand, something big was going to happen. By the end of his cross examination, Kuzak had destroyed the witness and with him, the opponent’s case. Nobody did it like Kuzak.
Real life is not as exciting as L.A. Law and cross examination is not as easy as Kuzak made it look. But by following a few simple rules, you can make your cross examination just as devastating.
An effective cross examination starts at deposition. Some attorneys wait until trial to prepare their cross examination outlines. That’s too late. You need to try out your cross examination questions at deposition. In fact, every question you intend to ask at trial should be asked at deposition so you know what answer to expect at trial. If it’s an answer you like, then you have a ready made question for trial. If not, dump it. If it did not work at deposition it won’t work in front of six jurors.
Don’t ask a question if you don’t know the answer. Something you have heard over and over is that you don’t ask a question at trial unless you already know the answer. Trial is not the time to be surprised. Be surprised when you investigate your case, when you receive responses to interrogatories or at deposition. But don’t be surprised at trial. But how do you find out the answers to the questions you intend on asking? Simple. You find out the answers in deposition. Do your work in deposition to take the guess work out of trial. When you’re at trial you will know what the answers are because they will be in black and white in the deposition transcript.
Prepare a cross examination binder. Prepare a cross examination binder for every witness you will cross examine at trial. The binder will contain your cross examination outline and your impeachment materials.
First, prepare a detailed cross examination outline. Start by brainstorming the topics you want to address during your cross examination. Such a topic could include witness bias. For each topic area, prepare a two column chart. On the left column, include all the questions you intend to ask the witness. I suggest, however, that instead of writing out the questions, that your write out the answers you expect to elicit from the witness. At trial, when you look at your outline and see the answers, you’ll know what question to ask.
In the right column, across from each answer you intend to elicit, cite the source of that answer, whether it’s page 12 from the witness’s deposition, the ER admission note or some other document. If you can’t find a source for the answer, don’t ask the question. Why? Because if the witness does not give you the answer you want, the one you have written down on your outline, you won’t have anything with which to impeach him.
That brings us to the second part of your cross examination notebook. Behind your outline, keep all your source documents, your defacto impeachment materials. The document you’ll be relying on the most will be the witness’s own deposition, where months, or perhaps years before, you tried out all your cross examination questions.
Ask only leading questions. Cross examination is not the time to ask the witness to tell his story. Don’t ask open ended questions. Ask only leading questions which suggest the answer. You want to direct the witness to give you the answers you have in your outline. Don’t give him the opportunity to say something else by asking open-ended questions.
Don’t use the word “correct” at the end of your questions. Don’t end your leading questions with such words as “correct” or “isn’t that so.” In fact, don’t ask questions. Instead, make statements and get the witness to agree to them. Instead of saying, “You treated the plaintiff on January 23, 2003, correct?” simply make the statement, “You treated the plaintiff on January 23, 2003.” You’ll get the same answer whether you ask the question or put it in the form of a statement. Such words as “correct” detract from the power of your cross examination and if used at the end of every question, become distracting and downright annoying.
Ask “yes” questions. When you ask leading questions, you want to ask questions that require only a “yes” answer. You want the witness to agree with you and say “yes” to your questions as often as possible. You want the jury to see and hear the witness agreeing with you time and time again. “You’re an orthopedist.” “Yes.” “You treated Mr. Smith.” “Yes.” “At the request of his attorney.” “Yes.” “And you charged his attorney $600 for that examination.” “Yes.” “An examination which took twenty minutes.” “Yes.” The more the jurors hear the witness saying “yes” to your questions, the more the jurors will perceive that the witness is agreeing with you and with your position.
Only include one fact per question. Avoid asking long-winded questions that are overburdened with facts. Keep your questions simple and only include one fact per question. By doing this, you keep your cross examination clear and crisp. Also, it’s easier to impeach a witness about a single fact as opposed to a whole host of them. In addition, single fact questions increase the number of questions you can ask the witness to which you will get a “yes” answer. You would rather have the witness say “yes” to you 50 times than 5 times.
Don’t argue with the witness. Sometimes cross examination does not go as planned. A witness trips you up, and despite your best efforts, you don’t get that “yes” answer you expected. Some attorneys would argue with the witness. If you find yourself here, stop. Consider moving on to the next question on your outline.
Start Strong. End strong. When you’re organizing your outline into topic areas, start with a topic that makes a strong point and end the same way. Consider starting with the witness’s bias. By doing so, you color all the witness’s answers.
Don’t ask the ultimate question. It’s tempting, after getting the witness to agree with you again and again, to ask the ultimate question. Don’t do it. Very rarely will you get the answer you want. For example, if you’re cross examining the Plaintiff’s treater, you may ask 30 or more questions detailing every time the plaintiff did not show up for physical therapy. You will leave the jury with the impression that the plaintiff did not comply with doctors’ orders and, in the process, may have compromised his condition.
But whatever you do, don’t ask the witness the ultimate question. For example, don’t ask the doctor the following: “By not going to physical therapy, you agree, doctor, that plaintiff compromised his outcome?” The doctor won’t agree with you. He’ll find some way to explain how plaintiff’s repeated non-compliance had absolutely no affect on the plaintiff’s outcome. It’s tempting to ask that ultimate question. Do it at your own peril. Instead, argue the ultimate point in your closing.
If you insist on asking the ultimate question, do it at deposition. In fact, I strongly recommend you ask ultimate questions in deposition. Every once in a while you’ll get a witness to agree with you on that ultimate question. If they do, ask it again at trial. If the witness refuses to agree with you, impeach him with his deposition testimony.
Effective cross examination comes down to preparation. If you want to get the answers you want, you need to lay the groundwork long before trial commences. Because in real life, unlike television, you don’t have a group of writers scripting a devastating cross-examination.