Tuesday, August 23, 2011

Myths of Cross Examination

Dallas trial lawyer Quentin Brogdon offers seven myths about cross-examining witnesses. They first appeared as part of an article in the Texas Lawyer:

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 full article is here

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