Saturday, September 24, 2011

Tips for good cross-examination

From the Lawyerist blog:

To Lead Is Not Enough

Cross examination—when you ask questions of the opposing counsel’s witness—allows leading questions. A leading question suggests a particular answer, such as, “You work at Acme Dynamite, right?” The only possible responses are “yes” or “no” (and you already know the truthful answer is “yes”).

But asking a perfect leading question is more than just making a statement and adding, “right?”, “correct?”, or, “isn’t that true?”  The perfect question is built not only to get the answer you anticipate, and one that helps you persuade the jury. It also denies the witness time to think of any response other than exactly the response you are looking for. And it elicits only one or two facts, making the question and the answer easy to understand.

The perfect question also saves the powerful fact for the end. The imperfect question is diluted by prematurely revealing the powerful fact too soon.

This is a leading question:

Q1: You saw your roommate face-down on the floor when you walked in the room, right?

Same question (in essence) but closer to perfect:

Q2: You walked in the room…and saw your roommate face down on the floor. Right?

Q2 gives the witness no time to think. If he does not immediately answer in the positive, his credibility is damaged. The jury will wonder why he needs to think about the question before answering. But Q1 doesn’t create that need to immediately answer in the positive. The witness might well pause to ask himself, “well, did I see him immediately after entering the room, or a bit later…” without losing much credibility. Q1 also reduces the dramatic impact of the fact itself. Strive to present the dramatic facts in a dramatic fashion.

Questions Without Beginnings

The simplest and at times most effective way to save the powerful fact for the end of the question is to ask questions with no beginnings. For example:

You left work at eleven?
Got home at eleven-twenty?
Parked in the garage?
Walked up the sidewalk?
Opened the door?
Saw your roommate face-down on the floor.

There is an inevitability to this series of questions. They allow the witness no time to think, evade, or argue. You get exactly the facts you need, in order, with no chance for even the least-sophisticated fact-finder to miss anything.

Compare this to:

So you saw your roommate face-down on the floor when you walked in the room after driving home from work, which took twenty minutes, and you got home at eleven-twenty. Correct?

Don’t laugh. Lawyers ask questions like that, every day. You are not one of those lawyers. Are you?

No further questions.

Again, tip of the hat to David Ball’s great book, Theater Tips and Strategies for Jury Trials.


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