This article was inspired by a wonderful article by Gerry Spence. As many of you know, Mr. Spence is a trail lawyer of extraordinary ability. I have admired him and learned much from his writings over the years. His statements about cross examination inspired me because, I know, from experience, they are true. So, for anyone who is going to engage in a cross examination, this is great advice and will serve you well.
–"Cross-examination is simply storytelling in yet another form. Cross-examination is the method by which we tell our story to the jury though the adverse witness and, in the process, test the validity of the witness's story against our own." [Spence, Win Your Case, at 169]
This statement is the essence of a great cross examination. You must be prepared on each cross to tell your client's story. ["When the lawyer gets up to cross-examine he should have a significant story in mind that he wants to tell with this witness."][218]. This drives the pre-requisite, you must know your client's story - the winning, compelling story, before you can tell it. Thus, excellent cross-examination arises from intense and in depth case preparation.
Case preparation begins with getting to know your client. You should know him as a person. You should know him well enough to care about him. You must be able to tell the jury enough about him so that he ceases to be the two-dimensional plaintiff or criminal defendant and becomes a flesh and blood person. Most attorneys never get past the skeletal stage in learning about their clients. Fleshing them out is a means of learning things you need to share with the jury so that they can know him and care about him.
Next, you need to understand the facts of the matter so well that you could sit in front of a classroom, in a junior high school, and tell them the story in a way they could understand and sympathize. Whatever the topic of the trial is, you should be able to tell anyone a compelling and easily understood story about the facts and events in a cohesive manner. If you wrote it down, which I recommend, in the fashion of a short story, it would be clear, concise and compelling.
You then need to make a list of all the facts, good and bad, that may come out at trial. Associate each fact with a witness. Identify which part of the story that fact belongs to. Now you have identified the part of the story you will tell through that witness. For criminal defense, you want to identify which of the prosecutor's witnesses will tell this part of the story for you. For civil plaintiffs, you need to identify which of your witnesses (for direct) but, more importantly, which of the defendant's witnesses will help tell which parts of your story.
Now you are ready to prepare your questions. ["[B]efore we begin the cross-examination, we must have in mind the story we wish to tell through this witness. We have prepared the story for each witness and we'll not muddle around asking a bunch of meaningless questions in order to hear our own melodious voices, nor will we repeat the questions we heard on direct examination, except where it is necessary as foundation for a well-prepared cross. And, at last, we ask ourselves, do we want to cross-examine this witness at all?" Id. at 218-219. Once you determine the questions you want to ask a particular witness, if any, then you are ready to prepare them.
I don't like to go into court with written questions. There is grave danger that you will end up just checking off boxes and not listen and respond. I try to internalize all of the information. I practice my cross as I relate my story to people. Then, I create an outline for a witness. I keep track of what topical areas and facts I need to bring out. This way I can listen to my witness.
Keep in mind, cross-examination is about story telling. But, it is also about mining for gold. So, as I'm telling my client's story through each witness, I watch and listen to them carefully. If I detect facts and information that I want, I go gold mining. I have found amazing nuggets that have helped me win trials and favorable verdicts.
Also, if you pay close attention, you will know when the witness's version of the story and your version collide. When they do, you may want to work on that area if you can do it constructively or if you can show that the witness is inaccurate and your version is correct. If you can't, you want to avoid this part of the story and not ask about it.
Make sure you keep your story and questions simple. ["Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness. It makes little difference whether the witness answers yes or no. Question by question, our story is being told. It's for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness." Id. at 170]. All this is dead on.
The rule of one should apply. What I mean by that is that each question contains only one fact. Each question is one simple, distinct concept. The mistake I hear more in court than any other is a lawyer asking compound questions. These are confusing to juries and to witnesses. And, if your opposing counsel is on the ball, can draw an objection that will make you look a little foolish.
So, even if you are telling a story with multiple facts and parts, break them down to one fact soundbites. It's like eating an elephant - you do it one bite at a time. So, if you want to establish that someone was in a store at 8 pm at night buying beer when the event occurred, don't ask: "were you in the Sac-o-suds at 8 pm on Tuesday night, March 11, 2012, buying Coors light at the time two youths walked in, pulled a gun, shot the clerk, robbed the store and left in a metallic, mint green car?"
You may want to get all those facts out, but don't be impatient. Get them out one fact at a time:
"You were in the Sac-o-suds on March 11?"
"Yes."
"This was a Tuesday evening?"
"Yes."
"You had gone there to buy beer?"
"Yes".,...
etc. One fact at a time.
Remember the old KISS method? Keep it simple, stupid? This rule applies to all cross examinations. Get your answer and move on. Tell your story in the simplest, most acceptable and understandable terms as you possible can. Relate to the jury. Its okay to talk about feelings, juries have them. Let the jury know about the emotions of the moment if that helps your client to.
Well, I hope that this gets you thinking about ways to improve your cross-examinations. I know that these ideas have helped me try many cases over the years and get good results.
More soon-
And, I highly recommend Gerry Spence's book:
"Exposing the Hidden Truth–Cross-Examination," in Gerry Spence, Win Your Case 168-222 (New York: St. Martin's Press, 2005)
All the best,
Bob Vogel
The Vogel Law Firm
rlvogel@robertvogellaw.com
