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Many litigators have described the process of cross-examination as one of the more satisfying aspects of courtroom litigation. It's easily one of the more combative components of being in court, and certainly a crucial one at that. If you impeach the right witness and thoroughly discredit the other side's case, you can not only seal a case, but have fun doing it.
Of course, cross-examination is only fun when you're winning. Below, we'll get into the basics of cross examination and hand out tips that will help you craft your next one.
Working With Limited Knowledge
Examination is the opportunity for the court (and jury) to hear testimony given by witnesses who have material information related to the case. Frankly, handling direct examination of your own witness is easy enough. Much harder is dealing with the cross-examination of the opposing side's witnesses.
Why is this? While the witness list has already been known to by this stage in litigation, it is unlikely you will know the exact content of OC's direct, and you will know even less as to how the witness will answer those questions. So, in order to do an effective cross, you'll have to be pretty good at thinking on your feet.
Lead the Dance
It is cross-examination 101 to know that pretty much all questions asked of the witness should be leading questions. It's also 101 to know that the examiner never asks questions he doesn't already know the answers to. It is bad strategy to cede control of the examination to the examinee.
You and your client will have your own account of the facts. OC will have theirs. The jury will likely accept something that rests somewhere in the middle. But juries are emotional, biased, and even fickle. Some studies indicate that juries often base their verdicts on how much they like a particular party. Unfortunately, bias seems to be unraveling fair hearings almost everywhere. That's not justice in its most virtuous form, but it's the system we work within.
The witness has been trained by OC to answer questions in a particular manner meant to spin the facts in the other side's favor. On direct, the witness spun the facts to present a view most favorable to the other side. Now, you need to push them on those facts and spin them back to reflect well on your side. It's tough and spinning is indeed a fine art. Thankfully, it looks like spinning won't be taken over by computers any time soon.
But the real fun is in impeachment. Impeachment, or discrediting the witness, is -- to a small degree -- the channel through which you get to unleash the little cruel sociopath within. Previously, you were forced to keep the scope of your questions within the scope of what was covered in direct. Now, however, impeachment allows pretty much anything that would place the witnesses' reliability or honesty into question to be brought into full jury view.
Felonies? Shoot for those. Any crimes involving dishonesty like robbery, theft, and fraud? Those are golden.
Or what about catching the witness in his or her own inconsistencies? These are particularly delicious because half the time witnesses don't even see them coming. A person who is illogical isn't even aware of his or her own inconsistencies. So long as you catch them and they are relevant to the witnesses' reliability, they will survive the bulk of OC's objections.
It's All About Logic
Being an effective cross-examiner is really what being an effective court lawyer is all about. You must be methodical, sharp, and have no tolerance for stories that don't follow a consistent thread. Pounce on things that don't match up. But be decorous, too. There's always room for the showman and politician in the courtroom. After all, few jurors feel comfortable witnessing a little old lady getting eviscerated in court because she erroneously recalled some crucial fact. Remember, the use of logic doesn't mean you should disregard courtroom protocol and sociological realities.
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