Litigation: Cross-Examination - Part I

This is the first in a series of columns I will be publishing here on cross-examination. This article tracks my seminar Preparing the Killer Cross Examination, which I presented at Trial Lawyers University, Las Vegas, October 2024. In preparation for the seminar, I reviewed cross-examinations that I had done of both lay and expert witnesses during the previous several years. From those, I distilled core principles and concepts that apply universally to successful cross-examinations.

It starts with a plan

Although good cross-examination leaves plenty of room for improvisation and spontaneity, success starts with having a solid, well-conceived plan. The plan envisions each portion of the examination as a deliberate step toward accomplishing an overall goal. Some portions of the exam may have stand-alone value, while others only become important once the bigger picture fills in. Having a plan enables you, like a chess player, to see the entire board and to anticipate several moves ahead. It keeps you well ahead of the witness.

Every witness presents different challenges and opportunities

There is no one-size-fits-all approach to cross-examination. Every witness is unique, and therefore every examination should be different. “Sizing up" the witness is an important part of developing the plan.

For some witnesses, you'll have the benefit of a prior deposition. For others, you will need to seek information elsewhere to predict the witness's personality, incentives, likely responses, and your areas of greatest leverage. Some witnesses respond better to carrots, others to sticks, and still others to a combination of both. Some witnesses are likable. Others will alienate a jury if you can draw them out. Some witnesses have real substantive knowledge and expertise that will be dangerous to confront directly. Others will fall apart under effective questioning.

What is the goal of cross examination?

Lawyers make the mistake of treating every cross-examination as an existential battle to the death. However, many witnesses are not that important and may have only a minor impact on the outcome of a trial. In fact, as many criminal defense lawyers know, the best strategy may be not to cross a minor witness at all.

Contain

There are some witnesses who will score some points against you no matter what. However, you may be able to win the trial even if that witness scores some points, so long as you can contain the witness within certain acceptable parameters.

For NBA fans of the 1980s, think Joe Dumars of the Detroit Pistons, whose unenviable job was to cover Michael Jordan. Nobody expected that Dumars would shut Jordan down. Nobody could do that. Any game plan that required shutting Jordan down was a losing proposition. Rather, Dumars would be successful if he could limit Jordan just enough, so that the Pistons still had the opportunity to win the game. If you have a solid game plan, “containment” of the other side’s star witness may be enough.

Credibility (Undermine)

Fortunately, you don’t encounter too many Michael Jordan witnesses. Most of the time you can go beyond mere containment with a plan to neutralize the witness. You do this by exposing the witness’s character, motives and undermining his or her credibility. The goal is for jurors to conclude they cannot comfortably rely on the witness in deciding the case.

Think Jack Nicholson in The Shining. The direct examination is Nicholson's job interview at the Overlook Hotel where he appears well-dressed, well-spoken, a solid and credible choice to entrust with the responsibility of serving as the hotel's winter caretaker.

Your goal in cross is to change the jury's impression of the witness, so that he now appears to be the Jack Nicholson character toward the end of the movie—the disshelved maniac roaming the hallways with an axe. It's starting to look like a bad idea to have placed any trust in this guy.

Co-Opt

There is a third type of witness that you'll want to try to identify. This is the witness where an effective cross can do more than merely undermine the credibility or trust in that individual witness, but that can serve to win you the entire case. Indeed, you may be better served by embracing the credibility of that witness so that they can do maximum damage. I think of this witness as the crane operator wielding the wrecking ball. Perhaps intentionally, or inadvertently, the right cross-examination of that witness will allow you to turn that wrecking ball on the other side's case.

Preparing for cross examination

Like most aspects of trial work, the best state of mind to begin preparing a cross-examination is with as few preconceived notions or assumptions as possible. Begin with an open mind and genuine curiosity. What makes this witness tick? How will your cross of this witness best serve to help you win your case? Where are the points of leverage?

Cast a wide net

A great cross-examination is 80% preparation and 20% execution. Most trial lawyers spend too little time in preparation and miss many of their best cross-examination opportunities. Particularly in civil cases, it is common to place too much reliance on a witness's prior deposition from the case. Of course, the deposition may have value, but the witness will be prepared to deal with his or her deposition testimony.

So, the starting point for preparation is to cast the widest net. In the modern information age, there is so much potential information out there that may be helpful: information on the internet, social media platforms, criminal history, employment information, statements or publications from current or prior employers, the witness's curriculum vitae and every organization, article or publication listed therein, guidelines or publications from any organization to which the witness belongs, presentations or speeches that the witness has given, statements or testimony that the witness has given in other cases, marketing, promotion and advertisements that the witness has approved or endorsed, information about the witness from other witnesses, information contained in online or other reviews, cell phone records and locations, text messages and emails, and the list goes on and on.

My approach to preparing for cross-examination is to first go through my own research and that of my staff, to gather every shred of information I can about the witness. If the witness has published an article, I will read not only that article, but the other pertinent articles cited within the article and sometimes even the articles cited within that second article. It's hard for a witness to say that the authorities relied on in an article he or she wrote are not themselves something he or she endorses.

I try to withhold any judgment about the witness until I have read everything. I take extensive notes, but I do not begin my cross-examine outline until I have first read everything. I do it this way intentionally, because I do not want to prejudge my goals and strategy for the witness. There have been many times where my assumptions going in changed once I complete my investigation.

Rules for planning a killer cross-examination

Although there is no one size fits all approach, here are some important principles:

1: Character not facts

Particularly for longer and more complex cases, a jury is inundated with facts and witnesses. In the end, it is unlikely that jurors will remember which facts came from which witness, or whether a particular witness made one or two innocent factual mistakes. Rather, jurors tend to form overall impressions of a witness based on character. A successful cross-examination of the witness, therefore, should be focused more on issues that serve to reveal the witness's deeper, underlying character, rather than exploring a laundry list of facts.

2: Approach, not results

In most cases, there is a core dispute about some ultimate set of facts. The opposing party or their experts who seek to win are not likely to agree with you about the ultimate issue, no matter how aggressive or sophisticated your cross.

But jurors are smart. They understand this dispute is why the case is in court and that it will be up to them to decide who is telling the truth. Thus, it is doubtful that they will put much stock in the fact that opposing witnesses give different versions of the same events or draw different conclusions from the same facts. Your examination should focus on how the witnesses arrived at their testimony regarding those issues. Were they thorough? Were they careful? Were they selective in the information they processed? Were they in a position or do they have the knowledge and expertise to know? The witness who can demonstrate the more robust and credible approach is the one the jury is likely to rely upon.

3: Simple, not complex

A simple cross-examination will be much more understandable and memorable to a jury. The more opaque and confusing, the more it looks like you are obfuscating the truth. Most of the time, even the most complex of concepts can be boiled down to something simple that a jury will understand.

For example, in a recent case where there were competing experts in neuroradiology who both spent hours presenting their competing reads of brain imaging to the jury. One element of my simple cross-examination of the defense expert was that only 10% of his practice involved pediatric neuroradiology, whereas it comprised 100% of our expert's practice. Thus, in closing, I could make the simple point that although the brain imaging was complicated and confusing, and it might be difficult to know which expert to believe, it's common sense that the expert who has spent a hundred percent of their time over 30 years doing pediatric neuroradiology probably knows more about it than the one who has spent 90% of his time doing other things.

4: Deep not broad

There is an amusing cross-examination conducted by the celebrity, cowboy-hat-wearing Montana trial lawyer, Jerry Spence, that you can find online. In that examination, he is cross-examining an expert witness about one very simple point: why did the expert need to meet with the lawyers to prepare and rehearse his courtroom testimony? Spence frames his examination on this topic with a lengthy lead up, spends quite a bit of time on the concept of the expert preparation, and concludes with pithy punch lines, in which he asks the expert questions, like whether he has to prepare to explain to his wife where he has been after he gets home, if it's something he already knows and he is telling the truth.

What's instructive about this Spence cross-examination vignette is how he takes a simple and powerful point -- the expert spending time to rehearse and prepare testimony with counsel -- and converts that into a very memorable 15 or 20-minute cross-examination segment. One could cover that same topic with one or two questions that would take less than 60 seconds.

Why did Spence do this? He does it because effective cross-examination goes deep not broad. It is much better to cover a few items in a deep, probing, and memorable way than to perform a superficial survey of many topics.

Of course, this Spence vignette also illustrates principles one and three, above, because it is incredibly simple and goes to the witness's core character, not any particular facts. It's done in a very clever way, but in the end, it causes one to think: yeah, why would it be that if this expert witness is just coming to court to tell us the truth would he have to spend so much time preparing and rehearsing his testimony?

5: Memorable not boring

The Spence cross also illustrates this principle. The clever way he sequences the examination, humor, and in the end, biting indictment of the witness serves to make this portion of cross entertaining and memorable. Let's face it, most trials, and most trial lawyers, are probably boring to jurors, particularly those jurors accustomed to digesting pre-packaged content that is served up by algorithms based on what triggers the highest dopamine-induced click rates. If you want jurors to pay attention and care, you have to first find a way to keep their attention. You have to keep your cross entertaining.