Some years ago, I blogged about “Effective Cross-Examination at Trial.” I stand by those comments, but my technique has evolved.
Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic. I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right. Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed.
For cross based upon deposition testimony, ask “Isn’t it true that?” then quote or accurately summarize the answer. If they deviate, try one more time. Then, ask the preparatory impeachment questions (Do you remember giving a deposition? You told the truth? Your memory was fresher X months or years ago?) and play the clip. Don’t ask any follow up questions, like “Isn’t that what you said in your deposition?” or “Wasn’t your testimony true?” Just let the clip hang in the air and move on.
For cross-examination supported by an exhibit, ask your question(s) such that your suggestion is clearly supported by the exhibit. If the witness demurs, display the impeaching portion of the exhibit. I read the key portion and ask whether I read it correctly. If the witness tries to add something not in the exhibit, I ask him or her to agree that their statement is not in the exhibit. Alternatively, ask them to find where in the exhibit the new topic can be found and watch them struggle to locate their point.
Where a witness answers the question then volunteers something defensive, I try a nice follow up first. “I appreciate you wanted to bring up X, but I would be grateful if you would squarely address my question.” Then repeat the question. If the witness rambles again, I move to strike the answer as non-responsive. If the judge grants the motion, this confirms to the jury that the witness did something wrong. Then repeat the question again. Hopefully having been admonished by the judge the witness will then stick to answering just the question you asked.
The classic teaching is don’t ask a question in cross-examination to which you don’t know the answer. That is certainly safe advice, as a loose cross-examination will simply re-elicit the other side’s story. However, as someone who comes in at the eleventh hour to try cases, there may be no prior depositions, or at least none I like. I have made in-court judgment calls that have turned out reasonably well.
If the witness is a non-evasive straight shooter, or has a professional reputation that could be sullied, I might suggest a proposition that seems reasonable and well-established. Hopefully they will agree, and if not, may not appear credible.
I was defending a film finance fraud case involving use of special purpose entities (“SPEs”). The plaintiff also used SPEs. I asked plaintiff’s house counsel whether their SPEs, with no employees and controlled and funded by the parent, were vehicles for fraud. She said “no.” I did not have that answer nailed down in a deposition, but what other credible response was available?
I was aligned with the defense in an emotional elder financial abuse case where the elderly father sued his daughter and estate law firm over a revised trust that gave the estate to his daughter and disinherited his son. I was suspicious that plaintiff’s counsel did not elicit testimony about why he signed a document he claimed did not reflect his intentions, and the deposition I inherited did not have the answers. He was a Navy man and answered questions crisply and without evasion. So, I started going out on a limb. He confirmed that when he went to the law firm he had not been taken into a separate room, had not been coerced, had full documents rather than signature pages and was not prevented from reading them. He conceded the document said on page one that the son was disinherited. He was so direct and honest, and I was on a roll, so I went with a gut feeling – if the document did not express your wishes, why did you sign it? The answer: “I guess I should have read it more carefully.” That was the first line in my closing argument.
I had a witness who seemed very nervous and whom I had impeached twice with deposition reads. I asked another question linked to potentially impeaching deposition testimony. I unconsciously touched the deposition transcript in case I needed to pick it up for a read. I saw the witness look at my hand on the transcript, grimace and readily agree with my question. I took a chance. I asked a few more questions that stretched beyond the transcript, but picked up the deposition transcript each time, as though threatening impeachment. The witness apparently thought my questions were fully backed by the depositions and conceded my point.
I was plaintiff’s counsel in an investment fraud case where no discovery had been taken. My client told me that the promoter was a hothead. The investment circular was a ridiculous promotion piece, written by someone who promoted movies and with no lawyer language cautioning that the investment was risky. As I cross-examined the promoter about this fluff piece, and though I am not normally a pushy examiner, I began jabbing my index finger in his direction, which turned his face a deep red. Finally, he burst out, “Okay, so we cheated a little.” That was the first line in my closing brief.
Sticking only to questions to which the answer is already known is the safest course, best used for good and evasive witnesses. If one feels sufficiently comfortable, going out on a limb based upon a gut feel might produce a good outcome!