My favorite part of any actual or fictional trial is the cross-examination. Who can forget the climax of the cross-examination in the “Caine Mutiny” of Captain Queeg, played by Humphrey Bogart, where the question was whether he had lost control of his ship? Under the heat of the examination, Bogart/Queeg reaches into his pocket, acting palpably shaken, begins to roll marbles in his hand and demonstrates his instability in a long-winded answer. (See “Caine Mutiny Queeg on the Stand.”) Some of my favorite cinematic cross-examinations occur in “My Cousin Vinny,” in which Joe Pesci’s inexperienced Brooklyn lawyer conducts hilarious but effective examinations while defending a family member concerning a murder in a convenience store. When a witness claims he saw the defendants enter the store and heard a gunshot while they were inside, all in the five minute span of time in which he cooked and began to eat his breakfast of grits, Pesci’s character, wearing a ridiculous usher’s tuxedo, establishes that his grits, which were not instant, could not have been cooked and ready to eat in less than twenty minutes. (See “My Cousin Vinny – Cross of Grits.”)
I have conducted my share of cross-examinations in business trials. While none were as dramatic or funny as these fictional examples, cross-examinations remain one of the most effective tools at trial to break down the other side’s case and reinforce the themes underpinning your own.
I have a few fundamental cross-examination principles that I tend to stick to, with good results. These principles don’t result in the trial equivalent of a high-flying slam dunk, but if followed will at least result in the trial equivalent of a competent set shot – feet and shoulders square, bend in the knee, hands high, eyes on the basket, swish.
The most important principle is to limit the scope of the examination, both in terms of time elapsed and subjects covered. Cross-examinations should usually be finished in a fraction of the time spent on the witnesses’ direct examination. If a witness testified for three or more hours, a tight cross-examination might last thirty minutes. I try to use the examination to establish three or four points I want the jury to remember; they are not likely to remember more. Hostile witnesses are motivated to fight you each step of the way. If you try to cover too may subjects, you run the risks of getting bogged down, elongating the examination and watering down the impact of your strong points.
I believe in the old saw that on cross-examination, don’t ask a question you don’t know the answer to. In business cases many known answers to questions are found in pretrial depositions (examinations under oath prior to trial) and the documents. I comb the deposition transcript(s) of the witness to be cross-examined and cull out each answer that is either a useful admission or supports my theme of the case. I try to take all of my depositions via videotape, in which case the material I cull is a cut from the video that can be played on a screen in the courtroom. I then go through the documents that were either generated by or sent to the witness, or the authenticity of which the witness cannot dispute. I pore over those documents and pull out the useful statements. I like to convert these nuggets into graphics that can be easily displayed and seen on a screen at trial.
Having done this, I organize the raw material I have culled into the ultimate points I think they tend to prove. From these points I whittle the list down to the three or four most important. If I lack evidence to support a key element of my case, and must support the element by admissions from the other side, these points should make the cut. The remaining points that make the cut should be the ones that most effectively underscore my themes of the case.
With this preparation complete, I make my final outline broken down by each main point. Under the main point I will have a separate line with each question drawn from the supporting material, with a deposition or trial exhibit reference to that material. For example, to witness Jones: “Isn’t it true that when you received the draft contract, you discussed the draft with Mr. Smith?” Jones Depo 64:2-15, where the answer to this question was “Yes.” If the witness agrees with my question on the stand, I move on to the next point. If the witness denies discussing the draft contract with Smith, I have the clip from the Jones Deposition, page 64 lines 2 to 15, loaded on a laptop and ready to play on a screen. I don’t ask follow up questions after showing the impeachment material. Doing so would invite the witness to rationalize or muddle the impeachment I just accomplished.
My cross-examination questions are almost always limited to propositions that are drawn directly from supporting materials, ready for impeachment. I stop the examination there. Witnesses won’t agree with the ultimate point you are trying to prove, and if you ask them to you will most likely lose control of the examination. If I am trying to prove that the other side defrauded my client, I get the other side to admit the representations they made to my client and other information tending to show that the representations were false. I wait until closing to remind the jury of this evidence and then argue the conclusion of fraud. If during cross-examination I establish the elements of my ultimate argument and then, unable to control myself, ask “Isn’t it then true sir, that your statements to my client were false,” I will probably elicit a flurry of rationalization or confusion to defeat what I just accomplished.
Following these basic steps may not result in material suitable for a TV courtroom drama, but should competently elevate my client’s case and deflate the other side.