Cross-examination is the stuff of drama in fictional courtroom depictions. The savvy lawyer taking on a hostile witness on the stand—these are the moments TV and movie audiences live for. However, the truth is real-life cross-examinations are far less dramatic and more nuanced, requiring solid preparation and strategy. This is why a real-life trial lawyer should follow practical guidelines for how to cross-examine a witness.
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Understanding cross-examination
In its simplest terms, cross-examination is your chance to question the opposing party’s witness after their lawyer has completed direct examination. The purpose of cross-examination is to ensure the accuracy of the testimony for the benefit of the fact-finder, whether that is a judge or jury. For the cross-examining lawyer, it is an opportunity to poke holes in the witness’s direct examination testimony and provide critical context.
A key distinction between direct examination and cross-examination is that the latter is generally an interrogation of a witness who is not friendly to the lawyer asking questions—if not downright hostile. For this reason, the applicable rules differ from direct examination, most notably in the ability to ask leading questions during cross. The adversarial nature of the questioning also means the lawyer has to be careful and avoid common pitfalls, as summarized below.
Some common misconceptions about cross-examination are that it should be highly dramatic and seek to yield “gotcha” moments from the witness. The reality is that cross-examination should be approached with strategic planning. While Jack Nicholson might shout his admission of guilt in response to Tom Cruise angrily repeating “Did you order the Code Red?!”, you will likely have to think a little harder and be far more subtle.
Preparing for cross-examination
You are unlikely to execute a successful cross-examination by simply winging it. The preparation phase is essential. Focus on some proven principles for planning your interrogation.
Set your cross-examination goals for each witness
Before you cross-examine a witness, you must consider why you are doing so and what you hope to accomplish. If you cannot answer these questions, it is likely best to skip the cross-examination. Do not feel obligated to cross-examine all your opponent’s witnesses.
If the witness’s direct examination testimony hurts your case, you may seek to discredit the testimony, the witness themself, or both. Commonly known as witness impeachment, this can be based on prior inconsistent statements the witness made, perhaps at deposition. Maybe the witness cannot demonstrate firsthand knowledge of the matter. Another form of impeachment is showing the witness’s bias, prejudice, interest in the case, or motive to give false testimony.
You may also use cross-examination to confirm facts important to your theory of the case. If the other side’s witness can corroborate the testimony of your witnesses, this could be extremely helpful as well.
Study the witness’s prior testimony
Familiarize yourself completely with the witness’s prior testimony. This is critical to establish your cross-examination goals in the first place. In addition, you want to ask questions where the witness is “locked into” a certain answer by their prior testimony. If the witness tries to change their story, you will be prepared to challenge them.
Structure your interrogation
Your cross-examination should proceed along a path of your choosing. Ideally, it will tell a story that is helpful to your client’s case. These things are accomplished with a well-structured set of questions written out beforehand.
Executing an effective cross-examination
Once your preparation for cross-examination is complete, successful execution comes down to remembering some key cross-examination strategies.
Keep your questions leading, short, and simple
You are allowed to ask leading questions on cross-examination for a reason—you are likely to be facing an uncooperative witness who will not give meaningful testimony in response to open-ended questions. Accordingly, you absolutely must make use of this allowance and ask leading questions only.
A leading question is one that prompts the desired answer. In cross-examination, you generally want to prompt a simple “yes” or “no” response. You also want to know what the answer will be, or be prepared to immediately challenge the witness if their response is not the one you want. Common techniques for leading questions include ending with a “correct?” or “isn’t that true?”
For example: “You were not present at the scene of the accident when it occurred, isn’t that correct?”
In order to force the witness into a short and simple response, your question should also be as short and simple as possible. Avoid complex sentences, and stick with plain words. Not only will this elicit better responses, the jury will more clearly see the points you are trying to make.
Follow your structure, not the order of direct examination testimony
Be sure to follow the pre-planned structure of your questioning, instead of the order of the witness’s direct examination testimony. Preferably the witness should not be able to see where you are going with your questions, preventing them from being overly cagey with their responses. If you follow the structure of the direct testimony they just gave, this will be harder to accomplish. In addition, you structured your questions a certain way in the prep phase for a reason—stick to that plan to accomplish your goals with that witness.
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Get the GuideWhat are the three C’s of impeachment?
One of the most failsafe ways to impeach a witness is by focusing on their prior inconsistent statement, which could have been made at a deposition, an accident scene, or elsewhere. In order to execute this type of impeachment, you should follow the three C’s: commit, credit, and confront.
Commit
First force the witness to commit to the assertion you seek to challenge. Remind the witness and the jury that the witness just testified on direct examination that the traffic light was red.
Credit
Give the prior inconsistent statement as much credibility as possible, by highlighting the conditions under which it was made. Since many prior inconsistent statements are made at depositions, this would be done by having the witness admit to the circumstances of the deposition that make their prior testimony reliable. This would include the fact the witness swore an oath to tell the truth, the witness’s lawyer was representing them, and the testimony was transcribed by a court reporter.
Confront
Confront the witness with their inconsistent statement. Establish that the witness testified at deposition the traffic light was green, not red. Be sure to have the deposition transcript available in case the witness tries to back off their prior testimony.
Common mistakes to avoid in cross-examination
Cross-examination presents plenty of pitfalls, including these common mistakes.
Open-ended or overly complex questions
Do not ask open-ended questions that call for the witness to respond with anything more than a “yes” or “no.” Do not ask complex questions where the witness can avoid answering by pleading their confusion.
Allowing the witness to explain or be evasive
When you are asking yes-or-no questions, the witness may try to explain their answers. You should not allow them to do so. You can mildly admonish the witness to only answer your question, use objections, and ask for the judge’s intervention when necessary. This is also true if the witness gives an evasive response that does not answer the question.
Arguing with the witness
When a witness is being uncooperative or challenges you, it is important not to get drawn into an argument. It will make you look unprofessional and undermine your efforts with the witness.
Wearing your emotions on your sleeve
Avoid becoming visibly angry, irritated, or frustrated with the witness. This is true when they are being hostile, but it is also true when they give an unexpected response. Maintain your poker face.
Not knowing when to quit
Beware the common trap of asking one question too many. You will only weaken a good point if you repeat it, and you may give the witness an opportunity to provide a better answer. Make your points and get out.
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Wield cross-examination as an effective weapon at trial
The most effective trial lawyers know how to wield cross-examination as a weapon. They accomplish their goals through adequate preparation and sticking to common cross-examination tips. When you also keep the jury in mind as your prime audience, your cross-examinations will pave your way to success.
A great cross-examination will often benefit from quick access to the facts and information needed for preparation and questioning—which the right technology solutions can offer. This includes the ability to call up the correct deposition testimony or exhibit that will impeach the witness on the stand. Sign up for a Clio demo and see how this practice management software can provide the cross-examination tools you need.