The Art of Cross Examination

I grew up watching L.A. Law. My favorite character was Michael Kuzak, the firms
hotshot trial lawyer. Nobody cross examined witnesses like Kuzak. You knew when he
stood up in the court room, buttoned his jacket and approached the witness stand,
something big was going to happen. By the end of his cross examination, Kuzak had
destroyed the witness and with him, the opponents case. Nobody did it like Kuzak.

Real life is not as exciting as L.A. Law and cross examination is not as easy as Kuzak
made it look. But by following a few simple rules, you can make your cross examination
just as devastating.

An effective cross examination starts at deposition. Some attorneys wait until

trial to prepare their cross examination outlines. Thats too late. You need to try out your
cross examination questions at deposition. In fact, every question you intend to ask at
trial should be asked at deposition so you know what answer to expect at trial. If its an
answer you like, then you have a ready made question for trial. If not, dump it. If it did
not work at deposition it wont work in front of six jurors.

Dont ask a question if you dont know the answer. Something you have heard
over and over is that you dont ask a question at trial unless you already know the
answer. Trial is not the time to be surprised. Be surprised when you investigate your
case, when you receive responses to interrogatories or at deposition. But dont be
surprised at trial. But how do you find out the answers to the questions you intend on
asking? Simple. You find out the answers in deposition. Do your work in deposition to
take the guess work out of trial. When youre at trial you will know what the answers are
because they will be in black and white in the deposition transcript.

Prepare a cross examination binder. Prepare a cross examination binder for every
witness you will cross examine at trial. The binder will contain your cross examination
outline and your impeachment materials.

First, prepare a detailed cross examination outline. Start by brainstorming the

topics you want to address during your cross examination. Such a topic could include
witness bias. For each topic area, prepare a two column chart. On the left column,
include all the questions you intend to ask the witness. I suggest, however, that instead
of writing out the questions, that your write out the answers you expect to elicit from the
witness. At trial, when you look at your outline and see the answers, youll know what
question to ask.

In the right column, across from each answer you intend to elicit, cite the source of that
answer, whether its page 12 from the witnesss deposition, the ER admission note or
some other document. If you cant find a source for the answer, dont ask the question.
Why? Because if the witness does not give you the answer you want, the one you have
written down on your outline, you wont have anything with which to impeach him.

That brings us to the second part of your cross examination notebook. Behind your
outline, keep all your source documents, your defacto impeachment materials. The
document youll be relying on the most will be the witnesss own deposition, where
months, or perhaps years before, you tried out all your cross examination questions.

Ask only leading questions. Cross examination is not the time to ask the witness to
tell his story. Dont ask open ended questions. Ask only leading questions which suggest
the answer. You want to direct the witness to give you the answers you have in your
outline. Dont give him the opportunity to say something else by asking open-ended
questions.

Dont use the word correct at the end of your questions. Dont end your
leading questions with such words as correct or isnt that so. In fact, dont ask
questions. Instead, make statements and get the witness to agree to them. Instead of
saying, You treated the plaintiff on January 23, 2003, correct? simply make the
statement, You treated the plaintiff on January 23, 2003. Youll get the same answer
whether you ask the question or put it in the form of a statement. Such words as
correct detract from the power of your cross examination and if used at the end of
every question, become distracting and downright annoying.

Ask yes questions. When you ask leading questions, you want to ask questions that
require only a yes answer. You want the witness to agree with you and say yes to
your questions as often as possible. You want the jury to see and hear the witness
agreeing with you time and time again. Youre an orthopedist. Yes. You treated Mr.
Smith. Yes. At the request of his attorney. Yes. And you charged his attorney
$600 for that examination. Yes. An examination which took twenty minutes. Yes.
The more the jurors hear the witness saying yes to your questions, the more the jurors
will perceive that the witness is agreeing with you and with your position.

Only include one fact per question. Avoid asking long-winded questions that are
overburdened with facts. Keep your questions simple and only include one fact per
question. By doing this, you keep your cross examination clear and crisp. Also, its easier
to impeach a witness about a single fact as opposed to a whole host of them. In addition,
single fact questions increase the number of questions you can ask the witness to which
you will get a yes answer. You would rather have the witness say yes to you 50 times
than 5 times.

Dont argue with the witness. Sometimes cross examination does not go as planned.
A witness trips you up, and despite your best efforts, you dont get that yes answer you
expected. Some attorneys would argue with the witness. If you find yourself here, stop.
Consider moving on to the next question on your outline.

Start Strong. End strong. When youre organizing your outline into topic areas, start
with a topic that makes a strong point and end the same way. Consider starting with the
witnesss bias. By doing so, you color all the witnesss answers.

Dont ask the ultimate question. Its tempting, after getting the witness to agree
with you again and again, to ask the ultimate question. Dont do it. Very rarely will you
get the answer you want. For example, if youre cross examining the Plaintiffs treater,
you may ask 30 or more questions detailing every time the plaintiff did not show up for
physical therapy. You will leave the jury with the impression that the plaintiff did not
comply with doctors orders and, in the process, may have compromised his condition.

But whatever you do, dont ask the witness the ultimate question. For
example, dont ask the doctor the following: By not going to physical therapy, you
agree, doctor, that plaintiff compromised his outcome? The doctor wont agree with
you. Hell find some way to explain how plaintiffs repeated non-compliance had
absolutely no affect on the plaintiffs outcome. Its tempting to ask that ultimate
question. Do it at your own peril. Instead, argue the ultimate point in your closing.

If you insist on asking the ultimate question, do it at deposition. In fact, I

strongly recommend you ask ultimate questions in deposition. Every once in a while
youll get a witness to agree with you on that ultimate question. If they do, ask it again at
trial. If the witness refuses to agree with you, impeach him with his deposition
testimony.

Effective cross examination comes down to preparation. If you want to get the answers
you want, you need to lay the groundwork long before trial commences. Because in real
life, unlike television, you dont have a group of writers scripting a devastating cross-
examination.

Mastering the Art of Cross-Examination: Tips from a Judge

Posted on October 17, 2011 by Julie Brook, Esq.
According to at least one judge, most lawyers do a good job in their opening statements,
direct examinations, and closing argument, but never learn the art of cross-examination.
To master that art, lawyers need to give cross-examination the same attention they do
other phases of trial.
Judge William F. Rylaarsdam offers the following tips to highlight the special purposes
of cross-examination and to be a guide for mastering the art of cross-examination.

Dont confuse cross-examination with a deposition. The purposes of each

are completely distinct: the purpose of a deposition is to find out what
information the witness has and nail the witness down to a particular version of
the facts, and the purpose of cross-examination is to ascertain the truth of alleged
facts.
Consider whether to cross-examine at all. The answer to this depends on
whether the witness has testified to anything that injures your case.
Control your own demeanor during cross-examination. When counsel
speaks pleasantly and frankly, shows confidence, refrains from acting surprised,
and stays focused on the real issues, he or she projects credibility and adds to the
credibility of his or her case.
Keep it simple. Always keep cross-examination questions short and simple.
Convoluted questions will lead the jury to conclude that you are trying to confuse
witnesses rather than to get to the true facts.
Keep it short. A long cross-examination may lead the jury to conclude that the
witnesses testimony must be of particular significance.
Only ask questions that help you. Never ask a question on cross-
examination unless (1) you know what the answer will be, and (2) the answer aids
your side of the case.
Avoid open-ended questions. Open-ended questions give the witness too
much latitude to answer. They are particularly harmful when asked of an expert
witness who will then look toward the jury in a very professorial manner and
explain the matter yet again to the dummy lawyer who didnt get it the first time.
Know when to quit. Always quit while you are ahead. When a cross-
examination question elicits a helpful answer, dont elaborate by asking a further
question on the same subject because the witness will likely use those further
questions to try to explain away the earlier answer.
Make good use of deposition answers. Having the witnesses sworn answer
to a question means that you can safely ask that question during cross-
examination as long as it advances your position. If the answer is the same as that
given during the deposition, then favorable information is before the jury, and if
it differs, then you can impeach the witness with the deposition testimony.
 Get the courts help with a recalcitrant witness. Each time the witness
gives an evasive answer, politely ask the court to instruct the witness to answer
the question. Each time the witnesss answer goes beyond the scope of the
question, ask the court to strike the offending portion of the answer and to
instruct the jury to disregard it.

Cross-examination has been called the ultimate test of the litigators skill. The key to
mastering the art of cross-examination is understanding its purpose, deciding carefully
whether its necessary, and conducting it sensibly and carefully.

Should you cross-examine with prior

inconsistent statements?
The prior inconsistent statement. Most cross-examiners love prior inconsistent
statements. If you were to create a top ten list of methods for impeaching witnesses,
prior inconsistent statements would rank near the top. If youve ever caught a witness
in a genuine inconsistency (Today you testified that the light was green, but in your
deposition, you testified the light was red), you understand how effective the
impeachment can be. But be careful.
Not all prior inconsistent statements are created equal.
Unfortunately, many trial lawyers dont understand that. They treat every prior
inconsistent statement as if the witness was admitting to perjury. Youve seen these
lawyers in court, screaming Were you lying then, or are you lying now?!? while attacking
the witness for a trivial inconsistency.
But not you. You know better. You recognize which inconsistencies are major and need
to be highlighted or paraded before the jury. You recognize that other inconsistencies
are minor, and know that it may be sufficient to mention them once before letting the
issue go. You also recognize that some inconsistencies are trifling or inconsequential,
and you know to ignore them. As a master cross-examiner, you need to recognize the
difference, and know how to react. To help, here are some important questions to ask
yourself before you leap on the prior inconsistent statement:

Question #1: Is the witness doing his best to be honest?

Just because the witness makes a mistake, it doesnt mean hes lying to you. In fact,
many jurors believe that if a witness doesnt make any mistakes while testifying, his
testimony might be too good to be true. Every witness will make some mistakes while
testifying. Most of the mistakes are probably attributable to nervousness. Jurors
understand that. They know that the courtroom is an intimidating place, because they
felt nervous, too, when you questioned them during jury selection. If the witness
ismistaken, rather than lying, you may not want to press too hard on the inconsistency.
Question #2: Is the inconsistency central to my case, or is it a tangential issue?
You probably know all the tricks about setting traps that force witnesses to admit to
trifling inconsistencies, but should you use them? When you harp on tangential
inconsistencies, the jurors may think that youre nitpicking. Jurors may think that
youre over dramatizing the trivial inconsistencies because you dont have a real case.
After all, if you had a real case, you would focus on that, rather than the trivial tangential
issues. If the inconsistency isnt central to your case, it may not be worth mentioning.
(Of course, sometimes a tangential inconsistency can become a central issue in the case.
See also:the N word, O.J. Simpson trial, and Mark Fuhrman)
Question #3: Is it a true inconsistency?
During direct examination, the witness testified that he arrived home at 5 oclock.
However, he told the police officer he arrived home at 4:58 PM. Is that a true
inconsistency? Use your common sense when evaluating the strength of inconsistent
statements.

Question #4: Is it a minor inconsistency or is it just the tip of the iceberg?

Dont automatically disregard minor inconsistencies. It may not be a minor
inconsistency it may be the tip of the iceberg. Youll need to use your 6th sense to
determine which it is. If you think the inconsistency is just the tip of the iceberg, youll
probably appear to be nitpicking for awhile before you strike gold. Keep an eye on
your jury while you progress, so you can constantly re-evaluate how youre doing and
determine if you should continue to press forward.

Prior inconsistent statements can be a devastating form of cross-examination, but that

doesnt mean you should harp on every inconsistency. Understanding the difference
between important inconsistencies and trivial inconsistencies will set you apart from the
other lawyers in your courthouse. Evaluate each inconsistency by asking these four
questions, and your next cross-examination will be a success.

How to Respond to Difficult

Questions
Have you ever found yourself on the spot, forced to respond to
difficult questions? Regardless of whether the questions came
from clients inquiring about their cases, from a senior partner
asking about a brief you wrote, or from a judge cross-examining you during a motion
hearing, its always a frustrating experience when youre asked difficult questions that
you havent anticipated and arent fully prepared to answer.

Its even worse when you know that you know the correct answer, but for whatever
reason, cant seem to coax it to the surface from within the dark recesses of your brain.
What do you do in those situations, when you need to buy some extra time to gather
your thoughts?
If youre like many lawyers, you probably stumble and stammer your way through a
jumble of meanderings and half-processed ideas until you can finally find your train of
thought and begin answering intelligently. Unfortunately, the first few moments of your
answer are far too precious to waste on disconnected thoughts and random musings.
You cant afford to begin with a bad impression. You need the first words out of your
mouth to not only demonstrate your knowledge of the topic, but to also display your
command of the situation. How can you do that when you have no idea what to say and
desperately need a few extra moments to gather your thoughts?

Luckily for you, there are some simple techniques you can use to buy that extra time you
need before responding to a difficult question.

1. Pause (Part 1). Why do so many lawyers feel the need to immediately respond after
theyve been asked a question? Is it a need to demonstrate their command of the
situation? Because theyre afraid someone else will jump in and dominate the
conversation? Or maybe its because silence feels so awkward? Whatever the reason,
many lawyers cannot resist the urge to fill the silence with mindless noise. As soon as
the question has been asked, they feel obligated to fill the gap with sound. But yielding
to that temptation robs you of the opportunity to gather your thoughts and organize
your response.
You would be amazed at what your brain can process in the span of a few seconds. If
you would allow yourself just two or three seconds to compose yourself and think about
what you intend to say, your brain will usually find the correct answer for you.
Unfortunately, few speakers are willing to be quiet long enough to let themselves think.
How you handle those few moments of silence depends on your level of confidence. For
the uncertain speaker, those three seconds can feel like an eternity, especially when a
judge or a senior partner is the person who asked the question. For the confident
lawyer, however, that same three or four second pause feels completely natural.

To immediately improve your ability to handle difficult questions, strive to become

accustomed to silence and comfortable with moments of silence during a conversation.
Develop the habit of waiting for a moment or two before responding to questions
(regardless of their difficulty), and pausing will soon become second nature to you.
2. Repeat the question. In conjunction with a pause, this technique can buy you plenty of
time to formulate your response. Repeating the question is optional when speaking to a
single individual, but if you ever find yourself speaking before a large audience, this
technique is essential. In a larger room, many audience members wont hear the
question the first time its asked. By repeating the question, youll not only include the
entire audience in the conversation, youll also buy yourself precious time to plan your
response.
3. Pause (Part 2). Sometimes, youll need more than three or four seconds to respond.
Its appropriate to tell the questioner that youll be taking more time (Let me think
about that for a moment before I respond), but you can also remain quiet and think
about your response. As we mentioned earlier, most people are uncomfortable with
silence. If you maintain eye contact while pausing to collect your thoughts, your
questioner will often feel the need to fill the void of silence. When that happens, theyll
usually provide you with more information, such as Im asking because or What Im
trying to determine is This additional information will often help you tailor your
response to the questioners actual needs.
4. Ask the questioner to repeat their question. Asking your questioner to repeat the
question can be perceived as an obvious delay tactic, so dont use this technique too
often. Its best to limit your use of this technique to those situations where you honestly
dont hear the entire question.
5. Clarify the question. Presumably, the reason youre being questioned is because
someone wants an answer, not because they enjoy harassing you. If thats true, theres
nothing wrong with clarifying the scope of their question so that you can provide them
with a more relevant response. Asking clarification questions (ex. When you say,
injuries, are you referring to all reported on-the-job injuries, or only those that
required medical treatment? or Define for me what you mean by web presence. Are
you referring to just our website, or to all of the inbound links and AdWords campaigns
weve created?) not only gives you more time to think, it also allows you to present a
more targeted and valuable answer.
As a lawyer, youre probably going to find yourself answering lots of difficult questions
throughout your career. Apply these techniques and youll not only appear more
confident and more authoritative, but your responses will become better organized and
more persuasive.

The Proper Use of Notes During Jury

Trials
How many notes do you use during trial?
Its a delicate balancing act. Too few notes, and you run the risk of forgetting to address
an important element of your case. Too many notes, and you risk sounding scripted.

Here are a couple of quick tips for improving your use of notes during trial.

When Speaking Directly to the Jury

The importance of eye contact in the courtroom cant be
overstated. The visible (sometimes barely visible)
reactions of your jurors can help you decide whether or
not to pursue an argument, whether to follow up on a
line of questioning, and whether you need to return to a
line of questioning to clear up potential
misunderstandings. Youll need to pick up on the small
non-verbal clues that theyre sending you, and you cant do that if your head is buried in
your notes. Are they telling you to speed up? To slow down? Are they confused?
Bored? Do they need part of the testimony repeated? If you dont look at them and read
those clues, youll never know.
Make sure that youre making eye contact with who you want to persuade. Since youre
trying to persuade the jurors, rather than your legal pad, try to minimize how much time
you spend looking at your notes.

When Speaking to a Witness

Jurors take their clues from you about how they should treat witnesses. If you act like a
witness is important, jurors are more likely to think the witness is important. If you act
as if the witnesss testimony doesnt matter, theyre more likely to dismiss what he says,
regardless of its actual importance.

When you look at your notes instead of making eye contact with the witness, its not only
rude, it sends a message that you dont care what he has to say and that his answers
dont matter. To avoid sending the wrong message to your jury, look up from your notes
and make eye contact with the witness before asking your question, and finish listening
to his answer before you look down at your notes for your next question. You can even
hold eye contact with the witness for an additional moment after he finishes answering,
to show that youre paying close attention to what hes saying and encourage the jury to
pay more attention, too. Just dont stare at him, because it will make him feel
uncomfortable and hell look uneasy on the stand.

Minimizing Your Notes

Its okay to write out your arguments or questions word-for-word
when youre preparing for trial, so that you know what you want to
accomplish. But dont make the mistake of bringing those scripts up
to the lectern. Those notes will become a mental crutch, and your eyes will never leave
the page.

Anyone can read from a script. With a well-scripted direct or cross-examination, you
could pick someone off the street, send him into court with the script, and let him
conduct the examination. Hed do fine, right up until the point when one of the
witnesss answers went off-script. Then hed be completely lost, and would have no idea
what to do next.

Unlike trials on TV or in the movies, real trials dont stick to a script. Trial lawyers who
depend on scripted examinations dont always react very well when the unexpected
happens. Thats why, the fewer notes you bring to the lectern, the more freedom you
enjoy.
When preparing the notes that youll bring to court, instead of writing out a word-for-
word script, write down only what you need. Rather than full sentences, use brief
phrases or single words. Besides, when youre in the heat of trial, your eyes wont easily
focus on full sentences like Mrs. Johnson, would you please tell us how you know the
defendant? All youll really need is a quick reminder, like RELATIONSHIP? or
KNOWS DEFENDANT? to prompt the correct question.

Make it Easy on the Eyes

Finally, if you want to minimize your time spent looking at the page and maximize your
eye contact with the jury, it will help if your notes are easy to read. To reduce how much
time you need to look at the page, dont rely on your chicken scratch handwriting.
Instead, type up your notes (preferably in 18pt or 24pt type) with a simple sans serif
font. Youll be able to glance down at your notes for an instant, absorb the idea, and
then immediately return to making eye contact with your jurors or your witness. With a
little practice and preparation, the jurors wont even notice your use of notes, theyll just
focus on the strength of your case!

What REALLY Matters During

Cross-Examination?
With language, its not just the words you use, but the order theyre placed in. By
changing the syntax, you can radically alter the meaning of a phrase. For example, look
at these two phrases:

#1: You are not as pretty as she is.

#2: She is not as pretty as you are.

Same words, different meanings. Both phrases contain exactly the same words, but only
one gets you slapped across the face. Obviously, syntax can be powerful, so in this tip,
youll learn how to harness its power to improve your cross-examinations.
By changing the structure of your questions, youll shift the jurys focus towards the
most important point that you need them to remember. For example, lets say youre
cross-examining a witness in a case where a child gains access to a handgun and injures
another child. One of the important facts in your case is that the witness kept a loaded
handgun in the bottom drawer of his nightstand.

Depending on which fact you think matters most, youll want to rearrange your question
to emphasize that fact. What youre going to do is put your most important point at the
end of the statement. Here are a two different ways to ask the same question:
1. Emphasizing that the gun was located in the bottom drawer, which would be easier for
the child to access:
In your nightstand, you kept a loaded gun in the bottom drawer?

2. Emphasizing that he kept the gun loaded:

Inside the bottom drawer of your nightstand, you kept a loaded gun?

Rearranging your questions to place the most important fact at the end will give you two
benefits. First, it gives the witness less time to think. That forces him to either respond
immediately (possibly blundering his response) or squirm silently for a moment while
formulating his response. Sure, its only an extra moment or two, but when a witness
gets hit with a tough question during cross-examination and then pauses to form his
response, that time can feel like dead air on the radio. A few extra moments like that
during critical moments in your cross-examination can leave the jurors with the
impression that this witness isnt someone they should fully trust.

The second benefit of rearranging your question is that youll place greater emphasis on
the important facts you want the jury to remember. When we get to the focus of the
sentence, we tend to stop listening. Put your most important point at the end of your
sentence, and then stop.

How to Testify
How many times did you testify during your last trial?

According to the Federal Rules of Evidence definition of testimony, your officialanswer

should be zero. Unless something bizarre and unexpected arose, you probably didnt
find yourself raising your right hand, swearing or affirming to tell the truth, sitting in
the witness box, and then telling the truth, the whole truth, and nothing but the truth.
But that doesnt mean you didnt testify. In fact, you probably testified more than
anyone else in your case, because each time you arose from your seat and spoke to the
jury, you were testifying and giving the jurors a chance to assess your credibility and
your belief in the case.

So, with that new definition in mind, how many times did you testify during your last
trial?

If youre like many lawyers, your answer is probably twice: Once during opening
statement, and again during closing argument.

But think again. When you stood before the potential jurors during jury selection, you
were testifying there, too. In fact, that was the first time they got a chance to see you
and evaluate how you felt about the case, so it might have been one of the most
important times you testified. So, the correct answer is 3 times, right?

Not quite. If you did a good job of trying your case, the correct answer should be that
you testified four times during your last trial. The fourth time that you testified, and the
time that most lawyers forget about, is during cross-examination. (Why isnt the correct
answer five times, once for each portion of the trial? Because hopefully the jury was so
attuned to what your witness said during direct examination that they didnt even notice
you were there.)
The great thing about cross-examination is that it allows you to testify during
youropponents case. Although many lawyers think that the person in the witness stand
is the one testifying during cross-examination, thats not true. If youre doing it
correctly, it should be you testifying to each factual statement, while the witness
merely nods his head in agreement with what youve said.
The reason you get to testify during cross-examination is because youre allowed to ask
leading questions. The leading question is the only tool that the Rules of Evidence
provide you for controlling the witness and discovering the truth.

Unfortunately, many of us dont wield that tool as effectively as we could.

If you were prepping an important witness for trial, youd help them to ensure they
testified powerfully and persuasively, right? Well, its just as important to maximize the
effectiveness of your testimony during cross-examination. One of the easiest ways to
improve your testimony during cross is to eliminate any surplusage in your questions.
These irrelevant words and phrases can dilute the power of your cross-examinations,
create confusion, or give the witness an opportunity to wiggle out from under your
control. If youll make an effort to reduce their use, your testimony will become more
persuasive. Here are three examples of surplusage, and tips for eliminating them from
your testimony:
Surplusage #1: Adverbs
Adverbs dilute the power of your cross because they provide the witness opportunities to
disagree with your questions. For example, if you tell the witness, You walked south on
Elm St., away from the crash scene, theres not much room for disagreement. He either
did, or he didnt. But, if you add an adverb to the statement (You quickly walked south
on Elm St., away from the crash scene,) the witness gets a chance to fight you, because
now the question asks for a subjective interpretation, rather than asking for strictly
objective information.
Read through your list of cross-examination questions and look for any words ending in
-ly. When you find them, strike them from the page. By eliminating these quibble
words, youll make it more difficult for the witness to disagree with you.

Surplusage #2: Perceptions

Many lawyers will ask the witness what they perceived, rather than what happened.
Heres an example:

You saw the tall man pull out a handgun?

You saw him point the gun at the shorter man?
You didnt see anything in the shorter mans hands?
You saw him pull the trigger?
You heard a single gunshot?
You saw the shorter man fall to the ground?
The most important part of those questions isnt what this witness saw, its what the tall
man did. Strengthen the imagery in your testimony by focusing on the events, rather
than the witnesss perception of the events. Instead of asking how the witness observed
the event (You saw Johnny walk into the bedroom?), remove the you saw elements
from your questions and go directly to the facts: Johnny walked into the bedroom.
Notice how much removing the surplusage makes it easier to follow the story:

The tall man pulled out a handgun?

He pointed the gun at the shorter man?
The shorter man didnt have anything in his hands?
He pulled the trigger?
A single gunshot rang out?
The shorter man fell to the ground?
Surplusage #3: Taglines
Taglines can be an effective tool for helping you ask leading questions:
You own 30,000,000 shares of SuperMegaCompany stock, correct?
Your best friend is the president of that company, isnt that true?
He told you to sell all of your shares on October 2nd, right?
You sold every share you owned, didnt you?
The company declared bankruptcy three days later, didnt they?
Used occasionally, taglines can add dramatic impact to your most important questions.
However, used to excess, these taglines can distract from your cross-examination,
especially if you repeat the same tagline over and over. (Correct? Correct?
Correct? Youll sound like a broken recording!) By eliminating taglines, you can
streamline your cross-examination into a series of back-to-back factual statements that
tell a persuasive story, punctuated only by the witnesss Yes response to each
statement:

You own 30,000,000 shares of SuperMegaCompany stock?

Your best friend is the president of that company?
He told you to sell all of your shares on October 2nd?
You sold every share you owned.
The company declared bankruptcy three days later.
If you practice before one of those judges who refuses to believe that voice inflection
alone is insufficient to turn a statement into a question, you may feel forced to add
taglines to all of your questions. However, if you find yourself in that predicament, try
using taglines on the first few questions, and then dropping them. Having set the tone
with your first few questions, the witness will be trained to say Yes to your statements,
and no one will notice that youve dropped the taglines:

You own 30,000,000 shares of SuperMegaCompany stock, correct?

Your best friend is the president of that company, isnt that true?
He told you to sell all of your shares on October 2nd, right?
You sold every share you owned.
The company declared bankruptcy three days later.
You probably cant eliminate all surplusage from your questions (nor should you try),
but once youre aware of how it detracts from the strength of your testimony, youll want
to make efforts to reduce it. Invest the effort to properly prep yourself for trial, and your
testimony may make the difference between winning or losing the case!

How to Ask for Help During Jury Trials

Every day, in courtrooms across the country, young attorneys are
conducting brilliantexaminations.
During direct examination, theyre asking questions that grab the factfinders attention,
paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to
believe the witnesss version of events. During cross-examination, theyre pinning
witnesses down on inconsistencies, impeaching witnesses credibility, and showing
jurors why the witnesses stories cant be believed.
Yet, all of these direct and cross-examinations suffer from a tragic flaw.

Whats the tragic flaw in all of their examinations? Regardless of whether its the cross-
examination of an inconsequential witness, or the direct examination of their star
witness, all of their examinations are concluding on a weak note, rather than building to
a powerful and persuasive crescendo.
Thats because they all finish in exactly the same way: Just as the direct or cross-
examination reaches a crescendo, the lawyers stop and say, Your Honor, may I have a
moment to confer with co-counsel? Then they walk back to counsel table, speak in
hushed tones, announce, No further questions, your Honor, and tender the witness to
opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because theyre afraid they might miss an important issue or case-winning
impeachment point, so they turn to their spare brain and ask for help. Even though
these conversations almost always sound the same (Did I miss anything? No, good
job) its still important to have them, because if you do ever miss an important point,
youll be able to correct the problem before concluding your examination.

But despite their importance, you dont want these conversations to be the last thing
your jurors remember about your examination. Instead, you want to finish on a high
note, so that you can take advantage of the theory of recency during your examination.
(Heres the theory of primacy and recency in a nutshell: In communication, what you
hear first and last youll tend to remember better than the stuff you hear in the middle.)
To take advantage of recency during your next examination, dont
wait until the very end of your examination to ask for help. Instead,
keep a handful of questions on a major topic in reserve before
asking to confer with co-counsel. Once youve concluded your off-
the-record conversation, return to the lectern and hit the witness
with your final series of questions. Much like the encore at a
concert, this series of questions will be more memorable, because it
stands out from the rest of your examination. All thats left to do is
smash a guitar against the witness stand, so that when you walk offstage your jurors will
be left with the impression that your examination was a smashing success!

How to Cross-Examine Your Client

One of the most important pre-trial preparation steps you will undertake is getting your
client ready for cross-examination. You know that no matter how well you prepare the
rest of your case, if your client falls apart during cross-examination, the case may be
lost. Yet despite its importance, many trial lawyers client cross-examinations
preparations are woefully inadequate.

The reason their attempts fall short isnt because the attorneys dont know what topics
to tackle, and its not because they dont know how to frame their questions. The reason
they fall short is because most trial lawyers are afraid to practice like theyll play.

One of my favorite maxims from sports is Practice like you play. From little league to
the professional leagues, coaches at every level of play invoke this phrase to push their
players, because they know that a players performance during practice determines his
level of success on the field. If a player can perfectly execute drills during the third hour
of practice, when his body is weary and ready to give out, then you can be assured hell
be able to perfectly execute those same skills during the final moments of the game.
One of the worst things coaches can do is to ease up on their players when they get tired
during practice. If he lets them take it easy or run at 3/4 speed, that lack of discipline
will come back to haunt the team during the next game. By pushing his players hard and
expecting them to give 100% during practice, the coach ensures that his players develop
strong habits that will carry over to the field and help them win games. The only players
who prefer easy coaches are the players who dont care about winning. Winners want
the coach who will push them to their limits during practice, so that the gameday
adversity seems easy by comparison.
The maxim of Practice like you play is just as true in the courtroom as it is on the
football field. That means you need to prepare your client for the type of cross-
examination that he should expect in the courtroom. That means you dont cross-
examine him at 1/2 strength, or 3/4 strength, or even 7/8 strength. You need to rev it up
to 100% and attack your client with the same intensity (or greater) that hell confront in
the courtroom.

Unfortunately, many trial lawyers arent willing to do this. Theyll tone down their
attacks when preparing their clients for cross-examination, because they want to be
nice to their clients. After all, the client is the guy who pays the bills, right? You may
respect your client, you may like him, you might even be friends with him but not
during these preparations. Put aside your natural inclination to be nice to the people you
like, because youll be doing your client a terrible disservice when preparing him for
cross-examination if youre nice to him.
The harshest cross-examination your client should ever endure is the one that will take
place in your office before he testifies, because that will make the cross-examination he
faces on the witness stand seem easy by comparison. You dont want your client to step
down from the witness stand and think, Holy crap, I wasnt prepared for that! You
want him to tell you, I thought that guy was going to be a lot worse than he was. His
cross-examination wasnt nearly as bad as I thought it would be!
As coach Paul Bear Bryant said, Its not the will to win, but the will to prepare to win
that makes the difference. Remind your client about the purpose of the preparation
session: youre preparing to win. If you and your client are willing to prepare to win, your
clients cross-examination session needs to be rough. Make him as uncomfortable as
possible. Cross-examine him as harshly as your opponent will. Even harsher. Unload on
him with both barrels, giving him the most rigorous cross-examination you can muster.
During this preparation session, he may hate you for it. He may curse at you or threaten
to fire you. Why are you doing this, hell ask, do you hate me or something?

No, of course you dont. Just like the demanding coach who pushes his players harder
than theyve ever been pushed before, or the drill sergeant who pushes his recruits to
their breaking points, youre not doing this because you hate him. The reason youre
pushing them so hard is because you love him, and you know that if he doesnt practice
like he intends to play, hes going to get killed when he steps onto the field of battle.

Cross-examine your client as vigorously as you can, and practice like you play. In the
short run, he may hate you for it, but eventually, hell be glad you pushed him as hard as
you did. (He just may not get around to saying Thank you until after youve won the
case.)

Dont Skip This

Essential Pre-Trial
Preparation Step!
It might be the back alley of a dive bar where a
man was bludgeoned to death, the potato chip aisle
at a local grocery store where the plaintiff claims
he slipped and fell, or a tiled and antiseptic operating room where your clients husband
died during routine surgery. In each instance, regardless of whether the case is civil or
criminal, the location is the same: its the scene of the crime.

In your last case, how many times did you visit the scene of the crime before trial
began? Once? Twice? Half a dozen times?

Unfortunately, if youre like many lawyers, the answer is probably none. Oh sure, you
looked at photos, examined a map of the area, and listened intently as your witnesses
described the scene, but when it comes right down to it, you never actually left the
comfort of your office to go visit the scene.

For as long as Ive been a lawyer, Ive always heard how important it was to visit the
scene. Law school buddies said I should visit the scene, but I didnt listen. Trial partners
told me that I should visit the scene, but I didnt listen. Judges and senior attorneys
said, Go!, but I didnt listen.

To be candid, I rarely went to the scene because I always came up with an excuse for
why I didnt need to go:

Hey, Ive got a full caseload, with dozens of pending cases. 99% of all cases never go to
trial, so why waste my time visiting scenes on cases that I know will be resolved?

You dont really expect me to go to the scene of the murder, do you? That place is
dangerous! Heck, a guy got killed there! (Um, I mean a guy was allegedly killed
there)

Ive seen the photos and a map of the area, so Ive got a pretty good idea of what the
place looks like.

(Do any of my excuses sound familiar?)

Then one day, I found myself listening to someone whose advice I really trusted. This
mans worldly wisdom was more valuable than anything Id ever learned in law school.
He wasnt a lawyer, but lawyers listened to him. In fact, his influence extended far
beyond the courthouse walls. I have it on good authority that countless legislators, law
school professors, judges (even a few Supreme Court Justices) still listen to everything
he says, and will go out of their way to see him if he visits their town.

So who was this sage? Perhaps youve heard of him: His name is Jimmy Buffett, and the
advice he extolled came from the song Maana on his Son of a Son of a Sailor album.
Heres what he told me:
Dont try to describe the ocean if youve never seen it
Dont ever forget that you just may wind up being wrong
Buffett has given us some great advice over the years (I took off for a weekend last
month, just to try and recall the whole year, Come Monday, itll be all right,
Barmaid, bring a pitcher, another round of brew) but this is probably the most
useful advice hes ever given to aid your pre-trial preparations. And if Jimmy Buffetts
recommendation isnt enough to get you out of the office, here are three more reasons
why youll want to visit the scene of the crime:
1. Youll present better opening statements. If I asked you to tell me what one of the
courtrooms in your courthouse looks like, you could probably describe it in great detail,
couldnt you? Thats because, in your minds eye, you can see where the jury box is
located, the height of the judges bench, and the distance between the witness box and
the attorneys tables. When I ask you to describe the courtroom, you simply access your
visual memory and tell me what you see.
In much the same way, going to the scene helps you see how the events unfolded,
which lets you bring the action to life during your opening statement. Instead of
cobbling together random details from witness statements and various reports, you
simply transfer the images from your minds eye into your jurors minds.

2. Youll extract more detail during direct examination. Possibly the greatest benefit of
visiting the scene is that youll start pulling far more detail out of your witnesses during
direct examination. For example, compare these two direct examinations from Driving
Under the Influence (DUI) cases. The first is by a prosecutor who only read the police
reports and talked with his witnesses:
Q: Officer, when you turned on your lights and sirens, how close were you to the
defendants car?
A: About 2 car lengths behind him.
Q: Where were you when you turned on your lights and sirens?
A: On Main St., just past the Dunkin Donuts.
Q: Once you turned on your lights and sirens, did he stop his car?
A: No, he didnt stop for about 250 yards, until he reached Millers Pub.
Q: Were there any other safe places to stop his car?
A: There were several, but he didnt stop in any of them.
Thats not too bad, right? You know that the driver didnt stop his car, even though the
police officers lights were flashing and his sirens were wailing. You also know that he
passed by several other safe places to stop his car. At this point, you might even be
thinking that the reason why he didnt stop the car was alcohol-related. But look at how
much better the direct examination becomes if the prosecutor actually has first hand
knowledge of how the scene looks:

Q: Officer, when you turned on your lights and sirens, how close were you to the
defendants car?
A: About 2 car lengths behind him.
Q: Where were you when you turned on your lights and sirens?
A: On Main St., just past the Dunkin Donuts.
Q: Just past the Dunkin Donuts is a Waffle House, right? Is that a safe, well lit, place to
stop?
A: Yes.
Q: Once you turned on your lights and sirens, did he stop in the Waffle House parking
lot?
A: No.
 Q: What about the Applebees after that? Is that a safe, well lit, place to stop?
A: Yes.
Q: Did he stop in the Applebees parking lot?
A: No, he didnt.
Q: How about Bennigans? Is that a safe, well lit, place to stop?
A: Yes.
Q: Did he stop in the Bennigans parking lot?
A: No, he didnt stop there, either.
Q: Tell us about McDonalds. Is that a safe, well lit, place to stop?
A: Yes.
Q: Did he pull over into the McDonalds parking lot?
A: No, he kept driving.
Q: Bobs Big Boy? Is that a safe, well lit, place to stop?
A: Yes.
Q: Did he stop in the Bobs Big Boy parking lot?
A: No, he drove right past it.
Q: The Hess gas station, is that a safe, well lit, place to stop?
A: Yes.
Q: Did he stop in the Hess gas station?
A: No, he didnt.
Q: Officer, where did the defendant finally stop his car?
A: About 250 yards after I first turned on my lights and sirens, at Millers Pub.
By visiting the scene, you can ask more intelligent questions and elicit more details from
your witnesses. This lets you fill in all of the holes in their testimony and present a
complete picture for the jurors.

3. Your cross-examination will be more lethal. Your witnesses and investigators dont
know as much about the case as you do, so they can easily overlook cross-examination
insights which would seem obvious to you. When you visit the scene (rather than relying
on second hand information) you will uncover clues that others wouldnt even recognize
as being important. Those clues may be the winning edge you need to poke holes in
opposing witnesss testimony.
You said you were sitting in the Starbucks at 4:25 PM, looked out the window, and saw my
client, Money Richpockets, run a red light and hit your best friend, Harvey Deadbeat, isnt that
right?

That day was a clear day, wasnt it?

Not a cloud in the sky, right?

The sun was shining brightly from the west.

 Earlier, you said that you had a clear view of the crash, because the sun was directly behind you
as you looked out the window, right?

The Morgan St. glass shop is directly across the street from the Starbucks, isnt it?

The glass shop has a 20 x 10 mirror in the front of the store, doesnt it?

And between 3:50 PM and 4:45 PM, the sun shines directly onto that mirrored window, doesnt
it?

In fact, the light reflects directly into the Starbucks, blinding the barristas.

They close the front blinds as soon as the light hits the espresso machines, so that no one in the
store gets blinded, dont they?

Visiting the scene of the crime can make the difference between whether the jury sees
what happened to your client or not. Your pre-trial preparation wont be complete until
youve visited the scene of the crime, so block off some time in your calendar and go.
Youll be glad you did, and so will your client!

Dont Polish a Diamond on the Stand

Dont gild the lily. When a witness gives you a favorable answer (regardless of whether
its during direct examination or cross-examination), be wary of trying to improve upon
it. Too many times, attorneys have tried to lock the witness down on a point that theyve
already won, only to have the witness improve upon the answer and cram it down the
attorneys throat.

For example, lets say you represent a man accused of Trafficking in Heroin. The
government is alleging that he was part of a conspiracy to sell 500 grams of heroin. Your
client was a small part of the conspiracy, and only dealt with one person, a confidential
informant. During direct examination, the prosecutor asks the informant, Was
Desmond Llewellyn Witherspoon present during the negotiations? To everyones
surprise, the witness says, I dont think so. The prosecutor (an overworked young man
with 6 months of experience) doesnt know what else to do, and so he sits down.

The wise defense attorney would say, No questions and shut up. But some cross-
examiners would attempt to lock the witnesss favorable answer down. The result is that
they impeach valuable information:

Q: You told the prosecutor that you didnt think Desmond Llewellyn Witherspoon was
present at the negotiations.
A: Thats right, I dont think he was.
Q: So Desmond Llewellyn Witherspoon didnt have anything to do with the
negotiations?
A: I dont think so.
Q: And Desmond Llewellyn Witherspoon didnt set up a deal to sell 500 grams of
heroin, did he?
A: I dont think so.
Q: You keep saying, I dont think so, but could you clarify for us. [POINTING TOWARDS HIS
CLIENT] He didnt have anything to do with the heroin negotiations, did he?
A: Oh, him? Pookie? Yeah, Pookie was the guy that set up the entire deal. He called me,
negotiated the prices, raved about the quality of his product, told me he could get an
unlimited supply of heroin because hed killed some guys down in Colombia and had an
entire border patrol on his payroll or something like that, so he had the entire region
under a stranglehold and could export as much heroin as he wanted. Yeah, Pookie was
the kingpin of the entire organization. But that name you keep mentioning, Desmond
Llewellyn Witherspoon? I dont think Ive ever even heard the name before. Your guy
never told me his real name, everybody just called him Pookie.
Most often, attorneys encounter this problem during cross-examination. Theyll cross a
witness and unearth a diamond in their testimony. But then, they do the unthinkable,
and try to polish it while the witness is still on the stand. The results, invariably, are
disastrous.

Q: Did you hear anything?

A: Nope, not that I remember.
Q: Are you sure?
A: Yeah, pretty sure.
Q: [RUBBING HIS HANDS IN GLEE] You didnt hear anything at all?
A: Well, nothing except for [BAD FACT THAT SEEMED INNOCUOUS TO THE WITNESS]
When you uncover favorable testimony, consider switching to another line of
questioning, or perhaps even quitting entirely and sitting down. Its okay to quit while
youre ahead. To inquire further may ruin the presentation, or even elicit damaging
information. If you keep going, you give the witness an opportunity to explain his
answer. When you get a good answer, dont push the witness on the issue. Just take your
good answer and go home.
Your Cross-Examination Could Be
Better, Correct?!?
The primary difference between direct examination and cross-examination is who
testifies. During direct examination, the lawyer asks open-ended questions and lets the
witness do all of the testifying. But during cross-examination, you are the one
testifying.You choose the topics of discussion, you choose when those topics will be
discussed, and you choose how to phrase the statements. Since youre going to testify,
youll want the jury to hang on every word that you say. Every word you utter should be
filled with importance. But instead, many cross-examinations are filled with superfluous
words like these:
Q: You went to the store, correct?
A: Yes.
Q: And isnt it true that John Smith went to the store with you?
A: Yes.
Q: Larry Mildrige was with you as well, isnt that a fact?
A: Yes, he was.
Q: Mildridge was the driver, wasnt he?
A: Yes.
Q: You testified that you were going to buy anti-psychotic medication, werent you?
A: Yes, I was.
Almost every cross-examiner falls into the tagline trap. For some reason, we think that if
we dont include the taglines, our cross-examination questions will be misunderstood.
But you dont need taglines to turn a leading statement into a question. Your tone of
voice will do it for you and the court reporter knows to put question marks at the end of
your statements. Theres no need to pollute your cross-examination with taglines or
introductions. Taglines dilute the power of your statements because they dont add
anything of substance. To improve the effectiveness and persuasive power of your
testimony during cross-examination, try reducing or eliminating all of the distracting
words in your testimony. Take a look at the same cross-examination, without the
taglines:

Q: You went to the store?

A: Yes.
Q: John Smith went to the store with you?
A: Yes.
Q: Larry Mildrige was with you as well?
A: Yes.
Q: Mildridge was the driver?
A: Yes.
Q: You were going to buy anti-psychotic medication?
A: Yes.
Isnt that easier to follow? Doesnt it flow more smoothly? Every single word in the
cross-examination helps tell the story. There arent any wasted words. To help the jury
follow your ?testimony,? eliminate the taglines, and leave only the words that you want
them to remember.

Elusive witnesses
What a week!? Its the first week of my vacation, and
Ive been out on photo safari with my new camera.?
Ill tell you about handfeeding 12 alligators and
share my tiger and gorilla photos in an upcoming
issue, but for now I thought youd get a kick out of
this picture I shot Monday.? If youve ever had a
witness try to wiggle away from you during cross-
examination, you can probably sympathize with
Moms attempts to keep Junior under control.? (He escaped four times during the brief
time I was photographing him!)

Maximizing Prior Inconsistent

Statements
Used effectively, impeachment by prior inconsistent statements can be devastating.
When you catch the witness in a genuine inconsistency on a material issue, you can
annihilate the witnesss credibility. As a trial lawyer, you probably love impeaching
witnesses with prior inconsistent statements. Most trial lawyers believe that the prior
inconsistent statement is the most valuable weapon in their impeachment toolbox.
Many trial lawyers are surprised to discover that jurors dont place as much weight on
prior inconsistent statements as we do. Heres how to maximize the impact of your prior
inconsistent statements.
Cross-examining the Lying Witness
Just ran across this cross-examination article from the Financial Post discussing
Edward Greenspans cross-examination of David Radler.? Wouldnt you love to be able

to cross-examine a witness like this??

Q: You lied to the lawyers from the special committee?
A: I was not forthcoming to the lawyers from the special committee.
Q: Tell me, Mr. Radler, at what point prior to this interview did you decide that you
would lie, or not be forthcoming, as you put it?
A: I just went to the interview.
A: [IN A RAISED VOICE]: Sir, there were some questions to which I gave answers that
were not totally truthful, i.e., I lied.
Q: Did you stutter when you lied?
A: Sir, I said I lied.
Q: Was there a pause when you lied?
A: Sir, I told lies.
Q: When you lie, do you look a certain way?
A: Thats for others to determine. I cant view myself.
Q: So you might be lying now?
You wont get too many chances to cross-examine an admitted liar, so when you do,
enjoy the moment!