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A Guide to Direct Examination and Cross-Examination

Vol. 31 No. 5
ByJack E. McGehee

Jack E. McGehee is senior partner at McGehee, Chang, Barnes, Landgraf in Houston,

Texas, and specializes in personal injury trial law. This article is excerpted and adapted from
the author’s book The Plaintiff’s Case: From Voir Dire to Verdict (1997).

Witness examination is the “meat and potatoes” of a jury trial. Contrasted with the flexibility
of opening statement, witness examination is more rigid, often more mundane, but also
more precise. These qualities are both strengths and weaknesses. Countless cases have
been lost by lawyers who have blockbuster opening statements but who failed to appreciate
adequately the purpose of direct and cross-examination.
Direct examination is your turn to put your money where your mouth is—to let the jury hear from
the witnesses you’ve said will prove the case or see the documents you said will set your client
free. Cross-examination, on the other hand, is where you limit damage by pinning the witness
down with very specific questions—and by knowing when to stop asking questions for the sake of
your case.
Direct Examination
Regardless of the brilliance and eloquence of voir dire and opening, the jury is eager to
meet the people they’ve been hearing about, to listen to real evidence, to go to work.
For good or bad, jury members are confident their impressions of the litigants are correct
and complete. The introductory moments of direct examination are a valuable chance to
show jurors there is more to be heard, learned, and assessed. Although the trial to date has
centered on the lawyers, now both spotlight and style shift to focus on witnesses and
testimony. That shift in no way implies an attorney’s abdication of courtroom command,
however. In fact, the style shift underscores command as it yields the starring role and
assumes the vital function of facilitator. The jury, therefore, sees a new and comforting facet
of attorney competence, confidence, and mastery of the case.
Instead of narrative teaching, direct examination shifts to short, crisp bursts of inquiry that
invite attentive listening and satisfy curiosities. The staccato style quickly is perceived as a
juror service, almost instantly voicing questions as they pop into the jurors’ own minds. For
example, if a witness finishes an answer by stating, “I was shocked,” the greatest jury
service (and highest drama) is performed with a prompt and simple “Why?”
Qualities of a good direct examination. After analysis of the available evidence, the next
most important decision is how testimony will be “packaged.” If the witness will tell a story,
the best form is a chronological line of inquiry, beginning as early as is pertinent and ending
in the courtroom. Example:
 When did you first lean about Timmy's condition?
 What happened after that?
 Then what happened?
On the other hand, a witness whose testimony supports a case theme or lists reasons why
the event in question might have occurred will be showcased better using a “logical” line of
inquiry. Example:
 Please list for us all the reasons why the machine was dangerous.
 Why don't you stand up and write them on the blackboard as you explain them to us.
A combination of the two approaches, when appropriate, will add variety and make the
examination more interesting.
Accrediting the witness. Early on, probably first, explain how this witness fits into the big
picture. Using and annotating the visual aids (storyboard or checklist) used in opening works
well here. Example:
 Now you actually saw the accident?
 Let's discuss everything you saw.
 What did you see first?
Framing questions. The trial’s purpose is to connect the jurors’ minds and hearts to the
facts of the plaintiff’s case. Common, straightforward language enhances the connection;
“lawyer talk” is static on the line. A question that begins with a stuffy “Tell the ladies and
gentlemen of the jury” isolates the jury and impedes communication. Better is a simple “tell
us.” Instead of the formal “state your name,” an informal “introduce yourself to us” moves
things forward more gracefully.
A greater threat is that the impact of a key witness can be diminished if defense counsel’s
barrage of objections interrupts testimony. Careful question construction—with special
attention to first words—can avert most “leading” objections:
 Who
 What
 Where
 When
 Why
 How
 Describe
Using eye-lines. After a witness is sworn in, a well-prepared lawyer need never consult
notes or look away from the faces of the witness and (occasionally) the jurors. It is similarly
wise to avoid looking to the judge for feedback or reaction. Doing so risks missing a facial
expression that calls for pause, a grimace that needs response, or a reaction that suggests
an important point requires clarification. Undivided attention to the witness emphasizes the
importance of the testimony for the jury; the lawyer’s capacity to respond to the moment
underscores the exchange’s spontaneity and the advocate’s command.
Don’t lead, but tag the question. Before a parade of “What happened next?” questions
becomes tiresome, one should capitalize on a favorable witness response with a “base-
tagging” technique. A repetition of the favorable response to tag the next question (“After
you saw the defendant’s face, what happened next?”) amplifies importance and varies the
pace while it offers a sense of logical and unrehearsed dialogue between examiner and
Using vocal inflections. In normal conversation, questions end with an upward vocal
inflection. Rote intonation implies that witness and testimony are dull and unworthy of
attention. A vocal rise, on the other hand, segues attention to the witness and piques the
jury’s curiosity.
Styling: A three-way conversation. A perfect opening statement sounds exactly like we
are talking to a trusted friend about something that might change her life. Similarly, the
perfect direct examination sounds like two interested people having a normal conversation
about an exciting subject; the jury is welcomed as the conversation’s third party. No matter
how tempting it might be to mimic the successful, compelling approaches of mentors and
heroes, a lawyer’s most effective trial style is consistent with the mood and tone established
in voir dire and opening—competent, helpful, decent, and real—with honor and confidence
enough to reveal the contents of the attorney’s head and heart to the jury.
Programming for primacy and recency. Most memorable data come first and last in a
presentation. Keep this in mind when planning and outlining any witness’s testimony. A wise
examiner often kicks off by positioning the witness in the case, then builds to the questions
for which the witness was called for a final flourish of testimony that reinforces case themes.
Cross-examination’s role is damage control. If it is done well, the hostile witness will not gain
much ground. If it is done poorly, however, cross-examination can result in a turning of the
tide. An important, and obvious, goal during cross-examination is to avoid assisting the
witness with being persuasive to the jury.
The two most difficult tasks facing us in cross-examination are eliminating wiggle room in
our questions and knowing when to stop. Wiggle room is available to the hostile witness
whenever the question asks too much. We should avoid wiggle room by asking questions
that can be answered only “yes” or “no.” A string of “yes” answers implies that the witness
has been won over; a string of “no” answers implies some kind of weakness or failure on the
part of the witness.
Q: You’re not a medical doctor.
A: No.
Q: You never studied toxicology.
A: No.
Q: You don’t know the scientific theories that support Breathalyzers.
A: No.
Q: You don’t even know how a Breathalyzer works.
A: No.
Q: So you have no opinion about how the Breathalyzer registered 0.20 after you were pulled
over by the policeman.
A: No.
Superb cross-examinations have been compromised when the examiner did not know when
to stop. An advocate who gets greedy or compulsive after scoring big points sometimes
pursues untested or equivocal answers that risk both momentum and the dramatic “high
note.” Gauging when to sit down is often the most important power tool in the cross-
examiner’s tool box.
Qualities of a good cross-examination.
Questions. Planning the testimony all the way through, with focus on damage control,
produces questioning that preserves courtroom command and reaffirms that the plaintiff’s
advocate is more interesting to the jury than the defendant’s witness.
Good questions:
 Are leading
 Are short
 Are simple
 Maintain control
Seek facts, not conclusions. The opponent’s witnesses are “their” witnesses. It’s not on their
agenda to support the plaintiff’s case. It is important to keep this in mind, particularly when
plaintiff’s attorneys are so saturated in case details that certain facts lead to conclusions that
seem obvious and inevitable. Even when they look like sure winners, it’s best to avoid
questions that run afoul of this wisdom. Safer is stronger in cross-examination—and it’s
safer to stick with facts.
Poor example:
Q: The plaintiff was fired because he hurt himself on the job, wasn’t he?
A: No. The plaintiff was fired because he didn’t do the job.
Good example:
Q: The plaintiff was hurt on February 12, 1996, correct?
A: Yes.
Q: You learned about his injury on February 13, 1996, correct?
A: Yes.
Q: And you fired him on February 14, 1996, correct?
A: Yes.
The examiner. It is important to protect the investment of head and heart made in voir dire
and opening and to use cross-examination to deepen the impression that the jurors have a
reliable and accurate picture of the advocate.
The effective cross-examiner is:
 Friendly Courteous
 Respectful
 Efficient
 In command
 Requesting facts, not conclusions
 Aware of a “high note” and ready to sit down after one occurs
The effective cross-examiner does not:
 Argue over irrelevant details
 Ask a question without knowing the answer
 Give a witness a chance to explain
 Ask “Why?”
Asserting authority with question structure. Leading questions that begin with a statement
and leave the query to the end reinforce command by underscoring that the examiner is
completely confident of the answer. It is better to construct the inquiry with the questions
coming after a statement of pejorative fact. Example: “And you flunked the Breathalyzer test,
didn’t you?”
Words/phrases to avoid:
 Did you . . . ?
 Do you . . . ?
 Have you . . . ?
 Is there . . . ?
 Was there . . . ?
 Could . . . ?
 Would . . . ?
Common objections during cross-examination. Good cross-examination controls the
damage done by the opponent’s witness, while it seeks opportunities to undermine the
impact and credibility of the opponent’s case themes. Effective cross-examiners structure
questions to avoid losing the momentum and command that are yielded when testimony is
peppered with the opponent’s objections. It is recommended that you keep in mind a list of
the most common objections in cross-examination in order to plan well-controlled testimony.
Common objections:
 No good-faith basis for question
 Argumentative
 Misquoting witness
 Assuming facts not in evidence
 Compound question
 Asked and answered
 Improper impeachment
 Beyond the scope of direct
 Hearsay
Outline of a good cross-examination.
Planning the questioning. Following are guidelines for planning three major types of cross-
examinations, keeping in mind that effective technique usually covers the territory with
queries beginning with a statement and ending with a question designed to elicit a simple
yes or no answer.
On events:
 When?
 Where?
 How long?
 Who was there?
 Where are they today?
 Who else knows?
On conversations:
 How many?
 When?
 Where?
 How long did it last?
 Who was there?
 Where are they today?
 Substance?
 Recorded?
 Actions taken after conversation?
On documents:
 When prepared?
 Why prepared?
 Who prepared?
 Prior drafts?
 Where is the original?
 Any attachments?
 Anything missing?
Elements of cross-examination. Cross-examination seeks to invalidate the impact of the
opponent’s direct. A good plan for structuring the inquiry is to go for the questions to which
the witness must agree with a string of “yes” responses, followed by a series of questions
the answers to which the witness does not know or must answer “No.” It can go something
like this:
“Yes” questions:
 Doctor, do you agree that the most likely cause of meconium staining is hypoxia?
 You agree that hypoxia can causebrain damage?
 You agree that an episode of hypoxia can affect the fetal heart activity as revealed on
monitor strips?
 You agree that if a fetus shows this kind of distress, the OB should consider a C-section?
“No” questions:
 Now, you weren’t there?
 You didn’t see the incident?
 You don’t know how badly the car was damaged?
 You didn’t see the condition of the passengers when they were removed from the car?
After command has been established, it often is appropriate to attempt witness
impeachment. Typical grounds include bias, ability to observe, ability to recall, unfamiliarity
with facts, and lack of qualifications.
On the other hand, these effective elements of cross-examination are instantly abandoned if
the witness surrenders the chance for an unexpected knockout punch. Handled well, it is a
great opportunity for high drama: (1) Hold the moment with stillness of movement and
words, then (2) abruptly dismiss the witness. (Remember the impact in the movie A Time to
Kill, when the prosecutor’s voice, dripping with disgust, said “I have no further use for this
witness, Your Honor.”)
Two steps to impeachment. Impeachment is a tough sell, even when the law is on the
examiner’s side, if only because the jury is not experienced in discerning discrete and subtle
points of law. What may be obvious to professionals may be lost on the jury unless it is
framed in a way that warns the finders of fact that they are on the brink of hearing something
Establishing the maxim. An open-ended question signals high drama to come when setting
up a witness for impeachment. This example, from testimony in a divorce case, reveals how
the witness husband was allowed to dig his own verbal grave:
Q: Sir, fidelity in marriage is important, isn’t it?
A: Yes.
Q: Why?
A: [Any answer helps the examiner.]
In fact, if the witness responds with more than one reason, it might be useful to list answers
on the blackboard or flipchart. The key is to present a maxim or rule that is virtually universal
in order to corner the witness into a first-step “Yes” answer:
 It is important to be truthful with police officers.
 Tenants should be able to trust that their landlords have taken reasonable steps to
ensure safety.
 Experts should be completely honest when they write their reports.
 Manufacturers should protect their customers from dangerous products.
 Experts should remain neutral when reviewing a case.
Confronting the witness. Once a witness has endorsed the maxim as universal,
impeachment is available through confrontation of the witness with facts of the case that
imply violation of the universal rule. Vigilant examiners avoid asking the witness directly if he
violated the rule; the wiser approach is to confront the witness with the bare minimum facts
that reveal the violation, keeping in mind the dangers of questions that ask too much or that
ask for conclusions. Careful question construction restricts and exposes the witness at the
same time. Following are bad and good examples of this technique. They came from a
divorce case.
Poor execution:
Q: And you lack fidelity, don’t you, sir?
A: No. I’ve always been faithful. She just never believed me.
Good execution:
Q: And your wife stated in her petition that you had an affair with your secretary last year,
A: Yes.
Remembering the key to cross-examination—damage control through the elimination of
wiggle room and recognizing when to stop—will assist you in focusing your questions and
staying on task. Unless the opponent’s witness is completely inept, some ground is
expected to be lost. The question of how much ground, however, depends on you.
Direct and cross-examination are where the jury becomes familiar with the evidence, with
the credibility of witnesses, and with your true belief in your case. Be prepared, but be fluid.
Although direct and cross are more structured than opening statement, they are still
dynamic. Your ability to connect with the witness during direct, or discredit the witness
during cross, ultimately requires you to stay true to your own style and believe in yourself. If,
during direct and cross, you score half the goals you set out to score, then you will be a
world champion.