How to maximize the impact of cross-examination
A jury consultant offers tips on cross-examination to help you persuade the jury and avoid alienating them
Cross-examination is a delicate art, one requiring great skill and expertise. It is where your thorough grounding in the facts of the case is most valuable. Cross-examination cannot be “winged.” It must be prepared with deliberation and forethought. Here are simple rules to follow so your cross creates the most impact.
Pay attention to opposing counsel’s direct examination
Much of the information you gather for cross-examination is from opposing counsel’s direct examination. During opposing counsel’s direct, listen not only for factual inconsistencies from the witness, but notice signs of possible weakness, anxiety or confusion. Listen for hesitancies in speech, sudden changes in pitch or pace, and shifts in vocal volume. Listen for emotional undertones and for incongruency between verbal content and facial expression.
Watch the witness’s body language for further clues of weakness. Notice whether the witness appears perfectly relaxed or seems to tense up at certain moments. Does the witness fidget or start to do some other subconscious action such as pick at clothing or pull a strand of hair? If so, when? Does the witness maintain good eye focus, or do the witness’s eyes wander or avert at certain moments? Allow the witness’s nonverbal behavior to cue you to fruitful areas to probe. Learn to take notes in a shorthand fashion, so you can observe the witness as much as possible.
Conduct your cross-examination to advance your “story”
Cross-examination gives you the opportunity to reestablish your interpretation of the facts so your story is the one that the jurors accept. Everything you do in cross must be designed with this purpose. Repeatedly work your case theme into your cross-examination to keep jurors on track. Help jurors stay with you by asking clear, focused questions that follow in logical sequence.
Empower the jurors to see the case your way
We all cooperate more willingly with decisions we’ve had a hand in making. Jurors in trial are no different. Ask your questions in cross-examination in a way that allow the jurors to arrive at the unmistakable, inescapable conclusion you want them to, rather than forcing the conclusion down their throats or risking a sympathetic answer from defense’s witness.
The lawyer is cross-examining a lay witness at the scene of a bus-pedestrian accident. The lawyer represents the pedestrian.
Question: Ms. Smith, did you see the bus as it came towards the intersection of First and Main shortly before the accident?
Answer: Yes, I did.
Question: Could you tell us what the color of the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Really? Isn’t it true that when you spoke to the police officer shortly after the accident you said the light was red?
Answer: Oh, well, I’m sorry, I’m a little nervous. I’m sure the police officer report is right.
Well, at this point, the jurors may very well believe the witness, since she’s being humble and apologetic and who isn’t nervous in court? The lawyer meanwhile has lost the opportunity to show the jurors that the case isn’t as cut and dried as defense would have them believe.
A more effective way to approach this might be:
Question: Could you tell us what the color the light was for the bus as it came down First?
Answer: It was green, a green light.
Question: Ms. Smith, did you talk with a police officer right there at the scene, just after the accident?
Answer: Yes, I did.
Question: And did that police officer ask you what color the light was for the bus as it came down First?
Answer: Yes, I think he did.
Rather than pounce on the witness at this point and give her the opportunity to sympathetically correct herself, the lawyer could produce the police report and show (visuals work!) the portion where Ms. Smith unequivocally said, “The light was red,” and simply end his cross on that note.
The jurors can now come to their own conclusion that Ms. Smith is, for whatever reason, being less than truthful and are now much more likely to accept the police report as stated, which was exactly what the lawyer wanted them to do.
Win jury votes with politeness
Your basic attitude toward all witnesses – including experts – should initially be one of respect and politeness. As cross-examination progresses, your attitude with lay witnesses should deviate little from this stance; but with expert witnesses, you can depart from this approach considerably.
Jurors identify with lay witnesses more than they do with attorneys. If you are polite and respectful to the lay witness, you enhance your credibility with the jurors; you are treating the witness as the jurors would like to be treated. Any aggressive unrestrained direct attack on such a witness is going to turn jurors against you. Certainly, you can attack witnesses and their testimony, but do so respectfully and politely.
Use your “confusion” and “lack of understanding” as the springboards to your questioning. Use attempts to “clarify” as the way to expose inconsistencies. Take a courteous attitude of “trying to understand” as your basic posture. This approach will allow you to accomplish your objective in cross, and retain the jurors’ favorable evaluation of you.
Your approach to expert witnesses can be quite different. Jurors have trouble identifying with expert witnesses, especially those witnesses who testify for a living. Although you should still begin with a respectful, polite approach, allow yourself more vigorous questioning than you would with lay witnesses. Stay away from aggressive frontal attacks, however. Confrontation should be firm, not vicious. Sometimes sarcasm, disappointment, irritation or a stunned silence can be used for effect, but be aware of their import and don’t get melodramatic.
One of the most effective ways to persuade jurors when cross-examining expert witnesses is to know more than the witness does. This may at first seem impossible, but since you will be questioning the witness on a narrow range of knowledge, you can, in most cases, gain that knowledge easily. Your best source is your own expert witness. If you can draw a medical diagram, for example, simply and accurately, and stump the opposing side’s medical expert, you score impressive points with the jury.
Maximize the impact of plaintiff’s testimony
Use cross-examination to maximize the impact of plaintiff’s testimony by restating it in the present tense (“having intense pain all these months” not “was in intense pain all these months”) even as you conduct your cross. Use descriptive language and bring home the experience to the jurors by expressing the testimony in personal terms (i.e., “Mr. Jones’ pain” not “the pain”). Reduce the impact of opposing counsel’s terms by relabeling them in more emphatic ways (i.e., substitute “crippling neck pain” for opposing counsel’s weak “neck spasm”).
Handle the evidence in a way that reinforces your interpretation of the facts. For example, counter opposing counsel’s disdain for a document by holding the document with care and respect.
End your cross-examination like a winner
Always bear in mind that your job when cross-examining a witness is to persuade the jurors of your point of view, not to convince the witness and opposing counsel of your brilliance. If you can accomplish your purpose by simply revealing an inconsistency or disconcerting the witness, leave it at that. You don’t have to convince the witness of anything, much less impress opposing counsel. Jurors and judge are the only truly important persons in the room.
Always end your cross on a favorable note – after the witness says something that advances your cause. No matter what happens during cross, look like you got what you wanted.
Under no circumstances should you seem flustered, angry, disappointed or disheartened when you finish your cross‑examination. Sit down like a winner. The jurors will associate your radiant confidence and poise with the just completed testimony and assume your story is coming out on top.
Noelle C. Nelson, Ph.D. is a trial consultant who provides trial/jury strategy, witness preparation and focus groups for attorneys. Her published works include “A Winning Case” (Prentice Hall), “Connecting With Your Client” (American Bar Association), “The Power of Appreciation in Business” (MindLab Publishing), and the booklet, “101 Winning Tips: How to Give a Good Deposition and Testify Well in Court.”http://www.dr.noellenelson.com; awinningtip.blogspot.com
2023 by the author.
For reprint permission, contact the publisher: www.plaintiffmagazine.com