The Death of Leading Questions?

Take this test.

Watch a cross-examination from almost any televised trial. You’ll probably find it’s pretty bad, maybe even as bad as Cristina Gutierez’s cross-examination of an expert witness (ending at 2:03) in the Adnan Syed case (the topic of last year’s Serial podcast):

Getting it Right

Any lawyer who fails on cross forfeits a major opportunity to prove their case:

Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.

-John H. Wigmore

We can do better. That’s because, as former Public Defender for the Northern District of Illinois Terry MacCarthy notes, “cross-examination is not an ‘art’ but rather a science.”

The science of cross has two main parts: organization and delivery. For organization, lawyers couldn’t much better than reading and applying Pozner and Dodd’s Cross-Examination: Science and Techniques.

But the deeper problem seems to be with delivery, and better delivery depends on clear, concise, and concrete cross-examination questions. Here are some of Terry MacCarthy’s recommendations:

  • “With few exceptions, questions have no place in cross”;
  • The traditional leading question shouldn’t be used in cross;
  • Use short statements, not questions;
  • The use of transitions is essential on cross;
  • If the witness is telling the story on cross-examination, you are losing;
  • “Cross that involves arguing, bickering, and quibbling is terrible”; and
  • “Maintaining control during cross-examination is important, but if the witness looks bad in denying your control, you will gain more than maintaining control.”

What Is to be Done?

Any lawyer that wants to immediately apply these rules to their cross-examination should do these three things: (1) use short, one-fact-per-question statements; (2) drop the “isn’t that true” and “correct” from the end of each statement; and (3) keep doing (1) and (2).

A traditional lawyer’s cross-examination might sound something like this:

But now lawyers are doing it this way instead:

You can find the rest of Terry MacCarthy’s cross-examination tips here, and his cross-examination lectures here. (H/T Professor Charlie Rose.)

Wisdom of the Lawyer-Crowd

And it looks like lawyers are starting to take notice of statement-cross, if the #LawTwitter poll result is any indication:

You can find the whole story here.

The 71% of respondents who embraced statement-cross over question-cross in this 21-vote poll may be an indication that lawyers are ready to change the way cross-examination has always been done—or maybe only Terry MacCarthy fans voted.1

Ours Is Not to Reason Why

This Twitter cross-examination geekery raised another question: should lawyers ask non-leading questions on cross?

Veteran trial lawyers Mitch Jackson and Karen Koehler say yes:

 

Karen Koehler offered her own cross-examinations of expert witnesses at trials in 2011, 2013, and 2014. Her crosses are brilliant, with her pulling off these feats:

  • Making an on-the-spot demonstrative exhibit using paper cups, water, and a raincoat in her 2013 case;
  • Showing that the expert in her 2011 case didn’t even look at the plaintiff’s key medical records; and
  • Discrediting the expert in her 2014 case whose opinions were not based on a reasonable degree of scientific certainty.

A Simple Cross Is Usually the Right Cross

Mitch Jackson and Karen Koehler seem to be the exceptions that prove the rule. At least, lawyers on Twitter (or the 8 people who actually voted) think so:

There is one thing we should all be able to agree on.

Heretic or not, a lawyer should cross-examine in whatever way best advances their client’s interests—technique be damned.

Featured image: Page 52 of “Australian Sketches made on tour” by Ward, Lock & Co., 1899 is licensed CC.


  1. And for an example of a cross-examination applying both Pozner and Dodd and Terry MacCarthy’s techniques, you can watch my mock cross-examination of Jay Wilds from the Adnan Syed case here

Subscribe

Get Lawyerist in Your Inbox, Daily

Current Articles
Current Lab Discussions
  • Simpleman

    Pozner and Dodd’s treatise is similar in general to McCarthy’s approach and contains many great ideas. However their book is overlong, strangely organized, and ponderous, and requires an awful lot of work to unearth its virtues. I found it worth the effort. But McCarthy is simpler, clearer, and all that most people will need to get the knack of cross.

    As for Charlie Rose, he’s just great. He’s the best I have seen at teaching litigation concepts.

    • Brendan Kenny

      I agree completely. Good minds think alike!

  • Rob C

    It seems like the “statement” method of cross-examining will be ended quickly by a simple objection: “Is there any question for the witness?”, and the Judge will order you to ask a question. What am I missing?

    • Simpleman

      Definition of “question”: “a sentence worded or expressed so as to elicit information.” All the “statements” posed in these cross examinations qualify as questions.

      Do you disagree?

      • Brendan Kenny

        I think it basically works that way. As you might imagine, judges like this method, anyway.