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:
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:
— Brendan M. Kenny (@KennyBrendan) November 5, 2015
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 (@k3VelvetHammer) November 6, 2015
@KennyBrendan To avoid sounding like a lawyer and to come across as an objective advocate looking for the truth, "What color was the car?"
— Mitch Jackson (@mitchjackson) November 5, 2015
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:
— Brendan M. Kenny (@KennyBrendan) November 6, 2015
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.