Cross-Examination Basics The article discusses cross-examination techniques and tactics. The adversarial system of court procedure is likened to a battlefield between the plaintiff and the defendant. The parties decide the facts in issue, questions in dispute and the parameters of relevant evidence. The court’s role is, at least in theory, limited to judgment. The opposing evidence and case theories meet head-on during cross-examination. The court’s findings are reached by an assessment of facts arising from such contentious advocacy. Cross-examination has been described by one jurist as ‘beyond doubt the greatest legal engine ever invented for the discovery of truth’. Cross-examination is the most challenging part of the trial because it is our own preparation pitted against our opponent’s preparation of his client’s witnesses. It is the most confrontational stage of a trial and we can expect to be interrupted by our opponent or the judge to justify our questions. A good cross-examination breaks our opponent’s case and makes our own case. A bad cross-examination does the reverse and confirms the reliability of the person being questioned. We will probably make a name for ourselves through good cross-examination and we get the most satisfaction if we do. Good cross-examination techniques can be learned. It is not an ‘art’ form such that ‘either we have it or we don’t’. It is not the exclusive property of senior lawyers. Although good cross-examination may appear artistic, it is usually not ‘art’ that wins the day, but thorough preparation, mastery of technique and execution of a solid game plan. Cross-examination has firmly established guidelines, identifiable techniques, definable methods which all act to help the cross-examiner to triumph. Successful cross-examination techniques can be described, practised and mastered. Many of us have watched the inspiring lecture tapes of Judge Irving Younger entitled ‘The 10 Commandments of Cross-examination’. However, the lecture has limitations as a teaching tool. For instance, there are warnings that the cross-examiner would recognise only after breaking them, for example ‘do not ask one question too many’. Judge Younger’s conclusion was that it would take not less than 25 trials before a lawyer can be a competent cross-examiner. He said that basic competency could be achieved in 20 trials if one also reads a shelf of trial related books. This suggests that at least 20 clients would suffer while a young lawyer wins his spurs — if he gets the opportunity in the first place. This need not be true. Trial work in general and cross-examination in particular call upon skills which can and must be acquired without sacrificing clients to the task. There are methods for the preparation and delivery of predictably successful cross-examination that can be defined, explained and learnt. Many of us are taught to develop the preparation of a case in reverse order — organise and visualise our closing submissions and work backwards. The problem with this is that closing submission-centred preparation is time consuming. It would be wonderful if we could give the closing submission after a first session with the client. What happens of course is that as the other side develops the theory of their case and their witnesses, our submissions will be modified, restructured and in some cases abandoned because of facts that now appear indisputable. This can render our closing submissions worthless and we would have to redraft the whole thing. On the other hand, if our cross-examination is thoroughly understood and prepared, the theory of the case and the themes will follow. From our preparation, our closing submissions will develop and will also include positive developments that could arise during the trial. This does not mean that other aspects of litigation are not important. They are. Our opponent may be just as competent in cross-examination as we are. Our winning edge may well lie in other aspects such as our persuasiveness, our attention to detail, our clear organisation and presentation of the evidence and how well our witnesses perform. When we and our opponent are equal in all respects, then what determines the case, as it should be, would be the evidence or the truth. Preparation for cross-examination entails three basic steps: Developing a theory of the case. Chapter building. Drafting cross-examination questions. Developing a Theory of the Case We have no doubt come across the term ‘case theory’. This is constructed from our client’s instructions. A case theory is a cogent statement of an advocate’s position that justifies the verdict that he is seeking. Once we have defined our case theory, the goal of our preparation is to create evidential support for the case theory. With a case theory, we will know which facts have to be proven and which inferences from those facts must be forcefully argued at the close of the case. Usually a case theory becomes self-evident upon the first reading of the facts. The theory may start as broadly as ‘the doctor did not do the tests necessary to diagnose my client’s illness’ or ‘the doctor was in a hurry and that was how the wrong lung was removed’. In a criminal case, it could be ‘it was the victim who kept advancing and pushing the fight, forcing my client to defend himself by pushing her back’. Chapter Building Cross-examination may be described as a series of clusters of goal-oriented questions, each cluster designed to establish one particular point useful to the cross-examiner. Each cluster may be called a ‘chapter’ of goal-oriented, leading questions. The point may be to prove the existence of a fact, to introduce a fact, to weaken a fact or affect the credibility of a witness, and always to generate a favourable response from the audience, ie the judge, such that he will find for us on this point whether or not the conclusion is admitted by the witness. Each chapter will have an individual theme which supports the theory and its own conclusion. The chapter method is certainly not an opportunity given to the witness to repeat or explain the examination-in-chief or recite all the events of the witness’s story. Rather, cross-examination is selective attack on areas of the witness’s story. Not all areas of the witness’s story will be harmful to our case. In fact, some of it will be good. We only attack the areas which are damaging to us. Asking the witness to retell the story means reminding the judge the detrimental evidence in a sequential manner. In those areas of attack, we do not invite open-ended explanation but rather we ask the witness to admit to our theory of the case. The objective in drafting a chapter is to use all the available admissible material to push the judge to the recognition of a well defined fact-specific goal. One chapter, one goal. Each chapter comprises a powerful sequence of questions designed to reduce our risk while increasing the impact of our prepared material. Our written questions must move the judge through a progression of questions towards the goal question. Each chapter is therefore an organised sequence of leading questions designed to put into context the significant goal of that chapter. One major advantage in the chapter method is that it allows us great flexibility in the order of the areas we wish to cross-examine the witness on. We know the advantage of starting and ending each cross-examination session on a strong point and not on our weakest. If our style of cross-examination is chronological we are not in control. Some good cross-examiners time their areas of questioning. They always end a session after scoring a direct hit on their opponent. Sometimes, the judge will ask us to finish off a small area before a break. That is when we select the chapter we think would be appropriate in the short time left for that session. Identifying the topics in issue may still be insufficient for the purposes of chapter building. This is because some of the topics are too general or they can be broken down further. In one sense, the topics are the headlines and we need to be more specific. Indeed, we need to break down a case into identifiable goals. Each goal will require one chapter of cross-examination. Similarly, one event can be broken into sub-events, each entitled to a chapter. By using the chapter method, we would have delved into and analyzed in more thorough detail the individual facts that may be developed within each chapter. In summarising, chapter building entails: Identifying any one single factual goal to be achieved in the course of the cross-examination that is congruent with the case theory. Reviewing cross-examination preparation materials for all facts that lead to acceptance of that single factual goal. Drafting a single chapter that covers those facts, leading to the factual goal set out. The heading of that chapter is the factual goal of that chapter. If while drafting the chapter an additional goal is identified, separate that goal and its own supporting material into its own chapter. Some useful suggestions in sequencing the chapters for maximum impact: Do not proceed chronologically — the witness will be more prepared for this than we are. Set down the theme early and repeatedly — our case theory must come out fast. Close cross-examinations that support our theme. If you have to, attack credibility in the first chapter. End our cross-examination with a chapter that has a strong point. Develop risky areas only after establishing control of the witness through safe chapters. Do not lead or conclude a cross-examination with a risky chapter. Do not let a witness force a change in sequence — you must retain control unless there is a good reason. In long cross-examinations, treat each day or half a day as a separate cross-examination and apply the same guidelines as if the cross-examination were just the beginning. Drafting Cross-Examination Questions This task is difficult but simpler than what we tend to think. In fact, I have found sticking to three principles or rules very useful: Ask leading questions only. One fact per question. Move from the general to a specific goal. Ask leading questions only What are leading questions? Do ‘yes-no’ answers mean that your question is leading? No. Leading questions are questions that not only suggest the answer, but also declare the answer. How do you feel about smoking? Do you like to smoke? You like to smoke? The first question is not leading. It is an open-ended question allowing the witness to answer in any manner he or she chooses. The second question, some may argue, is a leading question; however, it is not because it does not declare the answer. The third question is leading and definitely more close-ended than the other two. It tells the witness to answer the question with the answer the cross-examiner stipulates. We should not use the questions: ‘Who?’ ‘What?’ ‘When?’ ‘Where?’ ‘Why?’ ‘How?’ ‘Explain’ unless we are absolutely certain that we will not relinquish control and this is rather rare. One fact per question This ensures that there can be no dispute as to the effect of the answer. For example: If you ask the question ‘You saw the blue car hitting the red bus at the busy intersection? How many facts are there? ‘You saw’, ‘blue’ ‘car’, ‘red’ ‘bus’, ‘busy’, ‘intersection’. If the witness answers yes or no — which fact is he or she answering to? One question one fact, also means that your cross-examination is cleaner and avoids questions by the witness to clarify. Move from the general to a specific goal Think of your questions as a funnel. The general questions funnel the witness to the specifics. Witnesses will generally agree to general issue questions more readily than to specific questions, especially when the questions are harmful to the witness. How many witnesses will respond positively to a first question ‘Are you a liar?’ Another way of describing the process is that of ‘closing the gates’ because you make the specific answer inescapable. Conclusion This is but an introduction to the exciting world of cross-examination. Practising and mastering the above steps will certainly help our trial preparation, increase our chances of success and hopefully raise the level of advocacy as a whole.
Posted on: Fri, 28 Nov 2014 12:02:24 +0000
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