What They didn’t teach you at the Law School
Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.
During a trial, your cross examination of the opposing counsel’s witness is an opportunity to make him or her appear unreliable. Successful cross examination captures the attention of the judge and exposes the holes in the other side’s case. A good cross examiner uses leading questions to elicit the desired response from the witness and advance the case in a positive direction.
To an outsider, a cross examination might seem like a series of random questions, but the process is actually incredibly well-planned and requires hours of preparatory work. It’s essential to know the ins and outs of the case in order to ask just the right questions.
Learn all the facts of the case; as you gather information to construct your case, determine how the cross examination will factor in. For example, if you are cross examining a doctor who is serving as an expert witness, figure out how it will help your defence if you show the person to be in some way unreliable.
Conduct extensive research on the witness you’re going to cross examine. Knowing all about the person’s background will help you figure out which questions to ask to get the answers you need to advance your defence.
Every single question you’re going to ask, as well as the answers you anticipate receiving, should be planned well in advance. The goal is to ask a series of to-the-point questions that will steer the witness into giving answers that benefit you by revealing the holes, biases and weak points in the witness’s testimony.
Write out the questions in one column and the answers you want to receive in the other. Write out everything you want to say in detail and try to fully anticipate what the witness will say. Ask the witness questions about the specific evidence, whether it is for purposes of explanation, clarification, or to dispute something else that has been said during the course of the trial.
Every answer should be backed up by research you conducted. For example, if you ask a doctor- expert witness how long he worked at a certain hospital, you should have documented proof from the hospital about the time period he worked there. That way, if the person gives an answer you didn’t anticipate, you will have evidence to the contrary.
Have the entire cross examination plan ready to go by the date of the deposition, so that you can see how the witness will respond. Consider it a test run to determine whether your plan is going to work. After the deposition, edit the plan to streamline it for the date of the actual cross examination. If you don’t like an answer that was given, you can decide to omit that question at the trial. You should only ask questions with answers that are favourable to your case. If the person answers one way at the deposition and later answers differently, you’ll have grounds to impeach him or her.
When the witness is asked about the same subject more than once, inconsistencies are bound to arise, and it’s your job to find them and use them to your advantage. At every opportunity, ask the same questions and record the answers. When you find something you can use, craft questions that will make the inconsistencies apparent to the judge during the cross examination.
Keep your questions simple with just one important fact in each. Let the witness confirm each fact with a “yes” before moving forward. In this way you can advance your argument slowly but surely, and it will look as though the witness is agreeing with everything you say.
In some cases, it’s better to ask a question that’s a little more open-ended than a simple “yes” question. A long series of leading questions can be tedious for the judge to listen to, and sometimes you can make your point better by having the witness speak. For instance, when you’re cross-examining an expert witness, it can be more effective to have the information come from that person’s mouth, especially if you plan to loop back and catch him in an inconsistency.
Ask easier questions in the beginning to make the witness feel comfortable and lead up to the more complicated questions after trust has been established with the witness. Be persistent but keep your emotions in check.
If you don’t think the examination will advance the case, avoid cross examining just in case something useful crops up, since something detrimental could just as easily arise. If you don’t have enough backup to ask strong leading questions, don’t risk it. Focus your argument on a weaker point in the prosecution.