Succeed at cross-examination with these proven strategies, angles of attack and sample questions
Cross-examination is not a pleasant endeavor. You are attempting to discredit and perhaps embarrass someone in front of a room full of people. There are times when it will be necessary to go for the jugular. If you have your prey close to a fatal admission, you cannot let him escape because you feel sorry for him or you are scared. Your duty to your client is to expose him. Walter Simpson’s Pattern Cross-Examinations will show you how.
Loaded with practice tips culled from the author’s 40+ years of in-the-trenches experience, Pattern Cross-Examinations includes model cross-examinations for 59 witnesses (plaintiff and defense) in common fact patterns arising in 10 areas of civil litigation: auto accidents, premises liability, medical malpractice, breach of contract, employment discrimination, products liability, insurance policy litigation, civil rights, malicious prosecution, and civil assault and battery.
Pattern Cross-Examinations will teach you:
- How to control the witness with leading questions [§1:04]
- When to ask an open-ended question [§7:24.3]
- How to avoid asking “one question too many” [§1:55]
- How to use cross-examination to build a strong closing argument [§7:24.5]
- How to control a confrontational witness [§8:29.4]
- How to handle an argumentative witness [§4:18.3]
- How to undermine an expert’s credibility at the outset of the cross-examination [§2:17.11] and effectively control the cross-examination [§2:10-2:14]
- When and how to ask a “summary” question [§11:08.7]
- When to stop asking questions and trust the jurors to draw the appropriate conclusions on their own [§3:16.2]
- Why it is important to expose a witness’ bias at the beginning of cross-examination, and how to do this effectively [§9:05.1]
- When to object [§1:04]
Practice Pointers
Here are just a few of the hundreds of practice pointers in Pattern Cross-Examinations:
In a breach of contract case
Highlight every breach of the contract by the
defendant
Once you have established the plaintiff’s performance under
the contract, turn to the defendant’s failure to perform. Explore each and every
breach by the defendant, no matter how small. A jury may be willing to overlook
one or two small breaches, but is unlikely to overlook a long list of breaches.
[§6:03.3]
In an auto accident case
Use the plaintiff’s medical history/treatment to
your advantage in cross-examination and closing argument
In an attempt to trivialize the treatment he received
before the accident, the plaintiff says he regularly went to the chiropractor
for “tune-ups.” This raises a credibility question, which can work to your
advantage. Use this phrase (“tune-ups”) as much as possible during the rest of
the trial, particularly during closing argument. In doing so, you can almost
reduce the case to the argument that if the plaintiff had “tune-ups” before the
accident, then the accident clearly did not cause any of the problems he is
claiming in this case, and he should recover nothing. [§3:12]
In a medical malpractice case
Tie the E.R. doctor to the medical records
Determine early in the cross-examination whether the doctor
has any independent recollection of the patient. If he does not, then you can
hold him strictly to what is noted in the medical chart. If he claims to
remember anything in addition to what is in the chart, demonstrate how unlikely
it is that the doctor would remember a fact about a patient he saw one time, one
or more years ago. [§5:08]
Make the doctor acknowledge the duty of care he owes
his patients
Make the doctor admit that he has a duty to comply with the
appropriate standard of care in treating your client, and that if his treatment
falls below the appropriate standard of care, he can be held responsible for the
harm he has caused. This is something doctors are taught in medical school and
are very familiar with in terms of malpractice insurance. No doctor will refuse
to make this basic admission. Once you have this admission, point out the
simple steps (e.g., making a phone call) the doctor could have taken in treating
your client. [§5:08]
When cross examining an expert
End on a point of agreement
Never end your cross-examination immediately following a
damaging answer on a key issue in the case. By falling back on an area of
agreement, you can appear, at least, to be ending on a successful note. For
example, if you have had no success on liability issues with the expert, finish
with:
Q: But you do agree that the plaintiff
sustained severe, permanent injuries, isn’t that right?
A: Yes, she did.
Q: And there is no question that the injuries were
the result of the surgery done by Dr. Jones on June 15, 2007, isn’t that
correct?
A: That is correct. [§2:25]
Gain concessions by phrasing trial questions
similarly to deposition questions
You will, no doubt, obtain several favorable
admissions during the expert’s deposition, even if they are not major
concessions. Use this deposition testimony to control the expert at
trial. By framing your questions similarly to the questions you asked in
the deposition, you can force the expert to either agree with you or
subject himself to impeachment with a prior inconsistent statement.
Either way, you win the point. [§2:11]
Review every item on the expert’s bill
Rather than just ask about the total amount the expert
billed on the case, it is more effective to go through each and every activity
for which the expert has charged a fee. This allows the jury to compare the work
actually done with the amount and time charged, and involves the jury in
calculating the total. Do the arithmetic on an easel or chalkboard so that the
jury can work the numbers with you. [§2:17.3]
In all cases
When the witness responds with sarcasm
A jury does not appreciate this type of answer. It is not
responsive to the question, and it is argumentative and sarcastic. You have a
number of choices, depending on the nature of the witness and your comfort
level. You can . . . . [§4:18.3]
Effective use of repetition
The preceding series of questions illustrates how the use
of repetition can be effective in cross-examination. You have created a catalog
of the defendant’s poor quality work that the jury will remember during
deliberations. Plus . . . . [§6:03.8]
Let testimony do the work of an objection
Here, you could object to the self-serving portion of this
answer that is not responsive to the question, and ask the judge to instruct the
jury to disregard everything after the word, “No.” A better option, however . .
. . [§10:11.8]
Pattern Cross-Examinations
