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Cross-Examination Tactics Part 1: Phrasing Questions; Pace & Demeanor

New York Trial NotebookExcerpted from New York Trial Notebook

By Edward L. Birnbaum

Carl T. Grasso

Hon. Ariel E. Belen (Ret.)

On direct examination, you want the jury’s focus to be on your witness.  He or she is furnishing information you want the jurors to hear.  On cross-examination, in contrast, the jury’s focus should be on you, with the witness merely supplying a one or two word response.

The game in cross-examination is to ask leading questions, that is, questions that suggest the answer the questioner expects. An ideal cross-examination will consist solely of answers confirming the truth of the information presented in your questions.

Even if the witness flatly denies a suggestion, the jurors have heard it, and unless stricken by the Court (and as a practical matter, even if it is stricken by the Court), the jurors will consider the suggestion in their evaluation of the witness and testimony.

The Best Way to Phrase Leading Questions

The type of leading question that you should almost always strive for is a question that can and should be answered “yes” or “no.” The key to this type of question is to KEEP IT SIMPLE. Do not load the question up with too many suggestions. Even if the other side does not object to the question as vague, compound, or confusing, such questions invite the witness to answer with a discussion. Long, complicated questions slow the effectiveness of the cross, even if the witness obediently answers “yes.” Lengthy, complex questions are also be difficult for jurors to follow.

Keep your questions short by incorporating only one thought into each. Use short, single-thought questions, rather than something like, “When you saw the accident, you were heading home, walking north on Smith Street, and had just crossed the street, hadn’t you?”

The antithesis of the leading question is the question that actually requests the witness to give an explanation. There may be times when this is unavoidable, but if so, limit the witness’s latitude in answering as much as possible. A “why” question is almost never useful in cross-examination. A “why” question is a license for the witness to say almost anything he or she wants to, and if you try to interrupt, the other side may object and the court will permit the witness to finish the answer.

Avoid the “Isn’t It True That …” Question

Some lawyers begin cross-examination questions with “Isn’t it true that. . . .” However, such questions can lead to confusion, especially if they include a negative. If an accident eyewitness answers “no” to a question like, “Isn’t it true that you didn’t actually see any fire inside the car until after it came to rest,” one juror may think the witness means “no, I didn’t see any fire inside the car,” and another juror might think the witness means “no, it isn’t true that I didn’t see any fire inside the car.” Further questioning to straighten out the situation will be awkward and may compound the confusion.

To avoid confusion, state the question as a fact and ask whether or not the witness agrees with you. In the above example, try “You didn’t see any fire inside the car until after it had already come to rest, correct?”

Adjust Your Pace and Demeanor

In questioning a witness on cross-examination, you must adjust your pace and demeanor to the circumstances, in particular, to how the jurors perceived the witness on direct.

Generally, do not start out with a sneer, as if every word out of the witness’s mouth was a falsehood. However, if the witness seemed insincere or unsure on direct, it may best to start out strong, pressing the witness immediately. One way to do this is to tie your first question to the last point made on direct. The point will still be in the jurors’ minds and if it can be turned around immediately, the jurors may look with skepticism on everything else the witness said. Be sure the wording of your question closes any door the witness might try to wiggle through.

If the jurors liked the witness, start slow and low key. Lead the witness matter-of-factly through preliminary matters. Once you reach the more important issues, begin to bear down a bit. If the witness gives an answer that a disinterested observer would find hard to swallow, let a bit of your disbelief show. Pick up the pace a bit. Once you have hit your stride, fire questions as rapidly as you are able to. When the questioner puts questions briskly, the witness’s natural tendency will be to try to answer as promptly as he or she can, without reflecting or trying to grasp where you are headed with the line of questioning.

Avoid a conversation with the witness. On cross-examination you do not want to carry on a dialogue. Keep the examination on a level that will minimize the witness’s opportunity to depart from your agenda by giving explanations or non-responsive comments.

Don’t get into an argument. Even while pitching questions rapidly one after the other, avoid the appearance of arrogance, truculence, or condescension. Ask even the most pointed questions in calm and even tones. If the witness becomes belligerent, scrupulously maintain your composure. Unless the jurors think the witness a liar before you even start your cross-examination, their natural sympathies will be with the witness.  If they feel you are bullying the person on the stand, taking advantage of your position in the court to browbeat or intimidate him, you will lose personal credibility with those jurors.

Once you have started cross-examination, quickly assess how it is going. If you sense that the cross will not prove productive, move on to something else. It is better to leave the jurors wondering where you were going, than for them to know for certain that you were going nowhere.

Complete the Set Up, and Know When to Stop

The process of setting up the witness involves:

  • Laying the ground work by reminding the witness of preliminary facts already testified to;
  • Adding in indisputable facts or established facts known through discovery or investigation;
  • Requesting agreement with seemingly innocuous additional suggestions that the witness can concede without a lot of argument; and
  • Capping the series with the question that will enable you to argue the desired inference.

When you have made your point, stop. Do not ask the extra question that may let the witness explain away his or her answer. That additional question may allow the witness to turn the chain of questions, and sometimes the entire cross-examination, right around.

EXAMPLE: Cross-Examining an Eyewitness to a Traffic Accident

“When you saw the accident, you told us were standing on the northeast corner of Smith and Jones Streets, right?” [Preliminary fact already testified to.]

“You were walking home that night, correct?” [Additional established fact known from discovery.]

“So you were walking north, right?” [Indisputable fact, based on location of witness’s home.]

“It was late, and you wanted to get home, right?” [Innocuous suggestion.]

“You had just crossed Smith Street, right?” [Additional established fact known from discovery.]

“The light was green when you started to cross Smith Street, wasn’t it?” [Additional established fact known from discovery.]

“Smith Street is very wide, isn’t it?” [Indisputable fact (if the witness quibbles, be prepared with, “Well, it’s two lanes each direction plus a parking lane on both sides of the street, right?”).]

“The light turned yellow before you got to the other side, didn’t it?” [Additional established fact known from discovery.]

“So you weren’t taking those last steps slowly, were you?” [Reasonable inference.]

“You had just stepped up onto the sidewalk, when you heard the crash, right?” [Additional established fact known from discovery.]

“And you were still heading north, weren’t you?” [Capper question, reasonable inference from established facts.]

At this point, STOP. Presuming the collision happened when defendant’s truck coming from the left on Smith Street hit your client’s car going south on Jones Street, you can now argue in closing that the witness who had testified on direct about seeing the accident actually was looking the other way when the crash occurred.

Resist the temptation to ask that last question that you hope will tie the examination into a neat bundle. In the above example, do not ask, “So you were actually facing away from the intersection when the collision occurred, right?” as this will give the witness the opportunity to explain it away, e.g., “No, I heard the screech of brakes, stopped and turned around, and saw the crash.”

End Strong, Even if Prematurely

If you are fortunate enough to score a devastating blow on the witness’s credibility, consider cutting short your cross-examination, even if you had other points to make with the witness.

You want to end strong, and you cannot end any stronger than with the jurors looking at each other, thinking “what a liar this witness is.” Continuing the examination may water down the point you just made; or the witness may think of a way to squirm off the hook. The jurors may even think, “Why is the lawyer still going at this guy—she’s won, already!”

The advice of Al Smith is appropriate: “Stand up to be seen, speak up to be heard, sit down to be appreciated.” Know when you have won, and when you have won, SIT DOWN.

About the Authors

EDWARD L. BIRNBAUM is of counsel to Worby Groner Edelman LLP, and the former head of the Litigation Department at Herzfeld & Rubin, P.C. in New York. He is a prolific author of litigation articles and lectures frequently on litigation strategy and techniques for Bar Associations and Continuing Legal Education Institutions. His practice areas in litigation include personal injury, product liability, professional liability, commercial, strategy, and trials.  Mr. Birnbaum has received the highest rating from Martindale Hubbell and has been named as a New York Super Lawyer from 2006 through 2014.

CARL T. GRASSO is a member of the firm of Herzfeld & Rubin, P.C. in New York City, specializing in litigation and trial work in the areas of personal injury, product liability and commercial litigation. For more than three decades, he has been intimately involved in trials all over the United States, as well as in New York. He is an arbitrator in the Small Claims Division of the Civil Court of the City of New York. He holds Martindale Hubbell’s highest rating. He is a cum laude graduate of New York Law School.

HON. ARIEL E. BELEN (Ret.) is an ADR neutral at JAMS in New York City. He wasan Associate Justice of the Appellate Division, Second Department from 2008 to 2012 and a Justice of the New York Supreme Court trial and appellate terms from 1995 to 2012. Justice Belen helped create the Kings County Commercial Division and then presided as a Justice handling complex commercial cases. During his many years of distinguished judicial service, he presided over countless matters covering the gamut of civil litigation from administrative to zoning law.

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