Do you know the best way to control a confrontational witness on cross-examination? Do you know how to handle an argumentative witness or a sarcastic witness? How can you effectively use repetition during cross-examination? How do you avoid asking “one question too many”? Pattern Cross-Examinations answers all these questions and more. Consider these tips, excerpted from the book:
Make the witness repeat his deposition testimony verbatim. When impeaching a witness with prior deposition testimony, ask him to read the transcript. Say, “Please read the answer that you gave, under oath, to that question during your deposition.” This question serves two purposes: (1) It reminds the jury that the witness was under oath at the time of his deposition; and (2) it forces the witness to repeat, verbatim, the answer he gave previously. Sometimes the witness’s reaction to reading his prior answer, by itself, is effective impeachment evidence.
Review every item on the expert’s bill. Rather than just asking 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.
Be careful in cross-examining with a prior conviction, even if it is clearly allowed under the law. If the witness has given the appearance of being honest and forthright in his testimony, and you bring up a conviction on a minor charge from 10 years ago, the jury may hold it against you and your client. Furthermore, your questions open the door for opposing counsel to rehabilitate the witness, to point out that the witness has paid for his mistake, and to show all the ways the witness has been a model citizen, since that long-ago conviction. If, on the other hand, the witness was convicted of a crime of moral turpitude or has more than one conviction, then this line of cross-examination may be effective.
Get the lay witness to concede the accuracy of his medical records. Ask the witness: “You don’t have any reason to think Dr. Smith would have put that in his records if you didn’t say it, do you?” If the witness answers “no,” as almost always happens, the credibility of the record is bolstered. In the unlikely circumstance that the witness claims the healthcare provider intentionally falsified the record, you have created a credibility issue between the party and his medical provider. More likely than not, the jury will believe what was put in the record at the time of treatment.
Start with bias when cross-examining the claims adjuster. Let the jurors know that the adjuster is an employee of the insurance company, who supports himself (and, possibly, a family) with a salary paid by the insurance company; he wants to be seen as a good employee who has the best interests of the insurance company at heart. Many jurors may not understand this. They may mistakenly believe that the adjuster is neutral or that his job is to advocate for the claimant. Jurors need to understand the adjuster’s bias and prejudice at the outset, so they will have the proper perspective in listening to his testimony.
Keep in mind the collateral consequences of your questions. Some facts cut both ways. Consider this exchange, in the cross-examination of the defendant in a breach of contract case:
Q: Did you tell the plaintiffs that you had been out on your own, as an independent contractor, for just 18 months?
A: I don’t think it came up.
The defendant’s limited experience as an independent contractor is a double-edged sword. The plaintiffs certainly were entitled to know his history in the business, but some jurors may believe that they had a duty to inquire. If you ask this question on cross-examination, your clients will need to have an explanation for their failure to inquire.
About the Author
Walter R. Simpson has been litigating personal injury cases, on behalf of both plaintiffs and defendants, for more than 40 years. He has tried more than 200 cases to juries, and has been a frequent speaker at CLE Seminars. Mr. Simpson has served as President of the Kansas City Metropolitan Bar Association and President of the Kansas City Metropolitan Bar Foundation. He is currently a member of the Board of Governors of the Missouri Bar Association.