June 25, 2024

Podcast - Cross-Examination: Don't Argue - Elicit Facts

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small explains why eliciting facts, not engaging in arguments, is the most effective strategy when cross-examining a witness. He advises against provoking arguments and instead advocates for asking clear, concise questions that aim to extract factual information. Mr. Small also emphasizes the importance of maintaining control during questioning and the impact of skillfully guiding witnesses to provide factual responses on a case's overall strength.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Daniel Small: Effective cross-examination persuades by eliciting facts, not by bickering with the witness. Don't do it. Arguing with witnesses is rarely — make that never — productive. It can be annoying at best, and excruciatingly painful at worst. If a witness wants to argue with you, don't take the bait. Stay in control. Ask questions and press your questions when necessary. But don't argue.

Remember that the most effective approach is usually to repeat your question until the witness answers it. But that only works if your question is short and simple to begin with. One way to avoid provoking an argument is to avoid asking argumentative questions. An argumentative question is one that's not designed to elicit facts, but to argue an issue to the jury.

Here's a question that elicits facts:

"You were driving at 50 miles an hour? It was a 30 mile an hour zone?"

But the following questions are argumentative:

"You were driving recklessly, weren't you?" "You didn't care about the danger you were creating, did you?"

If you ask an argumentative question, inevitably you're going to wind up in an argument. Don't do it. When a witness says something argumentative anyway, don't get sucked in. Don't ask things like, "How can you say that?" "How do you expect a jury to believe that?" No matter how ridiculous the testimony may be, the answer, whatever it is, will not help you. Don't deliberately ask unfair questions. Just about every witness will try to push back if he or she thinks they're being treated unfairly. You can be tough. You can be relentless. But if you're unfair, the witness will probably try to argue with you, and they may win. Again, the point of cross is to elicit facts that are helpful to you. At best, arguing with the witness obscures those persuasive facts. At worst, the jury tunes out completely or they tune out to you.

To use a real-life example, many years ago, outside the federal courthouse in Boston, two court security officers were talking sports.

Officer #1 said something like: "Hey, I'm from Pittsburgh. Pittsburgh is the best sports town in America. There's nothing like the fans in Pittsburgh."

A typical response from officer #2 outside of western Pennsylvania might have gone something like this: "Pittsburgh? Are you crazy? No way. The fans in Boston are way more intense. They're crazy about their teams."

And the two of them are off and running in a good old-fashioned argument about, well, about not very much. Unencumbered by any facts. It doesn't persuade anyone, and it really isn't intended to. It's just having an argument. Having a conversation is just fun.

Officer #2 might have responded that way, but he didn't. Instead, the conversation went like this:

Officer #2: "You say that Pittsburgh is the best sports town in the U.S.?"

Officer #1: "Yes."

"Well, Pittsburgh doesn't have a pro basketball team, does it?"

"Oh, they had one in the old ABA. But no, it's never been a big basketball town."

"What about the hockey team, the Penguins? They've struggled financially, haven't they?"


"They had some big stars like Mario Lemieux and they won a few Stanley Cups. But in fact, aren't they one of the only sports franchises that ever went bankrupt?"

"Yeah, that's true."

"They went bankrupt twice, I think."

"Yeah, twice."

"And the baseball team, the Pirates. They've had some rough years too, haven't they?"

"Yeah, they just haven't drawn the crowds. They were great in the old days, but they just can't fill the stadium."

"But they love the Steelers in Pittsburgh, don't they?"

"You bet. They're crazy about them. Crazy fans."

"Kind of like the way they love the Cowboys in Dallas or the Packers in Green Bay."

"Yeah. Same idea. More so, I think. Very intense."

Under the circumstances, a superb cross-examination by officer number two. By eliciting a handful of facts. Officer number two was able to reduce officer number one's exaggerated claim all the way down from "Pittsburgh is the best sports town in the U.S." to "Pittsburgh is one of the better pro football towns in the U.S." Not by arguing with him, but by eliciting facts. That's the point of cross-examination: when you can watch the jury, one by one, understand that the facts lead to your conclusion.

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