July 2, 2024

Podcast - Cross-Examination: Finding Control

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

In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small explains the importance of maintaining control during cross-examination. He emphasizes the need for careful preparation, clear questions and avoiding arguments with an uncooperative witness. Mr. Small also outlines the potential benefits and drawbacks of two common approaches for managing explanatory answers during cross-examination.

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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.

Dan Small: Effective cross requires that the questioner maintain control. Doing so is one of the great challenges of cross-examination. It does not just happen. It takes careful preparation and practice. It also takes discipline — in particular, the discipline to ask clear, simple questions, and not to argue with the witness. Obviously, most opposing witnesses will not cheerfully give you everything that you ask for. Sometimes, they don't understand what you want from them, but much of the time, they understand perfectly well and they are looking for opportunities to resist. All too often, cross-examiners give witnesses those opportunities. They become frustrated if they aren't getting responsive answers, and they either move on to something else or start arguing with the witness. Either way, the witness wins. Don't abandon a good topic or a good question just because a witness is pushing back. But, don't waste everyone's time and patience, and your own credibility, by arguing with the witness.

The place to start is by asking the right types of questions. A short, clear, factual question that calls for a short, clear, factual answer won't give the witness much room to maneuver. Remember, number one, the longer the question, the longer the answer is likely to be. Number two, the more adjectives or adverbs you pack into your question, the more wiggle room you're giving the witness. Number three, the more facts or assertions you pack into your question, the more things you're giving the witness to disagree with. Number four, the more argumentative or unfair your question, the more likely the witness is to fight back, and the more likely the jury is to give the witness room to fight. Number five, the clearer the question, the more likely the witness will be responsive, and the more obvious it will be when he or she is not.

Sometimes, though, witnesses are just being difficult and won't give you a straight answer. How should you handle this? Consider the following example.

Question: "Isn't it true you were sued as a result of that transaction?"

"That lawsuit was dismissed as frivolous. The other guy had to pay my attorney's fees, for God's sake."

"Mr. Jones, answer yes or no. Isn't it true you were sued as a result of that transaction?"

"I can't answer that 'yes' or 'no,' because the lawsuit was dismissed as frivolous."

"Mr. Jones, I'm just trying to find out what happened. Are you having trouble understanding my question?"

"Yeah, it's not a fair question."

If you argue back, it won't produce results, and pretty soon everyone in the courtroom will be unhappy. If you ask the judge for help, it might work. Probably not. But you're taking a chance. Among other things, you risk looking petty or foolish. Don't ask the judge for help. You're a trial lawyer. You can control this witness. Normally, a patient attack using terse, focused questions will leave the witness no room to escape. Simply repeating a short, simple question will usually get the desired result.

"You were driving a Chevrolet, right?"

"The point isn't what kind of car I was driving. The point is, he ran the red light."

"You were driving a Chevrolet?"

"He ran the red light. Not me."

"Mr. Jones, you were driving a Chevrolet?"


Even if it doesn't work, at least everyone in the courtroom knows which one of you is being a jerk.

Cross-examining a witness who wants to add an explanation to answers is particularly challenging. The goal is to keep the witness under a reasonable degree of control, without squabbling and without appearing as if you want to hide from the truth. Consider the answer to this question.

"Did you attend college?"

"No. My family couldn't afford it."

There are two schools of thought on how this might be handled. The first is that the answer must correspond exactly to the question on cross-examination. This normally leads to lots of yes and no answers — "Did you attend college?" "No."

One vice of this strict approach is that it often leads to interrupting the witness — "Isn't it true that you did not attend that critical meeting?" "Well, on the way to my meeting my wife..." "Mr. Witness, thank you. You have answered the question." When this happens, the lawyer may appear to be bullying the witness or seeking to hide from the truth. Interrupting a witness also can lead the lawyer and the witness to talking over each other, which, if nothing else, will irritate the stenographer and the jury. It could further give the opposing counsel an easy win on redirect. Something like, "Now when counsel cut you off, what were you about to say?"

Under the second approach, some latitude is given to the witness so they can give a fair response — "Isn't it true that you did not attend the critical meeting?" "That's true. On my way to the meeting, my wife called to say that my 8-year-old son had been hit by a car. I went to the hospital instead."

Both approaches have their virtues and vices, and for that reason, most judges allow both approaches depending on the circumstances. The principal virtue of the first approach is that it keeps the witness and the proceeding under control. The principal virtue of the second approach is that it avoids distorted and disjointed testimony, or misleading and half-true answers. There's no universally applicable way to handle these situations. Every witness is different, and judges have considerably different styles.

Here are some basic rules of thumb to minimize the explanatory answer problem. Number one, ask clear questions. Number two, ask fair questions. Number three, even when you're asserting control, don't create the impression that you're a bully. Number four, don't act like you want to hide the truth. Number five, pick your battles. Don't try to enforce every non-responsive answer aggressively. Number six, interrupt only if you really have to. Number seven, take care of the problem on your own. Don't appeal to the judge. You can do this.

Controlling a hostile witness on cross-examination is probably the hardest thing to do in the courtroom. Chances are, things won't go perfectly. But a thoughtfully prepared, carefully disciplined approach ought to allow you to make your points reasonably effectively. And once you've done that, get out and sit down.

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