Category Archives: Cross Examination

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Exhibits and Adverse Witnesses

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Yesterday I was watching the Casey Anthony case and I saw a classic example of what you’d call an “antagonistic” witnesss.

During opening statements, the defense attorney accused the defendant’s father of sexually molesting her when she was 8 years old and said that the father was involved in covering up the death of his 3 year old grand daughter.  As you can imagine, the father wasn’t too happy about it.

Now, one day later, the father is on the witness stand (for the second time) and the defense attorney is cross-examining him (for the second time).

The tension in the courtroom is palpable.  There’s no love lost between these two, and in fact, no one in the courtroom would be surprised if the father jumped out of the witness stand and tried to punch his first through the attorney’s skull.

He is (as you probably would be if you were in the same situation), a very antagonistic witness.

In a million years, do you think that he’d ever try to help the defense attorney’s case?

Yet, in spite of all of the hatred that probably exists between the two of them, the defense attorney acts as if he expects the father to help him out.

What exactly does he do?

He sets up some gigantic calendar pages on an easel, and then asks the Court’s permission to have the father step down from the witness stand and fill in some dates on the calendar pages.

First of all, when you think that a witness really hates you, you probably shouldn’t ask them to step down from the witness stand…  it makes it too easy for them to take a swing at you!

And, of course, you don’t want to put any type of stabbing weapon, like a marker, in their hands.

But even if the witness isn’t intent on killing you, it’s just risky trial advocacy to ask an opposing witness to step down and write on your exhibits.

Remember, during cross-examination, YOU are the star of the show.  You get to use the only tool in your arsenal, the leading question, to tell your winning story through your opponent’s witnesses.  The leading question is the only tool you have to maintain control during cross-examination.

And control is an essential part of cross-examination.  You don’t want to cede control to the witness…  who knows what he might say or do if you put him in the driver’s seat!

So, back to our courtroom situation…

What could possibly go wrong by asking an opposing witness to step down and write on your exhibits during cross-examination?

Well, a couple of things.

First, the witness can go berserk and write all over your exhibits.  Not likely, but hey, it could happen.

Next, even if he’s not going to go nuts, you’re still giving him the opportunity to become the star of the show and to direct the jury’s attention towards matters that he thinks are important.  Rather than putting a simple “X” on the calendar, he can write a more lengthy response, or phrase it in such a way that it doesn’t help your case.

Third, by asking the witness to step down from the witness stand, you’re asking the jurors to focus their attention on him, rather than you.  Their eyes will be drawn to him because he’s moving (which breaks up the visual boredom of a trial), but also because, when you give him a marker and stand him up before the jury, you put him in the role of “The Teacher” — do you really want them to see your opposing witness in that light?

Why let him have control or the spotlight, even for a moment?  During cross, you want to direct the action and control the tempo.

What would I have recommended instead?

Well, first of all, I have to say that the idea of using gigantic calendar pages is a great idea, since it (literally) puts everyone in the courtroom on the same page when discussing the timeline in the case.

However, rather than asking him to step down from the witness stand and write on the board, I would recommend maintaining control with a combination of leading questions and body language:

Q: “The last day you saw your grand daughter was June 15th, right?”

A: “Yes.”

Then move over to your giant calendar and mark on the June 15th date to indicate the event.

It’s not a major difference, but it prevents the witness from expanding his answers or becoming a “teacher” to the jury.  By maintaining control throughout your cross-examination, YOU will be the star of cross-examination, and will be able to tell your winning story through your opponent’s witnesses.

Good luck!

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Asking for help… the right way

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Every day, in courtrooms across the country, young attorneys are conducting brilliant examinations. 

During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events.  During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.

Yet, all of these direct and cross-examinations suffer from a tragic flaw.

What’s the tragic flaw in all of their examinations?  Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.

That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?”  Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.

Why do these otherwise smart and skilled attorneys ruin their examinations this way?

The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help.  Even though these conversations almost always sound the same (“Did I miss anything?”  “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.

But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination.  Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination.  (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.) 

Pete Townshend smashing guitarTo take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help.  Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel.  Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions.  Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination.  All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!

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How to Ask Leading Questions

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During cross-examination, would you like to prevent witnesses from dodging your questions?  Would you like to tell a compelling story?  Do you want jurors to look to YOU for the answers during cross-examination?  If so, you need to develop your skill of asking leading questions.

This past summer, I taught a Trial Advocacy class at one of our local law schools.  It’s always interesting to go back to law school because, among other things, you realize that you take certain skills and principles for granted.  But when you go back to the beginning, back to that time before you started to “think like a lawyer,” you realize how much your thought processes have changed.

One of the things I was taking for granted was the cross-examination skill of asking leading questions.  Most trial lawyers who have been practicing for any length of time know that you’re supposed to ask leading questions on cross-examination.  Your job is to control the witness and tell your client’s story, right?  Ideally, you want to tell reduce the witness to a bobble head doll, silently nodding his head "yes" to each statement as you tell your client’s story through leading questions.

But do you remember how you learned to ask leading questions?  Do you ask them as well as you would like?  Can you tell an effective story through leading questions?

During my class, one of the students was having difficulty asking leading questions.  You can’t blame him – it’s unnatural to ask leading questions.  If you went out to a bar, you wouldn’t walk up to someone and ask them leading questions, would you?  (“You’d like a drink, wouldn’t you?” “You’d like my number, is that not true?”) Asking leading questions outside of the courtroom is not just rude…  it’s weird.

But that’s how we’re expected to ask questions during cross-examination.  How can you master the art of asking a leading question when you’ve been conditioned to think and ask questions differently your entire life?

I gave this student an idea that worked for him.  I hope that it might work for you, too.  Here’s how it went.

I started by telling him, “Ignore the case we’re working on.  Ignore the witness you’re cross-examining, too.  Instead, I want you to tell me a story.  Do you remember the Wile E.  Coyote and Road Runner cartoons from when you were a kid?  Good.  I want you to tell me one of the Wile E.  Coyote stories, but I want you to do it in a new way.  You’re going to tell me the story through cross-examination.  We won’t hear anything but ‘yes’ or ‘no’ from the witness.  Our attention is going to be focused on you.  You won’t ask any questions like, ‘Why?’ or ‘How?’ Instead, you’re going to ‘ask’ short, simple statements that the witness either agrees with or disagrees with, but the witness won’t say anything more than ‘yes’ or ‘no.’ Can you do that?”

He said that he could.  With the pressure of performance lifted from his shoulders, he started to tell us the story of Wile E.  Coyote:

  • “Your name is Wile E.  Coyote, isn’t it?”
  • “On March 23rd of last year, you placed an order with the Acme Co, right?”
  • “Three days later, a package arrived, didn’t it?”
  • “A box from the Acme Company.”
  • “You opened the box.”
  • “You looked inside.”
  • “It contained a jet rocket.”
  • “And roller skates.”
  • “You removed the jet rocket.”
  • “You strapped the jet rocket to your back.”
  • “You strapped the roller skates to your feet.”
  • “You saw the Road Runner.”
  • “You pointed yourself towards the Road Runner.”
  • “You lit the rocket…”

It was fascinating to watch.  A few moments earlier, he hadn’t been able to ask leading questions during his cross-examination of the witness.  But then, once the pressure of the witness was removed, he quickly mastered the art of telling a story using leading questions.

Would you like to apply the same skills to your cross-examinations?  Here are a couple of guidelines.

Tell a story.  You will be using leading questions to tell a story.  It might be your client’s story, the story of missed opportunities (what else could the witness have done or should the witness have done?), or the story of impediments to observation (what did the witness misread, fail to observe, or neglect to observe?) There are numerous stories you can tell – pick your story, and then tell it with leading questions. 

Practice by telling the stories you already know.  You represent the Three Bears, and you have the opportunity to cross-examine Goldilocks.  What story will you tell through your leading questions?  Cross-examining the Big Bad Wolf, can you tell a story from the Three Pigs perspective?  Or cross-examine your favorite movie villain.  Practice telling stories with leading questions until it becomes second nature.

Narrate your drive.  As you drive to work, use leading questions to narrate your travels.  Look out your window – what do you see?  Describe it with leading questions:

  • “I’m driving.”
  • “On Elm Street.”
  • “Heading southbound.”
  • “To my left is a car dealership.”
  • “A Ford dealership.”
  • “Their parking lot is filled with vehicles for sale.”
  • “New vehicles are parked to the left.”
  • “Used vehicles are parked to the right.”
  • Etc…

Cross-examine your dog.  As I mentioned earlier, it’s not normal to ask leading questions.  You need to practice.  One of the best ways to do that is to cross-examine your dog or something else that won’t understand what you’re doing.  If you attempt to practice by asking your husband or your girlfriend leading questions, do NOT hold me responsible for the inevitable breakup that follows!  Practice on your dog, an inanimate object, or anything else that won’t get upset by this style of questioning, because the witness would only respond “yes” or “no” to your questions anyway.

One fact per question.  Only ask for ONE fact per question.  Look at the Wile E.  Coyote example or the driving examples.  Examine each question.  How many facts does each question request?  If you ask for too many facts per question, it gives the witness room to escape.  If you ask for only one fact with each question, you will tell a more effective story.  Limit your questions to ONE fact per question.

Drop the taglines.  Most attorneys add taglines to their questions (“…didn’t you?” “…is that not true?” “…correct?”), but you probably don’t need to use them.  You can use the tone of your voice to indicate that the statement is really a question.

Although some judges require you to add taglines to create a “proper” leading question, most will not.  If they do, consider using taglines for your first few questions, but then dropping them once you and the witness get into the proper rhythm.  Here is the rhythm you want to develop: You ask a question, the witness says “yes” or “no,” and then repeat as necessary.

Once you develop your command of leading questions, something amazing will happen.  You will stop witnesses from evading your questions.  You will tighten your cross-examinations.  Best of all, jurors will look to YOU for the answers during cross-examination.