Your Cross-Examination Could Be Better, Correct?!?

The primary difference between direct examination and cross-examination is who testifies. During direct examination, the lawyer asks open-ended questions and lets the witness do all of the testifying. But during cross-examination, you are the one testifying. You choose the topics of discussion, you choose when those topics will be discussed, and you choose how to phrase the statements. Since you’re going to testify, you’ll want the jury to hang on every word that you say. Every word you utter should be filled with importance. But instead, many cross-examinations are filled with superfluous words like these:

Q: You went to the store, correct?
A: Yes.

Q: And isn’t it true that John Smith went to the store with you?
A: Yes.

Q: Larry Mildrige was with you as well, isn’t that a fact?
A: Yes, he was.

Q: Mildridge was the driver, wasn’t he?
A: Yes.

Q: You testified that you were going to buy anti-psychotic medication, weren’t you?
A: Yes, I was.

Almost every cross-examiner falls into the tagline trap. For some reason, we think that if we don’t include the taglines, our cross-examination questions will be misunderstood. But you don’t need taglines to turn a leading statement into a question. Your tone of voice will do it for you and the court reporter knows to put question marks at the end of your statements. There’s no need to pollute your cross-examination with taglines or introductions. Taglines dilute the power of your statements because they don’t add anything of substance. To improve the effectiveness and persuasive power of your testimony during cross-examination, try reducing or eliminating all of the distracting words in your testimony. Take a look at the same cross-examination, without the taglines:

Q: You went to the store?

Q: John Smith went to the store with you?
A: Yes.

Q: Larry Mildrige was with you as well?
A: Yes.

Q: Mildridge was the driver?
A: Yes.

Q: You were going to buy anti-psychotic medication?

Isn’t that easier to follow? Doesn’t it flow more smoothly? Every single word in the cross-examination helps tell the story. There aren’t any wasted words. To help the jury follow your ?testimony,? eliminate the taglines, and leave only the words that you want them to remember.

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3 thoughts on “Your Cross-Examination Could Be Better, Correct?!?

  1. I agree with the author. People remember what they hear first and last. If you ask, “John is with you?” that’s all the jury hears–that’s what they remember. On the other hand, if you ask, “John was with you, correct?” or even worse, “John was with you, isn’t that correct?” then the last words the jury hears are semantically null. Why do that to yourself?

    As for emphasis, there are better ways than tag lines to add it. Sometimes I do add, “Wasn’t it? Wasn’t he? Isn’t it?” at the end, or whatever goes with the question, e.g. “And John was with you, wasn’t he!” or “That’s *exactly* what it says, isn’t it?”

    Finally, regarding “stupid” witnesses, no one will seriously doubt you’re asking a question if your voice rises at the end. That’s how people talk in everyday life. If the jury knows you’re asking a question, and the witness is too stupid to figure it out, then, well, your opponent’s witness has just slipped a bit in their estimation.

  2. I know people who talk like that in real life, using taglines in everyday conversation, and they all come across as jerks. While making every question sound mistrustful and contemptuous might be good in some situations, experience has shown that it’s easier just to be more straightforward.

  3. I disagree that the ‘taglines’, as they have been called in this section, should be edited from questions in cross examination. Whilst it’s OK to drop them, equally, you don’t lose anything by adding them. To the contrary, adding these tag lines adds emphasis to the question, and if they come (in varied form) in question after question, I think it adds drama to the dialogue which aids memory and gives a greater sense of significance to the question.

    I’ve been a trial lawyer for about 3-4 years, and I mix my questions up – some with taglines, and some without. And sometimes, you do get enormously stupid witnesses who, unless the question is in standard form (with tagline) will still not understand that a question has been put to them!