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Lawyers - Cross-Examination

odoreater

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Any of you litigators out there have any tips for a young buck such as myself on effective cross-examination? Or perhaps a recommendation for a book on effective cross-examination? I mean, I know being good at cross-examination comes with a lot of experience, but is there some book out there that will give you some tips and tricks to get me on my way?

I think that a good cross-examination really impresses and wins over a jury. Any thoughts?
 

Mr. Checks

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Prepare
Have a theme
Know how to frame your questions (e.g. to avoid objections or narrow answers)
Know the answer (from discovery) before asking the Q
Finish strong

Afterward: recognize that it never goes perfectly

Your local professional continuing education program probably has a good one-day class.
 

LexLoci

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I am no seasoned attorney by any means, but I can offer some advice.

Number 1
Prepare, go over every bit of deposition or other testimony that you have. There is a fact somewhere that helps you. Know it or at least be prepared to take advantage of it if it comes out on direct.

Number 2
Keep the questions simple, 1 fact per question. They shouldn't be questions at all, but statements that sound like questions.

"The blood was on your hands?"

"The car was red?"

etc.


Number 3
If you feel yourself about to say, "So...followed by some question that will seal the deal." Shut up and sit down and don't ask it, Matlock moments don't happen in real life. Right after you ask that question is when you get the answer you didn't expect and it feels like getting kicked in the crotch. Otherwise known as the "home run effect."


The trick is to let the jury come to the conclusion for you. If you feel the need to spell it out for them, you haven't done your job.
 

Huntsman

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Originally Posted by LexLoci
. They shouldn't be questions at all, but statements that sound like questions.

"The blood was on your hands?"

"The car was red?"

etc.


No offense to my lawyer friends here, but even if this is a valid technique, it has always struck me as one of the two oldest and grubbiest of lawyers' tricks. Don't know why, but that always struck me as rather poor.

Regards,
Huntsman
 

odoreater

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Originally Posted by Huntsman
No offense to my lawyer friends here, but even if this is a valid technique, it has always struck me as one of the two oldest and grubbiest of lawyers' tricks. Don't know why, but that always struck me as rather poor.

Regards,
Huntsman


Out of curiosity, what's the the other oldest trick?

By the way, as I understand it, leading questions are allowed on cross as a way of evening the playing field. When an attorney questions his own witness on direct, he's likely practiced with that witness so that the witness knows exactly what is going to be asked, and the attorney knows exactly what the answer is going to be. On the other hand, other than a deposition, the lawyer on cross hasn't had any chance to determine what kind of answers this witness is going to give and has a lot less control of the testimony. Therefore, he's allowed to lead the witnes as a way of evening the playing field.
 

alflauren

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Absolutely, leading questions are not only proper, but expected. Ask pointed questions with out any room to wiggle, so that the witness' portion of the transcript looks like: "yes, yes, no, yes" instead of "well, maybe not but..."

If your state bar magazine has searchable archives, try a search for cross or depo tactics. (Or just try Google). It seems like every other bar magazine I get has some article on examination strategies.

My own personal favorite - one that I use a lot, but more often in depositions - is the awkward silence. If you ask a question and the witness gives a short response, wait for a second. Look like you're pondering the answer as if what you were fed was total bullshit. People being examined don't like awkward pauses, and they often fill that "dead air" with more testimony. Sometimes, that testimony is useful, sometimes not.
 

Huntsman

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The other one is redefining any statement that is made as an admission. "So, you admit that you do not appreciate certain methods of questioning?" "No, sir, I state it." Anyway, with the explanations I can see the point, but I still have this visceral thing going on. ~ Huntsman
 

Mentos

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Originally Posted by LexLoci
Number 3
If you feel yourself about to say, "So...followed by some question that will seal the deal." Shut up and sit down and don't ask it, Matlock moments don't happen in real life. Right after you ask that question is when you get the answer you didn't expect and it feels like getting kicked in the crotch. Otherwise known as the "home run effect."


I have heard that this is the point at which many young litigators go astray. When the record is full enough to support your claim, shut up.
 

LexLoci

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Cross examination is where you control the witness and get them to say what you want. It isn't a grubby technique at all, afterall you are representing your client. When you are cross examining someone they aren't just going to vomit forth all the information you want them to. You are telling a story. To do that you have to focus on facts. If you put too many facts in one question, you can't get a straight answer.

Also, and obviously, if you do it poorly, it sounds poor. If you don't control them, they will end up saying whatever they want. There is an art to advocacy. A true artists makes it look like he isn't trying....but you can only get there by practice and work.

I would strongly suggest a few places:

1. www.nita.org

2. Trial Techniques by Mauet

3. The NY/NJ bar should also have plenty of useful information, and you probably have to take CLE courses, so find an intensive weekend trial course. Trust me, the info you get there will be much richer and fuller than you can get on an internet fashion messageboard.
 

horton

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sit in on as many significant trials as you can, i.e., not just when your firm is involved.
 

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