Moreover, by the time the fumbling lawyer finds the impeaching point, jurors have often forgotten the purpose of the impeachment.
Jurors get impatient seeing lawyers fumbling through a transcript desperately trying to find a point of impeachment. At a minimum, you will need to prepare a written outline of the points you want to make and have ready citation to exhibits or transcripts for impeachment if you catch the witness in a lie. Usually, attorneys who “wing it” on cross-examination are ineffective – or worse – become victims of their own questions.įor the overwhelming majority of us, preparing cross-examination in writing is essential. More likely than not, you are not one of these lawyers. There are a handful of lawyers who are so gifted, they can make up cross-examination as they go. Make Sure You Have a Cross-Examination Plan.Įvery cross-examination should be planned. Otherwise, you may undermine the helpful information you want from the witness. If your goal is both to elicit important testimony from an adverse witness as well as destroy her credibility on other points, then elicit the helpful testimony before you have destroyed her credibility. Is the primary purpose of cross-examination to attack the witness’s credibility? Is it your plan to have the witness concede key facts you will not be able to obtain from other witnesses? Is it your plan to have a particular witness confirm key elements of your own case? As Yogi Berra once said, “if you don’t know where you are going, you will wind up somewhere else.” Make sure you know where you are going. In developing your cross-examination plan, determine what your goal is. Accordingly, before you open your mouth, evaluate whether a particular witness should be cross-examined at all or whether it makes more sense to move on.
Likewise, even important witnesses, who are not likely to be shaken from their direct testimony, should not be cross-examined as you will only reinforce the testimony through your questions. Witnesses who present only foundational facts should not be cross-examined. Asking no questions of a witness can minimize the importance of that witness in the juror’s eyes, as you obviously did not feel the testimony was significant enough to challenge. Asking a few harmless questions of a witness only suggests to the jury you believe the witness is worth questioning. If cross-examination of a witness does not help your case, then let the witness go without asking a question. But, often, cross-examination will add nothing to your case. Many lawyers launch forth like lemmings jumping off a cliff and cross-examine witnesses without asking the question: do I need to cross-examine this witness? Some lawyers believe they are not doing their job if they do not ask at least some questions of a witness. The following eight steps will help you create effective cross-examination that will advance your case. Unfortunately, most lawyers do not cross-examine witnesses well and forget that the purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. While direct examination may be the hardest – and most important – part of any trial, cross-examination is usually the most fun.
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