Hammering Home Points
Through Cross-Examination
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Skillful Counsel Elicit Truth, Avoid Subtlety
Daily Journal Extra - Sep 29, 2003
Column- Trial Strategy
By A. Barry Cappello
Litigators, especially those without a lot of experience, often fail to get the most from cross-examinations. They either lack the confidence to go in for the kill - afraid that strong questioning might raise objections from opposing counsel, causing a court rebuke in front of the jury - or they are satisfied with an answer from a witness that is too subtle to be of value.
This problem is common. Far too many litigators who want to avoid the appearance of being aggressive, stereotypical attorneys hold back on cross-examination.
They hope to get the answers they want, but because they do not hammer the point home, even critically important answers lack lasting significance if their subtlety fails to make an impact on jurors.
Attorneys may review the court transcripts later and realize that they did not go far enough to make their points, but by that time, it is typically too late to change juror perceptions. By the time they attempt to use the information gleaned during cross-examinations in their closing arguments, no one can remember its significance.
Jurors expect attorneys from both sides to make key points crystal clear. Unfortunately, instead of pounding a critical point home, the strike of the snake is often without venom, and the questioning fails to damage the witness or opposing side.
How can attorneys determine how far to go? Some attorneys fear that, if they ask too many questions, they give witnesses an opportunity to regroup and try to clean up their answers.
This fear is unfounded. As soon as a witness attempts to wiggle out of a previous answer, the attorney can merely state to the jury, "What is it, x or y? You said x before; now you're saying y. Which is it?"
Although the court can construe this response as argumentative, by asking these questions, the attorney has sufficiently made the point in front of the jury without the witness having to respond.
Attorneys know they have gone far enough during a line of questioning when the point has been so strongly made that they believe even a 10-year-old child could understand the meaning.
This happens when the key point is made so clearly that the jurors can talk about the point later in the jury room with confidence.
Moreover, because jurors often ask to review the court transcript when deliberating, attorneys must be certain that the point is just as clear in written form as it was when spoken in court.
Just as in comedy, in cross-examinations timing is everything. Attorneys should not ask a key question suddenly while the jury is bored or focusing on another subject. Important questions can and should be phrased in such a way that the jury is anticipating the answer.
Experienced trial lawyers build up to the knockout punch by asking a series of questions that allow jurors to anticipate where the attorney is headed. When attorneys build up to the key question, jurors begin leaning forward in their seats in anticipation and become engaged in the trial: They think, "Gee, this is interesting. I wonder where he's going with this?"
After asking the question and getting the desired answer, the attorney should repeat what was said for emphasis: "You mean to say x?" The jurors then think, "X sounds like an interesting area. It must be a big deal."
By this time, the witness realizes that a trap has been laid, but it is too late to recover. The jurors watch the witness and opposing counsel vainly try to mitigate the damage done.
Probing and forceful questioning can make even the most boring business case interesting. A passive attorney trying a dry case is every juror's worst nightmare. It is much like watching uninspired performers in a poorly written play.
How can you pull the answers you want out of an opposing witness? One way is to size up the witness before cross-examination, either during deposition or by asking a number of "softball" questions before getting to the meat of the testimony.
To do this, determine whether the witness is a "yes" person or a "no" person. A yes person tends to say yes to almost anything that is asked. Conversely, a no person tends to say no to almost everything.
Armed with this information, the attorney can structure appropriate questions. If the attorney has a "no" witness or keeps asking the witness questions and keeps getting a "no" response, the attorney can phrase the important question so the right answer is a negative. When the question is asked, the witness likely will respond in the negative - the answer for which the lawyer was looking.
Eventually, however, the witness catches on to this technique so it should be saved for only the most important questions.
Witness personality is also important. The attorney can determine the witness's personality during deposition or when warming up the witness on the stand with light questioning. Attorneys can see whether a witness is willing to work with the attorney or will fight on every single question.
Typically, the bigger and smarter the player in a case, the easier it is to have him or her say what is needed. Experienced business litigators cannot wait to have the head of a company take the witness stand. Chief executive officers are often too smart for their own good. No one really challenges them at their offices. They seem to think, "Who is this lawyer asking questions? If I can handle my board of directors, I can handle him." They often wave off their attorneys' attempts to prep them for the witness stand, claiming they are too busy or do not need the lawyers' guidance. This arrogance typically means they are more susceptible to slip-ups during aggressive cross-examinations.
Some lawyers may think that all this pushing and prodding of witnesses could alienate the jury. On the contrary, jurors appreciate lawyers who fight for their clients. They do not respect meek lawyers. While jurors do not approve of an attorney who badgers a witness, they admire attorneys who are willing to get the answers needed to learn the truth.
Cross-examination is the crucible of truth. Attorneys therefore owe it to their clients never to be satisfied with a "good enough" response.
A. Barry Cappello is the managing partner of Cappello & Noël in Santa Barbara.
© 2004 The Daily Journal Corporation. All rights reserved.
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