3/10

The title refers to 3 questions you need to ask yourself before cross examining and 10 commandments to follow on cross examination. Just following this simple formula will allow you to be able to conduct a good cross examination or simply say confidently, "no cross, your honor."

3 Questions to ask yourself before cross examining:

Q1. Do I want anything from this witness?
Q2. Can this witness say anything to help my case or client?
Q3. Has this witness said anything to hurt my case or client?

If your answer to Q1 and Q2 is a yes but your answer to Q3 is a no, sit down and shut up after saying "no cross, your honor."

One fundamental truth to remember on cross examination is that the witness is not your witness. Presume that the witness is prepared for your cross; presume that the witness will not be willing to help you; presume that the witness will not willingly admit to lying, especially lying under oath; presume finally that the witness believes that s/he is telling the truth.

Remembering all these things will put in perspective any cross--it is far too dangerous to go fishing for information from a witness whose answers you are not familiar with. So, if the witness has not said anything to hurt your case or client but you simply feel that the witness may help you with information, weigh the risk of the witness being anything but cooperative and take the better part of discretion by shutting up.

But if your answer to Q1 and Q2 is a no but your answer to Q3 is a yes, by all means, cross.

10 Commandments of Cross:

1. Know what you want from the witness.

Among the most painful things to watch in a court room is a counsel cross examining for the sake of cross examination. The questions are frequently 5Ws and 1H questions--yep, direct examination questions. And, of course, we know what the witness on cross will do when you ask for information--s/he will give it to you.

2. Never ask a question you do not know the answer to yourself.
3. Never ask anything but a leading question (well, hardly ever).

The second and third commandments are interrelated. You are allowed to lead on cross examination but you cannot hope to ask a leading question if you do not know the answer yourself. Remember that a leading question is one that contains or suggests the answer. Cross examination is not the time to ask for information from the witness. It is the time to put the answers you want in the mouth of the witness.

Note that the best leading questions are statements. Answers come in the form of statements and so lead the witness by simply putting the statement in the mouth of the witness; if your opponents asks, "is there a question there, your honor?", you may simply repeat the statement and end with a lilt at the end and perhaps a cocked eyebrow.

4. Be brief.
5. Use plain words.

The fourth and fifth commandments are also interrelated. Many a cross has floundered simply because the cross examiner is weighed down by the weight of the words s/he chooses and not by the answer s/he intends to suggest by it. There is no compelling reason to ask long questions nor use words that are complicated or complex. The best leading questions are those that are short and direct to the point. Use words that are one syllable long, two at the most, three on rare instances, four hardly ever. Anything longer and more complicated than this might confuse the witness as to what answer you are suggesting.

6. Listen to the answer.

While you may want to build up a pace or rhythm, it is essential that you listen to the witness. While you may be putting words in the mouth of the witness, you still need to listen to his/her answers. Failure to do this will mean the difference between the witness being led or you being objected to for being argumentative. For instance, "you were there at three pm?" (witness says, yes, which is what you expected) "and you were there with your friends?" (here you might be expecting a yes, but witness says no; but because you're not listening, you ask) "and you and your friends did nothing?" (the objection will be made at this point and it will most likely be sustained).

7. Do not quarrel with the witness.
8. Never answer the witness.

The one thing you want to have on cross examination is control of the witness and the situation simply because the witness is not yours. Many witnesses will engage you in arguments or be openly hostile; or the witness may ask you rhetorical questions. Engaging the witness will distract you and diminish your control of the witness and the situation.

When the witness quarrels with you or asks you questions, stop, take a breath and politely but firmly inform the witness that you are not there to quarrel with him/her or to answer his/her questions and that you would greatly appreciate it if your question could be answered. If the witness continues to quarrel with you or ask you questions, politely but firmly call the Judge's attention.

9. Never allow the witness to explain anything.

Again, remember that the witness is not yours. S/he will have information you do not want; s/he will give answers you do not know or want. So, lead the witness but do not make the witness your own.

10. Avoid unnecessary questions.

Many lawyers succeed in catching the witness in a lie or with inconsistent answers but because of excitement or just plain ignorance, allow the witness to escape by asking totally unnecessary questions. For instance:

"Mr. witness, you said earlier on direct examination that the car you saw was blue?" (yes)
"In your sworn statement, you said under oath that the car you saw was red?" (yes)
"You are referring to the same car?" (yes)

Note that the witness has now been caught with what appears to be a major inconsistency as the car cannot be both red and blue. This is a perfect time to stop but frequently cross examiners, probably in their excitement, proceed to ask the unnecessary question, thus:

"Now, Mr. witness, can you please explain to the court how this same car could be both red and blue?"

Believe me, he can. And, having asked that question, the Judge would allow him to.

Telling stories

Many lawyers consider direct examination boring; I used to, when I was starting out. Part of the reason was all those lawyer movies where the most exciting stuff happens during cross examination. When I started to really handle cases, I realized just how exciting--and important--direct examination is.

Direct examination is that part of trial where a story is told, particularly your client's. What spells the difference is how effective you are on direct examination.

A good story is one that holds the interest of the listener; and the most important listener in that court room is the Judge. The challenge is how to hold the judge's interest. Effective direct examination ensures that your client's story will be told and will be told well.

Here are 10 tips for effective--and, yes, exciting--direct examination.

1. Come up with a theory of your case. A theory is not necessarily the cause of action but it must incorporate your cause of action. Your theory is the most plausible explanation of what really happened and why the court should rule in your client's favor. (T. Mauet, Fundamentals of Trial Technique [1988]) A good theory takes into account all the facts--good and bad--and weaves these facts together into an explanation that the judge will find logical and plausible.

2. Present the judge with an image. A noted trial lawyer during his time, former Senator Jose W. Diokno, clearly well-ahead of his time, very wisely commented that "it is not enough as the law book tells you to have a theory of your case. You must also have an image of your case–something that appeals to the reason and sense of justice of the judge, something that would make him say, 'Indeed, this person is right and if the law isn’t that way, maybe I can interpret it so that it will be that way.'” (Jose Manuel I. Diokno, Jose W. Diokno on Trial: Techniques and Ideals of the Filipino Lawyer [2007])

Both your theory and image should be simple, logical, consistent with human experience, provable by the evidence you have and strong enough to withstand your opponent's own theory and image. Remember O.J. Simpson and the gloves and Johnnie Cochran's by-now classic rhyme, "if it don't fit, you must acquit"? That was theory and image coming together, powerfully. Of course, we all know what happened to that trial and to O.J.

3. Determine which witnesses will establish your theory and in what order you will present them. Knowing who to present during trial is almost as important as which questions to ask the witness during trial. Of course, if you are fortunate enough to have eyewitnesses or a complainant who can testify, this will not require much thought. But we don't always get these witnesses, as frequently, we get witnesses who can only testify to one, but not every, part of your theory. Starting with the best witnesses will determine how effectively the theory and image can be presented. One quick and simple rule of thumb in determining who to present: start strong, end strong.

4. Ask the best questions. The most effective direct examinations involve the lawyer asking all the best questions. The best questions are the simplest, shortest and most comfortable (at least to the lawyer) questions he is capable of asking. There are two parts to this: first, ask the best questions during your interview with the client or witness and second, based on that interview, ask the best questions during the trial.

5. Know what your witness will say and how s/he will say it. A traditional cross-examiner's tactic is to rattle the witness by asking, off the bat, if the witness talked to you, his/her counsel, before testifying. What this question seeks to instill in the witness is a sense of irregularity if s/he had, indeed, spoken with counsel. In truth, there is nothing unethical or wrong with speaking with your witness before the trial; on the contrary, it would be irresponsible for counsel to not speak with the witness before presenting the witness. What is unethical would be for counsel to tell the witness what to say. During the preparations for his/her testimony, you should ask the witnesses to answer your questions based on how they understand your questions--without commenting on or reacting to their answers at first. This will allow you to see what the witness will say and how s/he will say it.

6. Use the 5Ws,1H. Who. What. Where. When. Why. How. Not necessarily in this order, though. The advantage of using the 5Ws, 1H is that you will rarely be accused of asking leading questions on direct examination.

7. Learn to loop your questions. "Looping" is the practice of using the witness' previous answer as the premise for your next question. For instance, "You said that you were at (place and time), what were you doing there? Two advantages of "looping" your questions are: (1) you will hardly ever be objected to on the ground of "no basis" and (2) your witness' testimony and story will become very familiar to the judge because specific details will be repeated.

8. Use your voice and body well. What spells the difference between boring and exciting direct examination is frequently how you sound and how you look when asking your questions. Be conscious of how loud (or soft) your voice is, how comprehensible (or incomprehensible) your words are when speaking in public. Be conscious of body language--particularly yours. Rehearse your speaking voice, inflection, tone and even posture and body movements. Know when to move around a lot and when not to. For instance, standing perfectly still while a witness tears up on the stand will focus the attention on the witness, not on you.

9. Prepare any documents you need to present before the trial. Use an Exhibit Guide and an Exhibit List. If you are marking any documents, put small tabs or post its with the proposed marking on the documents; if you have many documents, make sure they are all separately stapled or clipped. Being aware of the Best Evidence Rule, make sure you have the originals and photocopies; if you do not have the originals, make sure you have legible copies and make a note to yourself to ask questions to lay the basis for secondary evidence. Make use of clear books or clear files to separate documents you will be presenting and those that will remain in your file.

10. End confidently and well. Before saying, "that's all, your honor", take about 10 seconds to quickly go over your outline or questions to make sure that you have covered everything you wanted. Check points you have covered and make sure to ask questions on the points that are not checked. After asking the last question, allow about 2 seconds from the witness' answer before nodding confidently and declaring, "that's all, your honor."

Prologue

Another blog? Yes, another blog; but this time, a blog that will focus on two things I like to do--try cases and teach law.

For the civilians (read: non-lawyers) out there, don't worry. It won't be an exercise in figuring out the meaning of polysyllabic and archaic words. The intention is to make litigation more real and more practical by way of anecdotes, vignettes, practical tips and guidelines combined with appropriate cases, rules and law.

This will be an experiment in making litigation fun. Hope you'll come along for the ride and do feel free to pass the word.