14 August 2008

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.

3 comments:

shockresist said...

wow, these are all real gems of knowledge coming from a legendary trial lawyer. unfortunately, i dont practice any litigation, so i can't take advantage of these tips. but they are still very interesting to read! i'm eagerly awaiting your series on law teaching!

Jan Robert Ramos Go said...

nice sir! this inspires me more to apply for law. :D

robert

areiz said...

Thank you for this! I hope you also share the usual "one liners" that are acceptable in court and that are nevertheless effective in communicating what you mean for the meantime, like what you have said, "no cross, your Honor."

Mabuhay ka!