The Basics of Cross Examination
By Eddie Stephens, Board Certified Marital & Family Law Attorney
I have seen some brilliant cross examinations. There are a number of family law attorneys that can cast doubt on any expert’s conclusion or effectively challenge a lay witness’s recollection through a good cross. What better way to present a custody issue than to have a parent lose their temper before the Court, or contradicts themselves, upon effective cross examination? Some say this is an “art”.
Despite the talents of the individual attorney, every effective cross examination has basic elements. An effective examination requires knowledge of the case, preparation and strategy. By breaking down the process into individual basic steps, one is more likely to create a cross examination with impact and one that weaves the theory of your case into your presentation.
Most Courts will require or allow you to elect pre-trial procedures by which all witnesses, fact and expert, must be disclosed. It is important to depose all essential witnesses. When the opposing party overwhelms you with the disclosure of multiple witnesses in duplicative areas, a motion to strike redundant witnesses or a motion for attorneys’ fees for unnecessary litigation can be effective cures.
If your client does not wish for you to depose witnesses, or if it is economically unfeasible to subpoena, depose, and then order transcripts of witnesses, be sure to inform your client in writing of the risks of proceeding to an evidentiary hearing without conducting the necessary discovery.
The first and most essential rule in trial advocacy is “never ask a question you don’t know the answer to”. While there are exceptions to this rule, it would certainly impair trial prep not to depose the opponent’s fact or expert witnesses. How can you effectively challenge an expert’s opinion without the ammunition of a deposition and a strategy as to why the ultimate conclusion is flawed? How can you appreciate how a “good dad witness” came to their observations? Furthermore, we all have asked our client who a particular witness is and what that witness may have to say; memories are flawed, and often the client will forget something key. If you don’t depose the witness, you don’t know, for certain, what they are going to say.
The purpose of the deposition is to lock the witness into testimony. In family law cases emotions run high. There are many invitations for an attorney to be pulled into the drama often unfolding before your eyes. As an attorney, you are not there to argue with a witness in a contested custody case or disprove the forensic accountant’s conclusion. You are there to gather information, to be used to disprove the opposing party’s case.
Once the information is gathered, pieces of it can be organized in a fashion consistent with your theory of the case. A skilled attorney can weave nuggets found in a deposition into an examination that aids in painting the big picture for the court.
For example, if custody is an issue, I typically ask the opposing party the following questions during deposition:
- On a scale from 1 – 10, 10 being highest, how do you rate your spouse as a parent?
- What safety concerns do you have that relate to your spouse’s care of the children?
- What is your spouse’s best feature as a parent?
- Does your spouse tend to the children’s needs?
An effective cross examination calls for leading questions where the witness’s response is either yes or no. Based on the witness’s responses, one can construct a cross examination that tells a story. The story is told by questions and affirmed by the witness. For example I might ask a husband:
- Isn’t it true your wife tends to every need of the children?
- You have no concerns for your children’s safety when they are with their mother?
- On a scale of 1 – 10, 10 being the highest, your wife gets a 9?
- Yet you are asking this Court for a majority of time sharing?
This last question violates the basic rule. But one exception is a question where the answer doesn’t really matter. This type of question often catches the party off guard and provides a nice transition for your next area of inquiry. Once a witness is off guard, if you have discovered any personality traits about the witness, that would be the time to try to exploit them.
Cross Examination Basics:
On direct examination it is usually the witness that paints a picture often by providing narrative responses. On cross, the attorney must skillfully dissect that story and present the facts by using leading questions to change the tone of the witness’s testimony.
Have a purpose for your questions. Be professional. If a witness loses their cool, do not be tempted to engage on that level. Once you have made your point, stop asking questions. Many a legal theory has unraveled because of the overzealous efforts of the attorney who asked too many questions when they already have achieved their goal. If there is no reason to inquire on cross examination, don’t.
Don’t spend too much time trying to entertain the Court. Get in – get out. In the present environment, judicial time is as a premium, so don’t waste it!
Once you catch a witness in a lie, a Court is likely to disregard their testimony as non-credible. Presenting that lie to the Court is a technique known as “impeachment”. To properly impeach a witness, you must have previous sworn testimony that is inconsistent with the present testimony of the witness.
At trial, the husband testifies that he has concerns that mother is drinking while caring for the child. Yet at his pre-trial deposition, the Husband testified as follows:
Q: Do you have concerns about your wife’s drinking?
Husband: You bet I have concerns. She gets blitzed when she drinks.
Q: But this has never occurred in the presence of the child?
Husband: Well no, but you should have seen her at her brother’s wedding!
Q: But she never drinks in front of the child?
Husband: No, never.
The appropriate impeachment method would be to have the witness commit to his new trial testimony and then perform the following exercise:
Q: Did I understand your testimony on direct that you have concerns that the Mother is drinking while caring for the child?
Q: And you understand your duty to tell the truth?
Q: It’s the same duty you had when I took you deposition?
Q: And isn’t it true on line x, page x, you had no concerns that your Wife drinks in the presence of the child?
This example is simplistic and method is basic. But it is effective, concise and quick. All too often attorneys are struggling to prove the witness is not being truthful. Time constraints during trial often change the nature of your cross-examination. Whereas your plan may have been to slowly circle a witness into impeachment, you may have to shorten your questioning and get right to the point if you are running out of time or the interest of the Court. It is important to remember you can only impeach a witness with their own testimony; it is improper to attempt to impeach a witness with another person’s testimony.
If you are not challenging the qualifications of an expert, do not allow your opposition to recite the expert’s credentials. Stipulate to them immediately. If opposing counsel persists they risk irritating the Court by asking questions that are redundant and no longer germane.
Find an error in the expert’s opinion. Consult with an expert of your own. Courts are unlikely to be impressed with a lengthy attack on superficial aspects of an expert’s report. It would be better to find 3 or 4 significant flaws and present them.
If on cross, the expert admits to his mistake, the following questions should be asked:
And that fact was relied upon you in your report?
So if that fact was wrong, that must mean your conclusion is flawed?
These two questions will articulate your point without beating a dead horse.
We have all seen opposing counsel struggle to make a point, or continue to cross a witness who is not providing the response they seek. You can avoid being one of them by preparing for and developing a strategy to cross examine a witness and using a little common sense. Once one has mastered the basic elements of cross examination, then one can work on the “art” of it.