Chapter 4 – Cross Examination (continued)
- Do not repeat your opponent’s direct examination. Why have the trier of fact hear it again?
- Primacy and recency. As discussed in Chapter two, your first group of questions and last group of questions should be your strongest.
- Have your cross, establish a few strong points. Ask yourself, is this an area that I will want to discuss in closing or is it peripheral?
- Lead, Lead, Lead. If the answer is that important, lead the witness to it by asking questions that are answered either yes or no.
- Make a statement and have witness agree with it .
- Short concise questions
- Obviously, you want to avoid open ended questions and only ask those ,if the answer is unimportant.
- Keep control of the witness and keep control of yourself.
Chapter 3 – Cross Examination – Yes or No?
Cross-examination is the most anticipated part of most trials, which many writers call an art form. But the first question that needs to be asked, is whether you should cross-examine at all? Examination is not required of every witness and the attorney shows the judge (or jury) a certain amount of confidence, by stating “ we have no questions for this witness”. Ask yourself the following, before rising to commence your cross-examination.
- Has the witness hurt your case? Witnesses who merely establish a foundation or a technical element may not need to be examined further.
- Is the witness important? When the witness has a significant role, some type of cross-examination may be required or it may invite a negative comment in closing argument by opposing counsel.
- Was the witness credible? The witness may have contradicted your opponent’s other witnesses or simply not be believable.
- Did the witness give less than expected on direct examination? Possibly, an important part of his or her testimony was omitted. Why open the door? Possibly, the witness purposely withheld portions of testimony hoping that you would pursue it on cross.
- What are your realistic expectations on cross? Do you have any real ammunition to use during cross? If you can’t score points, avoid a cursory inquiry.
- What risks do you need to take? You must always do a risk/benefit analysis. There are very few perfect cases. Therefore, trials always involve a calculated risk. If you have a winner, you want to keep risks at a minimum. If you have a loser, you may need to go for it during cross.
Remember the purpose of cross-examination is to either elicit favorable testimony or to destroy or discredit the witness. Keep that it mind, in your analysis as to whether to cross at all.
START STRONG, FINISH STRONG:
The Primacy/Recency effect is the observation that information presented in the beginning i.e. Primacy and the end i.e. Recency of a learning episode tends to be retained better than the information presented in the middle
This applies to public speaking as well as to your persuasive writing. As my journalism professor described it as “the Hook (primacy ) and Hammer (recency ) “ . A great example are the writings of opinion columnist Leonard Pitts , Jr.
One need to consider Primacy/Recency as a part of their litigation toolbox. In your Opening and Closing statements, studies have shown that you have 30 to 60 seconds to get your listeners attention . Let the listener ( Judge /Jury) know why it is important for them to keep on listening. End strongly with a memorable quote, call to action or a message that will keep the listener ( Judge/Jury) thinking long after you have finished your remarks .
I would also suggest that Primacy/ Recency also applies to your order of calling witnesses as well as your Direct and Cross Examinations of those who are called to testify. If the judge allows it, try to call your strongest witnesses, first and last . In your examination of witnesses, particularly cross examination of an adverse witness, your first set of questions should be your strongest set of questions . The first line of questioning should be so strong that the adverse witness starts talking to themselves . And end your questioning with your second strongest set of questions literally knocking themselves out of the witness stand .
START STRONG, FINISH STRONG.
Credit: Various studies on primacy and recency.